Published on:

In Texas, if a mediated settlement agreement is properly executed you cannot challenge it.  Texas Family Code Section 153.0071(d) and (e) mandate that courts shall issue an order in compliance with a mediated settlement agreement.  This is why it is so important to have an attorney attend mediation with you.  You cannot go back after the fact and change it.   When the mediated settlement agreement is signed and on file with the court, that is it.  Those are the terms and they cannot be changed.  Many have tried and failed.

Why Would a Party Want to Back Out on a Mediated Settlement Agreement?

Mediations can sometimes be very difficult and long days.  You typically do not reach an agreement until the very last hour after you have already been there for eight hours without a break.  At this point, you are exhausted and you may not be thinking clearly.  So, you might forget something.  Also, a lot of parties have what we call “buyer’s remorse” in that you thought it sounded good at the time but now in practice it is not working out.  For instance, a visitation schedule for a child—a party may end up wanting more or less time due to demanding schedules and want that changed.  Or, a party may want to say that they actually wanted more child support than what they originally agreed to and they want to challenge that now.  However, the law is pretty clear that you cannot.

Example of Recent MSA Challenge and Result

A perfect example of how solid this law is and how serious the appellate courts take it is fond within In the Interest of S.K.D. and J.E.D., Minor Children.  In that case, the mother filed a modification of the divorce decree seeking sole managing conservatorship of the children.  The trial court ordered the parties to attend mediation and the parties settled at mediation, entering into a binding mediated settlement agreement.  After the mediated settlement agreement was filed, the mother filed an “emergency motion to modify the MSA” and the trial court did modify the terms but in complete opposite terms as to what the mother was wanting.  She did not like that and so she appealed arguing that the trial court could not have issued these orders because they were contrary to the mediated settlement agreement.  Yes, you read that correctly—mom wanted the mediated settlement agreement changed and when it did not go her way she appealed wanting the mediated settlement agreement terms reinstated.

Fortunately for the mother, the Fifth District Court of Appeals of Dallas County agreed with her and stated that the trial court did not have the authority to alter the terms of a mediated settlement agreement and overturned the trial court’s order.  Citing In Re Lee, this Court held that “Section 153.0071 encourages parents to peaceably resolve their child-related disputes through mediation by foreclosing a broad best interest inquiry with respect to the entry of judgment on properly executed MSAs, ensuring that the time and money spent on mediation will not have been wasted and that the benefits of successful mediation will be realized.”

What is the Consensus for Mediated Settlement Agreements?

It is not a secret that courts take settlements very seriously and that most judges are proponents of agreements.  Judges would prefer that you and the other parent are able to work out the issues and come up with a solution that you both believe is best for your child rather than the judge do it.  The judges are strangers to your situation and only have a short amount of time to hear all of the facts and evidence and determine what should be done.  This is a heavy burden to bear at times.  However, sometimes settlements are not possible.  But, when they are and when one is reached through a mediated settlement agreement you can assure yourself that it will be implemented by the trial court and if it is not the appellate court will make it right.

 

Published on:

If you have a final decree or final order in a family law case with an obvious mistake from what the trial court ordered or the parties agreed, you can get it fixed through what is called a Nunc Pro Tunc.  The key is that this mistake has to be a clerical error—did it mix up the judgment of the court.  It cannot be one that requires “judicial reasoning and determination” or in other words any thought process on the judge’s part.  If it is in fact a clerical error, then under Texas Rules of Civil Procedure, the trial court can fix this clerical error at any time.

What is an Example of a Clerical Error?

