1. If such an agreement is not made, Petitioner request the Court to make orders for conservatorship, possession of, access to, & support of the children. I'm sorry I overlooked the fact that we had included in our pet. that there was no court ordered conservatorship. I hope that is not fatal to my argument that H's Atty should have filed a motion to modify the SAPCR order. He was present with his first attorney (Wife was pro se) when they appeared in court back in 6-11-12.
Ans: It appears that the order entered in 2012 were temporary orders which last until the court enters a final order on these issue at or shortly after the bench/jury trial takes place. So, there would have been no need for H or his lawyer to file a motion to modify.
2. Would it help that no home study was ever ordered and that the 13 year old does not want to live with his dad and has threatened to run away.
No. The home study is only ordered at the discretion of the judge; it is not mandatory. Further, the court only has to consider a child's wishes, it is not bound by them.
3. Think I should get a sworn affidavit from him?
The child should have testified as to his custody preferences at the bench trial. Typically, an affidavit is not admissible evidence. Getting an affidavit now, after the trial is not much help except to support a motion for new trial.
4. Can I file a Motion for New Trial before the Judge signs the judgment on Monday or must I wait till after he signs the judgment?
Here is the rule:
Rule 329b. TIME FOR FILING MOTIONS
The following rules shall be applicable to motions for new trial and motions to modify, correct, or reform judgments (other than motions to correct the record under Rule 216) in all district and county courts:
(a) Motion for new trial, if filed, shall be filed prior to or within thirty days after the judgment or other order complained of is signed.
SO IT CAN BE FILED BEFORE OR AFTER THE JUDGMENT IS SIGNED.
5. Would it help to file a motion for the 13 year old requesting to be allowed to move with his mom b/c he hates Dad's girlfriend who practically lives at his house.. Yesterday, W brought me photos someone was able to obtain from facebook they show H & girlfriend embraced in several photos & in one photo they are kissing on the lips. H perjured himself when testified he had never at any time had a romantic relationship with girlfriend. W has always contended GF caused the breakup of her marriage!
Since the trial has already taken place, the best way to present this is under a motion for new trial. There is this caveat:
A party seeking a new trial on grounds of newly discovered evidence must demonstrate that: (1) the evidence has come to his or her knowledge since the trial, (2) the failure to discover the evidence sooner was not due to a lack of diligence, (3) the evidence is not cumulative, and (4) the evidence is so material it would probably produce a different result if a new trial were granted. See Waffle House, Inc. v. Williams, 313 S.W.3d 796, 813 (Tex. 2010).