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AttyHeather
AttyHeather, Lawyer
Category: Family Law
Satisfied Customers: 547
Experience:  Attorney with 15 years experience
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Aunt has partial custdy and we now know she has a man living

Customer Question

aunt has partial custdy and we now know she has a man living in the home who is on probation for make meth, also she is drinking and takes her meds. she is taking care of my 7 yr old grand-daugther. I need to see what form i file in texas to get Anna to safety.
JA: OK. The Family Lawyer will need to help you with this. Have you consulted a lawyer yet?
Customer: no
JA: Anything else I can tell the Family Lawyer before I connect you two?
Customer: the aunt, father and mother of child all have shared custdy
JA: I'm sending you to a secure page on JustAnswer so you can place the $5 fully refundable deposit now. While you're filling out that form, I'll tell the Family Lawyer about your situation and connect you two.
Submitted: 7 months ago.
Category: Family Law
Expert:  RobertJDFL replied 7 months ago.
Thank you for using Just Answer. I look forward to assisting you.I wanted to let you know I am reviewing your question and working on a response, but I do need a little more information from you first, please. To your knowledge, is the man the aunt is living with currently engaged in any illegal activity? In other words, is he dealing drugs or using drugs out of the home? If the mother and father share custody, why are they not doing anything? Your goal is to get custody of the child away from all of them, I am understanding correctly?
Customer: replied 7 months ago.
We don't know if he's clean or not. I'm helping mother and father - no one in TX will tell them what form they need to send to the court. They have sent all information to the court appointed Atty for Anna.
Customer: replied 7 months ago.
No the mother and father want full custody
Customer: replied 7 months ago.
We don't want to contact the DPS because they could put her in foster care
Expert:  RobertJDFL replied 7 months ago.
Thank you for your reply.If the parents have a custody agreement with the aunt, then in order to change it they would need to file a Petition to Modify the Parent-Child Relationship. The person filing is the petitioner, and the other party is the respondent. The Petition is filed in the same court where the original order was filed.After you file the Petition, all other parties must either sign a Waiver of Citation in front of a notary, voluntarily file an Answer, or receive Service of Citation by an official process server. I'm going to assume the aunt isn't agreeable to a modification, which would make this a contested motion. In order to be successful, the parents would have to prove to the court that since the original custody order, the circumstances have changed and that the modification is in the best interest of the child. Here, for example, the parents might claim that the current custody arrangement with the aunt endangers the child or puts her emotional well-being at risk because the aunt takes medication while drinking which could impair her judgment, and she is living with a convicted felon who is still on probation (the fact that he's on probation alone may not be enough -which is why I asked if you knew of any illegal activity -if he's been compliant with his probation terms, the judge may not be as concerned). You can read more details about the process for filing such a motion and the process from the Texas Law Help site, here (click the link). Now, all that said, please verify with the parents that this is a custody agreement and that the aunt doesn't have guardianship of the child ---only because that would require filing a motion to terminate guardianship, and is a somewhat different process. Please let me know if you need clarification or additional information, I'm happy to assist further. Thank you.
Customer: replied 7 months ago.
That form was filed for the org order, now we a emergency cout hearing! The aunt has also cut herself
Customer: replied 7 months ago.
The final hearing is set for Aug 11
Expert:  RobertJDFL replied 7 months ago.
Then what they would need to file is an Emergency Motion for Temporary Custody of the Child--which basically says to the court "We can't wait until August to decide this, the child is at extreme risk of harm or endangered, and we need a hearing to establish custody now pending the final hearing." And then the motion would explain some of the reasons why custody is being sought on an emergency basis -the aunt cuts herself, she drinks while on medication, etc. Unfortunately, I cannot find a sample form to give you, despite searching. I'm going to opt out and open this question up to the other legal experts on this site --perhaps one from Texas is online and can assist further.Please do not rate my answer, and do not respond to this message as the site will automatically then send the question back to me to answer, possibly preventing other experts from reading it and being able to respond. Thank you and best of luck.
Expert:  AttyHeather replied 7 months ago.
Hello. My name is***** and I am a family law attorney with 15 years experience and I would like to assist you with your question.
