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Texas Family Law Insiders
Texas Family Law Insiders Episode 131 - Holly Draper on The Importance of Temporary Orders and How to Prepare for a hearing on them.
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You need to know what to skip, know when to skip it. Give the judge only what the judge needs to hear to make rulings on the relevant issues and temporary orders.
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You're listening to the Texas Family Law Insiders Podcast, your source for the latest news and trends in family law in the state of Texas. Now, here's your host attorney, Holly Draper.
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Hello everyone. Welcome back to the Texas Family Law Insiders Podcast. I am your host, Holly Draper, the CEO and managing partner of the Draper Law Firm in North Texas. Today I have a solo episode to talk to you about something that family lawyers know is critically important for all of your family law cases. But clients often underestimate, that is Temporary orders. Whether it's a divorce, an original SAPSR or modification, the temporary orders hearing is often the single most important event in an entire case. Why? Because temporary orders create the status quo. And once a status quo is in place, many courts are reluctant to disturb it without strong evidence. So today I'm going to walk you through some of the keys to a successful temporary orders hearing so you can set your case up for success from the beginning. First, I want to talk about why temporary orders matter more than a lot of clients realize. Temporary orders are not just a placeholder. Sometimes, depending on the court and depending on the nature of the case, these things can be in place for a long time. It could be six months, it could be two years. So it's really important to have temporary orders that are going to not bankrupt the parties that are going to settle things down on a temporary basis while you work towards that final order. But it also is going to create a pattern, a status quo of what you're doing, especially with kids. What kind of schedule are you following on a temporary basis and how does that work? You know, it can really influence the court's perception of the parties at a final trial, how they have handled themselves under temporary orders. It can also drive financial outcomes down the road in a couple of ways. I've seen cases where the financial orders that were put into place during temporary orders, and those temporary orders lasted a long time, really drained the assets of the parties or of one side in particular, and left the parties in a much worse off position by the time they got to a final divorce. Temporary orders can also have a big impact on your ability to relocate down the road. If you have a temporary order that puts people really close together, you know, somebody rents an apartment right down the street or, you know, both living within the school zone and you have a schedule that works for that, it could be difficult to move further out to change the child's school. Things like that. And temporary orders can also set the tone for settlement. What your judge thought of the facts of your case at a temporary orders hearing can often help us get those resolved. If a judge gave one party primary and other standard possession on a temporary basis, it's pretty unlikely that same judge is going to change things up at final trial. So if we can reach a settlement based on the temporary orders, great. It'll save everyone a lot of time and a lot of heartache. But on the other hand, temporary orders can act as kind of a trial run for that schedule. Maybe you don't like that schedule. Maybe you wanted 5050 and you are only getting standard possession. You might be able to show that standard possession schedule wasn't working on a temporary orders basis for one reason or another. We can also use temporary orders as a chance to see if the other side's going to screw up. You know, has the other side been a really uninvolved parent all along? Now they're acting like Disneyland, Dad. Are they going to be able to maintain being a parent and doing all the things they need to do as a parent during that temporary orders phase? If they can't, you're going to use that in your final trial. When you are preparing for a temporary orders hearing. I think the number one biggest factor that comes into play, at least in the counties where I primarily practice, and I'm sure it's the same throughout Texas, is understanding the time limits of your court. Every court is different. In my experience. It's usually a county to county issue, but it can be a judge to judge issue even within the same county. This is why it is super important to know your judge, know your court, know what is likely to happen in that hearing. For example, in Collin county, on temporary orders, you are going to get 20 minutes per side, period. Most of the judges will not have any exceptions to that. Occasionally they'll say, I'll give you more time if I think I need more information. But that's not helpful for you. When you are preparing for your temporary order sharing, you need to assume it is going to be 20 minutes. You are going to be very strictly held to that. And how are you going to deal with it? Many years ago, I had a temporary orders hearing in Collin county and the attorney on the other side very obviously did not understand the time limits and that they were going to be strictly adhered to. In this particular court, that judge is one who would put up on screen mother's time and father's time and tick it down. So you had a running clock to know exactly how much time you had at any point during that hearing. Well, the other side went first. And the attorney stands up and jumps into this diatribe of an opening statement that probably took 10 minutes of her time. She clearly didn't realize that time was going to count against her. She was not going to be given any more time. So now she limited herself to only 10 minutes. So she calls her client, she starts asking questions of her client, and it's a lot of generic background information. She never got to the big issues and she ran out of time. The judge cut her off and that was it. And that meant I was able to question my client without cross