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Emergency Guide: Temporary Custody or Protective Order Hearing

If you must represent yourself at a temporary hearing, use this guide as a starting point – not as an exhaustive guide. The proof required to get what you want in a Temporary Hearing depends on the nature of the pending suit, the local rules of the court (see links at bottom), and the judge. This guide may not be helpful for your case.

Study the local rules for the court where the hearing will be. Watch a hearing or two before yours to see how the judge conducts business. Read the TEXAS RULES OF EVIDENCE before observing one. See also Child Custody Laws in Texas.

Bailif, club this man


Objections are counted against your time so be careful about how much you use them.


You need a basic theme for what you are trying to prove. It is a very short paragraph, perhaps only a sentence, that explains what you want to accomplish and why. All of your evidence and arguments should relate to this theme.

For example:

My husband has been violent toward me, and he has a drug problem. I see how it affects the children, so I need to get away from him. He needs to get help, and I need protection so that he is not violent with me again. I also need fees for my own attorney.

Core proof required:

This may not be everything you need to prove in your case, but rather key things to think about.

Protective order: Violence has occurred. Violence is likely to occur in the future.

Custody: Best interest of the children.

Supervised Visitation: He is a danger to the kids’ physical or emotional health. Best interest of the children.

Attorney Fees example: He has complete control of the community funds. He hired an attorney using these funds. It’s not fair for him to have an attorney paid for and not me.

All of your evidence needs to support your theme or specific proof. Remove anything not relevant to those. You can add a little character evidence like “He is violent.”


If you are in negotiations to reach an agreement before trial, don’t let them talk about anything you said or offered.


Objections are counted against your time so be careful about how much you use them.

The most important objections are:

1. Objection, non-responsive

2. Objection, hearsay

3. Objection, settlement offer

4. Objection, relevance

Non-responsive means “shut up” if the witness is talking too much or “answer me” if the witness refuses to answer or evades. Non-responsive is usually a time-saving objection.

Hearsay is an out-of-court statement made to prove what the statement asserts. Object to any “He said/she said” statements. Object to any offer of documents into evidence as hearsay unless you want them in evidence. Avoid objecting to Business records that opposing counsel has proved up. See, “How to admit business and medical records with a witness” below. If opposing counsel offers many documents into evidence and you are overruled often, then you may want to stop objecting. Follow the judge’s lead by looking at the facial expression and tone of voice. Be respectful.

You will get overruled a lot because temporary hearings have a lower standard for admittance. I rarely object to anything, but an attorney is more likely to offer inadmissible evidence with an unrepresented party. Documents are a major source of evidence attorneys will try to sneak past you and the most common objection to documents is hearsay.

Always have three copies of everything you want to introduce.


When someone objects to something you say as hearsay, use these answers:

1.    Statement of a party. You can testify about anything you heard the other party say.

2.    Offer to explain the reasoning not the truth of the statement. Often what someone says is a lie, or it does not matter whether it was true because you only care about the effect on the person who heard it.

3.    Excited utterance. Someone said something in an exclamation soon after it happened.

Judges usually allow hearsay statements with the explanation that it’s not used for the truth but to explain the reasoning or reaction. Use this only for important things that really do explain your reasoning or reaction. For example, if CPS said, “Keep him away from the kids,” that is hearsay, but it can be used to explain your reasoning. “I’m not keeping the kids away to be mean. I’m keeping them away because CPS told me to.” It doesn’t matter if CPS was wrong.

If you are in negotiations to reach an agreement before trial, don’t let them talk about anything you said or offered. For example, “Didn’t you tell me yesterday that the baby does better with Mom?” If that was said while trying to reach an agreement, then object with settlement offer.

If the other side objects to relevance, say that along with other evidence it shows the parts of the theme. For example, “This, along with other evidence I will present, will show why I should get fees for my own attorney.” Relevance objections get overruled a lot.

Final thoughts on objections

Attorneys have answers to objections ready for things they know are going to be objected to. For example, you know there will be a hearsay objection if you talk about what CPS told you. Be ready to say that the statement is offered to explain your reasoning, not for the truth of the matter. If the judge overrules you before you can answer, say, “Your honor, may I respond?”

If all else fails and you have no idea what the response to an objection should be, just state what you are trying to prove. For example, “Objection: Hearsay.” “Your honor, I’m just trying to show I was not trying to be unreasonable.”

How to Admit Documents

It is always best to have an attorney present.