In Bernardo Reyes v. Olga Reyes, the Amarillo Seventh District Court of Appeals had to address this issue.  In that case, the trial court made an initial order on the record divorcing the parties and making appropriate orders regarding conservatorship and child support.  Most importantly, the trial court ordered that mother be the parent who has the exclusive right to designate the primary residence of the children and father to pay child support. The trial court rendered the orders on the record but the final decree was never actually signed by the court until three years later.  The problem was that the actual decree ordered mother to pay child support.  Mom filed a nunc pro tunc to fix this obvious error.  The trial court entered the nunc pro tunc, correcting the error that it was actually father who was supposed to be paying child support.  Father challenged that.  In reviewing the trial court’s record, the appellate court was able to determine that this was in fact a clerical error and affirmed the trial court’s ruling.

What do I do if my Orders are wrong?

Make sure that the error in the orders is due to someone’s name being incorrectly used or incorrect numbers, etc.  Child support is a typical area where nunc pro tunc orders are used.  If you find an error, file a nunc pro tunc as soon as possible.  It is always better to correct the error when you find it.  If you are facing this situation, contact a family law attorney at Guest & Gray for a free consultation.

Published on:

Your spouse has filed for divorce but tells you that you guys can agree on everything and that you do not need an attorney.  They also tell you that you do not even have to be served by process server but instead that you can sign a “waiver”.  This means that you sign the document, accept the petition informally from your spouse, and you will not be formally served by a process server or constable.  Many people just sign the waiver without even knowing what it means or consulting with an attorney.  The reality is you probably do not want to sign this.  Reason being, when you sign this document you waive citation, filing an answer, and further notice in your divorce.  Thus, if your spouse wanted to they could proceed forward with whatever final orders that they wanted to present to the court giving you absolutely none of the property and/or no rights to your children.

An example of just how bad a waiver of service could be is found in Garduza v. Castillo from the 5th District Dallas County Court of Appeals.   In that case, the husband appealed a Dallas trial court’s opinion to allow a default judgment order against husband and in favor of wife.  The wife initially filed a pro se (not represented by an attorney) petition for divorce and represented to the trial court that she and her husband would agree on everything.  Husband then filed a waiver of service that waived everything—future notice of any hearings, citation, filing an answer, being a part of the case.  After that, the wife hired an attorney (because apparently she could not get that agreement) and they filed a couple of amended petitions seeking primary of the children, back child support, and other issues.  The wife and her attorney then proceeded forward to the default docket and presented an order to the trial court which was signed because the husband filed a waiver.  However, once the husband received a copy of the decree he was not very happy.  All of the orders were completely against what he and his wife had initially discussed and he was not in agreement with the trial court’s determinations.  Thus, he proceeded forward with an appeal.  He still did not get an attorney and filed the appeal himself.  The appeal was not properly filed; however, because the appellate court determined that husband was never “served” properly with the amended petitions this was sufficient to grant the appeal.  That is, the appellate court did recognize that husband filed a waiver of service.  However, the appellate court determined that wife filed two amended petitions and they were never “served” on the husband as required by Texas Rules of Procedure Rule 21a.  That is, once you sign a waiver or even if you are served by a process server, if the other party files any additional affirmative pleadings they must give you proper notice of this.  This is accomplished through sending the additional affirmative pleadings via certified mail return receipt requested.  The appellate court found that the wife did not do this and thus they could overrule the trial court’s orders.

Chances are you will not be as lucky as Mr. Garduza.  He genuinely skated by and got another bite at the apple from the sheer fact that his spouse filed amended petitions and failed to serve him those by mail.  If they had not filed amended petitions and just proceeded forward with what the wife wanted in the orders, this would not have been a successful appeal.   There are actually three morals to this story—always get an attorney to protect your rights and interests; do not sign a waiver unless you are absolutely certain of the orders that will be presented to the court AND you attend all hearings; and you have to be served by a process server with the initial pleading unless you sign a waiver of service and then all future notice goes to you by certified mail.  If you are facing this situation, contact an attorney at Guest & Gray today.

Published on:

A federal judge in San Antonio struck down the ban on same-sex marriage earlier this year citing that the ban has “no legitimate governmental purpose.”   In fact, the judge said that the ban is unconstitutional because it prevents equal rights across the board for marriage.  Even though this seemed to be a large step for the LGBT community, the law prohibiting same-sex marriage is still in effect until the decision can complete the appeal process.   Attorney General Greg Abbott plans to fight for Texas’ right to regulate the marriage institution.

