Temporary Custody...Can It Be Reversed?

[austinmom]

Texas

First, let me state that I know it is hard for anyone to trust that some anonymous person on a forum will be telling the whole story behind such a travesty as I am about to tell, but I need some advice and I would be wasting my time if I wasn't totally honest. Because I don't understand how something like this could happen, and I am hoping that someone will read this and will know what I can do.

I am a single mother, and I raised my son primarily on my own without help from family nor my son's father. I did, however, try to support the father in having contact with his son over the years, even though he moved back home to a different state and started a family and a successful business. For many years, I did not receive child support. I struggled, but it was ultimately worth it because my son is a fabulous, self-assured, wonderful kid.

My son is now 15 years old, and last year I noticed that he wanted to spend more time with his father (his father and family - including 3 children - now live in the same town as we do.) I supported it. His father and I do not see eye-to-eye on everything, and sometimes I would step in, like when his father wanted my son to spend his Summer Vacation babysitting their 3 kids while they were at work, and one of the kids was under 2 years old. His father angers easily, and our tenuous relationship deteriorated after that.

His father had been paying child support for the past few years, even though no paternity nor any court order had ever been established. Then, in September, my son's father stated he was no longer going to pay for child support.

So, for the first time in 15 years, I started proceedings for child support.

And my son's father, at the child support hearing, announced that he wanted custody.

I was not concerned...after all, I had raised him. He was in my care and I had never barred his father (in fact, I encouraged it because I felt that every child needs to have contact with their father no matter how that father behaves...as long as the child is in no danger) so I was not worried.

However, I hired a lawyer to make sure my son's rights were protected. My son wanted to stay with me. I knew that the only reason my son's father cried "custody" was in retaliation to my asking for him to bear his half of the responsibility.

Last Friday, we went to court. We showed his lack of involvement and his outbursts of anger. We made it clear that he never even bothered to establish paternity. We showed that I had been my son's sole caretaker for 15 years. We did not even bring my son to state his wishes because my case was so cut-and-dry, so I did not want to put him through a hearing.

My son's grades, however, have slipped since all of this has happened. he went from an A/B student in AP classes to failing many of the core classes he needs. I have been on top of it, but there is only so much a parent can do short of sitting over his shoulder in class to make sure he gets all of the assignments he is supposed to do. This situation has affected him, and his grades have slipped.

My son's father and his wife stated in court that it was my fault. We asked why they did not do anything since they were so concerned, but there was no clear answer. We showed the Associate Judge that I had taken steps to help bring up my son's grades, and none were due to my son's father.

But the Associate Judge awarded that man, who has never been in his life consistently, full custodial rights. Full. The Associate Judge ripped my son out of his home, and he stated in court that it was for only one reason. Grades.

Later, I found out that this Associate Judge is heavily into the school system, gives talks on Truancy, and runs a Truancy Court at local schools. It is his pet project.

This is a temporary order, and the final order will be in 2 months. But, my son is crushed and this has disrupted his life.

Here are my questions:

1. Does anyone know of precedent where temporary orders are reversed as issued by an Associate Judge?

2. Is it possible to have someone else look at the Associate Judge's ruling and see that it was based on one piece of evidence and not the whole? Also, the only piece of evidence he based his decision on was an old progress report that my son's father called a report card - but it was not a report card, and it did not reflect his current grades. My son has been working on them, and that progress report does not reflect his true grades. Since the progress report was wrongly entered, can I request an appeal?

3. My son wants to go to court to be heard. Can I request a new hearing on those grounds? Does this fall under Family Code 156.006?

My concern is that the Judge for the final hearing will not want to change his arrangements to avoid drastic changes (I've read that Judges do that) and will not take into account the fact that the Associate Judge made a drastic change.

I never thought this could happen. It is terrible when the Law does not protect people who are exercising their rights. I should not have gone to court for Child Support, but once my son's father cried "custody" I could not bring myself to let him bully me any more. Now, my son is paying the price for me standing up for myself.

