An injunction, simply put, is an order from a judge which requires a person or entity to stop doing something which may harm another person or entity. In the world of Texas family law injunctions are commonly ordered at the beginning, middle, and end of divorce and child custody cases. In today’s blog post from the Law Office of Bryan Fagan we will discuss the various types of injunctions that you may encounter should you or your family become involved in these types of cases.
Temporary restraining orders in child custody cases
One type of injunction that is issued in Texas child custody cases is called a temporary restraining order. I would like to discuss with you a specific type of temporary restraining order that comes into play only during emergency scenarios where your child has been harmed or is at risk of being harmed AND a protective order is not more suitable to protect your child. In that case, a temporary restraining order (TRO) can be issued by a judge. The TRO instructs your co-parent not to do certain things like harming your child, leaving the county or state, removing your child from school, or even being physically within a certain distance of your child.
Most family law issues or cases that are filed require you to give notice to your co-parent about whatever it is that you have submitted to the court. However, in a hearing on a temporary restraining order, you can set the case for a hearing before a judge and your opposing party does not have to be given a warning or notice the fact that you are asking for a temporary restraining order is not something that requires that you provide notice specifically. Subsequent hearings that would allow for the temporary order to become more permanent would require that you provide notice to your opposing party.
The main benefit of a temporary restraining order is that the order can be issued by a judge very quickly. In a situation where you or your children are in immediate harm’s way. Sometimes an ex parte hearing before a judge can be had on the same day that you apply the TRO. I cannot say that this is the norm for most people, but it is certainly the most efficient method for obtaining a quick order that can temporarily limit the interaction of you and your co-parent.
How long does a TRO last?
A TRO can last for only fourteen days. After all, it is called a temporary restraining order for good reason. It is a good, quick fix that is intended to paper over a rough patch in your life in hopes of getting you and your co-parent or opposing party to the negotiating table. Meanwhile, you will have an opportunity to serve any relative parties for the actual hearing on a temporary order. You can also work to have your evidence set to go for a hearing like this.
How long do you have to wait for the next hearing on the temporary orders?
If the first hearing you had on temporary orders was an ex parte one where your opposing party was not present, then the second hearing on this subject will almost certainly be one where your opposing party can attend. This happens when you set the case for a hearing within fourteen days of the prior hearing. A temporary restraining order would become a temporary injunction that would go into effect for your case. These temporary orders hearings will likely cover subject matter that goes beyond safety issues. Custody, visitation, and child support are all subjects that will likely come up in a temporary order hearing.
Importantly, these temporary orders hearing will allow your opposing party to present their side of the story. Defending yourself against a temporary order or from allegations of abuse can be especially important if your ability to parent your children hangs in the balance. If you find yourself on the other side of the coin- namely that you had a judge issue temporary restraining orders against you without your knowledge- then this hearing will be your chance to present your side of the story.
TRO or protective order? Which one is better for your children?
First, let’s examine what a protective order can do about your children. If your child has been the victim of physical violence, sexual abuse, or family violence then a protective order may be sought. It needs to be shown that your child is likely to be harmed again and that, but for the protective order, your child would likely be put into harm’s way once again very shortly. Importantly, a TRO is not enforceable criminally, but a protective order is. Violation of a protective order can result in jail time for your opposing party.
However, not all child abuse or neglect meets all the requirements where a court can grant a protective order. This can come as a shock given that many people in this situation assume that It is a foregone conclusion that a restraining or protective order will be issued no matter the circumstances or the evidence submitted to the court. If your child does not qualify for a protective order, then the best you can do to likely keep him or her safe is to pursue a temporary restraining order and then eventually temporary orders.
What party or person can file a motion for a temporary restraining order?
Any person who has the standing to file a suit affecting the parent-child relationship may also file a motion for a temporary restraining order. However, keep in mind that a temporary restraining order must be filed in tandem with a child custody case, a petition to modify, or a petition to enforce a prior court order. The number of types of cases where a TRO request can be filed concurrently is fairly lengthy. One thing to bear in mind is that if you are filing for a TRO or a protective order you are the parent who will be seeking primary custody of your children in the custody or divorce case itself.
What do I mean by primary custody? Primary custody typically refers to when a parent can designate the primary residence of a child. Every other right that a parent can have stemmed from this one. Being able to determine where your children primarily reside is important from the perspective of receiving child support, being able to make decisions for them regarding educational and medical choices ana. Host of other topics. When you file for a TRO or a protective order against your co-parent you put yourself in a situation where it becomes necessary for you to accept a primary role of parenting the children for as long as the order runs. This is because the order may contain language that limits the other parent’s ability to have access to your children. While this was intended to keep the children (and you) safe, it creates a situation where you are the parent who must take greater responsibility for the day-to-day lives of your children. This is something that needs to be considered and may not be at the top of your mind when you begin to file for these various injunctions against your spouse or co-parent.
What is the significance of a temporary injunction?