Thus, the Texas ban continues on same-sex marriage but the question of same-sex divorce is becoming an ever increasing issue in the family law world.  Reason being, because Texas does not recognize same-sex marriage it also in turn does not currently recognize same-sex divorce.  That is, if you and your partner get married out of state and move back to Texas you only have two choices right now—either just separate indefinitely or declare the marriage void.

Texas Family Code Section 6.204(b) states that “a marriage between persons of the same sex for a civil union is contrary to the public policy of this state and is void in this state.”   Further, subsection (c) states “The state or an agency or political subdivision of the state may not give effect to a (1) public act, record, or judicial proceeding that creates, recognizes, or validates a marriage between persons of the same sex or a civil union in this state or any other jurisdiction; or (2) right or claim to any legal protection, benefit, or responsibility asserted as a result of a marriage between persons of the same sex or civil union in this state or any other jurisdiction.”  Therefore, even if you are legally married in another state you are not considered married in Texas and therefore do not have the rights a married couple would have including the right to divorce.  Many people do not see divorce as a right until it is considered in the context of what you gain during a divorce.  A divorcing couple has rights in that their property is considered community and there are claims to exclusive use of property, spousal support, child support, and even custody.   On the contrary, if your marriage is declared void then it is as if the marriage never existed.  Therefore, you would not have any rights to anything that was accumulated during the marriage such as children or property.

At least two appellate courts are considering the impact of this law as it stands now.   In Tarrant County, a woman named Cori Jo Long is fighting for her right to divorce.  She was married out of state and is now seeking a divorce from her partner.  She is advocating for a change and it will be interesting to see how the Tarrant County trial court decides this issue.  There is some guidance out of San Antonio in which Judge Barbara Nellermoe dismissed the State of Texas as a party to a same-sex divorce suit and is proceeding forward with a hearing to decide certain issues in the case, including custody.  Attorney General Greg Abbott will be appealing Judge Nellermoe’s decision to refuse to ban the same-sex divorce.   Both cases are just in the beginning stages, so it will be interesting to track the results as the cases progress forward.  This could mean a major shift for the same-sex community and family law practitioners alike.

Published on:

You just finalized your divorce or custody matter, however it seems like every time you turn around you think that your child should live with you instead of the other parent primarily of the time.  Even though it is has not even been a year yet since your final orders were rendered, it just seems as though something is constantly coming up and you are genuinely concerned.  The other parent may be endangering the child’s physical welfare or emotional development such as engaging in criminal activity, drug usage, physical/mental/sexual abuse, or overall endangerment of the child.  You want to change the custody orders now but you have been told that there are certain roadblocks in requesting the modification this soon.  What should you expect?

Less than One Year Requirements 

If you are filing your petition to change the parent who has the exclusive right to designate the child’s residence in less than one year, there are specific requirements that you must follow.  In fact, you must qualify within these statutory parameters to even file your case.  The most important and crucial requirement is the affidavit that must be attached to your petition.  In fact, Texas Family Code Section 156.102 mandates that an affidavit must be attached to your pleadings and “(b) must contain, along with supporting facts, at least one of the following allegations: (1) that the child’s present environment may endanger the child’s physical health or significantly impair the child’s emotional development; (2) that the person who has the exclusive right to designate the primary residence of the child is the person seeking or consenting to the modification and the modification is in the best interest of the child; or (3) that the person who has the exclusive right to designate the primary residence of the child has voluntarily relinquished the primary care and possession of the child for at least 6 months and the modification is in the best interest of the child.”  Frequently, we see the first requirement being the grounds on which someone files a modification.  Allegations are made that something bad has happened in the other parent’s care and this is why that parent should no longer have possession of the child.  But, the key is that the allegations must be made in the affidavit.  Many people get hung up on this requirement and many times affidavits fall short on their face.