Any advice would help. Sorry for the long post.

 

[lbernhard]

Im sorry that I do not have any advice to you, other than to keep fighting for your son. I am sorry this happened to you. I just wanted to express the sadness I feel for you and your son. I hope you or someone else can give you the answer you need.

 

[Ohiogal]

Texas

First, let me state that I know it is hard for anyone to trust that some anonymous person on a forum will be telling the whole story behind such a travesty as I am about to tell, but I need some advice and I would be wasting my time if I wasn't totally honest. Because I don't understand how something like this could happen, and I am hoping that someone will read this and will know what I can do.

I am a single mother, and I raised my son primarily on my own without help from family nor my son's father. I did, however, try to support the father in having contact with his son over the years, even though he moved back home to a different state and started a family and a successful business. For many years, I did not receive child support. I struggled, but it was ultimately worth it because my son is a fabulous, self-assured, wonderful kid.

You were not due child support unless and until you got a court order for it. Apparently you did not do that nor did you bother to establish paternity.

My son is now 15 years old, and last year I noticed that he wanted to spend more time with his father (his father and family - including 3 children - now live in the same town as we do.) I supported it. His father and I do not see eye-to-eye on everything, and sometimes I would step in, like when his father wanted my son to spend his Summer Vacation babysitting their 3 kids while they were at work, and one of the kids was under 2 years old. His father angers easily, and our tenuous relationship deteriorated after that.

What is wrong with a 15 year old babysitting three kids? If he is such a great fabulous self assured kid, he would be responsible enough to babysit and contribute.

His father had been paying child support for the past few years, even though no paternity nor any court order had ever been established. Then, in September, my son's father stated he was no longer going to pay for child support.

So, for the first time in 15 years, I started proceedings for child support.

Okay. So father was being a great guy by voluntarily giving you money for his son.

And my son's father, at the child support hearing, announced that he wanted custody.

I was not concerned...after all, I had raised him. He was in my care and I had never barred his father (in fact, I encouraged it because I felt that every child needs to have contact with their father no matter how that father behaves...as long as the child is in no danger) so I was not worried.

Okay.

However, I hired a lawyer to make sure my son's rights were protected. My son wanted to stay with me. I knew that the only reason my son's father cried "custody" was in retaliation to my asking for him to bear his half of the responsibility.

Really? Maybe he wanted a say so in how his child is raised.

Last Friday, we went to court. We showed his lack of involvement and his outbursts of anger.

Yet he was involved -- he paid support. He had a relationship with his son. Outbursts of anger? How did you show that? You had police reports and convictions for domestic violence or you just testified that dad yells at times?

We made it clear that he never even bothered to establish paternity.

Nor had you established paternity.

We showed that I had been my son's sole caretaker for 15 years. We did not even bring my son to state his wishes because my case was so cut-and-dry, so I did not want to put him through a hearing.

No you hadn't been the sole caretaker. Dad was helping financially and was involved with seeing his son for the last year.

My son's grades, however, have slipped since all of this has happened. he went from an A/B student in AP classes to failing many of the core classes he needs. I have been on top of it, but there is only so much a parent can do short of sitting over his shoulder in class to make sure he gets all of the assignments he is supposed to do. This situation has affected him, and his grades have slipped.

If your son were responsible he would be getting his assignments done. If he is failing many of the core classes that does not show his responsibility or maturity.

My son's father and his wife stated in court that it was my fault. We asked why they did not do anything since they were so concerned, but there was no clear answer. We showed the Associate Judge that I had taken steps to help bring up my son's grades, and none were due to my son's father.

Is father listed on the child's school records? Was father helping junior with homework when junior was over there? What steps did you take?

But the Associate Judge awarded that man, who has never been in his life consistently, full custodial rights. Full. The Associate Judge ripped my son out of his home, and he stated in court that it was for only one reason. Grades.

A bit melodramatic, aren't you?

Later, I found out that this Associate Judge is heavily into the school system, gives talks on Truancy, and runs a Truancy Court at local schools. It is his pet project.