A temporary injunction functions almost the same way that a temporary restraining order does because the temporary injunction orders another person not to engage in certain behaviors that may be harmful to you or your children. The key difference between a temporary restraining order and a temporary injunction is that a temporary restraining order is only good for 14 days, whereas a temporary injunction stays in place until your family law case comes to an end. Remember also that a TRO can be issued without notice or warning given to your co-parent. In most family law scenarios, a temporary injunction is referred to as temporary order.
When holding a hearing on temporary orders you will need to give your co-parent at least three days’ notice of the hearing. Even if you manage to set the case for a hearing and are present with your attorney that does not necessarily mean that you will get to have a hearing unless the court determines that enough notice was given to the other party. Make sure that you have proof that notice was provided if the day of the hearing arrives and your co-parent or opposing party does not attend.
The temporary orders hearing is key to the entirety of your case. Very likely you will be in a position where the TRO is set to expire soon after the second hearing that you have with the judge. It is incumbent upon you to present evidence in this hearing that the judge finds sufficient to grant you temporary orders that effectively extend the TRO until the end of your case. For most family law cases this will end up lasting for months due to the nature of how long these cases tend to take.
On the other hand, your opposing party will have been able to hire an attorney and begin to craft their case. Collecting evidence to counteract your case is not something that the judge would have been able to see when the TRO was granted. He or she would have been relying upon your evidence only at that point. If the judge becomes unconvinced that there is no need for the TRO then he or she would not issue any temporary orders on that specific subject. However, as we discussed a moment ago temporary orders frequently touch on subjects that go well beyond safety and well-being so you can expect to receive temporary orders on other subjects, however.
You must attend this second hearing before the judge. If you hire an attorney and believe that your child’s well-being and your own hangs in the balance, then I would think that you would have no issue attending this second temporary injunction hearing. However, sometimes folks who end up not having an attorney tend to miss more hearings than other people. Consequently, if you do this then the TRO will expire, and you will be left in a position where there are no orders in place to restrict the behavior of your spouse or co-parent.
What is the temporary orders phase of your case?
The temporary orders phase of a family law case is the lengthiest part of a case. Most people attend temporary orders hearings early in their case. In the alternative, you may attend a mediation session rather than a hearing. The result of either mediation or a temporary orders hearing is that temporary orders typically come out of the experience. These temporary orders can be seen as the marching orders that you and your opposing party must follow for the duration of your divorce or child custody case.
A divorce or child custody case is not over until you receive a final judgment. This typically occurs either after a trial or after you all attend final orders mediation. In the normal course of business for a family law case, it can take some time to get your case set for final orders. That means you and your lawyer need to pay close attention to what is contained in those temporary orders before agreeing to them in mediation. Likewise, preparation for a temporary orders hearing is crucial, as well.
Temporary orders are much broader than a temporary restraining orders. Within temporary orders, a judge can change which parent has primary custody of your children, whether your co-parent has restricted or supervised visitation as well as which parent will be paying child support. When you consider moreover that the final orders in your case tend to look very similar to what the temporary orders do there is no wonder why so much emphasis is placed on temporary orders.
The specific circumstance of your case needs to be considered before a hearing. While the physical and emotional safety of you and your children is important it cannot be the only thing that you consider in the temporary orders phase of your case. Building a comprehensive game plan for providing the judge with evidence on a wide range of subjects is extremely important in the context of a hearing on temporary orders. In many ways, your ability to have the TRO extended within the temporary orders is directly impacted by the other areas of your case, and vice versa.
Taking the necessary time to develop a plan of attack for a temporary orders hearing is very important. In certain situations, mediation will not have been possible due to an inability to negotiate well with your opposing party. However, you cannot dwell on this but must shift gears to prepare for an eventual temporary order hearing where these important subjects can be addressed directly to the judge.
Having evidence ready to show the judge why you need to have certain things granted in the hearing is only half the battle. Consider that in a courtroom there is something called the rules of evidence that does not allow for you to simply slap documents down on the judge’s bench or get up on the witness stand to say whatever you want. The opposing attorney can and likely will object to too much of what you attempt to introduce into the record. While some of their objections may be overruled, some may be sustained. The strength of your case lies in being able to successfully offer into evidence the information that you have to present and being able to overcome those objections.
To me, this discussion begins and ends with having the right attorney representing you and walking with you throughout this process. It is not easy to go through a family law case alone. It is even less easy to do so when there is a need to argue for temporary injunctions which directly impact the safety of you and your children. Having your mind consumed with fear over your well-being and that of your kids makes it difficult to provide enough focus and attention to the other areas of your case. What you may be left with is an unbalanced case where you attend primarily to one or two areas while neglecting others.
Having an experienced family law attorney walking next to you through this process provides your case with balance and with peace of mind that the steps you are taking in the case are confidently headed towards achieving your goals. With so much at stake, it is a risk to forego hiring a competent attorney to guide you and assist you in building a case.
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 a great way for you to learn more about the world of Texas family law as well as about how your family’s circumstances may be impacted by the filing of a divorce or child custody case.
from Texas Bar Today https://ift.tt/3fOd6Od
via Abogado Aly Website
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