What’s in an Affidavit?

This issue was discussed recently in an appellate case from the 14th Court of Appeals in In the Interest of A.D.  There, mom appealed the trial court’s decision to allow dad to be primary in a case less than one year and said that his affidavit was not sufficient.  Mom had made several false sexual abuse allegations against dad regarding their daughter over the course of an entire year.  The trial court found that this behavior on mom’s part was physically and emotionally dangerous and detrimental to the child and therefore awarded primary to dad.  Mom requested a jury trial over the matter in which several experts and witnesses testified that mom had made severely poor decisions regarding the child and these sexual abuse allegations.  That is, even though every professional (including police, CPS, and doctors) ruled this out, she continued to pursue it.  The jury ruled that dad should continue to be primary and mom appealed arguing that the court’s decision was improper and that the dad’s affidavit was not sufficient.

However, the Court of Appeals disagreed and reiterated the standard from Texas Family Code Section 156.102(c) which states that “The Court shall deny the relief sought and refuse to schedule a hearing for modification under this section unless the court determines, on the basis of the affidavit, that facts adequate to support an allegation in (b) are stated within the affidavit.”  Therefore, the Court must look to the affidavit on its face to determine if it can move forward with a hearing on modification.  This is why it is so important that your affidavit contain all of the allegations and facts that you believe would necessitate a modification and it would not hurt to include the “magic language” from subsection (b) either.  The Court of Appeals also clarified that the trial courts are to just look to the facts of the affidavit and if they were true, would that justify having a hearing.   Therefore, this is the key part that most people miss—the trial court should have a hearing if the affidavit alleges facts showing “the child’s present environment may endanger the child’s physical health or significantly impair the child’s emotional development”.  Thus, you do not have to prove the allegations are true before a hearing is held—just have to prove that they are true at the hearing to bring about the change you are requesting.

For any additional information regarding modifications in less than one year, schedule a free consultation with Guest & Gray today.  Our family law team is ready to help.

Published on:

If you are in the middle of an adoption—whether it is a stepparent, grandparent, aunt/uncle, or new parent adoption—you know that your child must have a representative in court to ensure the child’s best interest standard is being met.  Many people do not realize that there are a few options for the courts in determining what option is best for your particular case.  In adoptions, the two most primary appointments are either amicus attorney or attorney ad litem.  But, which would be best for you?

Amicus Attorney 

Amicus attorneys are appointed in termination/adoption suits not to specifically represent the child but rather to assist the court in protecting a child’s best interest.  So, unlike the attorney ad litem an amicus attorney does not have an attorney-client relationship with the child.  In fact, an amicus attorney can even relay what would otherwise be privileged communication from the child to the court if it is necessary to assist in the court’s decision.  Amicus attorneys can be appointed for a number of reasons; but typically, they are appointed when the child is young and cannot express their desires to the court unlike a child who is 12 or older.  Amicus attorneys do meet with the child and determine what their objectives are in the case; however, the amicus attorney does not have to act in favor of those objectives and must always advocate for the child’s best interest.

Attorney Ad Litem

In contract of an amicus attorney, an attorney ad litem is appointed to represent the best interest of the child and has a direct relationship with the child. Therefore, the attorney-client relationship is created with the child and any communication with the child must remain confidential at all times.  However, like the amicus attorney an attorney ad litem must at all times represent the best interest of the child.  This individual does make representations to the court as to what is in the child’s best interest but it is also in line with what the child wants.

Procedure

Regardless of which appointment is made for your termination/adoption suit, the Family Code makes it very clear that at least one of them must be appointed (and you cannot appoint both).  So, once your case begins you will petition the court to appoint the appropriate representative for the child in the case and the court will make the appointment and choose an attorney from the community to do so.  That attorney will then, upon notice of the appointment, proceed forward to fulfill their duties and obligations in the case.

