Editor’s note: On Nov. 14, the Texas Lawyer editorial department hosted a roundtable discussion in Dallas, “Domestic Relations: How to Make Your Case in Family Court.” Panelists included 302nd Family District Court Judge Tena Callahan of Dallas County, 303rd Family District Court Judge Dennise Garcia of Dallas County, 416th District Court Judge Chris Oldner of Collin County and 330th Family District Court Judge Andrea D. Plumlee of Dallas County. This is part two of the discussion. The judges’ discussion covered a range of topics, including temporary restraining orders, how to handle potential family violence and how to work with a pro se litigant. It has been edited for style and length. The first installment of the roundtable discussion appeared in the Dec. 24 issue of Texas Lawyer.
John Council, senior reporter, Texas Lawyer, Dallas:. . . On temporary restraining orders, what’s the best way to get that heard quickly in court?
330th Family District
Andrea D. Plumlee
330th Family District Court Judge Andrea D. Plumlee, Dallas: Well, in the 330th, and I think it’s the way in family courts, when the case is filed, . . . the general orders are put in place so there’s a temporary restraining order. You take those to the associate judges and get those signed or initialed and then they come back to us. But generally, the associate judges handle those.
Council: Okay. Judge Oldner, obviously different in Collin County. How do you handle those and what’s the best way to get one heard quickly?
416th District Court Judge Chris Oldner, McKinney: If you’re actually bringing a TRO, we have a standing order in Collin County. If you’re bringing a TRO, I’m going to assume there’s some kind of extraordinary relief, you’re asking for access to a kid, or something like that. If I see that in a TRO, you bring me a TRO, I’m reading over it. Again, when you do present it, assuming there’s a lawyer there presenting it, please do point out: Here is what the extraordinary relief is that I’m asking for and the affidavit that’s necessarily going to have to be part of that in order for me to grant you something outside of a standing order. On almost any occasion where I see that kind of request and you’re asking for it ex parte, I am going to give you a very quick setting. I’m going to give you seven days or less on a TRO hearing, because I necessarily want both parties there in front of me as quickly as possible to resolve that issue and make sure I get both sides of it. I consider myself a relatively tough proof on ex parte relief. I don’t grant it lightly. I take it very seriously. If it’s a case that’s been pending and there’s a lawyer on the other side and there’s an event that happens that required you to come up there during the pendency of the case to ask for ex parte relief, I’m going to make every effort I can to get that other lawyer on the phone. I know you all will notify the other side as you’re supposed to. Sometimes you’re on your way to the courthouse and sometimes your clients leave you no choice but to do it that way because it’s that emergent of an issue. If it’s that kind of case, I’m going to set it literally three . . . [or] four days out, and I’ll work it in maybe . . . [at] 8:00 in the morning [or] maybe last in the afternoon; I’m going to work it in as quickly as possible.
302nd Family District
Council: Judge Callahan, I have a TRO for you, I needed it heard yesterday. What’s the best way to get you to hear that quickly?
302nd Family District Court Judge Tena Callahan, Dallas: Begging. In Dallas County, the associate judges hear the TROs. We have a standing order as well. So if you bring . . . a TRO to the court that has some relief requested that’s outside the standing order, most of the time the associate judges, that’s what they do. [T]hey know they’re there — a little red folder — they know what they’re looking for. And I know that Judge [Christine] Collie will set those as quickly as she possibly can. I know, obviously, within 14 days, but I’m assuming, depending on what the merits of the request are, she knows when to set it and will get it on her docket as quickly as possible. The normal settings through the 302 in the associate judge’s court, without any sort of special setting needed, go through the clerk’s office. If . . . you request,[Judge Collie] can put it on special set and get it done quickly. Now with that said, I’ve had times people have come to me with their little red folder, they have a TRO, Judge Collie is super busy. I look at it. I hear it. I’ve done that before. . . . [Y]ou just find somebody that isn’t busy and/or that you can get to and put it in front of them. That’s our job. That’s what we do. I’m not saying the associate judges like it when I do it. But, as opposed to not being heard at all, I will do it. …[T]hat doesn’t happen often, but I will definitely do it.
Council: What happens in your court, Judge Garcia?