And?

This is a temporary order, and the final order will be in 2 months. But, my son is crushed and this has disrupted his life.

How are his grades at this point?

Here are my questions:

1. Does anyone know of precedent where temporary orders are reversed as issued by an Associate Judge?

Temporary orders are NOT final appealable orders. It is possible that the temporary orders will not become permanent.

2. Is it possible to have someone else look at the Associate Judge's ruling and see that it was based on one piece of evidence and not the whole? Also, the only piece of evidence he based his decision on was an old progress report that my son's father called a report card - but it was not a report card, and it did not reflect his current grades. My son has been working on them, and that progress report does not reflect his true grades. Since the progress report was wrongly entered, can I request an appeal?

And old progress report? How old was it? Did you present the current report card/progress report? You should have attacked the progress report at the time. But you cannot request an appeal.

3. My son wants to go to court to be heard. Can I request a new hearing on those grounds? Does this fall under Family Code 156.006?

You can motion for an in camera interview with your son. But his wishes may not hold a lot of weight if he was not mature enough to turn in his school work and such.

My concern is that the Judge for the final hearing will not want to change his arrangements to avoid drastic changes (I've read that Judges do that) and will not take into account the fact that the Associate Judge made a drastic change.

He may not. Depends on a lot of things.

I never thought this could happen. It is terrible when the Law does not protect people who are exercising their rights. I should not have gone to court for Child Support, but once my son's father cried "custody" I could not bring myself to let him bully me any more. Now, my son is paying the price for me standing up for myself.

Wait a minute -- the law should only protect you? And not dad? Dad is protecting his right to parent. Just because you lost doesn't mean the law isn't working.

 

[Isis1]

Dad proved a change of circumstance. Since you and dad established a relationship between the child and dad, the failing grades was enough evidence for a change in custody.

I'm sorry. I know that's not what you want to hear.

 

[mistoffolees]

Dad proved a change of circumstance. Since you and dad established a relationship between the child and dad, the failing grades was enough evidence for a change in custody.

That's certainly true.

However, Mom is still facing a final custody hearing. In order to be of any assistance, she needs to give us more detail:

How much did the grades fall and in how many subjects? If the kid went from A to D in 5 subjects, that's very different than A- to B+ in 2 subjects.

Has the kid been in counseling? If so, what does the counselor say?

What were the grades that Dad presented and how much had they improved before the temporary hearing? And how much have they changed (either direction) since the temporary hearing?

Was there more involved than the grades? For example, our child's progress reports have teacher's comments. If the comments said "child never has homework prepared and arrives late to school 4 days a week", that would influence things, as well.

What are the temporary orders - in detail? People often use custody (implying physical custody) when the actual order says that Dad got joint legal custody. What does it say about custody and visitation?


With answers to those questions, it might be easier to help address the issues.

Meanwhile, forget the idea of an appeal. You can't realistically appeal a temporary order - by the time you get to appeals court, the final hearing would be done. All you'd do is alienate the judge with no gain.

 

[CJane]

Yes, it's absolutely possible to have a temporary order overturned. However, you need to put 100% of your faith into your attorney in order to get it done. If you cannot, you need to find a new attorney.

Once the ruling is in place, judges are loathe to change it. None of us like to admit we were wrong, and certainly not publicly. And it sounds as if, unreasonable though the judgment may seem to be, it is certainly within the law.

Ask your attorney to specifically request written findings. Ask him/her to look into the statutes relating to what is required before restricting a parent's access to their child. Ask about getting a guardian ad litem involved prior to the final hearing.

 

[stealth2]

As has been stated, an appeal doesn't make a lot of sense as it won't be heard prior to the final hearing. Your best course of action now, IMO, is to show your son that this is an opportunity for him to (a) get to know his Dad better and (b) buckle down and change his own behavior. Neither of you have to like the situation, but it is what it is.

