Dallas, TX asked in Family Law, Child Custody, Civil Litigation and Civil Rights for Texas

Q: Per the AJ report, with no dates, I was awarded standard possession order, but no attorney filed the SPO w/courts

With no SPO or any other orders stating custody, what does this mean? My attorney disagrees with my research, ignores my calls. The custody filling started with an ex Parte order that shouldn’t have been ordered as the judge was misled with insufficient evidence. I have tons of evidentiary documents proving this, my son s absent and uninvolved father and his lawyer filed frivolous claims, I have proof of this and the following (per the grievance I’m filing) abuse of discretion, fraud of the court, judicial misconduct, several violations of our constitutional rights, & more. I have my son now who has suffered emotional, educational, medical neglect being with the party who gave my son to his mother & doesn’t live where he says. My son cannot go back to them or it will damage it’s not in his best interest. The judge is prejudicial, I haven’t received a fair trial. With no SPO filed w/the court & no order for me to follow; what does this mean? I MUST keep my son safe. Please help us!

2 Lawyer Answers

A: Wow, many items to unravel here. First, if you are having difficulties communicating with your attorney, it may be time for a change. Before you change, email, and request a conference - either in person or via zoom. Use that session not only to catch up, but to establish strategy for your case moving forward. If you do not have a copy of the associate judge's recommendation/rulings following the temporary hearing, obtain a copy through the District Clerk's office where the case is pending. VERY DIFFICULT to show that a judge is acting in a prejudicial manner - instead, try to make the best of the situation. Seek additional rulings, particularly if you can show through a supporting affidavit that the child is in imminent danger (physically, psychologically). The AJ report/rulings should indicate who was to draft temporary orders, including who was to receive access pursuant to the Standard Possession Order. Good luck to you.

A: I strongly urge you not to file any sort of grievance against the judge raising any of the issues you describe above. That is going to make you appear unhinged and could cripple any chance you have to get custody of your son.

Ex parte orders are, by their very nature, of very limited duration. They will be replaced by temporary orders, and then by final orders, following full evidentiary hearings at which both sides will have an opportunity to present all competent admissible evidence.

AJ rulings are subject to being directly appealed de novo to the district judge. "De novo" means that the district judge will take a fresh look at all of the evidence on the particular issue appealed without giving any weight to the prior AJ ruling whatsoever. While AJs generally know their DJ's predilections on various issues that frequently arise in family law case, it is not unusual for a DJ to disagree with an AJ and enter a completely different ruling upon being presented with compelling facts.

It may be that the AJ (properly) didn't consider "evidentiary documents" because such documents contain hearsay or were otherwise inadmissible--for example written statements that contain hearsay descriptions of events that happened. A de novo appeal gives you and your attorney the opportunity to cure any evidentiary defects and present your evidence to the district judge in an admissible form using live witnesses with personal knowledge of the neglect your son has experience (e.g., they were physically present when it occurred and saw it with their own eyes).

This will be a far more effective manner to raise the material facts that affect the merits of the court's decision than any sort of grievance proceedings.

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