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(Toolkit) Temporary Restraining Orders, Temporary Injunctions, and Temporary Orders in Child Custody Emergencies

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(Toolkit) Temporary Restraining Orders, Temporary Injunctions, and Temporary Orders in Child Custody Emergencies

This kit is intended for use ONLY in an emergency child custody case when a child is in danger. It is NOT intended for use in cases that only involve basic (non-emergency) child custody or child support issues. 

Although this kit is included under the “CPS” section of TexasLawHelp, it is not necessary for CPS to be involved before you can use this kit. In some situations, CPS may be investigating your case, or CPS may have told you to seek a temporary restraining order (TRO) to avoid having the children legally removed. In other situations, there may be no CPS involvement and you may want to request a TRO to avoid any CPS involvement. 

Use these instructions and forms ONLY if:

  1. You have filed or are planning to file an Original Suit Affecting the Parent-Child Relationship, a modification of a conservatorship order, or an enforcement of a conservatorship order. For more information, read:

Note: If you are a nonparent, make sure you have standing to file the Original SAPCR or Modification. 

Texas Family Code 102.004(a)(1) lets a relative related within three degrees of consanguinity file an Original SAPCR or Modification if there is proof that the child’s present circumstances would significantly impair the child’s physical health or emotional development.

A relative within three degrees of consanguinity includes a child’s:

  • Aunt,
  • Uncle,
  • Adult Brother,
  • Adult Sister,
  • Grandparent, or
  • Great-grandparent.
  1. The children who are involved in the case are in a dangerous situation. In general, you will have to be able to show that the children are at risk of immediate (meaning it is currently happening or about to happen) and irreparable (meaning it will have a permanent or long-term negative effect that cannot be reversed) harm or injury.

Some common situations where a TRO may be useful include:

  • The parent who currently has the children in his or her care is harming the children; is not providing a safe home, or is not meeting the children’s most basic needs.
     
  • Another parent or conservator has visitation rights and that person is harming or putting the children at risk during the visits.
     
  • There is no custody order in place for the children, and one parent needs to immediately put limits on the other parent’s access to the children due to safety concerns.
     
  • A nonparent has standing to file an Original SAPCR or Suit to Modify the Parent-Child Relationship and neither parent is able or willing to keep the children safe.
  1. If there is an existing order, the existing custody order is a Texas order. If there is no existing order, the children must have lived in Texas for at least six months or since they were born (if under the age of six months).

    Note: It may be possible for a court to obtain emergency jurisdiction and issue a TRO even when this is NOT true; however, this situation is legally complicated and you should speak with an attorney.
     

  2. A protective order is not more suitable to protect the child.

Please note, this TRO toolkit is NOT INTENDED for use with issues that do not involve the emergency safety of a child such as property issues or basic child custody issues.

READ THIS ARTICLE BEFORE USING THE FORMS: 

(Article) TROs, Temporary Injunctions, and Temporary Orders In Child Custody Emergencies

This toolkit includes:

Note that there are two different form sets available:

  • “1 Respondent”—this is for a case with two parties. Most often, this will be when one parent is trying to keep a child safe from the other parent. 
     
  • “2 Respondents”—this is for a case with three parties—one Petitioner and two Respondents. These forms will most often be used when a close relative (such as a grandparent or aunt) or another nonparent who has been caring for a child for over six months, needs to protect a child from BOTH parents. However, it can be used any time there are at least three adults with legal standing involved in a case. 

*Only required in some cases—read the instructions carefully!

Note: You may not need all of the forms listedor you may need additional forms. Get more information at TexasLawHelp. Talk to a lawyer if you have questions. 

 

Instructions & Forms
Frequently Asked Questions
Who can file a Motion for TRO when a child needs immediate protection from a conservator?

 

Any person who has standing to file a Suit Affecting the Parent Child Relationship (“SAPCR”), Modification, or Enforcement can file a Motion for TRO. For information on standing, you can refer back to the Original SAPCR, Modification or Enforcement kits on TexasLawHelp.  

Keep in mind that a TRO cannot be filed on its own; it must be filed along with an Original SAPCR, Modification, or Enforcement, or filed into an active SAPCR, Modification, or Enforcement case.  

Every case is different, but in general, the person filing the Motion for TRO is also the person who wants to have managing conservatorship of the child and who plans to keep them safe from the other parent or both parents.  

 

What is a Temporary Restraining Order and how can it protect a child?

 

There are several situations where a temporary restraining order can be filed, but the Temporary Restraining Orders, Temporary Injunctions, and Temporary Orders in Child Custody Emergencies toolkit is intended ONLY for an emergency situation where a child has been harmed or is at risk of being harmed and a protective order is not more suitable to protect the child.  

A Temporary Restraining Order (TRO) is a court order that tells a person not to do certain things such as harming a child, leaving the state with a child, or being around a child.  

The TRO kit could be useful in an emergency situation when you need a court order to protect a child quickly, but the child does not qualify for a protective order.

