When you file a suit affecting the parent-child relationship, you often must ask the trial court to render temporary relief for custody and child support to “tide you over” until a final trial can be heard. Temporary relief will remain in effect until the court modifies the temporary relief or until a final order is rendered. The Texas Family Code allows for three types of temporary relief: temporary restraining orders, temporary injunctions, and temporary orders.
A temporary restraining order (“TRO”) is often sought for a child’s safety and welfare. You can get a ex parte TRO without a hearing, but a hearing on the evidence must be set quickly after obtaining an TRO. An TRO will automatically expire after 14 days, and it can only be extended once for another 14 days. After a hearing, the court should render temporary orders that may or may not be similar to the ex parte TRO.
A temporary injunction is used to preserve the status quo of the parties. An injunction from the court is an order forbidding certain actions, such as allowing a new girlfriend to be around the child or consuming alcohol during periods of possession. An injunction could be used to extend certain provisions of a TRO.
Temporary orders are the primary vehicle for governing the parties during the pendency of a suit. Once a final order is entered, the temporary orders are generally no longer effective.
If the suit is an original suit—meaning that a court has not ever rendered orders for the child—then the burden of proof is to show that the requested order is “for the safety and welfare of the child.” If temporary orders in an original suit need to be modified, this “safety and welfare” burden will be applied to any requested modifications.
However, in a modification suit—meaning that a final order from an earlier suit already exists—the burden of proof is different. The courts do not want to have a temporary order change the status quo and then have the requested modification denied (so you would go back to the old final order). Allowing frequent changes under these circumstances would not be in the best interest of children.
To get a new modified final order, you generally must prove a material and substantial change in circumstances for the parents or the child. To get a modification of certain provisions through temporary orders, the burden is higher. To change anything relating to the child’s primary residence, you have to prove one of the following: (1) that the parent with the right to designate the primary residence voluntarily relinquished care of the child for more than six months; (2) that the child is over 12 and wants the other parent to have the right to designate the primary residence; or (3) that the requested order is necessary because the child’s present circumstances would significantly impair the child’s physical health or emotional development.
Establishing “significant impairment” is a high burden. Again, the courts do not want to change orders frequently without a very good reason because the instability caused by the changes would not be in the best interest of the child. Significant impairment is not established when the parents cannot co-parent or have different parenting styles, when one parent is allegedly alienating the child against the other parent, when one parent is not following the prior possession order, when one parent thinks the other is not keeping the child clean enough, or when the child is not doing well in school. Significant impairment must focus on the child, must be based on the current circumstances, and must be significant. For example, a child who attempted or is contemplating suicide or violence against other individuals constitutes significant impairment. Also, please note that while the above-listed hypothetical facts might not be enough to change the child’s primary residence in temporary orders, that evidence would definitely be relevant in a final trial.
For more guidance on your specific case, contact us for a consultation.