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When You Can’t See Your Kids: Navigating Texas Child Custody Emergencies
Welcome to Attorney911, where we serve as your first responders to legal emergencies. In our latest podcast episode, Ralph Manginello sat down with seasoned family law attorney Taly Thiessen to dissect the urgent, real-world situations families face every day in Texas. When your children are involved, every issue feels like a crisis. As Legal Emergency Lawyers™, we understand that panic and confusion can set in when you’re denied access to your children or facing the overwhelming prospect of divorce. While our firm, The Manginello Law Firm, PLLC, is renowned across Houston and Texas for our work in personal injury and criminal defense, the principles of urgent, strategic legal intervention apply across all practice areas. Today, we’re breaking down the critical insights from that conversation and expanding on what you need to know to protect your family and your rights.
Ralph Manginello, with over 25 years of litigation experience and admission to the U.S. District Court for the Southern District of Texas, knows that legal emergencies don’t fit neatly into one category. Whether it’s a catastrophic injury case against a billion-dollar corporation like BP or a frantic call from a parent being denied visitation, the need for immediate, expert guidance is the same. In family law, as in personal injury, evidence matters, timing is critical, and the opposing side—whether an insurance adjuster or a contentious co-parent—is often not acting in your best interest. Let’s dive into the realities of family law emergencies with the same tenacity we apply to every case that comes through our doors at 1-888-ATTY-911.
The Number One Family Law Emergency: Denied Access to Your Children
As Attorney Thiessen emphasized, the most common emergency call in family law is from a parent who cannot see their children. This heart-wrenching scenario typically unfolds in two distinct legal landscapes: when there is no existing court order whatsoever, or when there is a court order that is being violated. Understanding the difference is the first step toward taking effective action. In Texas, child custody is governed by the Texas Family Code, which establishes the rights and duties of parents. However, without a court order from a district court in your county—be it Harris, Fort Bend, Galveston, or elsewhere—the legal concept of “conservatorship” and “possession” is largely theoretical when a dispute arises.
In the first scenario, where no order exists, parents are often shocked to learn that calling 911 yields little result. Law enforcement officers are typically constrained in these situations, viewing them as “civil matters.” As Ralph noted from his early career experience, even in tense situations, police may be reluctant to intervene without a court document dictating who has the right to possession at that moment. This leaves the parent in a desperate position. The immediate, practical step is to hire an attorney to file a suit affecting the parent-child relationship (SAPCR) or a divorce petition with requests for temporary orders. At Attorney911, while family law is a referred practice, our core litigation philosophy applies: we move swiftly to establish legal footing. Just as we immediately secure evidence after a trucking accident, a family law attorney must quickly get you before a judge to establish temporary rights.
When You Have an Order: Documentation is Your Weapon
The second, and more legally actionable, scenario is when a valid court order is being ignored. Perhaps you have temporary orders from a pending divorce or a final decree from a concluded case. The other parent is refusing to comply. Here, Attorney Thiessen provided a masterclass in practical, evidence-based strategy. The police may still be limited, but you now have a powerful tool: a judge’s signature.
The cardinal rule: Follow your order to the letter. If it says pickup is at 6:00 PM at the front door, you must be at that front door at 6:00 PM. Do not text from the curb. Do not call from down the street. Go to the door, knock, and request the children. This isn’t just courtesy; it’s creating a factual record. Then, as Thiessen advises, document everything:
- Take a timestamped photo or video: A selfie at the front door with the address visible can be compelling evidence.
- Call the non-emergency police line: Request that an officer come to make a report. Even if they don’t come, the call log creates a record of your attempt at the exact date and time specified in your order.
- Create a commercial record: Thiessen’s brilliant suggestion to go to a nearby Starbucks or store and make a small purchase generates a time-stamped receipt placing you in the immediate area at the relevant time.
- Bring a witness: A neutral third party who can testify to your presence and the denial of access is invaluable.
This meticulous documentation is the foundation for filing an enforcement action, and potentially a motion for contempt. Thiessen rightly notes that enforcement drafting is a highly technical minefield. Errors in pleading can get your case dismissed. It’s analogous to the precise drafting required in a personal injury lawsuit under the Texas Civil Practice & Remedies Code; one procedural misstep can jeopardize your entire claim. This is why having qualified counsel is non-negotiable. The stakes involve not just make-up time but potentially jail time for the violating parent, which introduces criminal procedural safeguards.
The Police, Court-Appointed Attorneys, and Guardian Ad Litems
A recurring theme in the discussion was the limited role of police in custody disputes. It’s a harsh reality for many parents: interference with child custody is a crime under Texas Penal Code § 25.03, but police departments often lack the resources or inclination to pursue these as criminal matters absent extreme circumstances like imminent danger or flight across state lines. They default to the “civil matter” referral. This underscores the importance of building your civil enforcement case with the evidence strategies outlined above.
