Book an appointment using SetMore

Clarification of standard custody for temporary orders in a modification suit

In a divorce, child custody, or modification case in Texas, the temporary orders phase is the lengthiest and most crucial part. While working through the issues specific to your circumstances, you and your co-parent will continuously adjust to life and its changing circumstances. What you want about your children is peace of mind that what you are doing is in your child's best interests. Unfortunately, peace of mind can be challenging to come by when you consider that the two of you may have competing interests. Not seeing eye to eye with them may have been what led you all to the family courts in the first place.

Developing a strategy and a game plan for approaching the challenges of a family law case is essential, in my opinion, to achieving favorable results. Doing so without the assistance and guidance of an experienced family law attorney is particularly difficult when you consider that just because you have a family law case going on, that does not mean the rest of your life will take a break. You will still have responsibilities to your family outside of the case, your work, your extended family, your health, and any other specific interests and your situation. Most of us do not have the time, not to mention the experience, to tackle a family law case independently.

That experience is something worth having is a point I would like to emphasize in today's blog post. This family law case will be the most critical moment for many of us in the next ten years of our lives. Being able to chart a course for your family, address sensitive issues directly and correct wrongs or abuses from your initial child custody or divorce case is very important. Combine these realities with the fact that your opposing party will be working just as hard on their case, and you are on yours. We have potentially high stress and high stakes matter that could determine the quality of life for you and your kids over the next several years.

An experienced family law attorney does not make decisions for you or strip you of any ability to do what you want when it is all said and done. Instead, an experienced family law attorney is there to perform a few essential functions. First, the attorney will be there to provide you with guidance and advice regarding every topic in your case. While your focus may be on just a few areas, the attorney you hire will be responsible for helping you to make decisions and navigate the sometimes choppy waters of a family law case. Your lawyer will have seen patients and circumstances like yours before. They should benefit from seeing what has worked for others and will help you implement those best practices into your case.

Child Protective Services and temporary orders

Child Protective Services (CPS) does not need to be involved in a case for emergency temporary orders to be sought. CPS can be investigating your family due to allegations regarding abuse or neglect of your child. A situation that comes up from time to time occurs if CPS tells you that you will not lose custody of your child if you seek a temporary restraining order against your spouse, partner, or another person in your household. Removal of your children is not something that you want to go through. A TRO filing can help you retain custody and keep the kids in your home even if CPS does get involved in the case.

If your child needs protection from your spouse or co-parent, who can file a motion for a TRO?

CPS, you, and potentially even a grandparent have the standing necessary to file for a TRO. Keep in mind that a person cannot file for only a TRO. Instead, a TRO must be filed with either an original Suit Affecting the Parent-Child Relationship, Modification, or Enforcement case. A TRO can be sought after one of these cases has already been filed or concurrently as each lawsuit is filed.

If you file the TRO, you need to be prepared to accept primary conservatorship of your children at least temporarily. A TRO will make day-to-day care of your children very difficult to impossible for your co-parent. For that reason, you will be the first person to care for the kids consistently if the TRO is granted. If you have CPS involved in the case, they will come to you if your child is removed from your co-parent's home. You may need to prepare to care for your children in your home in advance. Do you have clean clothes, food, and transportation ready for them? Although you will not have much time to prepare for these events, you should take every opportunity to get prepared if your children need to live with you for an extended period.

How can a TRO protect your child?

In an emergency where your child has been harmed previously or is at serious risk of harm, a TRO can be sought to help your child, and you stay safe. What a TRO is from a legal standpoint is a court order that requires a person not to do certain things specified within the TRO. Examples of things that would be barred include harming your child, unenrolling your child from school, or trying to leave the State of Texas or your home county with your child.

What about a protective order? Can you seek one of those as well?

A protective order is another option to consider when it comes to methods that you can utilize to help keep your child safe. In situations where your child has been abused- physically or sexually- a protective order may be an option for you to pursue. The part of a protective order that may be more "protective," so to speak, is that it is criminally enforceable. This means that police and other law enforcement bodies can get involved if a situation becomes dangerous for you or your child.

Judges are somewhat hesitant in many cases to issue a protective order when a TRO would suffice as far as being able to keep your children safe. The reason being is that a protective order would completely sever a co-parent from your child's life. A TRO still allows contact between parent and child. A protective order may not be the best option for you to seek, bearing in mind that your child could have been the victim of a parent who has a problem with substance addiction or an unsafe home environment. These are conditions that are more chronic than acute. An acute situation is one where a protective order may work better because the state arose suddenly rather than being some that has been a low-grade issue for a continuous period.

Do you need to notify your co-parent if you seek a TRO against them?

If you seek a TRO against your co-parent, you do not need to notify them of your having filed a motion or regarding the hearing itself. In most family law cases, notice is required before a hearing or even after a filed lawsuit, like child custody or divorce. A TRO is intended to be granted quickly rather than after a more extended period. An ex-parte hearing where your co-parent is not present and no notice has required the norm regarding this. You can often obtain the TRO on the same day you file it.