I suppose, should your son's grades not improve between now and the final hearing, the judge *may* return custody to you. However, that would not be a plan I would encourage - the only one it really hurts is your son. Failing his freshman year (I am guessing he's a frosh in HS, based on his age) will have long-standing repercussions on his HS future - and beyond. He can forget taking AP classes, and even possibly Honors classes, next year. That can be hard to recover from in the upper classes. This is something that should have been explained to him when he started screwing around with his work.

I have to wonder - how is it that your son knew what all was going on?

 

[austinmom]

Yes, it's absolutely possible to have a temporary order overturned. However, you need to put 100% of your faith into your attorney in order to get it done. If you cannot, you need to find a new attorney.

Once the ruling is in place, judges are loathe to change it. None of us like to admit we were wrong, and certainly not publicly. And it sounds as if, unreasonable though the judgment may seem to be, it is certainly within the law.

Ask your attorney to specifically request written findings. Ask him/her to look into the statutes relating to what is required before restricting a parent's access to their child. Ask about getting a guardian ad litem involved prior to the final hearing.

Thank you, since you were the only one who answered the questions I asked.

I am a little stunned at some of these posts...I thought this was a forum for "advice" - not a forum to pass judgment on a stranger and berate them. Kinda sad.

Just FYI, he is no longer failing, but since my lawyer was not given that paper until we were in court, I had no way of proving that his grades were up. I have supported his father being in his life. I just stood up for MY right to request that his father take financial responsibility so that I no longer had to take on his financial responsibility as well.

His father has always been able to see my son. I have had an open door policy from day 1. His father rarely accessed it because he didn't want to drive across town to pick him up. And THAT is the truth.

It IS possible that Judges make bad judgments. It does happen. I realize that there is no way for you guys to know if I am glossing things over, but this is not a psychology forum...it is a "Free Advice" forum. Passing your own judgment on my situation is not what I came here for.

And my son knew this because his father told him what he planned to do all the way back in October, after I requested a child support hearing and was told not to tell me.

So, thank you, CJane...you were the only one who gave me advice as pertaining to my questions.

 

[stealth2]

Well.... given that you get what you pay for... opinions are included in the advice. And given that you are already in this situation, how to handle it moving forward (given an appeal is not a viable alternative) IS advice you need. Wringing your hands as tears roll down your face won't help at all.

Why did you not provide your lawyer with proof that your son's grades were improving? Why did you not provide him with information/proof of what you were doing to address the situation? Pretty much - why did you leave yoru lawyer unprepared for court?

And... as was pointed out to another poster earlier today - look at all the "my" references. This boy is not just YOUR son. He is also his DAD's. It took both of you to create him. Maybe that's part of the issue - you think he's just your kid. He's not. And I can guarantee that Dad is NOT the only parent causing problems for the boy.

At this point, you may want to discuss with your lawyer a GAL to look at both homes and make an independent assessment of which situation is best for him. Because I don't see you prevailing at this point.

Take the above for what you will.

p.s. just what WAS so terrible about the 15yo babysitting over the summer?

ETA... given that your son apparently knew of the situation, why did you not tell him that his actions wrt schoolwork could affect the outcome?

 

[milspecgirl]

in OP's defense, it seems that dad did not bring up the problem with grades until they were in the court room. Kind of hard for mom to know to bring that info or prepare her lawyer if dad sprung the grades thing on her at the last minute in court.

My advice- forget an appeal. Work towards the final hearing. Ask for a GAL immediately. Do everything in your power to build your relationship with your son while he is with dad. Stay super involved with the school, teachers, etc.

 

[stealth2]

in OP's defense, it seems that dad did not bring up the problem with grades until they were in the court room. Kind of hard for mom to know to bring that info or prepare her lawyer if dad sprung the grades thing on her at the last minute in court.

My advice- forget an appeal. Work towards the final hearing. Ask for a GAL immediately. Do everything in your power to build your relationship with your son while he is with dad. Stay super involved with the school, teachers, etc.