What about court-appointed attorneys? As Thiessen clarified, in a civil enforcement where you are seeking contempt (which can involve jail time), the court may appoint an attorney for the alleged violator because their liberty is at stake. This is based on constitutional protections. The parent seeking enforcement, however, must generally secure their own counsel. For those who cannot afford one, resources like Texas Law Help provide pro se forms, but the complexity of enforcement actions makes this a risky path.
Furthermore, in a straightforward enforcement hearing, the court is unlikely to appoint a guardian ad litem or amicus attorney for the child. The narrow issue before the judge is: “Was there a valid order, and was it violated?” The court isn’t re-litigating the child’s best interest—that was presumably settled when the original order was entered. However, if the violating parent raises a defense like an emergency CPS case, the proceedings can become vastly more complex, immediately necessitating skilled legal representation.
The Myth of the “Agreed Divorce” and How to Truly Prepare
Ralph and Taly then turned to a common initial inquiry: the “agreed divorce.” Clients often call believing that because both parties want out, the process will be simple, fast, and cheap. As any experienced Texas family law attorney knows, this is rarely the case. Thiessen explained that even in these situations, she charges her standard rate because “agreed” divorces have a notorious tendency to go sideways once the realities of dividing assets, calculating child support, and formalizing possession schedules hit the kitchen table.
The true “agreed” process, when it works, involves one party filing a petition. The other party signs a waiver of service, acknowledging the suit and agreeing not to require formal service by a process server. This is a key indicator of cooperation. The attorney then drafts the final decree based on the mutual understandings, and after the mandatory 60-day waiting period (Texas Family Code § 6.702), the decree is signed and filed. This smooth process is most likely in cases with few entanglements: no children, minimal assets, and no real property. However, as Thiessen noted, even with children, agreed divorces are possible if both parties are educated on the Texas Family Code’s standard possession order and child support guidelines.
Practical, Pre-Filing Advice from the Trenches
For those contemplating divorce but not yet ready to file, Thiessen offered two golden pieces of advice that resonate with our approach at Attorney911: investigate and document, and hold your position.
First, begin gathering documents immediately. This means collecting bank statements, mortgage documents, retirement account statements, tax returns, and bills. As she pointed out, during formal discovery in a divorce, you may have only 30 days to produce these documents. Starting early is crucial. This mirrors our personal injury practice; we immediately send spoliation letters and begin collecting evidence—police reports, witness statements, surveillance footage—because evidence disappears quickly. In divorce, financial paper trails can be obscured or destroyed.
Second, and critically, do not voluntarily relinquish what you want to keep. If you want to be the primary custodial parent, do not move out and leave the children in the marital home. If you want to be awarded the house, do not leave the house. Texas courts prize stability and the status quo. A judge is far more likely to maintain an existing living arrangement than to uproot children or change possession of major assets. This is analogous to not giving a recorded statement to an insurance adjuster after a car accident; you are preserving your position and not providing ammunition that could be used against you later.
Modern Trends: The Peril of Property Without Marriage
Perhaps the most forward-looking part of the discussion addressed a growing trend: unmarried couples buying houses, having children, and entangling finances without the legal structure of marriage. As Thiessen highlighted, this creates a legal quagmire when the relationship ends. People mistakenly believe that because they’ve built a life together, family court can divide their assets. It cannot.
Without a marriage license or a meeting of the requirements for a common law marriage (agreement to be married, cohabitation, and holding out to others as married), you are legal strangers in the eyes of the Texas Family Code. Your jointly owned home is not community property to be divided; it is a piece of separate property co-owned by tenants in common. Untangling it requires a partition lawsuit under the Texas Property Code—a slow, expensive, and often acrimonious civil proceeding, not a divorce. The same goes for vehicles and other jointly purchased assets.
Thiessen’s recommendation is sage advice for anyone in this situation: if you are making significant financial commitments with a partner, have a cohabitation agreement or partnership agreement drafted by an attorney. This contract can dictate what happens to assets and debts if the relationship ends, providing clarity and preventing a protracted legal battle. This proactive approach is something we champion at Attorney911 in all contexts; whether it’s a business agreement or protecting your rights after an injury, getting the terms in writing early saves immense conflict later.
Connecting Family Law Emergencies to Attorney911’s Core Expertise
While family law is a specialized field, the principles of emergency legal response, strategic evidence gathering, and fierce advocacy are universal. At Attorney911, under Ralph Manginello’s leadership, we’ve built our reputation on these principles in the realms of personal injury and criminal defense. Consider the parallels:
- Immediate Action: Just as you must document a custody violation at the moment it happens, we must secure crash scene evidence, locate witnesses, and send preservation letters before surveillance footage is erased.
- Complex Procedures: Filing a flawless enforcement action is as technically demanding as navigating a multi-million dollar wrongful death lawsuit against a trucking company, requiring knowledge of specific statutes and local court rules.
- Insider Knowledge: Our associate attorney, Lupe Peña, provides an unfair advantage because he spent years on the other side. He worked for a national defense firm, learning exactly how large insurance companies value claims, delay proceedings, and use tactics to minimize payouts. Similarly, a family law attorney with extensive courtroom experience knows how local judges in Harris County or Fort Bend County rule on specific issues.