303rd Family District
303rd Family District Court Judge Dennise Garcia, Dallas: The first line of defense is the associate judges. There are seven associate judges. So if Judge [Mary] Brown isn’t available to hear one, you can . . . go to any of the other associate judges. . . . [I]f you’ve exhausted those avenues, . . . my preference is to bring it to me first after you’ve attempted to get an associate judge to hear it. I’ll try to put you in as quickly as possible, meaning right then and there if I can. If I can’t get away, for example, if I’m in a jury trial today, I would not put you in the middle of my jury trial. If Judge Callahan is available, you can get Judge Callahan to hear it. We have an agreement that we all sit for each other’s courts so that those will get heard. They won’t languish. But we have 14 people who are set up, we have the potential of taking care of your case in the case of TRO.
Council: Judge, let’s say a child is 14 years of age or older [and] wants to go live with another parent. How do you let the child express that preference in court now that the requirement that they submit an affidavit has been eliminated?
Garcia: If they’re over the age of 12 . . . I will interview the child in chambers. And my preference is that those interviews take place as close as possible to the hearing or the trial where I’m going to be considering the request. If you give me an interview with the child two weeks before I have a trial or hearing, I’m going to forget that that child is associated with this case. So same day, day before [or] day after is the proximity I’m talking about. And I’ll talk to the child. And I’ve mentioned this before in another forum, in other proceedings. As judges, we’re not trained to interview children. We’re trained exactly the same way you are. We’re trained as lawyers, and then we go to new judge college and go to judicial college. They don’t have classes on developmentally appropriate ways to interview children. They have classes on the law. They have classes on docket management. So the code calls on us to . . . conduct an interview of a child in a developmentally appropriate way. I’m not a psychologist. I’m not a social worker. That’s not my history, so I don’t feel comfortable doing it. I’ve said this before: Judge [Lynn]Cherry has an extensive history working with children, having been an educator and a guardian ad litem in CPS cases, so she is comfortable in that environment. I am not. I do the best that I can and . . . try to take into account that particular child. Not all 14-year-olds are created equally. Some are way advanced for their ages; some are very young for their ages. To the extent that I can figure out those cases, then I’ll . . . proceed accordingly. I tell all the children . . . we don’t do everything that you ask us to do. We don’t even give you the right to make the decision. We’re going to take that off your shoulders right now. You don’t have to make the decision. I’m going to make the decision, and I’m going to take into account what you want. But understand, if I have a 6-year-old who says, “I just want nothing but candy,” that’s not very good for that child, so I’m not going to give that child . . . nothing but candy. So understand that I’m trying the best I can to take into account what your needs are as well as your desires. And the kids usually understand that. They kind of chuckle at the candy analogy. They think that’s funny for some reason. They usually understand.
Council: Judge Callahan, I’m sure this is probably a difficult issue for you as well. When an older child wants to change parents, how do you let them express that in court? Do you take them into chambers as well?
Callahan: I do. I have to interview them or have the child interviewed if they’re over the age 12. And so I will talk to them. I do not talk to them until after I have heard the case and all the evidence has been closed. Like Judge Garcia, . . . if I interview the child before I hear the case, I’m kind of talking to them in a vacuum. I don’t know really what the issues are. And because I, too, don’t have a background in psychology or interviewing children or anything like that, I have a tendency to just let the kids talk to me. They know . . . why you’re there, so we talk about all kind of stuff. We talk about school; we talk about extracurricular activities. I never have the attorneys in the room. I always have the court reporter. There is a record of it. And . . . if the child is willing to tell me what it is that they want, I don’t . . . have to pull it out of them. They’re going to tell me. And I think over the years I’ve gotten better at it, but I still don’t ask them who they want to live with. If they want to tell me that, they will tell me. I don’t ask them. I am not putting them in the middle of it. Their parents want them there or they want to be there, and if they really do want to be there, like I said, I don’t have to ask them anything. They will tell me what it is they want me to hear. And I also, like Judge Garcia, let them know that this is not their decision, that it’s my decision, and I also let them know that we’re having a transcript done here. They’re old enough to understand that, they see the court reporter. And I also tell them that if they want to talk about anything that we have talked about they can, but that if anybody asks them what they talked about and they don’t want to talk about it, and the judge says, “I don’t have to tell you because it’s none of your business, it’s between me and the judge,” and then maybe there’s some kind of bond that I can create with these kids so they will open up to me. But most of the time I don’t find it very helpful. I just don’t. I’ve already heard all the evidence and, based upon that, I have an idea where things are going to go. And, regardless of what the child says, I think I’ve pretty much gotten my mind already made up. I can say I have never changed my mind because of an interview with a child. Now, that may change tomorrow, but I’m just telling you folks, I’ve never changed my mind.
