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My mother filed for visitation rights, in a case where only

temporary physical custody has been...
My mother filed for visitation rights, in a case where only temporary physical custody has been determined for a 13 month old child. She has been attending hearings scheduled immediately after my hearings under a separate docket. She went 3 times thus far pro se. The referee listened to her the first 3 times. Yesterday she was scheduled for another hearing, but after my hearing was over (it was running a bit late) the referee said that the grandmother did not need to be heard, and was given a return date after my next hearing.

Does this constitute denial of due process?
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6/29/2013
Chris T., JD
Chris T., JD, Lawyer
Category: Family Law
Satisfied Customers: 4,829
Experience: I have assisted many customers and clients with their family law questions and I'm experienced in family law litigation.
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texlawyer :

Good morning. I'll be assisting you with your question.

texlawyer :

Just so I understand correctly, she was given several court dates where she was heard, and then at some point, the referee decided he no longer needed to hear from her and made a decision regarding her visitation rights?

Customer: No. There is still no decision regarding her visitation rights. She is asked again to appear in 6 weeks.
texlawyer :

OK. Has she been heard at the previous hearings?

Customer: Yes. She was asked to return yesterday to be heard again. She took off from work to be heard.
texlawyer :

That's what I thought. Then I'm not clear on your question. She's been given multiple opportunities to be heard by the court. How are you thinking this is a denial of due process? She's had access to the court and been able to present her case.

Customer: She was told to come to court yesterday and present her case again. Yet she wasn't even allowed to come in the room yesterday. She came there for nothing but to sit in the waiting room?
Customer: The referee seemed to assume that there was nothing that my mother could add yesterday.
texlawyer :

That is not a violation of her right to due process. You may have an inconsiderate referee, but to make a due process claim, you would have to a significant impediment to access the courts or litigate her case. What you've described is, sadly, fairly commonplace, and not a due process violation.

Customer:

She was not able to litigate her case at all yesterday.

Customer:

That sounds like a significant impediment to me.

texlawyer :

But she's had several opportunities in the past.

Customer:

Then why not just dismiss her case? Why waste her time making her show up to the court room to sit in a waiting room?

texlawyer :

You don't have a right to as many hearings as you want. I know it is a frustrating situation, but this is not a particularly close call. She can certainly litigate the due process issue and raise a claim with the court, but she has a very, very low chance of winning a due process claim.

texlawyer :

I can't answer that question. Like I said, it sounds like she has a very inconsiderate referee.

Customer:

This referee in my own custody/visitation case does not allow me to present my side either, as I am pro se. She allows the opposing counsel to speak, the child's attorney to speak, and never once asks me for my position. When I try to speak she tells me that she is the one speaking and to listen instead and not intervene. Taken in context with the lack of consideration for my mother as well, wouldn't you agree there is a denial of the constitutional amendments?

Customer:

That is the 4th and 14th amendments

texlawyer :

I don't mean to be discouraging, but no, this is not a Constitutional violation. A person very rarely has a Constitutional right to a hearing. Not being able to say what you want to say at a hearing is not a violation of your Constitutional right to due process. To be blunt, it isn't even a close call.

Customer:

Per other lawyer on here: If you have not had a chance to present your side of the story in these matters, your only recourse is filing an objection to the proceeding before the referee and argue that you are being denied your due process rights under the 4th and 14th amendments in that you are not being allowed to present your case or side of the story. You file this with the court and the court will set a hearing and you can present your issues before the judge.

texlawyer :

That attorney is correct, that is the way to challenge this, but if he told you that you are likely to prevail on that claim, I will have to disagree. The bar for a due process claim is VERY high. Again, you are certainly free to make the argument, but, at least in my professional judgment, you are not likely to win. I don't say that to be discouraging, but I can only give my honest opinion.

Customer:

Does not seem logical that the courts would say to someone show up on a given day and cancel the hearing one minute before it takes place.

Customer:

Does not seem logical that the courts should have that right.

Customer:

Isn't there a standard to notify someone of a cancelled hearing within a certain amount of time?

texlawyer :

Courts are not Constitutionally required to be considerate.

Customer:

If there is no such law or even standard, I will be contacting my representatives.

texlawyer :

Most will give at least 24 hours notice, but there is no specific requirement. Hearings get cancelled all the time. It is a huge inconvenience, but it just happens sometimes.

texlawyer :

That would be the only way to correct the problem, because it is not a Constitutional violaiton.

Customer:

Hope you will see this on the news soon.

Customer:

Thanks

texlawyer :

Lawyers everywhere would be rejoicing!

Customer:

Haha thanks

Chris T., JD
Chris T., JD, Lawyer
Category: Family Law
Satisfied Customers: 4,829
Experience: I have assisted many customers and clients with their family law questions and I'm experienced in family law litigation.
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Chris T., JD
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