Expert:  AttyHeather replied 7 months ago.
The responses I give you are for informational purposes and are not to be construed as legal advice. Have you considered filing a type of emergency Protective Order case?
Customer: replied 7 months ago.
Just need a copy of emergency motion for custody
Customer: replied 7 months ago.
Yes we can't find the form
Expert:  AttyHeather replied 7 months ago.
Do you mean "motion" or "petition"? Are you trying to file a new case or are you trying to file as part of an already existing case? A very effective way I have seen individuals get this type of order is through a protective order case.
Customer: replied 7 months ago.
Get a one for a motion. To protect our granddaughter
Expert:  AttyHeather replied 7 months ago.
So there are drugs and alcohol? Has there been any physical violence to your knowledge?
Expert:  AttyHeather replied 7 months ago.
I am still researching finding the documents for you. In the meantime, are you aware that: "Texas law says anyone who thinks a child, or person 65 years or older, or an adult with disabilities is being abused, neglected, or exploited must report it to DFPS. A person who reports abuse in good faith is immune from civil or criminal liability. DFPS keeps the name of the person making the report confidential. Anyone who does not report suspected abuse can be held liable for a misdemeanor or felony. Time frames for investigating reports are based on the severity of the allegations. Reporting suspected abuse makes it possible for a family to get help." - See more at: http://texaslawhelp.org/resource/how-to-report-child-abuse-and-neglect?ref=gei9R#sthash.N5bQrNDo.dpuf
Expert:  AttyHeather replied 7 months ago.
I still need to know - - has there been actual violence in your granddaughter's house? Either that she has witnessed or that she has been subjected to?
Customer: replied 7 months ago.
Yes my daughter cut her wrist and is living with a guy who's in 70 yrs probation
Expert:  AttyHeather replied 7 months ago.
Thank you - - one moment. . . or maybe two or three.
Expert:  AttyHeather replied 7 months ago.
From my review of TX law, it appears that the most common route, and the route that you will have the best luck finding forms will be the protective order route. One of the statutes I read said that it can be filed as part of a divorce (i.e. custody) case, although I have seen them filed more as an independent action on their own. I do not know what kind of case you have as an existing case in which the aunt has custody. I would either try to file it as part of that case, or as its own independent case.
Expert:  AttyHeather replied 7 months ago.
Here is an overview. I am cutting and pasting this. Keep in mind the laws may have changed, but are most likely very similar in substance: FAMILY CODE TITLE 4. PROTECTIVE ORDERS AND FAMILY VIOLENCE SUBTITLE B. PROTECTIVE ORDERS CHAPTER 82. APPLYING FOR PROTECTIVE ORDER SUBCHAPTER A. APPLICATION FOR PROTECTIVE ORDER Sec. 82.001. APPLICATION. A proceeding under this subtitle is begun by filing "An Application for a Protective Order" with the clerk of the court.Added by Acts 1997, 75th Leg., ch. 34, Sec. 1, eff. May 5, 1997. Sec. 82.002. WHO MAY FILE APPLICATION. (a) With regard to family violence under Section 71.004(1) or (2), an adult member of the family or household may file an application for a protective order to protect the applicant or any other member of the applicant's family or household Text of subsection as amended by Acts 2011, 82nd Leg., R.S., Ch. 872 (S.B. 116), Sec. 3 (b) With regard to family violence under Section 71.004(3), an application for a protective order to protect the applicant may be filed by:(1) an adult member of the dating relationship; or(2) an adult member of the marriage, if the victim is or was married as described by Section 71.0021(a)(1)(B). Text of subsection as amended by Acts 2011, 82nd Leg., R.S., Ch. 632 (S.B. 819), Sec. 2 (b) With regard to family violence under Section 71.004(3), an application for a protective order to protect the applicant may be filed by a member of the dating relationship, regardless of whether the member is an adult or a child.(c) Any adult may apply for a protective order to protect a child from family violence.(d) In addition, an application may be filed for the protection of any person alleged to be a victim of family violence by:(1) a prosecuting attorney; or(2) the Department of Family and Protective Services.