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lwpat, Lawyer
Category: Family Law
Satisfied Customers: 25386
Experience:  Practicing family law attorney
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Texas Family Law: I received a petition for temporary

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Texas Family Law:
I received a petition for temporary order for child support, I then filed a counter-petition requesting a dna and setting temporary orders for child support and possession. Several days later, I received a Notice of Hearing to set Temporary Orders for child support and possession which virtually asks for everything in the original Petition I was served and addresses virtually nothing I countered with in my counter-petition to them. My question is.... The motion for hearing document I received covers what they want and doesn't address my issues in the counter-petition I filed, can I and should I file with the court clerk, a Response to the Motion for a Hearing so the Judge has in his/her hands what I want addressed in this hearing? thank you
Submitted: 4 years ago.
Category: Family Law
Expert:  lwpat replied 4 years ago.
Thank you for your question and for using JA. Please click accept so I will receive credit from JA for my time.

I am not quite sure what you have filed but the proper procedure would not be a counter petition but an answer to the original petition. What it appears you have done is to have two separate cases with two separate case numbers. The best way to straighten it out is to ask that the two cases be consolidated by filing a Motion to Consolidate. You do still need to file an answer to the first petition. I assume that you are denying paternity and requesting a DNA test. You would object to the setting of child support until such time as it is determined that you are the father. Again, this is assuming that you are not on the birth certificate and there is no bar to a determination of paternity.
Customer: replied 4 years ago.
What I filed was an Answer to the Original Petition and Counter-Petition all in one document, I answered their petition and included counter offers. I did request a DNA test to confirm Paternity and did request a temporary order for support and possession because I did sign an AOP at the hospital (less than 60 days ago). Both their petition and my answer/counter-petition are the same case numbers. So now that I filed teh Answer/Counter-petition, I received the Motion for hearing - can I file a response to that motion with the county clerk or do I have to wait and just tell the judge what I want in the hearing? Or did I really screw this up by responding to the original petition with both an answer and a counter?
Customer: replied 4 years ago.
Relist: Incomplete answer.
Expert:  Best Attorney replied 4 years ago.

Hi, how are you? My name isXXXXX'm a very experienced attorney and I'm here to help.

First, I agree with the advice given to you by the previous expert based on the information provided at the time.

Regarding responding to the Motion, yes you can file a Response to the Motion and you are correct that this would be you opportunity to state (briefly) your positions to the court prior to the actual hearing.

Hope that helps!


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Expert:  lwpat replied 4 years ago.
I see that another attorney with little experience on the site has answered. His answer is incorrect. All that you have now is a notice of hearing which does not require an answer since you have already answered their petition. The correct legal term is not counter petition but counterclaim or either simply defenses. You would not file anything at this time but simply be prepared to present your case in court at the temporary hearing. At the temporary the judge will not take testimony but everything will be by sworn affidavit so you need to prepare an affidavit to enter into evidence at the hearing and your financial declaration. Take three copies since you will need to give one to her attorney.

I would appreciate you contacting customer service and having the accept placed to my account.

To be sure of my answer I checked with two other experts. They advise that in Texas you are going to have to file a separate motion for a hearing in the DNA test. They advise that the judge will not consider it at the temporary hearing so you need to file a separate motion and then ask for a hearing on that motion. Possibly you can talk to the docket clerk and have your motion set at the same time as the temporary. good luck to you.
Customer: replied 4 years ago.

What would I put in the Affadavit? It's a hearing for a temporary order to set child support and visitation. What would I be swearing to in an Affadavit that I'm setting up? You've confused me on this.



Expert:  lwpat replied 4 years ago.
Sorry did not mean to be confusing. Did you contact customer service about changing the accept? I am looking for a sample affidavit and I assume you have the form for the financial declaration and understood that you need to file a separate motion to ask for the DNA test and ask for a hearing on that motion.
Customer: replied 4 years ago.

Hi, Yes I have a financial statement form, and I found the form to file a separate motion for the dna test, I would greatly appreciate the sample affidavit.


I have contacted customer service and asked them to place the accept with you.


I guess where I'm really confused now is, if this is a hearing to set temporary orders, why wouldn't the judge listen to testimony and how would I present my case without testimony?


Thanks for all the help. (P.S.) If I end up with more questions (which i'm sure I will) is there a way I can select you at the beginning of my question

Expert:  lwpat replied 4 years ago.
Yes, you can put for LWPAT in the subject line. I am usually on late evenings. While you can stand up and address the judge, you have to submit your evidence by affidavit since he will not take actual testimony. You would address the items in your counterclaim, whatever they may be.I don't see an affidavit that fits your situation. You would put the heading of the case and title it Defendant's Affidavit.
Then you first line is

PERSONALLY APPEARED before me, _________, who being first duly sworn states:

Then you would give some background and then how and why you want the judge to rule. For example you could ask for a continuance until the DNA test results but that is unlikley since you signed. Then you would sign and have the affidavit notarized.
lwpat, Lawyer
Category: Family Law
Satisfied Customers: 25386
Experience: Practicing family law attorney
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