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Texas - Overturn Temporary Order

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techchic38

Junior Member
What is the name of your state (only U.S. law)? Texas

My husband who admitted on stand today that I am a good mother somehow managed to convince the judge to award him temporary custody of our 2 children. He also admitted that he is living with his girlfriend. So now my boys will be taken from their home they grew up in and placed with him in another city. The judge's reasoning for this decision was that I am a smoker. However, I am not a heavy smoker and do not smoke inside my home or around my children. My husband even stated that I do not smoke around my children. And, my husband admitted to drinking and as well as smoking but his defense was that he only smoked an occasional cigar. This judge has a son with asthma and said that he dislikes smoking. My husband has an explosive temper. I feel that the evidence ( police reports, statements, etc. ) should have proved to the court that this man is a ticking timebomb. My attorney was in complete shock that he was awarded temporary custody as he had no evidence against me other than the complaint that I smoke. How can I appeal this decision? What can I do? I don't want my children living with him for the next 45+ days while awaiting the final hearing. Please help. Thank you.
 


Ohiogal

Queen Bee
What is the name of your state (only U.S. law)? Texas

My husband who admitted on stand today that I am a good mother somehow managed to convince the judge to award him temporary custody of our 2 children. He also admitted that he is living with his girlfriend. So now my boys will be taken from their home they grew up in and placed with him in another city. The judge's reasoning for this decision was that I am a smoker. However, I am not a heavy smoker and do not smoke inside my home or around my children. My husband even stated that I do not smoke around my children. And, my husband admitted to drinking and as well as smoking but his defense was that he only smoked an occasional cigar. This judge has a son with asthma and said that he dislikes smoking. My husband has an explosive temper. I feel that the evidence ( police reports, statements, etc. ) should have proved to the court that this man is a ticking timebomb. My attorney was in complete shock that he was awarded temporary custody as he had no evidence against me other than the complaint that I smoke. How can I appeal this decision? What can I do? I don't want my children living with him for the next 45+ days while awaiting the final hearing. Please help. Thank you.
Police reports are hearsay. Statements (unless made in court) are hearsay and cannot be cross examined. Thus those things would not have carried much, if ANY, weight.
 

techchic38

Junior Member
Right. He made a statement "in court" stating that I am a good mother. I made a statement "in court" saying that he has an explosive temper. After being asked about the police report for domestic violence, he admitted to holding me down and choking me...in court... while sworn in. He admitted it. Do you have any advice as to what I can do now? That is really my question. Can I overturn this and if so, how?
 

LdiJ

Senior Member
Right. He made a statement "in court" stating that I am a good mother. I made a statement "in court" saying that he has an explosive temper. After being asked about the police report for domestic violence, he admitted to holding me down and choking me...in court... while sworn in. He admitted it. Do you have any advice as to what I can do now? That is really my question. Can I overturn this and if so, how?
Your attorney could file a motion for reconsideration. If all went as you described, then your judge made a bad decision based on a bias.
 

Momto1

Member
Not legal advice but maybe commons sense. If it did go as you say it did and the judges decision is simply based on the fact that you are a smoker, why don't you just QUIT SMOKING :confused:
 

Tex78704

Member
Temporary orders in Texas are interlocutory and cannot be appealed.

Just because you are 'a good mother' does not mean you are the best parent for primary custody.

Any motion for reconsideration would only be considered if there is new evidence, not to rehash what was already argued.

There is strong evidence of the negative health effects of second hand smoke on children. The judge will not be overturned on abuse of discretion if one of his findings against you having custody includes the fact you are a smoker.

Given the father has been given primary custody in temporary orders, the odds of him getting it permanently have gone up a bit. If you care more about having primary custody than smoking, consider doing what you can to take the smoking issue off the table. Which would mean quitting smoking pronto and convincing the judge that this is sincere and permanent. Which, as these things go, is not that simple with only a couple of months to go for a final hearing.

Alternatively, if you can afford it and your attorney thinks it might be a good idea, you can invoke your right to a jury trial and not allow the judge to make the determination on which parent will be the custodial parent.
 
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