Temporary restraining orders (“TROs”) can encompass a wide variety of issues in family law cases dealing with both property and children.  Often they involve allegations of domestic violence or abuse.  A temporary restraining order is granted without a hearing based on affidavits by the requesting party.

In most cases, TROs are requested at the very beginning with the petition is filed.  In that case, the judge will grant the TRO “ex parte,” which means that the other side, the respondent, does not have the opportunity to appear or respond.  The judge simply reviews the petitioner’s affidavits and determines whether or not the affidavits, on their face, provides enough to grant the temporary restraining order.  The respondent can attempt to dissolve the TRO once it is entered, but most often it is dealt with at the hearing.

Occasionally something happens during a case that makes one side request a TRO.  In that case, the attorney for the party requesting the TRO must notify the other side that a request for a TRO is being filed and give the other side the opportunity to appear before the judge and contest the entry of the TRO.  If the other side files for a TRO against my client, I quickly get my client (and any other relevant witnesses) to draft affidavits with their side of the story.  I then meet the other attorney at the courthouse when he is presenting the TRO to the judge.  I give the judge my affidavits and try to prevent the entry of the TRO, if possible.  In cases where there are allegations of abuse, the judge will almost always err on the side of caution and grant the TRO pending a hearing.  The judge just simply cannot take the risk that the allegations are true.

After a TRO is granted, the court must hold a hearing within 14 days.  If there is no hearing within the time limit, the TRO will expire absent an agreement or another court order extending the TRO.

CPS

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Often times family law cases involve one party with pending criminal charges.  I most often see this connected to a family violence allegation, but any type of pending criminal charge is usually relevant in a family law matter.  If a party has pending criminal charges that touch on the issues in the family law case, they can be very detrimental to that party’s case.

If a party has pending criminal charges, that party will almost certainly not be allowed to testify by his or her criminal attorney.  If that party does not have a criminal attorney yet, the family law attorney should know enough about criminal law to strongly advise the party against testifying in the family law matter.  Even if the party believes he or she is completely innocent and has nothing to hide, any criminal law attorney will still tell his client not to testify.  For one, the party’s testimony could be used against him or her in the criminal case.  If the party makes any type of admission related to the incident the basis of the criminal charges, it could mean jail time, a worse plea agreement, and/or a more likely conviction.  Even if the party does not make any admissions, if his or her testimony changes in any way by the time the criminal case rolls around, it will damage the party’s credibility and increase the chances of a poor outcome in the criminal case.

The party with pending criminal charges will have to invoke the fifth amendment and refuse to testify in the family law case.  While pleading the fifth amendment in a criminal case cannot be held against you, the same is not true in a family law case.  If one party pleads the fifth, the judge can hold it against that party.  As a result, whenever possible, if I am representing a client with pending criminal charges, I try to delay the family law case as long as possible in the hopes that the criminal case is resolved.  Once the criminal case is resolved, that party is free to testify in the family law matter.  That testimony can no longer be used against him or her in the criminal case.

Juvenile Defense

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We live in a time where many states have legalized marijuana for medical purposes, and several states have legalized it for recreational use.  A large portion of the population seems to have the opinion that pot really is not a big deal any more, and they are not concerned about smoking pot or about others smoking pot.  When it comes to a family law case, be warned that smoking pot is still a very big deal if you are involved in a custody dispute or a CPS case.

Time after time I have seen drug tests ordered in cases.  If either side makes an allegation that the other has been using drugs, drug tests of both sides will likely be forthcoming.  If either side requests a drug test, drug tests of both sides will likely be forthcoming.  A positive drug test – even for “just a little pot” – has almost universally led to one thing: supervised visits.  Even when there was no other reason to restrict a parent’s access to a child, admitting to using pot or testing positive in a drug test for pot is a big deal.  Judges do not like drugs, even if that drug is “just pot.”

In a CPS environment, a positive drug test for pot can lead to a “reason to believe” finding for neglectful supervision.  The state’s position is that if you are on pot, you cannot be properly supervising your child.  Therefore, they have reason to believe you are being neglectful of your children and you can find yourself in a very big mess.  I have even had a judge call CPS during a hearing (in a non-CPS custody case) when one party admitted on the stand to using pot.

The bottom line is, pot is still illegal in the state of Texas and it will be extremely detrimental to you in a custody or CPS case if you use it.  If you want to keep your kids or have unsupervised access to your kids, it is really best to just say no to pot.

pot pic

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Child Protective Services (“CPS”) cases in Texas are covered by a relatively short timeline. The Texas Family Code provides that the case must be finalized within 12 months from the date of removal.  This may be more than twelve months after the child was taken from the home if the child was placed with relatives prior to the court case and the removal was deemed voluntary.  In that case, the timeline generally starts to run when CPS becomes the temporary managing conservator (“TMC”) of the child.  If a party can show “extraordinary circumstances.,” the timeline may be extended by an additional six months.

If the child is removed from the home and placed into foster care without a hearing, an emergency hearing must be held the first working day after the removal.   At the emergency hearing, the court decides if the emergency removal was appropriate.

Within 14 days of an involuntary removal, an adversary hearing is held to determine if CPS should be named the TMC of the child.   If the placement was considered voluntary, a hearing does not usually happen within 14 days.   The clock for those cases won’t start to run until the department has been appointed TMC.  Sometimes this occurs months after the child is voluntarily placed with a relative or friend.

For the next several months, the parties will report in to the court every 60-90 days.  The first hearing is a status hearing for the court to review the status of the case.  A case can involve several status hearings.  An initial permanency hearing is held approximately 180 days after removal.  At the permanency hearing, the court will review the status of services for the parties and the child, review efforts to locate a family placement, determine if it is safe to return the child to the parent(s), and otherwise review the status of the case.  A second permanency hearing is usually held around day 270.

Prior to trial, the parties almost always mediate.  If the case does not settle at mediation, the case will proceed to trial before the twelve month deadline passes (or eighteen months, in extraordinary circumstances).    At trial, the court will enter a final order that will either return the child to the parent(s), name CPS as the permanent managing conservator of the child, name a family member or friend as the permanent managing conservator of the child, or terminate the parent-child relationship.

Although twelve months can seem like a long time, it goes by very quickly in these cases. Parents are advised to begin working services immediately upon notification of a family service plan from CPS.  A parent’s failure to complete services by the deadline is generally not considered an extraordinary circumstances worthy of an extension.

Child Custody

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