(e) The person alleged to be the victim of family violence in an application filed under Subsection (c) or (d) is considered to be the applicant for a protective order under this subtitle.Added by Acts 1997, 75th Leg., ch. 34, Sec. 1, eff. May 5, 1997. Amended by Acts 1997, 75th Leg., ch. 1193, Sec. 8, eff. Sept. 1, 1997; Acts 2001, 77th Leg., ch. 91, Sec. 3, eff. Sept. 1, 2001.Amended by:Acts 2011, 82nd Leg., R.S., Ch. 110 (H.B. 841), Sec. 7, eff. May 21, 2011.Acts 2011, 82nd Leg., R.S., Ch. 632 (S.B. 819), Sec. 2, eff. September 1, 2011.Acts 2011, 82nd Leg., R.S., Ch. 872 (S.B. 116), Sec. 3, eff. June 17, 2011. Sec. 82.003. VENUE. An application may be filed in:(1) the county in which the applicant resides;(2) the county in which the respondent resides; or(3) any county in which the family violence is alleged to have occurred.Added by Acts 1997, 75th Leg., ch. 34, Sec. 1, eff. May 5, 1997.Amended by:Acts 2013, 83rd Leg., R.S., Ch. 392 (S.B. 129), Sec. 1, eff. June 14, 2013. Sec. 82.004. CONTENTS OF APPLICATION. An application must state:(1) the name and county of residence of each applicant;(2) the name and county of residence of each individual alleged to have committed family violence;(3) the relationships between the applicants and the individual alleged to have committed family violence;(4) a request for one or more protective orders; and(5) whether an applicant is receiving services from the Title IV-D agency in connection with a child support case and, if known, the agency case number ***** each open case.Added by Acts 1997, 75th Leg., ch. 34, Sec. 1, eff. May 5, 1997. Amended by Acts 2001, 77th Leg., ch. 296, Sec. 1, eff. Sept. 1, 2001.Amended by:Acts 2013, 83rd Leg., R.S., Ch. 742 (S.B. 355), Sec. 3, eff. September 1, 2013. Sec. 82.005. APPLICATION FILED DURING SUIT FOR DISSOLUTION OF MARRIAGE OR SUIT AFFECTING PARENT-CHILD RELATIONSHIP. A person who wishes to apply for a protective order with respect to the person's spouse and who is a party to a suit for the dissolution of a marriage or a suit affecting the parent-child relationship that is pending in a court must file the application as required by Subchapter D, Chapter 85.Added by Acts 1997, 75th Leg., ch. 34, Sec. 1, eff. May 5, 1997. Amended by Acts 1997, 75th Leg., ch. 1193, Sec. 9, eff. Sept. 1, 1997. Sec. 82.006. APPLICATION FILED AFTER DISSOLUTION OF MARRIAGE. If an applicant for a protective order is a former spouse of the individual alleged to have committed family violence, the application must include:(1) a copy of the decree dissolving the marriage; or(2) a statement that the decree is unavailable to the applicant and that a copy of the decree will be filed with the court before the hearing on the application.Added by Acts 1997, 75th Leg., ch. 34, Sec. 1, eff. May 5, 1997. Sec. 82.007. APPLICATION FILED FOR CHILD SUBJECT TO CONTINUING JURISDICTION. An application that requests a protective order for a child who is subject to the continuing exclusive jurisdiction of a court under Title 5 or alleges that a child who is subject to the continuing exclusive jurisdiction of a court under Title 5 has committed family violence must include:(1) a copy of each court order affecting the conservatorship, support, and possession of or access to the child; or(2) a statement that the orders affecting the child are unavailable to the applicant and that a copy of the orders will be filed with the court before the hearing on the application.Added by Acts 1997, 75th Leg., ch. 34, Sec. 1, eff. May 5, 1997. Sec. 82.008. APPLICATION FILED AFTER EXPIRATION OF FORMER PROTECTIVE ORDER. (a) An application for a protective order that is filed after a previously rendered protective order has expired must include:(1) a copy of the expired protective order attached to the application or, if a copy of the expired protective order is unavailable, a statement that the order is unavailable to the applicant and that a copy of the order will be filed with the court before the hearing on the application;(2) a description of either:(A) the violation of the expired protective order, if the application alleges that the respondent violated the expired protective order by committing an act prohibited by that order before the order expired; or(B) the threatened harm that reasonably places the applicant in fear of imminent physical harm, bodily injury, assault, or sexual assault; and(3) if a violation of the expired order is alleged, a statement that the violation of the expired order has not been grounds for any other order protecting the applicant that has been issued or requested under this subtitle.