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Ray
Ray, Lawyer
Category: Legal
Satisfied Customers: 29394
Experience:  29 years in civil, probate, real estate, elder law
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In Texas, if you file a motion to confer with child to the

Resolved Question:

In Texas, if you file a motion to confer with child to the judge at the hearing. Meaning no advanced notice. Does the Texas Family Statue state he judge "shall" confer with child, or is it at the "descretion" of the judge to confer with child?
Also, can the opposing counsel object if the motion was not filed within a certain period before the hearing.
What does the statute exactly state and what is that statute?

Can you appeal a hearing if the judge does not confer with child?
What prior cases in Texas were granted based on a motion for new trial on the grounds the judge did not confer with child?
Submitted: 3 years ago.
Category: Legal
Expert:  Ray replied 3 years ago.

Customer:

Thanks for your question and good morning.

Customer:

Does the Texas Family Statue state he judge "shall" confer with child, or is it at the "descretion" of the judge to confer with child? Also, can the opposing counsel object if the motion was not filed within a certain period before the hearing.

Customer:

Here is the law.It varies here on the age of the child.

Customer:

§ 153.009. INTERVIEW OF CHILD IN CHAMBERS. (a) In a
nonjury trial or at a hearing, on the application of a party, the
amicus attorney, or the attorney ad litem for the child, the court
shall interview in chambers a child 12 years of age or older and may
interview in chambers a child under 12 years of age to determine the
child's wishes as to conservatorship or as to the person who shall
have the exclusive right to determine the child's primary
residence. The court may also interview a child in chambers on the
court's own motion for a purpose specified by this subsection.
(b) In a nonjury trial or at a hearing, on the application of
a party, the amicus attorney, or the attorney ad litem for the child
or on the court's own motion, the court may interview the child in
chambers to determine the child's wishes as to possession, access,
or any other issue in the suit affecting the parent-child
relationship.
(c) Interviewing a child does not diminish the discretion of
the court in determining the best interests of the child.
(d) In a jury trial, the court may not interview the child in
chambers regarding an issue on which a party is entitled to a jury
verdict.
(e) In any trial or hearing, the court may permit the
attorney for a party, the amicus attorney, the guardian ad litem for
the child, or the attorney ad litem for the child to be present at
the interview.
(f) On the motion of a party, the amicus attorney, or the
attorney ad litem for the child, or on the court's own motion, the
court shall cause a record of the interview to be made when the
child is 12 years of age or older. A record of the interview shall
be part of the record in the case.

Added by Acts 1995, 74th Leg., ch. 20, § 1, eff. April 20, 1995.
Amended by Acts 1997, 75th Leg., ch. 781, § 1, eff. Sept. 1,
1997; Acts 2001, 77th Leg., ch. 1289, § 2, eff. Sept. 1, 2001;
Acts 2005, 79th Leg., ch. 916, § 9, eff. June 18, 2005.

Customer:

Also, can the opposing counsel object if the motion was not filed within a certain period before the hearing--if they feel the statute was not followed here they always have right to object,Court rules on the issue and motion.

Customer:

Can you appeal a hearing if the judge does not confer with child--you always have right to appeal if you feel the judge did not follow the law.

Customer:

Here is more reference here--see page 5 about interviewing child.I found no appellate cases on this specific issue.

Customer:

You have remedies here, motion for new trial, etc. if you feel the court did not follow the law.

Customer:

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Customer:

I am going off line here so I am going to opt out.You were not charged and are welcome here to the information.another expert may pick this up.Good luck to you.

Ray, Lawyer
Category: Legal
Satisfied Customers: 29394
Experience: 29 years in civil, probate, real estate, elder law
Ray and 11 other Legal Specialists are ready to help you
Expert:  Ray replied 3 years ago.
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Customer: replied 3 years ago.
I am confused.
The motioin for the judge to confer with child was presented at the hearing. The opposing counsel objected based on the motion was not received by opposing counsel 6 days before the hearing. The judge sustained the objection. Yet when I read the rule, it states "shall", which means the judge has to. Yet the judge did not.