How long does a TRO last?

One of the other aspects of having a TRO that you need to be aware of is that it will only last for fourteen days once granted. A TRO is intended to act as a quick way for you and your child to stay safe while the main case that has been filed takes shape. You can use this time to notify your co-parent of the pending lawsuit and TRO and to set the point for a hearing so that you can speak to the judge. A TRO can become a temporary injunction which will have staying power until the end of the case. However, you can only do so after a hearing where you can attend. Additionally, orders can be added in this hearing, including custody, visitation, and child support. Your co-parent can present evidence as to why the TRO is no longer appropriate.

What to do if you are served with a TRO?

Being served with a TRO is different than being served with a protective order. With a protective order, you can presume that a court has found that you have done something seriously wrong regarding the safety of one of your children. On the other hand, a TRO does not necessarily mean that you have done anything wrong. Instead, your spouse may have filed for divorce, and the TRO was granted to put a hold on any actions that you may choose to take regarding your money or property. Or, if your spouse is concerned that you may leave the country with the children, there will likely be a prohibition included in the TRO against you traveling with your child.

The TRO is just a placeholder for any other temporary injunctions sought later in a brief order hearing. When you are served with a TRO, you have some options as far as you can choose to do. Read through the TRO before you do anything. Even if you do not agree with everything you read or even understand everything contained in the order, you can be held accountable for violating any of the provisions. Do not violate the terms of the order.

Whether you plan on hiring an attorney or not, you should plan to attend the hearing at the date and time scheduled. You may need to ask off from work or even plan on hiring an attorney. It can be overwhelming to have to go to a court hearing. It is not a normal thing to have to go through, but it will be something that you need to do in this instance. Going to court is a formal environment in which you will not feel at home. However, it is in your best interests to attend the hearing, given that a judge can make decisions that may not be good for you while you are not in the courtroom. The case will proceed without you, so it is better that you participate.

A lawyer can assist you in learning about the law and how your family's circumstances interact with the relevant family laws. Many lawyers will allow you to consult with them on a free of charge basis- such as those with the Law Office of Bryan Fagan. At least gaining some understanding about what you are facing and what you may want to proceed with can give you enough perspective on the situation to develop a plan. Hiring an attorney will be a wise move if you are interested in doing so, given that your children, your finances, and many other areas of your life can be impacted by these temporary orders.

If all else fails, you can file a motion for a continuance if you need more time to figure out how you want to proceed. Bear in mind that if you do request and are granted the continuance, likely, your co-parent will also have the TRO extended by another two weeks.

How does a TRO impact the amount of visitation time you can have with your children?

Temporary orders last for as long as your child custody or divorce case does. Even then, you and your co-parent will need to figure out if you can agree to a plan for visitation, conservatorship, and child support. To change a previously entered court order, you will need to move forward with a modification case. A modification of child custody or visitation orders needs to be in the best interests of your child, first and foremost.

If you and your co-parent cannot agree to a modification together, then you would go before a judge who will need to play a tiebreaker. The legal standard for an improvement would be for the judge to find that material or substantial change has occurred in the circumstances of you, your co-parent, or your child. Furthermore, the requested modification must also be in your child's best interests for the change to proceed.

Frequently, parties in your position attend mediation to help you all settle on any issues related to custody and visitation. Mediation effectively puts all the problems on the table for the two of you to work through. A mediator is typically an experienced family law attorney or former judge. These people can help you understand what a judge may or may not do in response to the issues in your case. From there, you can base how you negotiate on what a judge is likely to say in a hearing or trial.

What you can do in the meantime is to work with your co-parent and their attorney on negotiating through the issues of your case. What may have been relevant at the beginning of your case may no longer be an issue. The best way for you and your co-parent to come up with solutions that work well for your family is to think about what your child needs first and foremost. It can sometimes be challenging to set aside what you want and do what is best for your child. Sometimes what you want to see happen with custody or visitation may not be best for your child.

A standard possession order in the context of temporary orders means that you would have first, third and fifth weekends of each month with your children and dinner each week, usually on a Wednesday or Thursday. What you and your co-parent decide on is up to the two of you. However, this is what Texas defines as a standard possession order as in the Family Code. You two can be as creative as you see fit to create a custody order that suits your children as well as possible.

Questions about the material contained in today's blog post? Contact the Law Office of Bryan Fagan

If you have any questions about the material contained in today's blog post, 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 in person, over the phone, and via video. These consultations are an excellent way for you to learn more about the world of Texas family law and how the filing of a family case may impact your family's circumstances.

Categories

Sign Up Here to Download Our eBook!

Fill out the form below 
  • Please enter your first name.
  • Please enter your last name.
  • Please enter your phone number.
    This isn't a valid phone number.
  • Please enter your email address.
    This isn't a valid email address.
  • Please make a selection.
  • Please enter a message.