You have thirty days to appeal a family court decision in Texas. For the most part, appeals are very difficult across the board in family law. I am not aware of many folks who have appealed a case and have been successful in doing so. However, you may find yourself in a position where you have no alternative but to attempt an appeal. For that reason, I want to walk all of you through that process in today’s blog post.
An appeal of a civil case in Texas (of which family cases can count themselves) is based not only on your disagreement with some aspect of your trial. Rather, you must also show that the judge failed to follow the law or that he overstepped his bounds to applying the law to the evidence set before him in your trial. If you are at all familiar with any of the blog posts that we do on this website, you know that family law cases often times come down to the specific circumstances of your case, as opposed to the specifics of family law. This means that family court decisions often times hinge on your judge’s personal interpretation of the evidence. Appellate courts typically afford judges in family cases a great deal of leeway to make decisions.
If your position is that your spouse’s mother was not an honest witness when she testified about your history of alcoholism, then you may feel justified in appealing your trial's outcome due to the judge had relied too heavily on her testimony. However, keep in mind that the judge is given a great deal of latitude to believe each witness as much or as little as he or she wants. The law is what it is, and the judge must follow it. With that said, you can disagree with the judge and ultimately what you are disagreeing with is their interpretation of testimony or evidence. As long as it is conceivable that the judge could honestly believe what she said that she did, a successful appeal of your case will not be easy.
What to do when an associate judge hears your case in a trial
In some instances, your final trial may have been argued in front of an associate judge rather than a district court judge. The district court judge is elected into that position and then will choose an associate judge to help him or she hears cases- usually in more routine hearings before the court as opposed to trials. However, if you do have your case heard before an associate judge and you want to appeal the decision issued you may do so. This is known as a "de novo" appeal and does not carry with it the same requirements as I laid out previously on a typical appeal of a civil court decision. An appeal must be filed within three days of your trial.
Modifying final orders in Texas family law cases
Family courts (as most courts tend to be) are rarely excited to change a court order unless the situation absolutely warrants it. In Texas family cases, a court will typically want to wait at least three years in order to issue a modification of some aspect of the order. The specific standard that a court would look to is a material and substantial change in the circumstances of you, your ex-spouse or your child in order to justify changing an already established order.
I think the most commonly requested modification in a case involving children is a request to modify child support. That modification could either be to increase or decrease the amount of child support paid, depending on the circumstances. In the Texas family code, we can see that child support modification are justified when the modification would result in a change in the amount paid that is either greater than 20% or $100 more or less than the current amount being paid.
Otherwise, if you are not asking for a modification of child support there is much less guidance available for you to consider prior to filing your lawsuit. It really does come down to a case by case basis to determine what you want to do. For visitation and possession issues, modifications are frequently filed because your working hours may have shifted in such a way that your prior possession schedule is no longer workable. In some circumstances, your ex-spouse may have started dating a person who has a criminal history involving crimes against children. A modification to protect your child and bring this update to the attention of the court would be well justified.
Another fairly common situation is with the changes in the health care laws in recent years, you may no longer be able to pay for health insurance for your child. As such, if your ex-spouse has had to take on that responsibility you may want to file a modification case to put this change into writing. Setting forth in writing and getting the judge to sign off on the official arrangement that your family has is a good idea, in my opinion. Remember that just because your ex-spouse is working with you on something right now does not mean that he will always remain so agreeable. You do not want to put yourself in a position where your ex-spouse refuses to continue to pay for health insurance and you have no recourse because your final orders state that you are the one who has to pay the insurance.
Modification cases do not walk in the park
I can see why some would think that modification cases are "easier" than the divorce itself was. After all, most of the theoretical work has already been done in your divorce. You are just attempting to tinker around the edges of the order so that they can be updated to take into consideration current events.