If a motion for new trial is made and is based on this rule you have shown, then is there any previous case, which used this rule to gain a new trial? If there is none, then I have little grounds to request a new trial.

Yet if the judge was supposed to confer with child and did not, then someone has had to use this to be granted a new trial or an appeal. Can you find such a case?
Expert:  Ray replied 3 years ago.
This is still posted for other experts and you have not been charged.Thanks again
Expert:  Ray replied 3 years ago.
I am so sorry that no other expert picked this up here.You can file your motion for new trial and argue that the court erred in dismissing your motion and not interviewing the child under the law.The court will hear your motion and decide whether you are correct here.This is a necessary step even if it gets over ruled if you want to appeal to a higher court.I could not find any appellate cases in Texas on this point.It may have not come up in an appeal yet.I wish you good luck.

You have 30 days here to file it so don't wait.

http://www.co.collin.tx.us/law_library/documents/tx_civil_litigation_steps.pdf
Customer: replied 3 years ago.

There is one thing that stiill puzzles me.

 

Could you give me the Texas Family Law statute that governs that, "The Judge SHall Confer With The Child"

 

Also, what civil procedure governs, "..Opposing counsel must receive the Motion For Judge To Confer With Child" 6 days prior to the hearing concerning the child parent relationship.

Expert:  Ray replied 3 years ago.
Texas Family Code.

§ 153.009. INTERVIEW OF CHILD IN CHAMBERS. (a) In a
nonjury trial or at a hearing, on the application of a party, the
amicus attorney, or the attorney ad litem for the child, the court
shall interview in chambers a child 12 years of age or older and may
interview in chambers a child under 12 years of age to
determine the
child's wishes as to conservatorship or as to the person who shall
have the exclusive right to determine the child's primary
residence. The court may also interview a child in chambers on the
court's own motion for a purpose specified by this subsection.

(b) In a nonjury trial or at a hearing, on the application of
a party, the amicus attorney, or the attorney ad litem for the child
or on the court's own motion, the court may interview the child in
chambers to determine the child's wishes as to possession, access,
or any other issue in the suit affecting the parent-child
relationship.
(c) Interviewing a child does not diminish the discretion of
the court in determining the best interests of the child.
(d) In a jury trial, the court may not interview the child in
chambers regarding an issue on which a party is entitled to a jury
verdict.
(e) In any trial or hearing, the court may permit the
attorney for a party, the amicus attorney, the guardian ad litem for
the child, or the attorney ad litem for the child to be present at
the interview.
(f) On the motion of a party, the amicus attorney, or the
attorney ad litem for the child, or on the court's own motion, the
court shall cause a record of the interview to be made when the
child is 12 years of age or older. A record of the interview shall
be part of the record in the case.

 

I think this is the part you are looking for under the Texas Family Code.

 

Customer: replied 3 years ago.

The motion was over-ruled and the judge did not inerview the child.

The judge sited the motion was not within court and to opposing counsel 6 days prior to the hearing.

 

What Texas civil procedure governs this 6 day prior to hearing?

 

Also, what supercededs this, the state family law or this civil procedure indicating the motioin must be received 6 days prior?

Expert:  Ray replied 3 years ago.
The Texas Rules set out under Rule 166 the pre trial conference rules where court would rule on any motions here.Judge could have ruled that you failed to file and have it addressed here earlier so it wasn't timely.Also it may be a local rule that you file it seven days or more prior to hearing.You may want to look at that.You can still argue that the court here on their own motion should have interviewed child and that you deserve a new hearing on that basis.

Also you can always file a motion to modify here when you feel that there has been a change of circumstances and that the best interests of the child require modification.Any orders that the court entered here are always subject to another attempt to modify them.


Here are all the rules that apply to District Court proceedings including the one I referenced above.You may also want to google your local rules of court to see if they have apply here.


http://www.supreme.courts.state.tx.us/rules/trcp/trcp_part_2.pdf

Expert:  Ray replied 3 years ago.
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