(b) The procedural requirements for an original application for a protective order apply to a protective order requested under this section.Added by Acts 1997, 75th Leg., ch. 34, Sec. 1, eff. May 5, 1997. Amended by Acts 1999, 76th Leg., ch. 1160, Sec. 1, eff. Sept. 1, 1999. Sec. 82.0085. APPLICATION FILED BEFORE EXPIRATION OF PREVIOUSLY RENDERED PROTECTIVE ORDER. (a) If an application for a protective order alleges that an unexpired protective order applicable to the respondent is due to expire not later than the 30th day after the date the application was filed, the application for the subsequent protective order must include:(1) a copy of the previously rendered protective order attached to the application or, if a copy of the previously rendered protective order is unavailable, a statement that the order is unavailable to the applicant and that a copy of the order will be filed with the court before the hearing on the application; and(2) a description of the threatened harm that reasonably places the applicant in fear of imminent physical harm, bodily injury, assault, or sexual assault.(b) The procedural requirements for an original application for a protective order apply to a protective order requested under this section.Added by Acts 1999, 76th Leg., ch. 1160, Sec. 2, eff. Sept. 1, 1999. Sec. 82.009. APPLICATION FOR TEMPORARY EX PARTE ORDER. (a) An application that requests the issuance of a temporary ex parte order under Chapter 83 must:(1) contain a detailed description of the facts and circumstances concerning the alleged family violence and the need for the immediate protective order; and(2) be signed by each applicant under an oath that the facts and circumstances contained in the application are true to the best knowledge and belief of each applicant.(b) For purposes of this section, a statement signed under oath by a child is valid if the statement otherwise complies with this chapter.Added by Acts 1997, 75th Leg., ch. 34, Sec. 1, eff. May 5, 1997.Amended by:Acts 2011, 82nd Leg., R.S., Ch. 632 (S.B. 819), Sec. 3, eff. September 1, 2011. Sec. 82.010. CONFIDENTIALITY OF APPLICATION. (a) This section applies only in a county with a population of 3.4 million or more.(b) Except as otherwise provided by law, an application for a protective order is confidential, is excepted from required public disclosure under Chapter 552, Government Code, and may not be released to a person who is not a respondent to the application until after the date of service of notice of the application or the date of the hearing on the application, whichever date is sooner.(c) Except as otherwise provided by law, an application requesting the issuance of a temporary ex parte order under Chapter 83 is confidential, is excepted from required public disclosure under Chapter 552, Government Code, and may not be released to a person who is not a respondent to the application until after the date that the court or law enforcement informs the respondent of the court's order.Acts 2003, 78th Leg., ch. 1314, Sec. 2, eff. Sept. 1, 2003. SUBCHAPTER B. PLEADINGS BY RESPONDENT Sec. 82.021. ANSWER. A respondent to an application for a protective order who is served with notice of an application for a protective order may file an answer at any time before the hearing. A respondent is not required to file an answer to the application.Added by Acts 1997, 75th Leg., ch. 34, Sec. 1, eff. May 5, 1997. Sec. 82.022. REQUEST BY RESPONDENT FOR PROTECTIVE ORDER. To apply for a protective order, a respondent to an application for a protective order must file a separate application.Added by Acts 1997, 75th Leg., ch. 34, Sec. 1, eff. May 5, 1997. SUBCHAPTER C. NOTICE OF APPLICATION FOR PROTECTIVE ORDER Sec. 82.041. CONTENTS OF NOTICE OF APPLICATION. (a) A notice of an application for a protective order must:(1) be styled "The State of Texas";(2) be signed by the clerk of the court under the court's seal;(3) contain the name and location of the court;(4) show the date the application was filed;(5) show the date notice of the application for a protective order was issued;(6) show the date, time, and place of the hearing;(7) show the file number;(8) show the name of each applicant and each person alleged to have committed family violence;(9) be directed to each person alleged to have committed family violence;(10) show the name and address of the attorney for the applicant or the mailing address of the applicant, if the applicant is not represented by an attorney; and(11) contain the address of the clerk of the court.