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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Many times a child has little to no relationship with a biological parent but has a wonderful relationship with a step-parent. In those situations, many families consider having the step-parent adopt the child.  In order to complete a step-parent adoption, the rights of the biological parent must first be terminated.  (This can be done in the same proceeding as the adoption.)

If the bio parent is agreeable to the termination, this is a very easy and quick process. The relinquishing bio parent must simply sign an affidavit of relinquishment of parental rights, to be filed with the petition for termination and step-parent adoption.  When there is a step-parent ready to step in to adopt the child, the court will almost universally approve the termination.  With most adoptions, a social study and a guardian ad litem or amicus attorney (an attorney appointed to represent the best interests of the child) are required.  However, with a step-parent adoption, you may ask the court to waive one or both of these requirements.  The step-parent must still complete a background check.  Once all paperwork has been completed, the non-terminating bio parent, the step-parent and the child will appear in court to finalize the adoption with a short prove-up hearing.

After the terminating bio parent signs an affidavit of relinquishment of parental rights, that parent is generally no longer entitled to notice of anything that goes on in the proceeding.  That parent will not receive any order of termination or adoption or ever even get confirmation that it happened.

If the bio parent is not willing to voluntarily terminate his or her parental rights, the process can be much more difficult.  The parent who is attempting to terminate the other parent’s rights could have a long, uphill battle trying to prove that the bio parent’s rights should be terminated.  The step-parent cannot adopt unless the court first finds that sufficient grounds exist to terminate the bio parent’s rights.

Paternity

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When you set a hearing in a family law case in Dallas County prior to the final trial, the hearing is generally held in the associate judge’s courtroom.  Normal hearings are set on the docket with several other cases at the same time.  Each court has a 9:00 docket and a 1:30 docket, and there may be ten cases set each day on each docket.

If your hearing is going to take a while, then the court will require you to have a special setting.  This means that the court will block out time just for your hearing on another day.

If I know a case will require a special setting, I try to reach an agreement with the other side to have the case specially set right off the bat.  This saves both parties the time and cost of showing up for the normal docket only to be reset.  If the other side has not yet had an attorney appear in the case, it can be difficult to reach an agreement on a special setting because that person often does not understand the situation.  Depending on the particular court’s schedule, it may be possible to get a special setting within a few days, or it may take a few weeks.

accent_photo

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In Texas, there are two ways a parent can voluntarily relinquish parental rights.  One avenue for terminating parental rights is for the parent(s) to sign an affidavit of relinquishment of parental rights.  An affidavit of voluntary relinquishment must contain some very specific information about the child, the parents and the guardians of the child, a statement that the parent relinquishing her rights has been informed about her parental rights and duties, a statement that the affidavit is either irrevocable for a stated period of time or revocable, and a statement that designates someone else as the managing conservator of the child.  The statement may also include a waiver of service in a termination suit.  The affidavit cannot contain any provision for post-termination contact between the parent and the child.  The affidavit must be signed before a notary and witnessed by two credible, disinterested witnesses.

The signing of an affidavit of relinquishment of parental rights does not immediately terminate the parent-child relationship.  Instead, it provides a basis for the court to enter a judgment of termination.   The court must also find that termination is in the best interest of the child, even with an affidavit relinquishing parental rights, in order to terminate.

Another avenue to waive parental rights is for a man to sign an affidavit waiving interest in the child.  An affidavit waiving interest is irrevocable, and it can be signed before or after the child’s birth.  This may be used when it is unclear whether or not a particular man is the father.  Again, the signing of the affidavit does not automatically terminate any parental rights, but it can be used in termination proceedings.

In either situation, it is advisable to have the affidavit prepared by an attorney to make sure all the paperwork meets all legal requirements.

Termination of Parental Rights

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