Note: If a child has been a victim of physical abuse, sexual abuse, or family violence, and is in fear of being harmed again or likely to be harmed again, a protective order may be another available legal option. A protective order may provide better protection than a TRO because it is criminally enforceable. However, a judge may not always be willing to grant a protective order to keep a child safe from a parent. This is because conservatorship (including TROs) can provide a lot of protection without completely cutting the parent out of the child's life. A protective order may not be appropriate for many situations where a child is in danger, such as where a parent has a substance addiction,lives in an unsafe environment, or is not providing for the child's basic needs. 

But not all child abuse or child neglect situations meet all the requirements where a court is allowed to grant a protective order. If you have questions about whether a protective order is more appropriate to protect a child, please consult an attorney. Call the Family Helpline at 844-888-6565 with your CPS-related questions. Look for help aDomestic Violence: Free Legal Help for Victims and Survivors.

While most other family law issues require you to serve (give legal notice to) all other parents or conservators before you can set a hearing and talk to a judge, a TRO can be granted “ex parte”—meaning the other parent does not have to be given advance notice that you are asking the judge for a TRO. This means that a TRO can be granted by a judge very quickly—often on the same day that you ask for it.

A TRO is only good for 14 days, so it can work as a quick fix to address an emergency situation, and gives you some more time to serve the parents or other conservators, collect additional evidence, and set another hearing to talk to a judge.

The next hearing should be set within 14 days of when the judge grants your TRO, and will be your chance to ask the judge to convert the TRO into a temporary injunction, and to enter additional temporary orders for custody, visitation, and child support. This next hearing is also the other parent or conservator’s chance to come to court and tell the judge their side of the story and ask for something different.  

 

 

What if I'm served with a Temporary Restraining Order (TRO)?

 

A Temporary Restraining Order (TRO) is different from a family violence protective order. Getting served with a TRO does not necessarily mean you’ve done anything wrong, and not all TROs are filed because there is an emergency involving a child.  Sometimes a person who files for divorce or conservatorship will ask the judge to sign a Temporary Restraining Order (TRO) to help them control money, property, or where a child lives or travels.

All TROs will order one party or both parties not to do certain things until a temporary orders hearing can be held. A TRO usually lasts for 14 days or until the hearing, whichever is sooner. 

If you have been served with a TRO:

  • Read the TRO carefully and obey it. The judge can hold you in contempt if you do not obey a court order.
  • Make plans to go to the hearing. If you do not go to the hearing, the judge can make orders about your money, property and children (if applicable) without any input from you.
  • Talk with a lawyer about your legal rights and what to expect at the hearing. If possible, hire a lawyer to represent you at the hearing.
  • If you need more time to hire a lawyer or time to get ready for the hearing, you can ask the judge to reset the hearing date to a later date by filing a Motion for Continuance. Read this article to learn more: How to Ask for a Continuance.

This TRO kit is only meant for situations where a child is in danger and needs to be protected immediately, and the person putting the child is danger is a parent or someone else with conservatorship rights. 

Also read Temporary Orders & Temporary Restraining Orders (TROs).

 

Do the other parent and I need to go back to court to make temporary changes to our visitation schedule?

 

(Toolkit) Temporary Restraining Orders, Temporary Injunctions, and Temporary Orders in Child Custody Emergencies includes a motion for temporary orders, which can be used to make temporary changes to your visitation schedule. But temporary orders will not last forever. Eventually you will also have to go to court to get final orders about visitation, conservatorship, and child support (if applicable). You can read more about agreed modifications here:

Also read Do I have to request a TRO if the other parent or parent(s) will agree to not be around the child temporarily?

 

Do I have to request a TRO if the other parent or parent(s) will agree to not be around the child temporarily?

 

Not necessarily. In many cases, if you and the other parent (or parents) agree, you can deviate from your court-ordered visitation schedule. However, if you expect the visitation change to last a long time, or if you do not trust the other parent (or parents) to stick to the agreement, it may be better to do an agreed modification. You can read more about agreed modifications here:

 
What is a temporary injunction in a custody case?

 

A temporary injunction is similar to a TRO because it tells another person not to do certain things. The difference between a TRO and a temporary injunction is that a TRO:

  1. Is only good for 14 days, but a temporary injunction is good until your case is over, and
  2. Can be granted without notice to the other parent or conservator.

A temporary injunction cannot be granted unless the other parties have been given at least 3 days' notice of the hearing and a chance to attend it.

If you can provide competent evidence that the temporary injunction is necessary, a judge should agree to change your TRO into a temporary injunction at your second hearing (scheduled within 14 days of when the TRO is granted).

This means that the protections in the TRO will continue until you get a final order, which can take several months.

However, if the other parent or conservator is able to show that your evidence is not true or that the children are not actually in danger, the judge can dissolve your TRO—meaning that it will no longer be in effect—and refuse to grant your temporary injunction.  

It is important to remember that if you do not attend your second hearing, then you will not get your temporary injunction and your TRO will expire (the protections will go away). 

 

Research Tips

If you have to represent yourself—which is a last resort—read: