Thank you all for answering the posting.
I invite everyone to read this rather lengthy post (my apologies for that) and please leave a comment, amplifying information, or rebuttal.
Please know that I am not here to argue. I have no desire to do that, so if it seems that I am coming across as argumentative, it is not my intent. I am just of the mind to ask questions but I will challenge thought processes that do not make sense or I find to be wrong based on my research.
I will back up what I am saying or asking with tangible court cases, statutes, rules, or evidence when posing my opposition to something that someone has said.
I am hoping that maybe the person (or someone else who knows more than I do) can correct my thinking with more direct "evidence" (so to speak) other than the idea of "status quo" or "this is how it is normally done". Those arguments do not hold water and need to be abolished from the court system by judges, lawyers, and those common folk who hire them.
@stealth2 : I hear what you are saying but disagree with the premise based on the multiple cases that say otherwise. (I am not trying to argue, I just rather put verifiable information out there for anyone who comes across these posts at a later date)
Texas Family Code 156.101(a)(1) the circumstances of the child, a conservator, or other party affected by the order have
materially and substantially changed since the earlier of:
The issue was recently addressed in, In the Interest of E.A.D.P., J.T.C.P. and C.E.P., children, by the Court of Appeals Fifth District of Texas at Dallas. In this case, the court looked to factors that had previously been set out as their guide in deciding what is a material and substantial change and holding that, “a parent’s remarriage and a change in home surroundings have been held to constitute a material change of circumstances justifying modification of conservatorship.” (emphasis added). The court re-affirmed that material changes include all aspects of a child’s physical, mental, emotional, and moral well-being. They also held that while a change in age alone may not be a material change, the differing needs not being met that have arisen because of a change in age can be a material change in circumstances.
That is only 1 of many cases as an example that marriage or change of home does constitute a change of material circumstance (at least here in Texas).
Following up on
In terms of what to look for in a lawyer, I would likely want someone fairly aggressive with experience in dealing with abuse allegations in custody. I would, frankly, expect it to be rather costly.
All "abuse" allegations have been investigated and closed as unfounded (by the police at least).
The crux of my issue with the judge taking into account and admitting into evidence supposed evidence that was unable to be corroborated.
Worse than that, allowing that evidence to be presented in a manner that goes against the
Texas Rules of Evidence: Rule 1001 (d) that requires an image "PRINT" be made and held as an "original" (as opposed to PRINTOUT which have two different meanings).
Not going to copy and paste the rule but it can easily be looked up.
When defining the term "PRINT" it is shown to be (what you and I know as) a picture/photo produced by a means on photo paper (in Color) and accurately represents the terms of the image.
By contrast, the term "PRINTOUT" is shown to be a rendering produced by a printer (not necessarily in color) but that can accurately reflects the "
information"
So a PRINTOUT would be that of an email.
A PRINT would be something to reproduce a photo/picture.
The two meanings are distinct and different for obvious reasons.
The fact that I had to argue a BLACK AND WHITE PRINTOUT of supposed injuries is a cause for concern especially when those images could not be collaborated by the police after 2 months of investigation (no arrest, which is a significant when comparing preponderance of evidence, which is used in civil cases and that of probable cause which is used in determining if something warrants an arrest).
The US Supreme Court as well as other state Supreme Courts, weighed in on this several times over the years pitting both standards against each other.
Just a few examples, we find that:
“[probable cause] does not require the fine resolution of conflicting evidence that a reasonable-doubt or even a preponderance standard demands” Gerstein v. Pugh, 420 U.S. 103, 121 (1975)
“While "reasonable suspicion" is a less demanding standard than probable cause and requires a showing
considerably less than preponderance of the evidence. (emphasis added) Illinois v. Wardlow 528 U.S. 119 (2000).
“The committing magistrate has the responsibility to determine probable cause at a preliminary hearing. This standard is lower, even, than a preponderance of the evidence standard applicable to civil cases.” State v. Pledger, 896 P.2d 1226 (Utah 1995)
“[p]robable cause has a lower threshold of proof than proof beyond a reasonable doubt or by a preponderance of the evidence.” People v. Hardacre, 109 Cal.Rptr.2d 667 (Cal.App. 6 Dist. 2001)
The obvious argument there is that if there is not enough evidence for an arrest (probable cause) to be made, then by logical following, there is not enough evidence for a preponderance of evidence to be formed.
That of course in an argument for another time on another day and not these forums.
Using the information above and what I alluded to in my prior posts, I find a disconnect between judges interpretation of a law and how that law is actually supposed to be read.
Looking to the Texas State Supreme Court for a ruling I found:
Fitzgerald v. Advanced Spine Fixation Systems, Inc., 996 SW 2d 864 - Tex: Supreme Court 1999
There are sound reasons we begin with the plain language of a statute before resorting to rules of construction. For one, it is a fair assumption that the Legislature tries to say what it means, and therefore the words it chooses should be the surest guide to legislative intent. Also, ordinary citizens should be able to rely on the plain language of a statute to mean what it says.
[10] Moreover, when we stray from the plain language of a statute, we risk encroaching on the Legislature's function to decide what the law should be.
Pedernal Energy, LLC v. Bruington Eng'g, Ltd., 536 S.W.3d 487, 491-92 (Tex. 2017)
Words and phrases must be "read in context and construed according to the rules of grammar and common usage." We construe statutes so that no part is surplusage, but so that each word has meaning. We presume "the [l]egislature chooses a statute's language with care, including each word chosen for a purpose, while purposefully omitting words not chosen." We also take statutes as we find them and refrain from rewriting text chosen by the [l]egislature.
This is just a small smattering of cases that came from the Tex Supreme Court... there are many more and vastly more from the appeals courts.
The reasoning for my posting this is my guidance that the judge screwed up because the cited statutes in the Findings and Fact and Conclusions of Law do not match up with the outcome.
I can go into the specifics of that claim BUT it would require a knowledge of my divorce decree and my ex's sworn affidavit in response to being served divorce papers.
I do not want to get that personal on an open forum such as this, so I ask that you please trust me when I say that it does not take a linguist to discern the actual reading of a statute and its direct meaning, which is a far cry from what the judge used to limit possession of the children.