For any additional information regarding amicus attorney vs. attorney ad litem or adoptions in general, schedule a free consultation with Guest & Gray today.

Published on:

If you are in the middle of an adoption—whether it is a stepparent, grandparent, aunt/uncle, or new parent adoption—you know that you have to complete a social study in order to proceed forward with the adoption.  Because this is a new concept to many people, it is better to gain knowledge regarding this process beforehand to put your mind at ease.  You will find that this step is actually one of the more rewarding (absent the actual adoption day) throughout your case.  It is your chance to tell the social worker all about your family and why you should be able to adopt the child.

Purpose of Pre-Adoptive Social Study

One of the purposes of the pre-adoptive social study is to guide the Court in its decision on the termination and adoption because the social worker is literally the eyes and ears for the Court.  Reason being, the judge cannot visit your home and do a background check on all of the parties in the case to determine whether or not the adoption would be in the best interest of the child.  Therefore, a social worker is appointed to do that and much more.

Process of Pre-Adoptive Social Study

Once appointed, the social worker will schedule a time to visit with the adopting family and all parties in the case.  The appointments will be separate (separate house meeting for each household).  Once at your home, the social worker will meet with the family all together and then have individual interviews to gather more information regarding each person on a more intimate level.  The social worker will go over your background information (childhood to present), medical history, drug and/or criminal history, CPS history, your thoughts about the other party/parties, and your requests. If the children are of the appropriate age, the social worker will also interview them individually.  In addition to the home visit, the social worker will also go through all of your references (which you provide) and will contact all professionals appropriate in the case.

Once the “investigation” portion of the social study is completed, the social worker will then write their written report to the Court which will ultimately be filed and will be disseminated to all parties in the case.   In true impatient fashion, once the social study is received everyone flips directly to the recommendation.  As long as the adoption is ultimately recommended by the social worker then you would proceed forward with a final hearing.  If the adoption is not recommended, you/your attorney would need to speak with the social worker and proceed forward from that point.  It might require doing some steps that would satisfy the social worker to the point of recommending the adoption or it could possibly require an additional home visit.  The key is to just remain calm and patient throughout the process.

For any additional information regarding pre-adoptive social studies or adoptions in general, schedule a free consultation with Guest & Gray today.

Published on:

Are you facing a divorce with your spouse and you are concerned that you are not the father of your child?  You have probably always had that feeling (given your spouse’s cheating history) that you are not the child’s biological father but you just have never acted on that feeling.  However, now that you are facing a divorce you feel that it is important to raise this as an issue and deny your paternity.  Absent addressing all of the issues that can arise with a denial of paternity, you need to know what can happen in the interim while the case is pending.  You may not be the biological father, but you still may be the presumed father.

What is a presumed father?

You are the presumed father for all legal purposes if one of the following is true: you are married to the mother and the child was born during the marriage; you married the mother before the birth of the child even if the marriage could be invalid; you married the mother before the birth of the child and your name is on the birth certificate.  This means, even if you are not the biological father of the child you are the father in the eyes of the law.  Therefore, the judge can make orders according to that legal fact and most likely will do so.

Presumed fathers can be made to pay child support, even if they are not the biological father

If you have a temporary orders hearing coming up and the issue of denial of paternity is not on the court’s docket then the court can make orders with respect to visitation and even child support. Yes, you read that correctly—even child support.  You could be ordered to pay child support on the child until the denial of paternity is set for a hearing and granted by the court.  In fact, Texas Family Code Section 160.309 commands that the court must do so.  Reason being—it is not the child’s fault that you have decided to question your paternity now at this point and most courts will not leave a child without support.  You are the presumed father and therefore the Family Code allows the court to make appropriate orders in line with such.

Therefore, the suggestion would be that if you are in fact going to question your paternity you need to do so in the beginning and make sure the appropriate pleadings/requests are on file and a hearing over this issue should be heard before any other.  That may eliminate any interim orders of child support, or it may not. It will depend upon the court and the facts of your case.