Perhaps. But, in all honesty? A half-way rational person would realize that that is a HUGE issue and would at least have discussed it with her attorney. How many parents would be cool with their kid going from A's to failing? Why is Dad's reaction to it invalid? He sees: Mom's letting the kid fail. Time for a change!

 

[milspecgirl]

however, I question why dad never talked to mom about grades? and apparently he couldnt show that he had talked to teachers, worked with son, etc. So, I have trouble agreeing that mom should have lost custody when dad couldnt prove that he even cared about the grades up to that point.

Yes, mom should have told atty about grades, but I am a little concerned about an atty who would have thought any custody case was cut and dry.

At this point, mom needs to focus on moving forward. She needs to show that she is involved and has been since before the temp hearing. Go to the teachers and get the grades on a weekly basis if you can for as far back as they can get them - so she can show where she noticed the slip and what she did to help and how it was helping (if it was)

And, I cant stress the importance of a GAL enough. And, at 15, kids wishes are going to be 1 factor- may not be much of one, but at that age, a judge will at least look at it.

 

[Ohiogal]

As has been stated, an appeal doesn't make a lot of sense as it won't be heard prior to the final hearing. Your best course of action now, IMO, is to show your son that this is an opportunity for him to (a) get to know his Dad better and (b) buckle down and change his own behavior. Neither of you have to like the situation, but it is what it is.

I suppose, should your son's grades not improve between now and the final hearing, the judge *may* return custody to you. However, that would not be a plan I would encourage - the only one it really hurts is your son. Failing his freshman year (I am guessing he's a frosh in HS, based on his age) will have long-standing repercussions on his HS future - and beyond. He can forget taking AP classes, and even possibly Honors classes, next year. That can be hard to recover from in the upper classes. This is something that should have been explained to him when he started screwing around with his work.

I have to wonder - how is it that your son knew what all was going on?

One point about the bolded: only FINAL ORDERS are appealable. Temporary orders ARE NOT APPEALABLE because they are TEMPORARY and NOT FINAL. An appeals court only has jurisdiction to hear final appealable orders.

I agree with the rest of it however.

 

[Ohiogal]

however, I question why dad never talked to mom about grades? and apparently he couldnt show that he had talked to teachers, worked with son, etc. So, I have trouble agreeing that mom should have lost custody when dad couldnt prove that he even cared about the grades up to that point.

We don't know that mom lost custody strictly due to grades. That may be a reason cited by the judge but that does not mean it was the ONLY reason.

Yes, mom should have told atty about grades, but I am a little concerned about an atty who would have thought any custody case was cut and dry.

Maybe the attorney didn't state that. I have clients who tend to tell me that they have a winning case and I tell them they COULD win however a lot depends on what the other side brings to the table, they don't always want to hear the could and want a guarantee. I spell it out in my retainer agreement that there are NO GUARANTEES to their court case.

At this point, mom needs to focus on moving forward. She needs to show that she is involved and has been since before the temp hearing. Go to the teachers and get the grades on a weekly basis if you can for as far back as they can get them - so she can show where she noticed the slip and what she did to help and how it was helping (if it was)

Where the teacher noticed the issue doesn't matter. Where mom noticed the slipping grades does matter but if she couldn't prove that she was on top of things when she was the only one with custody -- and I notice she didn't answer MY QUESTION about whether dad was listed on the school records or not -- she is responsible.

And, I cant stress the importance of a GAL enough. And, at 15, kids wishes are going to be 1 factor- may not be much of one, but at that age, a judge will at least look at it.

A GAL can be helpful. But junior has proven to not be all that mature. Hence that is an issue.

 

[stealth2]

Thanks for the correction, OG.

milspec... I don't know the answers to your questions. All I can address is the information that OP provided, and that she apparently didn't see kiddo's failure in school as an issue worthy addressing with her lawyer. And I simply do not understand that. I made a point of not giving my ex any opportunity to hold something against me. And yes, I went through the whole not handing work in deal. I handled it rather aggressively, both to make sure that he'd have the opportunities he should have, as well as to make sure that his other parent couldn't use it against me.