Garcia: I have to say, actually, that my mind has been changed on a couple occasions because of it. That’s the hardest part, for me to tell lawyers, “Don’t bring kids to the courthouse, they don’t belong there.” But when . . . I get a very mature, 14-year-old and . . . maybe, I’m just a sucker, but it has in close cases made the difference. I don’t know what to tell you when I say don’t bring them to court, but that might be effective. . . .
Callahan: It might. You’re absolutely right. I’m not saying it wouldn’t. I’m saying so far it has not. There have been close cases that I have heard, and I have been doing this [gesturing] and I would think, well, probably, you know, maybe it should be maybe a little more this way, and I talk to the kid and, sure enough, it’s probably maybe more this way. I’m not saying it couldn’t do it. They have to be there anyway. I do keep an open mind. I’m just saying that I’ve never changed my mind, so that’s me.
Council: Okay. Thanks. Judge Oldner, I’m sure you’re not a child psychologist either.
416th District Court
Judge Chris Oldner
Oldner: . . . [T]he background of your judge does matter. Before I got elected in 2000, my job was I was the chief of the child abuse unit in Collin County. So I trained lawyers, and I interviewed kids all day every day. So, I’m not a psychologist by any stretch of the imagination, but I worked with psychologists, child development specialists, child abuse experts and talked to kids all the time. So, I do have more of a background, I think, than a lot of judges do in this area. That being said, I’m not necessarily any more gifted than the other judges would be in this, and I will do everything in my power to talk you out of bringing a child to the courthouse. I will tell you there are certain situations where you can force me to interview a child, and I obviously will follow the law if you put me in those situations. I differ with a couple of lawyers on what those situations are. I don’t think you can do it unless it’s a final hearing. I know you may disagree with me. And I think the code does not dictate what I have to talk to the kid about. If I do, there are things that says general concepts it talks about, but I don’t think there are specific questions. I will never, ever, as long as I live, ask a child, “Where do you want to live?” Never. I don’t think anything positive can come from that. I will generally talk to the kids about music, sports, school, classes. I will almost always ask this question: If you could wave a magic wand and get your parents to do anything you want, what would that be?
Plumlee: And they say “stop fighting.”
Oldner: Almost every time. They never say, “Let me go live with Mom,” “Let me go live with Daddy.” They say, “I want them to stop fighting.” And I know you guys know that, and I know you communicate that to your clients. But almost every time that’s what they say: “I want them to stop fighting.” I will have a reporter in my chambers with me, and I sometimes walk around the courthouse depending upon the developmental age of the child and the situation. I try to make it as casual and non-pressure-filled as possible. If I have siblings, . . . sometimes I will [interview] them together, sometimes I will do them separately. It depends on the dynamic of it. I have not yet been forced to make a record. My reporter is in there, but she’s not making a record. I don’t have the stenograph machine in there. She’s just there because my background is child abuse and neglect, and I always am going to have another person in the room with me when I interview a child. It’s just that simple. . . . I know you guys do that, too, if you’re ever in a situation. Always have another person in the room with you when you’re doing that interview. I have the same experience: There have been very few occasions where it’s made a difference in my decision. I don’t think it’s necessarily changed my mind, but it’s made a difference in my decision. I will do it after I’ve heard the evidence, not before, because I don’t want to lose anything. I want to have that context about it. Never bring a child with you. When we start the case, “Kid’s out in the hall.” No. Never do that. Tell me ahead of time, “This is a situation, judge, where I’m going to have to compel you to interview the child. When can we schedule it?” What I will typically say is, “Let’s hear the evidence. When does the kid get out of school? Let’s set it at 4:30, set it at 5:00, see what time is not going to interfere with the kid’s schooling and they don’t sit out in the hallway three hours waiting for us to finish the evidence in the case.” Please let us know ahead of time if you intend to do it. And again, I will do everything in my power to try to talk you out of it.