It is essential that if you have any question of paternity that it must be raised at the time that you have this question.  You cannot wait in an attempt to avoid payment of child support or any other duty that a presumed father has because a court would not be too keen on someone trying to dodge their obligations.  If you are facing this issue, you sh0uld meet with a family law attorney who can advise you along the way.  Schedule a free consultation today.

Published on:

You have been served with a petition for divorce and it states you have to file an answer by 10:00 a.m. on the Monday next after the expiration of 20 days.  However, you have been working things out with your soon-to-be-ex spouse and you guys have agreed upon everything. Your spouse tells you that the service part is just part of the legal process and you do not have to do anything because you have already signed the agreed decree.  However, once everything is said and done the district clerk’s office mails you a copy of the decree and it is not the one you signed.  In fact, it contains terms that are the complete opposite as to what you agreed.  You are shocked and you have no idea what to do; according to the final decree mailed to you, your ex-spouse is taking the children, the home, and the car.

You contact an attorney and find out that your ex-spouse actually waited for your answer period to expire and then went before the judge and asked for a “default” divorce on the basis of you not answering or making an appearance.  The judge, not knowing the background of the case and relying upon the ex-spouse’s allegations, granted the default divorce and now you must work to get that reversed.

The good news is you do have a form of recourse.  You can file a motion to set aside the default judgment and a motion for new trial.  In order to be successful on this type of motion, it is important that you know the grounds for doing so.  Luckily, several appellate courts have discussed this test, also known as the Craddock elements.  It was recently discussed again by the Texarkana 6th District Court of Appeals in In the Matter of the Marriage of Lucas Woods and Jessica Woods and In the Interest of L.K.L.W. and S.B.L.W., Children.  This Court held that to analyze whether a motion for new trial should be granted and to set aside a default judgment, the trial courts must look at the following factors: “(1) the failure of the defendant to answer before judgment was not intentional, or the result of conscious indifference on his part, but was due to a mistake or accident; (2) the motion for a new trial sets up a meritorious defense; and (3) granting the motion will occasion no delay or otherwise work an injury to the plaintiff.”

In determining the first element, the Court basically said that if a person is sued and they just do not file an answer because they do not care then that person cannot claim that they were not being intentionally indifferent.  But, if you do not file an answer because of representations of your spouse, then that obviously is a legitimate reason (at least for this appellate court).  In this particular case, the wife did not file an answer because she and her husband had worked out an agreement prior to even filing the divorce and were actually already living out that agreement with their children.  Therefore, the Court held that she did not intentionally fail to file an answer and that she did not ignore the petition.  She was legitimately relying upon her spouse’s representations that she did not need to answer.

For the second factor, the Court was looking to determine if she had a defense in her affidavit (attached to her motions) that would have led the trial court to make a different decision or reach a different outcome on the final divorce.  So, the Court is asking the question: do you have any information that if given to the court would have completely changed the court’s mind and would have caused them to do something different than what was decided in the decree?  If so, this is a meritorious defense. In the case at hand, as stated before the parties had an agreement and the case involved children.  The spouses had agreed (or so the wife thought) that she would have the exclusive right to determine the primary residence of the children and that the father would have standard possession and they had been exercising this agreement for about a year or more.  The wife was specific in her affidavit as to why the decree was wrong (agreement, children were suffering due to switch, etc.).  The Court concluded that all of this information was sufficient to meet the second element because the final decree did in fact “modify the living arrangements of the children and raise concerns regarding their best interest.”

Finally, on the third factor, it is one that you must plead and then the other side has the burden of proving otherwise.  Therefore, the Court held that once you state that you would not injure the Plaintiff in having the default judgment set aside and granting the motion for new trial, the burden shifts to the Plaintiff to prove that they would in fact suffer some sort of injury (time, money, etc.).   In this case, the Court held that the husband failed to produce any proof to this effect and the wife was very timely with her filings in that it was on file within four days after the trial court entered the decree.

