District Court Out of Control

What is the name of your state?What is the name of your state?What is the name of your state?What is the name of your state?What is the name of your state? Texas

I have been divorced from my children's father since 02/2002. He originally signed a waiver and I filed the final decree. In the final decree I was named SMC and he was sole possessory. In May of 2002, he motioned for JMC but because I had no money to pay an attorney, I used someone who offered to do it pro bono. He was awarded JMC and the court put a geographic restriction; but never showed any proof of change in circumstances to warrant the change in conservatorship. Additionally, the final order was never signed by my attorney and opposing counsel even signed an affidavit stating that my attorney opposed the entry of the order the way it read.

I have since remarried, found a job and moved to a county outside the geographic restriction with my new husband. In 10/2003, he petitions the court for full custody because I have moved. I do not restrict his visitation and even encourage their phone calls. During this time, he has tested positive for illegal substances, cannot keep a job, and moves constantly. At the same time, I petitioned the court to lift the restriction, and they denied it, finding me in contempt and ordering me back to the home county. I have lost everything I petitioned for and now carry a daunting legal bill, that I didn't have the money for in the first place.

We have just filed a motion for new trial, claiming that the district court didn't consider all of the facts presented that coincide with The "Holley Factors" routinely used by the state to determine whether to lift restrictions. We are also filing a Bill of Review on the original modification order giving him JMC status.

I know that my story is long, but can someone give me some direction with my case? Are my efforts in vain? Do I stand a chance of getting an Appellate Court to overturn the District Court? PLEASE HELP....

JMC is the standard in Texas. JMC is also undefined in Texas. In most cases in order to receive SMC one must prove there was abuse in the prior two years to either the other parent or the child. One can have JMC and still have all the exclusive legal rights that a SMC would have. I can only assume you should have filed a petition for relocation because of the restricted geographical location provision. Most standard orders in Tx give provisions for over 100 miles apart and for less than 100 miles apart. I really don't know what your chances are. Follow your current court orders until you are able to have them modified. Study up on your texas family code (on-line).

The problem is that you ARE in contempt of a court order. Whether you agreed with it or not, there was a relocation restriction that you had to obey until told otherwise, and you ignored it. I would suspect that your chances on appeal are very slim.

shawna maples said:

JMC is the standard in Texas. JMC is also undefined in Texas. In most cases in order to receive SMC one must prove there was abuse in the prior two years to either the other parent or the child. One can have JMC and still have all the exclusive legal rights that a SMC would have. I can only assume you should have filed a petition for relocation because of the restricted geographical location provision. Most standard orders in Tx give provisions for over 100 miles apart and for less than 100 miles apart. I really don't know what your chances are. Follow your current court orders until you are able to have them modified. Study up on your texas family code (on-line).

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I know that JMC is normally accepted as the child's best interest; but according to precedence, that assumption only applies at the time of the original divorce proceedings. My concern is that OC did not request in his motion all that was awarded by the court.

Our grounds for the Bill of Review are that the original motion for modification seeking JMC was incorrect and incomplete. If the court would have read the actual pleading, it would have noticed that the REQUIRED affidavit was not attached. It therefor should not have even set it for hearing. Then, once it was heard, OC did not show a substantial change in circumstance to warrant the change of conservatorship.

Hind sight is 20/20... and if I had known then all that I know now about our family courts, I would have been better equipped for the battle.

stealth2 said:

The problem is that you ARE in contempt of a court order. Whether you agreed with it or not, there was a relocation restriction that you had to obey until told otherwise, and you ignored it. I would suspect that your chances on appeal are very slim.

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To clarify... I WAS in contempt of court. I am in compliance with all court orders while we are working the appeal. Further, not that I feel the need to defend my position; but there were many extenuating circumstances that led to the relocation. It was not an easy decision, or one that was taken lightly.

It is a sad fact that Texas is so slow to realize that divorced families are just that... divorced. They lead seperate lives, and with the children's best interest in mind, should be able to cooperate to provide the best possible life available. That is not always within the same city or county. With our economy's current condition, there should be special consideration taken when the motivating factor for change is stable employment.

Thank you all for your input; I sincerely appreciate it. It always helps to get a fresh perspective on a stressful situation.

the waiting is the worse

I cannot offer much advice on your current situation. However, I am facing similar concerns with the current situation I am in and am seeking any advice that you may have to offer. My divorce is pending. We are set for final hearing 7/12/04. Temporary orders that were issued during the pending period have been completely ignored by my soon to be X. We were married in Tennessee and lived there for 2 1/2 years prior to marriage. We moved to TX so that he could go to school.. He did not. Almost 5 years later and one son 1 1/2yrs old, we are divorcing. I am scared to death that he is going to try to put in a geographical restraint when we go to court. I do not think he currently has representation and I do. All of my family is in Tennessee. His are spread throughout TX, but we do not see them on a regular basis. My family has offered to let me live with them for free, and my father has even set up an e-business that I can run and keep my son at home with me. He has never been to daycare and has had a sitter one time. What do you think his chances are of succeeding with the restraint? I have tried to review Texas family code and am not having much luck with circumstances. Please respond here, or respond to thread "geographical restraint" I would really appreciate it. From one mother to the next, hang in there. You are not alone.

Your biggest mistake was ignoring the court order and moving, and then expecting the court to catch up with you. You should have filed to lift the restriction first, waited for the ruling and if it went in your favor, moved.

It also sounds like you are trying to appeal a ruling that was made two years ago. The time for an appeal has long since passed.

Honestly, you created your own problems. Your "extenuating circumstances" do not outweigh a court order, whether you like what the court order says or not. It is in the childs best interests to have both parents involved in their lives. Your new husband is not more important than the childs relationship with his father.

VeronicaGia said:

Your biggest mistake was ignoring the court order and moving, and then expecting the court to catch up with you. You should have filed to lift the restriction first, waited for the ruling and if it went in your favor, moved.

It also sounds like you are trying to appeal a ruling that was made two years ago. The time for an appeal has long since passed.

Honestly, you created your own problems. Your "extenuating circumstances" do not outweigh a court order, whether you like what the court order says or not. It is in the childs best interests to have both parents involved in their lives. Your new husband is not more important than the childs relationship with his father.

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Like I said before, hindsight is 20/20. I should have followed procedure, and I didn't. I am not discounting the importance of my children's father involvement in their life; not in the least, nor am I saying that my husband is more important.

My questions are based on legalities. According to the texas family code, the court cannot enforce an illegal or void order. Therefore, because my-ex didn't prove what was legally required by statute to modify conservatorship, the modification order that established the restriction is left open to be ordered as a void order under a bill of review to the appellate court. From what I have read, there is no statute of limitations on a void order. Am I wrong?

karenclark said:

I cannot offer much advice on your current situation. However, I am facing similar concerns with the current situation I am in and am seeking any advice that you may have to offer. My divorce is pending. We are set for final hearing 7/12/04. Temporary orders that were issued during the pending period have been completely ignored by my soon to be X. We were married in Tennessee and lived there for 2 1/2 years prior to marriage. We moved to TX so that he could go to school.. He did not. Almost 5 years later and one son 1 1/2yrs old, we are divorcing. I am scared to death that he is going to try to put in a geographical restraint when we go to court. I do not think he currently has representation and I do. All of my family is in Tennessee. His are spread throughout TX, but we do not see them on a regular basis. My family has offered to let me live with them for free, and my father has even set up an e-business that I can run and keep my son at home with me. He has never been to daycare and has had a sitter one time. What do you think his chances are of succeeding with the restraint? I have tried to review Texas family code and am not having much luck with circumstances. Please respond here, or respond to thread "geographical restraint" I would really appreciate it. From one mother to the next, hang in there. You are not alone.

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First, and most importantly, make sure that your attorney knows and informs the court that your soon-to-be-ex has not complied with the temp orders.

Secondly, unless he files a response to the original petition, you will be granted your divorce by default. If he doesn't have representation by now, he may not come to the final entry hearing.

The implementation of a geographical restraint will largely depend on what conservator status is established. If it is Joint Managing Conservatorship, it is likely that the court will automatically establish a restriction. If you have Sole Managing Conservatorship, it is likely to be your decision whether you want one in there or not.

Who is writing the final divorce decree? If your attorney is writing it, he/she should consult with you as to the contents and details contained in it. Also, if he has not retained counsel and does not plan to contest the divorce, do not put a restriction in there, and try for Sole Managing Conservatorship.

I have learned a lot... the hard way, about our family court system. I wish that I had someone to answer my questions 3 years ago when my ordeal started. If you have any other questions, please feel free to email me at any time. I've been there.

God Bless!

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