Council: Judge Plumlee, what’s your procedure for handling a situation where a child wants to express a desire to move with another parent?
Plumlee: It’s the same. I will interview the child. I, too, have never asked a child, “Where do you want to live?” It’s just an inappropriate question. And I will start the session by just asking, “Why are you here today? What would you like me to know?” And, usually, that takes on a life of its own, and they just talk. I have yet to interview a child that has not said to me, to that question posed to them if you could wave a magic wand what would you want, and the answer not be the same or similar that “I want them to stop fighting.” They love both parents. They . . . will even acknowledge that one parent might be a little more lenient than the other parent and that might be why they like going over there, but they absolutely, if they could, would put their parents back together and live in a home that was what they perceived to be a traditional home. So, it’s a difficult prospect to bring a child into the middle of litigation and have an expectation that what they say. I have a 14-year-old. I wouldn’t want anybody to do what my 14-year-old would like for them to do. They can’t see around the corners that we know are there, and they can’t see what that will do to whatever it is, you know, their future will hold. So, I do it gingerly. I do it kind of unwillingly, like you do. I don’t like it. I especially do not want you to bring the children down to the courthouse and just spring it on me and say, “They’re sitting outside.” Because I will stop the litigation and tell you to take the children home. That’s how important it is. . . . [O]n one or two occasions, I have been given information that very much assisted me in making a decision in the case. I always have interviewed children separately when there was a sibling group. And the one time, just a couple weeks ago, that I actually thought, when I spoke to them out in the courtroom a little bit, that they wanted to be interviewed together, one of the children started to speak, it was a 13-year-old, . . . and the child said, “Can I tell you what I want to tell you without her being in here?” And I said, “Absolutely.” So, they are absolutely truth-tellers. He wanted to tattle that she was drinking. They are absolutely truth-tellers. . . . So, it’s a part of our jobs. It’s what we do but certainly not something that I relish.
Council: Judge Plumlee, how do you deal with pro se litigants; and, for example, do you ever relax the Rules of Evidence for them when they appear before you?
Plumlee: Of course not, and very carefully. We have a pro se docket, which I think most of the family courts do in Dallas County, I think. We have a pro se docket, actually, where I bring them in . . . and send them to the associate judge with their documents and their papers and we have a little sheet that we check off what’s lacking. And then we send them down to [floor No.] 2 to let them be directed in how to get their paperwork in order. And then we schedule them for prove-up docket, . . . . [W]hen they come to pretrial, . . . if they can’t resolve them and haven’t resolved them, it’s usually because they haven’t spoken to one another. I will assist them during the pretrial, you know, “Where are the children right now?” They will tell me. And I ask, “Do you agree with that?” “Yes, I agree with that.” “Are you getting access?” “Yes, I’m getting access.” “Do you agree with the access you’re getting?” “Yes.” “Well, what are your issues, then?” “Well, nothing. I just want to be divorced.” I really smile. I say, “You want to be divorced today?” They say, “Yes.” I say, “Okay.” You know. “Go down to [floor No.] 2 and ask them for this document, bring it back and we’ll see what we can do.” We have a script for them that goes through the elements, the jurisdictional elements, and they usually walk out very pleased.
Council: Judge Oldner, how do you treat a pro se litigant, maybe on a case that’s a little more complicated?