Thus, the wife met all three elements and the appellate Court reversed the trial court’s denial of the motion for new trial and remanded back to the trial court.

If this has happened to you, it is important that you not delay and get your pleadings on file for a motion to set aside and motion for new trial as soon as possible.  The appellate courts are very analytic in reviewing the pleadings to determine if the elements were met. Do not think that you are without any way to “fix” this problem—you have a solution but there is a time sensitive deadline.  Consult with an attorney to discuss your case in detail.

Published on:

You just finished the first big hearing in all family law cases that sets the status quo of the case and gives you an idea as to how the judge is leaning in your situation—the temporary orders hearing.  You do not like the outcome and you feel that the judge was wrong in their decision.  But, what do you do about it?  Are you stuck with this ruling or can you appeal it?  Unfortunately, the answer is “it depends.”  Like all family law cases, the outcome will depend upon the venue and court you are located in.

If you are located in Dallas County, the answer is yes.  There are district and associate judges in all family courts in Dallas County and all temporary orders hearings are held in front of the associate judges.  Therefore, if you do not like the associate judge’s ruling on your temporary orders hearing you can take another bite at the apple in front of the district judge by requesting a “de novo hearing.”  The key is, however, that you have an extremely limited time in order to do so and many people miss their deadline.  Specifically, the legislature amended Texas Family Code Section 201.015(a) this past year to now state that “a party may request a de novo hearing before the referring court by filing with the clerk of the referring court a written request not later than the third working date after the date the party receives notice of the substance of the associate judge’s report.”  So, basically the day that the associate judge renders their judgment—you must have your de novo on file within three working days from that date.  If your de novo hearing request is timely and properly filed (there are specifics on its contents also), then the referring court (the district judge) will set your de novo hearing.  This is your second chance where the district judge will re-hear the issues and evidence that are on appeal from the associate judge’s ruling.  Just a side note that many people are confused on—the associate judge’s ruling remains in full force and effect until it is changed by the district judge. Therefore, you do need to comply with it until or when/if the district judge changes it.

If your case is in Rockwall County or Kaufman County, the answer is yes; but it is a higher hurdle and burden.  You cannot appeal temporary orders hearings in these actual counties because you only have one judge—the district judge.  But, you can appeal the decision of the district judge to the appellate courts on a temporary orders level through a petition for writ of mandamus.   The legislature did not want to leave people without a vehicle to appeal temporary orders and so this option is available.  The only problem with this type of pleading or action is that the burden is very high.  In fact, if you are going to try to appeal it will most likely be based upon the “abuse of discretion” prong which is extremely difficult to prove.  This is basically claiming that the district judge abused their discretion when making the ruling in the temporary orders.  Therefore, you might just be spinning your wheels and many people do not end up filing a mandamus for several reasons (including the fact that you still have to have your final trial in front of the same district judge who will then know you filed a mandamus on them).

But, there are other options other than an appeal but you may be limited in those as well.  Reason being, the only other option in changing temporary orders is requesting a modification of them and you can only do that when there has been a substantial change since the orders were rendered.  Otherwise, if things remain the same and nothing new has happened then you are pretty much stuck. You can request a social study to have a social worker do an investigation if custody is an issue—this might help change the outcome at final trial in your favor.  You can also request to attend mediation which is where the parties try to work it out with their attorneys and a neutral third-party attorney who does not have an interest in the case except to settle it.

The last resort in these matters is always a final trial which you have to be fully prepared for because that is the hearing where all evidence is heard and final decisions are rendered as to property, parties and children.  You never want to take this lightly and this is why all intermediary steps that you desire to have (such as a social study) must be completed.

If you have any additional questions regarding your family law matter, schedule a free consultation with Guest & Gray today and allow our experienced legal staff assistant you.