Always have three copies of everything you want to introduce. Label them before the hearing “Mom-1,” “Mom-2,” etc. The order doesn’t matter. The exhibits must be labeled, and each copy of the same exhibit should have the same label. For example, phone records labeled: “Mom-1,” “Mom-1,” and “Mom-1,” Medical records labeled: “Mom-2,” “Mom-2,” and “Mom-2.”

Generally, the judge won’t ask questions, but there are things you must say before exhibits are admitted into evidence.

How to admit text messages or e-mails:

1. Where they came from: I printed these marked as Exhibit Mom-1 directly from my phone.

2. How they are identified: The telephone number at the top of the page is my Ex’s phone number.

3. How they are authentic: I can tell he wrote the message because it references a school play we talked about, and I recognize how he writes.

4. Offer Exhibit Mom-1 into evidence.

5. If the evidence is admitted, ask permission to hand a copy to the judge.

Possible objection: Insufficient foundation. These messages could have been written by anyone!

Response: I’ve met the threshold for admissibility. They can offer evidence against the messages when it’s their turn.

How to admit pictures:

1. Where it came from: I took this picture marked as Exhibit Mom-2.

2. What it is: It is a picture of my face.

3. Accuracy: It fairly and accurately represents the scene at the time it was taken.

4. Note any discrepancies: The actual bruise was slightly redder.

5. Offer Exhibit Mom-2 into evidence.

6. If the evidence is admitted, ask permission to hand a copy to the judge.

Possible objection: Some attorneys object to any description of the photo before it is admitted.

Response: If sustained, just move on to the next step.

How to admit business and medical records with a witness:

1. What is your full name?

2. Whom do you work for?

3. Did you bring the records with you? Optional: Ask how many pages.

4. Are these records marked as exhibit Mom-3 the records you brought? Ask the judge’s permission to approach the witness.

4. Are you familiar with how these records are made and maintained?

5. Were the records made at or near the time of the event they record?

6. Are the records kept in the regular course of activity?

7. Offer Exhibit Mom-3.

8. If the evidence is admitted, ask permission to hand a copy to the judge.

Possible objection: Hearsay within the document.

Response: Ask the judge to ignore the hearsay or deal with it like any other objection. Be prepared to mark out excluded text with a Sharpie if necessary.

Witness examinations

1. What is your full name?

2. Whom do you work for?

3. Where do you live?

4. Are you familiar with [person, place, or thing]?

5. How do you know (about) [person, place, or thing]?

6. Specific questions about the person, place, or thing that go along with your theme.

Cross Examinations

In cross-examination, you want to ask a witness things you think they will admit to. Or, you want them to give information that you need. Be aware that they may lie, so make sure the information won’t hurt too badly.

It’s best not to ask questions in cross examination unless you

• Know the answer,

• Don’t care what the answer is, or

• Have proof of the answer and can demonstrate dishonesty.

Admissions: The witness may lie, but you can probably prove it. The reason for asking these types of questions is because you cannot testify to them yourself. You testifying, “My wife was fired” could be objected to as hearsay. Asking your wife, “You were fired, weren’t you?” could not.


  1. You work for Delta Widget’s, don’t you?
  2. You were arrested last year for drug possession, weren’t you?
  3. Isn’t it true that you were fired for using drugs?

Don’t care: It doesn’t matter how the witness answers these questions. You’re making a point.


  1. Drugs are illegal, aren’t they?
  2. If you are arrested for possession while the kids are with you, wouldn’t that be scary for them?

Information: The witness may lie, but you’re just trying to get as much information as you can. Be careful.  Hostile witnesses can drag out answers and waste your time.

  1. What is your address?
  2. Where do you work?
  3. Who paid your attorney fees?
  4. How much was the retainer?
  5. What is your gross monthly salary?
  6. What financial institutions do you have accounts in?
  7. About how much is in your accounts?


Subpoena any witnesses you want to testify. Be aware of time limits and make sure the witnesses you call have something to say that goes along with your theme. Ask witnesses to bring three copies of employee records, CPS, medical, or other records as appropriate.


It is always best to have an attorney present. But when that is not possible, use these tips and strategies as a first step in preparing for your day in court. Do additional research, study the Texas Rules of Evidence, visit the judge’s court room, and have your evidence and witnesses in order.

Call an attorney for assistance or see for self-help materials and help in locating free legal services.

Links to local rules for Collin, Dallas, Denton, McLennan, and Tarrant Counties.

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  1. Pingback: Temporary Orders – Where is my child? - Texas Attorney Preston Park

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