examination. I was able to ask my client all of the important issues, ask for everything that I wanted in the hearing. And we ended up getting 100% of what we asked for. And I am extremely confident that would not have happened if the attorney had understood the time limits and used them appropriately to get the important information in from the other side. So a few tips for streamlining your case if you have these kind of strict time limits on temporary orders. First, skip the background information. This is a common thing. I see a lot of associate attorneys doing. They are drafting questions and they include all the background for every witness. Once you're getting past witness number one of the hearing, that judge is going to know who everybody is, that judge is going to know who the kids are, how old they are, how long people have been married. You know, all this background stuff, which at the end of the day really isn't important to getting you the results that you need. You need to know what to skip, know when to skip it. Give the judge only what the judge needs to hear to make rulings on the relevant issues at temporary orders. Second, I almost always skip an opening statement if we have these severe time limits. I have seen a lot of attorneys waste precious time doing an opening statement that better would have spent on questioning witnesses. Very occasionally. It's important if you have some super unique issue in your case, say you have a non parent custody case or where the fit parent presumption is going to be an issue, or say there's a jurisdictional question or there's a weird geographic restriction issue, you can make a super short opening just to alert the judge to pay attention to those issues, but otherwise skip the opening statement Number three, consider using summary exhibits. You know, if you have complicated financials, create a chart, use a financial information sheet. Create a chart showing the budget. By having summaries, you're giving the judge something else to look at and rely upon beyond just what is in the testimony. Because sometimes you don't get to all of that testimony. A lot of judges will let in summaries of testimony that really isn't even testified to in short time limit hearings. I think it's questionable if that's actually admissible, but the reality is that a lot of judges will let it in. So consider doing that. 4. Carefully consider what witnesses are worth calling and which ones are not. When you have 20 minutes aside, it is going to be very hard to have more than just the parties testify. But there are times when it's super important. Do you have a CPS investigator who's going to say that they have a reasonably finding against mom or they're looking into mom for concerns? Do you have a teacher or a counselor or some third party neutral type person who has really important information that you want the court to hear? Yes, you should call those witnesses. You might want to call them first so that there is no risk of running out of time for that silver bullet witness to give testimony. But limit it to the silver bullet. Who are they and what do they know that is likely to influence this hearing? That's the end. Number five, start with the most important stuff first. I see a lot of attorneys starting with generic background information and they're just wasting valuable time. Get that important stuff at the beginning, less important stuff at the end. Then if you run out of time, you're you haven't missed your opportunity to get the important stuff in. Number six, make sure you have a really good summary of relief requested and be sure your witness says that they are asking for everything in that summary document. Sometimes there's a lot of relief that we are requesting and we don't have time to go point by point and ask about every single element on it. But if you can at a minimum get your witness to say yes, they are asking for everything included in the summary of requested belief and they believe it's in the best interest of the child and all those things now at least you've got it before the judge. Number seven, consider if you want to try and exchange exhibits in advance to get agreements on what is admissible before the hearing. Sometimes you don't want to do this because you don't want the other side to see that damaging text message that you're going to use as an exhibit or you like the element of surprise when you use some of these exhibits. However, if you do it right before the hearing. There's usually not going to be time to for the other side to process and prepare for that. But reaching agreements on certain exhibits being admissible can help with time limits because you no longer have to authenticate those exhibits. Everybody's just agreed that they're getting in. Number eight, even when you have strict time limits, do not miss your opportunity to put on evidence related to child support or medical support. Because if you don't put on that evidence, the judge can't order anything. I have seen judges at the end who will kind of ask for information about child support because they want to order it, but you really want to have that star highlighted. It might be down on your list because it doesn't seem that important, but don't forget to get it in before you run out of time. And last on these time limit tips, a lot of attorneys are now using attorneys fees affidavits instead of having testimony related to attorney's fees. I think this is a good example of know your judge. Again, are you likely to get attorney's fees in this hearing? Is there really a statutory basis for getting them? It's more likely in a divorce that fees are going to be dealt with than in certain types of custody cases. So if you're not likely to get attorney's fees, don't waste time testifying about attorney's fees. If you are likely to get them or it's a legitimate possibility, consider using an affidavit for that.
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This episode of the Texas Family Law Insiders podcast is sponsored by the Draper Law Firm, providing family law appellate representation for non parent custody cases, jurisdiction issues, property division, standing conservatorship, possession and access termination, parental rights and grandparent access. For more information, visit DraperFirm.com or call 469-715-6-801.