Oldner: It certainly is case-by-case. Sometimes you have two people in there that don’t have any estate to speak of, little or few kid issues, they just want to get divorced. Those can be handled in a pretty straightforward manner. It takes a great deal of patience and time dealing with pro ses in court. We don’t have a specific pro se docket; we just incorporate them into our normal docket. I do my best to save calling those cases to the end of the docket, so I can get the lawyers in and out quicker than that, because they do take up so much more time in dealing with them. I know this is a hot-button issue for family law lawyers when you’re dealing with the Supreme Court and their actions on the forms that they’re dealing with. And I am one of the judges that has joined with, I believe, [another judge], gathering the signatures saying, “Stop, don’t do this. This is not the right move for the Supreme Court right now. You’re not accomplishing what you think you’re accomplishing by doing that.” But the reality is, be it the economy, whatever it is, that those numbers are going through the roof. In Collin County, since 2008, our pro ses have increased 647 percent . . . in family law. So, the reality is, whether that be hubris on the part of the pro ses thinking they can handle their own case, and some of them, their form of controlling the case is by representing themselves because they think they will get more from the judge or be able to control the issue more and if they play dumb in front of the judge, “I don’t know what to do, I’m not a lawyer, and I’m not sure.” We see through that most of the time when that happens. But it is a very time-consuming process. It’s a problem that’s not going to go away. When I call it a “problem,” I’m not trying to say people representing themselves are necessarily a problem, but, from a time perspective and time-management perspective, it is a problem that we have to deal with. And when you have a lawyer on one side and pro se on the other, that kind of makes it a very interesting problem. Because I’ve had situations where I’ve had a lawyer on one side, pro se on the other, and honestly I just thought the lawyer was asking for way too much. And that actually will work against you in the end if you think, “Oh, there’s no lawyer on the other side, I’m going to ask for it all.” Don’t. Please. Keep your glasses on, keep it fair, and realize what a just and right division is and please understand what a fair schedule is to the kids. If you ask for the moon, it actually rubs me the wrong way. I perceive you to be taking advantage of what you see as an unrepresented person, and that is going to work against you in the long run. So, the idea of a pro se docket is an attractive thing, maybe something we need to move towards, although the idea of handling all day, every day, pro se dockets is a little crazy. But that is a problem you’re going to have to deal with as you move forward. I don’t really see it getting any better.
Council: Judge Callahan, I would assume that pro se litigation is going up in Dallas County as well. How do you deal with this?
Callahan: The 302 does have a pro se prove-up docket. It is very time-consuming on the front end because of pro se litigants putting their documentation in [and] then filing it with the court. . . . [T]hen either Judge Collie or I will review those. And typically you have to . . . put your hands on [it] at least two, most often three or more times because of affidavits that are missing or entire parenting plans that are missing or . . . a case having to be transferred because you have the divorce, [or] a myriad number of issues. It’s a train wreck. So you’re right, new forms, [are] not going to take care of the problem of the amount of time that self-represented litigants present to the court. I guess, for this audience, really the issue is: Whenever you have a self-represented litigant on [the] other side of you, how do we handle that? . . . [M]y marching orders are to do what’s in a child’s best interest and to divide an estate fairly. Those are my marching orders. And if an attorney comes in, as Judge Oldner was saying, and asks for the moon, you’re not giving me the tools I need to do my job. So, therefore, if I’ve got a self-represented litigant on the other side that really doesn’t know how to get this piece of evidence in but I know that that piece of evidence is going to help me do that job better, then you better believe I’m going to find a way to see it. I can give it the weight I need to give it. I just need to make sure that the job that I do is fair. And however I do that, I’m going to make sure that I get the evidence in front of me. Oftentimes that means I have to start asking questions after a self-represented litigant has rested their case because the other attorney on the other side won’t ask the questions. Somebody’s got to ask them. Whenever you have two self-represented litigants in the courtroom before you, oftentimes — I’m sure you guys have seen this if you’re watching it in court — I’m the only lawyer in the room. I’m the only one asking questions and I’ve got to have questions, because I have my marching orders. I have a job I have to do. So, that takes up time, that takes up energy, it takes up effort. We go to school to learn how to deal with self-represented litigants, and it is a fur ball issue. It really is. Because we walk a fine line. How fine of a line am I going to allow a self-represented litigant to cross over so I can get some information when I have an attorney shooting daggers at me? “You know full well that’s hearsay, judge.” They don’t say it. I know they’re thinking it, because I know it is hearsay. I know it is. With that said, there are so many attorneys who have been on the other side of pro se folks that know what’s going on. . . . [Y]ou can just see it in their physical demeanor whenever I have to let certain things come in so that I can hear evidence I need to hear and give it the weight I need to give it so that I can make the decision. Most attorneys are getting pretty savvy about what it is that we have to have. Going too far is one thing, but most of the time you get the information you need. If you don’t, I have to ask for it. . . . I can clarify anything with a question. That’s what I’m going to end up doing. So, you can help me out or not, it’s up to you, but I’m going to end up having to get the information I need to get to do my job.