In actuality, a modification case is much more similar to a divorce case than many litigants give it credit for. For one thing, by arguing about many of the same issues that were argued in your original case, you are bringing up bad memories and sensitive subjects that had been buried away for years. Coming face to face with these issues can uproot old emotions and hurt feelings which can lead to a pretty nasty fight in some circumstances.
If you figure that the outcome of a modification case can't be any worse than your divorce was you may be wrong about this as well. In some cases, a divorce may be wrapped up quicker than it should have been just because you and your spouse become fatigued at dealing with the issues and with each other. As a result, problems that should have been dealt with directly years ago have been festering and are only seeing the light of day now that you filed a modification lawsuit.
One thing that I can tell you from experience that is necessary as far as changes are concerned is that you need to be able to change your relationship with your spouse when you get a divorce. At first glance, this may seem like something obvious. A divorce means you are ending a relationship, after all. What is there left to change when you have made the most dramatic change possible in a marriage?
What I would say to that is that if you have children with your ex-spouse you need to be able to change your relationship to that of a business partner rather than an angry or emotional ex-spouse. All the emotion and heartache associated with the divorce needs to be put on the back burner when you are dealing with issues regarding your child. That child only wants to be loved and cared for. Their concern level about the failings of your marriage is zero. If you find yourself experiencing issues with the final orders of your divorce as a result of your failing to move on from that relationship you may want to work on this first before filing a modification lawsuit.
What are the costs associated with a modification lawsuit?
One of the most commonly asked questions that I receive regarding modification lawsuits is how much I expect the average modification suit to cost. Many folks who have been through a divorce or prior child custody case would expect the modification case to be less expensive because the issues have already been narrowed down and there is already an order to operate off of. In some circumstances, this may be true, but it could just as easily not prove true for your case.
While selecting an attorney who fits with your budget is a smart move, the costs of a modification case can often be as much as your divorce. The issues from your divorce have not gone away- they are now up for reinterpretation and debate. Add in old emotions from your divorce, concern for your child and the desire to “win” the case and you have a recipe for a long and sometimes costly family lawsuit.
My advice is to look at your case as objectively and logically as possible. Of course, it is easy for me to say that. I am not the one living life in your shoes and having to deal with the circumstances that you are working through. However, if you can separate yourself from your case to a degree and analyze things as a person who is dispassionate and objective you will have a much better outcome. Sometimes avoiding the filing of a lawsuit in the first place is the best outcome that you can have.
When does the Office of the Attorney General get involved in family law cases
If you have family court orders already in place and file an enforcement or modification lawsuit you may find that a new party is added to your case that was not there before. I am talking about the Office of the Attorney General. Many parents will contact the Attorney General and ask them to file a modification or enforcement lawsuit on your behalf. Keep in mind that even if they do so at your request, they do not represent you or your interests. Their representation is of the State of Texas and their interests.
If you are not in a financial position to hire an attorney and do not have a deadline to file a modification or enforcement by, then the Attorney General can provide you with a great deal of support and help. For the most part, however, if your case involves atypical circumstances it is best if you have an attorney to represent you. The reason being is that the Attorney General will not investigate their circumstances all that deeply and you may be left with an order that is no better than the one that you sought to modify.
If you are a father and have had a modification lawsuit filed against you by the Attorney General then you need an attorney. Even if the Office of the Attorney General does not specifically represent your child’s mother, her interests are basically in line with those of the State of Texas. As such, you need your own advocate to represent you in court.
Questions about family law cases in Texas? Contact the Law Office of Bryan Fagan today
If you have any questions about the material that we covered today or need clarification on something that you have read please do not hesitate to contact the Law Office of Bryan Fagan. Our licensed family law attorneys offer free of charge consultations six days a week where you can have your questions answered and issues addressed directly by an attorney who represents clients day in and day out in family courts across southeast Texas.
Our office takes a great deal of pride in being there for families just like yours and that is what drives us to achieve the best results that we can for our clients. If you don’t know where to start or are just seeking some information about family cases in general, there is no better source to speak to than the Law Office of Bryan Fagan.