- High-Stakes Outcomes: The emotional stakes of a child custody battle are immeasurable. In our practice, the financial and physical stakes are equally profound. We’ve secured multi-million dollar settlements for clients with catastrophic injuries, like a brain injury from a logging accident or a leg amputation following a car crash. We’ve taken on giants, as one of the few firms involved in the BP Texas City explosion litigation. We prepare every case with the intensity it deserves, because families are depending on us.
Our clients, like Donald Wilcox and Greg Garcia, came to us when others turned them away. Angel Walle noted we solved in months what others couldn’t in years. This relentless drive for results defines us. Whether you are facing a family law emergency, the aftermath of a devastating accident, or criminal charges, you need a lawyer who answers the call. Call 1-888-ATTY-911. We are your Legal Emergency Lawyers™, serving Houston, Austin, Beaumont, and across Texas.
Frequently Asked Questions: Family Law Emergencies
What should I do right now if my ex won’t let me see my kids and we have a court order?
First, ensure you are at the exact location at the exact time specified in your order. Document your presence with photos, a witness, or a receipt from a nearby business. Call the police non-emergency line to request a report. Then, contact a family law attorney immediately to discuss filing an enforcement action. Do not take matters into your own hands, as this can backfire legally.
Can the police arrest my ex for not following the custody order?
Generally, no. Most custody violations are treated as civil contempt matters, not criminal arrests. Police are often reluctant to get involved in what they deem civil disputes. Your remedy is to file an enforcement motion in the court that issued the original order, where the judge can impose penalties including fines, make-up parenting time, and in severe cases, jail time for contempt.
My spouse and I agree on everything for our divorce. Can we use one lawyer?
No. An attorney can only represent one party’s interests. Even in an amicable split, having independent legal advice is crucial to ensure your rights are fully protected and the agreement is legally sound. One party can hire an attorney to draft documents based on your mutual agreement, and the other party may choose to review them with their own counsel before signing.
If I move out before filing for divorce, will I lose rights to my house or kids?
You don’t automatically lose your legal rights, but you may weaken your practical position. Texas courts often maintain the status quo. If you leave the marital home and children, a judge may be hesitant to disrupt the new living arrangement later. If you want primary custody or possession of the home, consult an attorney before moving out.
My partner and I bought a house but aren’t married. How do we split it if we break up?
You will likely need to file a partition lawsuit in civil court. This is not a divorce proceeding. The court will typically order the property sold and the proceeds divided, or one party can buy out the other’s interest. This process is more cumbersome and expensive than dividing property in a divorce. A pre-existing cohabitation agreement could have streamlined this.
How quickly can I get a hearing if my kids are being withheld?
If you have an attorney file an emergency motion or a motion for enforcement, you can potentially get a hearing within a few weeks, depending on the court’s docket in your county (Harris, Fort Bend, Montgomery, etc.). The key is acting swiftly and having an attorney who knows how to properly request and expedite emergency relief.
If you are facing any legal emergency, time is not on your side. Evidence fades, deadlines loom, and positions harden. Let the experienced team at Attorney911 be your first call. With over 25 years of results, a former insurance defense attorney on our side, and a commitment to treating every client like family, we are ready to fight for you. Contact us today for a free, confidential consultation at 1-888-ATTY-911 or visit attorney911.com. We serve Houston, Austin, Beaumont, and all of Texas. Se habla Español.
Frequently Asked Questions
What is the first thing I should do if the other parent won’t let me see my children?
First, determine if you have a court order. If you do, be at the exact pickup location and time it specifies. Document your presence with photos, a witness, or a receipt. Call the police non-emergency line to request a report. Then, immediately contact a family law attorney to file an enforcement motion.
Will the police help me if my ex is violating our custody order?
Typically, police treat custody violations as civil matters and will not make an arrest. They may document the incident if you call the non-emergency line at the time of the violation, but your primary legal remedy is to file an enforcement action in the court that issued the original order.
How much does an ‘agreed’ divorce cost in Texas?
Even in seemingly amicable splits, costs vary based on complexity. Most attorneys charge a retainer because ‘agreed’ terms often break down when discussing assets, debts, and children. Unused portions of the retainer are typically refunded. The simplest divorces with no property or children are the least expensive.
Should I move out of the house before filing for divorce?
It is generally not advisable if you want to be awarded the home or primary custody of children. Texas courts often maintain the status quo. Leaving may weaken your position. Consult with an attorney to develop a strategic plan before making any major changes.
What legal rights do I have if I buy a house with my partner but we aren’t married?
You have property rights as a co-owner, but not the rights of a spouse under family law. If you separate, you cannot get a divorce to divide the asset. You must file a partition lawsuit, a civil proceeding that can force a sale or buyout, which is often slower and more costly than divorce proceedings.
Can I get a court-appointed lawyer for a child custody case?
Generally, no. Court-appointed attorneys are typically provided in criminal cases or in civil contempt proceedings where jail time is sought for the *violating* party. The parent seeking to enforce an order usually must hire their own attorney or proceed pro se.