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A really important element, in my opinion, is preparing your client for the hearing. Part of that is managing their expectations. So often clients think that the fact that the other side had an affair is a silver bullet that is going to keep the other side from ever seeing the kids or getting any money or doing all the things. And if you don't manage those expectations upfront before this hearing ever happens, you can have a hearing that goes great and you get everything that you should be able to get in that hearing. And your client is still upset because they thought dad was not going to get to see the kids anymore or mom wasn't going to get any of the money because of whatever her actions were. And that's just simply not the case. So we always will have one, sometimes two hearing prep meetings with clients before the hearing. I think when time limits are a factor, it is super important to explain that to the client and to explain to them how you know. As much as we would all love to hear all of the details, you got to get to the point. You got to get to the point fast. Answer only the questions that I'm asking you. If I want more information, I will ask for it. I also always have kind of a code word for when they're rambling or if they're going too long and we just need to cut it off because of time. I tell them, if you hear me say thank you, that tells them, stop talking, we have to move on. Also convey to your client that this is not a final trial. There are some issues that are not going to be addressed in a temporary hearing. Help them to understand what this hearing is for, what the judge can do, what the judge cannot do, what the likely results are or the range of results that will really help your client to be prepared. I also like to prepare clients for how to deal for cross examination. If you know your opposing attorney pretty well, you might have a good idea of the nature of cross that they're going to have. But if you don't, you want to give your client the range of what they might see on cross examination. You know, yes, cross examination should be leading questions designed for a yes or no answer. But there are attorneys out there who will ask open ended questions. And what should your client do if that happens next? I want to talk a little bit more in detail about the requested relief. And I know it can be county by county. Whether or not your court likes to have a document, a summary requested relief, I am universally going to do it in every case. I want there to be no question about what I'm asking for. Be sure that you have properly pled for what you want. Be sure that your summary of requested relief is specific about what you want. If you want a standard possession order, say that. If you want a 5050 schedule, what do you want that to look like? Do you want week on, week off? Do you want a 2255? Be very specific. I would also include alternatives for the judge. So let's say your client really wants a 5050 schedule. You think the odds are not great that the judge is going to do that, but it's a possibility. So you're going to ask, but what if that judge is not inclined to grant 50, 50, what's your backup if the judge doesn't do 50 50? Do you want standard possession? Do you want primary? You know, what do you think is the backup plan that you can give the judge? If you don't give the judge alternatives that you like better than what you know a judge could do, you could end up with something out in left field that your client really isn't happy with. Good lawyers know the difference between what the court can do and what a court will do and what a court is unlikely to do and what the court cannot do. Do not ask for something that you know you cannot legally get. And generally don't ask for something you know this judge is never going to do. I've had a judge in the past. I still remember this conversation. Dudley, who told me and a few other lawyers, you can tell your client, I will never, ever order a 5050 schedule. So if I have a case in that court and I have someone who wants 50 50, I am going to really try and get that by settlement. But if we can't, I'm going to tell my client, look, this judge has told me to my face, I'm not going to order 5050 under any circumstances. So we need to ask for something different. What's your next choice? Do you want to be primary? Do we have grounds to think that you could be primary? Would you prefer to be not primary and have standard possession? Knowing what your judge is likely to do can help you craft relief that is likely to be granted. I would also avoid extreme requests unless you have really, really strong evidence. You know, asking that someone's access be completely denied is extreme. There are times when you can get that, you know, if the other parent was just arrested for abusing the child, absolutely, you should be asking for that. But a lot of our clients think they can get that when they don't have the silver bullet evidence against the other parent. If you are going to ask for something extreme, that makes it all the more important that you have the alternative, reasonable requests that the judge can still grant. Be sure you don't forget about covering financial issues. Have a child support calculation already done. If you have the information. If you don't have the information because it's coming from the other side, your client doesn't have access to that data. Be sure you ask those questions and are asking for guideline child support. If you're asking for above guideline child support, be sure you have the evidence that you need to try to get that. In a lot of times, financial issues take a back seat and people forget them. They focus so much on custody that the Financial issues are on the bottom of the list and they don't get to them in the time limit or maybe even they forget to address it at all. There's financial pieces related to the kids in a custody case, child support, medical support, those sorts of things. If it's a divorce, are we going to need temporary spousal maintenance? Are we going to need interim attorney's fees? Who's going to pay all the