Temporary Orders are important, whether in an original divorce action or modification.
The focus of this blog is on modification cases. The reasons temporary orders are important are as follows:
Temporary orders represent the decision of the court on the contested issues presented at a temporary hearing. Temporary orders can be a future indicator of what will happen in the final hearing. Especially, if the judge that presided over the temporary orders hearing is the same person that presides over the final hearing.
A temporary orders hearing can indicate issues in the case and which witnesses are good witnesses or need improvement.
A hearing on temporary orders can indicate evidence that might be presented at the final hearing and help in the preparation for that final hearing.
If party A achieves success at the temporary hearing, time becomes party A's friend, and party B's enemy. The time gap between a temporary hearing and the final hearing can range from two months to a year.
There are some key points to know what the Texas Family Code says about Temporary Orders.
1) Temporary Orders – the court may render a temporary order in a suit for a divorce modification.
2) While a suit for modification is pending, the court may not render a temporary order that has the effect of changing the designation, of the person who has the exclusive right to designate the primary residence of the child, or the effect of creating a geographic area, or changing or eliminating the geographic area, within which a conservator must maintain the child's primary residence, under the final order unless the temporary order is in the best interest of the child and:
A. The order is necessary because the child's present circumstances would significantly impair the child's physical health or emotional development;
B. The person designated in the final order has voluntarily relinquished the primary care and possession of the child for more than six months; or
C. The child is 12 years of age or older and has expressed to the court in chambers the name of the person who is the child's preference to have the exclusive right to designate the primary residence of the child.
3) In a modification, a person who files a motion for a temporary orders to change primary residence is required to execute and attach to the motion an affidavit that they have personal knowledge or the person's belief based on representations made by a person with personal knowledge that contains facts that support the allegation that the child's present circumstances would significantly impair the child's physical health or emotional development.
A. The court shall deny the relief sought and decline to schedule a hearing on the motion unless the court determines that facts are adequate, on the basis of the affidavit, to support the allegations.
In a recent case, a father filed a motion to modify the existing court order, requesting that he become the parent with the right to decide the primary residence and the child.
At a temporary hearing, the father asked the court to enter temporary orders by naming him as the parent with the right to designate the primary residence of the child and the trial court did so. The mother then filed a writ of mandamus.
The Austin Appellate court found that the trial court abused its discretion in holding a hearing based on father's motion to modify because the Texas Family Code provides that a trial court must deny relief and refuse to schedule a hearing on a motion to modify, if the party seeking the change does not provide an affidavit setting out “facts that support the allegation that the child's present circumstances would significantly impair the child's physical health or emotional development.” “Texas courts have recognized that the ‘significant impairment' standard is a high one,” and that standard requires “evidence of bad acts that are more grave than violation of a divorce decree or alienation of a child from a parent.”
In summary, temporary orders are important and a thorough and careful preparation prior is required before going into the temporary hearing. Especially in a modification, there are strict rules about seeking a temporary order that changes the primary residence of the children.