(b) The notice of an application for a protective order must state: "An application for a protective order has been filed in the court stated in this notice alleging that you have committed family violence. You may employ an attorney to defend you against this allegation. You or your attorney may, but are not required to, file a written answer to the application. Any answer must be filed before the hearing on the application. If you receive this notice within 48 hours before the time set for the hearing, you may request the court to reschedule the hearing not later than 14 days after the date set for the hearing. If you do not attend the hearing, a default judgment may be taken and a protective order may be issued against you."Added by Acts 1997, 75th Leg., ch. 34, Sec. 1, eff. May 5, 1997. Amended by Acts 1997, 75th Leg., ch. 1193, Sec. 10, eff. Sept. 1, 1997. Sec. 82.042. ISSUANCE OF NOTICE OF APPLICATION. (a) On the filing of an application, the clerk of the court shall issue a notice of an application for a protective order and deliver the notice as directed by the applicant.(b) On request by the applicant, the clerk of the court shall issue a separate or additional notice of an application for a protective order.Added by Acts 1997, 75th Leg., ch. 34, Sec. 1, eff. May 5, 1997. Sec. 82.043. SERVICE OF NOTICE OF APPLICATION. (a) Each respondent to an application for a protective order is entitled to service of notice of an application for a protective order.(b) An applicant for a protective order shall furnish the clerk with a sufficient number of copies of the application for service on each respondent.(c) Notice of an application for a protective order must be served in the same manner as citation under the Texas Rules of Civil Procedure, except that service by publication is not authorized.(d) Service of notice of an application for a protective order is not required before the issuance of a temporary ex parte order under Chapter 83.(e) The requirements of service of notice under this subchapter do not apply if the application is filed as a motion in a suit for dissolution of a marriage. Notice for the motion is given in the same manner as any other motion in a suit for dissolution of a marriage.Added by Acts 1997, 75th Leg., ch. 34, Sec. 1, eff. May 5, 1997.
Expert:  AttyHeather replied 7 months ago.
The cruz of the Protective Order case is that there has been violence. Of course, include the information about the drugs and alcohol, but emphasize that there has been "cutting" in the presence of the child.
Expert:  AttyHeather replied 7 months ago.
Where the cutting is possibly self-inflicted, I'm not sure if the judge will find that it qualifies as violence, but I believe most of the judges in my state would definitely think it qualifies as violence.
Expert:  AttyHeather replied 7 months ago.
Let me see if I can get the forms into this chat. . . one moment.
Expert:  AttyHeather replied 7 months ago.
Here is the kit of forms for a protective order: http://texaslawhelp.org/files/685E99A9-A3EB-6584-CA74-137E0474AE2C/attachments/D82622E3-0353-63DF-9766-B6B92A7D8001/5.8.2012-protective-order-kit-final.pdf Remember to emphasize the violence that the child has been exposed to and that the child is likely in fear of future harm. Also, mention the other things such as drugs, alcohol, and criminal record, but emphasize the violence to get your IMMEDIATE order.
Expert:  AttyHeather replied 7 months ago.
It is my suspicion that in Texas, in order for an individual to get an immediate order, there must be violence or imminent violence. That might be why they seem to require more than drugs or alcohol. But remember, while I am a licensed attorney, I am practicing in a different state and so what I am providing is for informational purposes.I hope I’ve provided the information you were seeking. If you are happy with my service, please provide a rating. Thank you and best of luck to you!Heather
Expert:  AttyHeather replied 7 months ago.
Hi again,I have not heard from you since I answered your question. Have I answered your question to your satisfaction? This conversation thread is remaining in my que until I hear from you that I have given you a satisfactory response. Could you please respond and let me know that my response to you was satisfactory? If it was not, please allow me to further assist you. If I have provided you with excellent assistance, could you please help me out by providing a positive rating for me?Best,Heather S, Attorney