bills? You want to make sure that you're getting all of the issues covered so that there aren't any questions. So you don't have your client after the fact saying the other side's not paying the mortgage and they're going to foreclose on me. Well, they weren't ordered to pay the mortgage and they're not living there. So if you don't want to be foreclosed on, I guess you better find the money somewhere to pay it. Make sure all those things get answered. Having clarity on all of the financial issues that need clarity on a temporary basis can really help prevent emergencies. Having to run back to the court, having to get temporary restraining orders, all of those things. Remember, when you are preparing for temporary orders and when you are doing temporary orders, that temporary orders is most likely your chance to get this. The types of things you need to prepare for trial in certain types of cases. Do you have someone who has a history of alcohol issues? Do you need to request a puff test? Do you need to request soberlink? Does someone have concerns about drug use? Do you need to ask for drug testing? Are there psychological concerns? Do we need to get a psychological evaluation? Do we need a child custody evaluation? If you think those are things that will reasonably be necessary in your case, ask for those at the temporary order space so they can get rolling. Sometimes we think, well, if the judge does what we want on temporary orders, then we don't want to ask for a custody evaluation because you know the judge is likely to do that again at final trial. So there are times when you may want to wait and ask for that later. But keep in mind, your judge might not be inclined to grant it later. They're most likely to grant it at this temporary order stage. So you have finished your hearing and you now are getting a ruling. This varies from court to court. Some judges will just rule verbally from the bench right after the hearing is over. Some judges will go into the back and draft up a written ruling and come back out with it. Some judges will take it under advisement and send you a written ruling later. A lot of judges Particularly those who are not family lawyers by background, can give you very vague rulings that are difficult to put into a formal order and that can create a lot of chaos and lead to a lot more attorney fees. So to the extent that you can, you want to try and get all the questions answered right then and there. If your judge is making a ruling from the bench, either verbally or in writing. Ideally, we want a judge to check the boxes on our summary relief requested and that is going to easily allow us to make an order. But there are some judges who are not going to do that ever, no matter what we ask of them. So I think it's a really good idea, especially if you might have one of those judges that is not likely to check the box, is to have your own checklist of all of the issues that you need the judge to rule on. If the judge makes an oral ruling, take the time to go through that checklist and make sure they've hit all of the issues that you need them to hit. I have seen a lot of judges who will just kind of stand up and say, okay, mom's primary that's going to pay child support. The end. Well, what does that mean? What is the schedule? Where are the exchange is going to happen? What time or exchange is going to occur? What's going to happen with the holiday break that's right around the corner? Are the parents going to use our family wizard? Are the they going to. Are there going to be injunctions? Anything that you pled for that the court didn't address in the ruling specifically ask about that? I have never had a judge get upset when I have said, hey, judge, we asked for our family wizard. What's your ruling on that? The worst they can say is, I'm not going to order that. But usually they just forgot that that was something that you wanted. And they will say, yes, I'm going to order that. If the judge does not rule right then and there, but sends out a written ruling later, a lot of times you're also going to see holes in those rulings. In a perfect world, even opposing counsel can agree on how to fill those holes and what that looks like. But we all know that it's not a perfect world. There are attorneys that are difficult. Judges leave holes that even the most agreeable attorneys cannot reasonably agree to fill the hole the way that you want to fill the hole. So you're going to have to go back to court. You're going to have to get the judge to fill in those holes the easiest way to do that, in my opinion, is see if you can set a conference with the judge to discuss the ruling and get clarification. Some judges will do it, some judges won't. You may need to have an entry hearing or something and both sides are going to take this is what we think it should look like. I like to avoid that if at all possible. I want to know what is the judge really wanting here before we have to draft an order. So some final takeaways for temporary orders. Always remember, use your time wisely. Make sure you get your most important evidence first. A prepared and reasonable client is going to have the best results in a hearing, at least in their minds. Set realistic requests and expectations. Don't forget about your financials and think about your long term trial strategy when preparing for and doing your temporary orders. So thank you for joining me today. Hopefully you got some good nuggets you can use for future temporary orders hearings in your cases. And if you enjoyed this episode, please take a second to leave us a review and subscribe to Enjoy future episodes. And if you have any suggestions for topics you think would be interesting, I would love to hear from you. You can reach out through our website@draperfirm.com and send us a message through there and we'd love to get that set up. Thanks everyone.
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The Texas Family Law Insiders Podcast is sponsored by the Draper Law Firm. We help people navigate divorce and child custody cases and and handle family law and appellate matters. For more information, visit our website at www.draperfirm.