Council: Judge Garcia, what do you do to keep a case that has a pro se litigant involved?
Garcia: We try to do a lot of “report backs” for pro ses that we think might not comply with the orders. For example, if I say, “You need to pay this amount by this date,” and I don’t think it’s going to happen, I will say, “You need to come back the day after and bring me the receipt to show me it’s been paid” and order them to return so we keep tight reins on those type of cases. I’m assuming you’re asking me the question in relation to when there’s an attorney on the other side.
Garcia: In order to try to keep costs down for your side, because if you’re having to file a motion every time they don’t comply with something as opposed to an automatic report back that you don’t have to go to if you don’t want to, you know, with regard to the pro se forms, I feel really strongly about this. I think trying to solve the pro se problem with forms is a little bit like trying to solve hunger by distributing recipes. We have lots of forms in the law library, and those become train wrecks. They don’t understand them. They don’t understand what they’re filling out. They very often come in and they say, “Yes, we want to be appointed joint managing conservators, sole managing conservator, and possessory conservator.” It just doesn’t make any sense without having the education or the knowledge, the experience, as to what these forms mean. With regard to the Rules of Evidence and Rules of Discovery, I will relax those rules for pro se as much as I relax them for an attorney. And by that I mean property cases are pretty straightforward; the rules are, the rules are, the rules are, and I’m going to follow the rules with regard to property cases, because you have the right to expect that those are going to be followed all the time in property cases. And so I’ll take whatever provision I have under the rules to make a fair division. And a lot of times you’re going to have the upper hand in that area. I can’t do anything about that for that pro se litigant, because they made the decision to represent themselves. The part where we relax is the SAPCRs, obviously, because we’re dealing with the lives of children. And I can’t in good conscience, I can’t under the law, there’s specific case law that says I can’t just make an arbitrary decision based on a technicality that affects the life of a child and may affect their safety, health and well-being. So, to the extent that you screw up and miss a deadline on discovery, I’ll do the best that I can to make sure that the other side has . . . the time that they need to respond to your late answer or the pro se’s late answer. It may make things go a little bit longer. But in order to make a best-interest decision, I need to have the right information in front of me. Now, what makes that longer is that sometimes, no matter how many second chances you give somebody, they’re not coming up with what they need to do, and at some point I have to say “enough.” Now you’re not just messing up. Now you’re actively trying to get out of responding to these discovery requests or trying to play the “I’m just a simple caveman, I don’t understand these things.” And now you’re abusing the system, and we’re going to move forward, because best interest dictates we get a decision in the case rather than let it languish.
Council: I’m going to ask one last question, then let the audience ask the questions if they need to ask some. The last question is this: When you’re made aware that there’s threat of violence in a case, how do you handle that situation?
Garcia: . . . [T]he threat of violence, it’s serious. Obviously we take whatever precautions we can to protect the parties who are . . . the alleged victims and try to take into account the rights of the person who’s the alleged perpetrator, with the understanding that in family court very often people will throw up family violence. And it happens very often in mediated settled agreements. They’ll reach an agreement, and they will say, “Oh, but, you know, the year before the mediation there was this altercation . . . [of] pushing and shoving.” And when it’s like that, it feels calculated. And you have the rules to fall back on; mediated settlement agreement, I can’t do anything about that. But, . . . we try to protect the people at the outset, get a hearing as quickly as possible to get to the bottom of it and do the best we can in addressing that. There are obviously ramifications from those allegations, such as you can’t order them to mediation if there’s an objection and there’s been credible history of family violence. But the first priority is always, in that situation, to protect the parties involved, both the rights of the accused and the accuser.
Council: Judge Callahan, I would imagine this comes up more often than you would like it to, the threat of violence either in the past or ongoing. How do you deal with that? Let’s say in the present tense, “My spouse is going to hurt me.” What do you do?
Callahan: Well, I have the ability to be able to put a lot of restrictive language in an order, which is a piece of paper, and I’m very aware of how limited, actually, any order that I put in place is really going to be to somebody who is threatening violence. Someone that is hell-bent on hurting someone — a piece of paper isn’t going to matter too terribly much. And at the end of the day, that’s all I hand out. I don’t have the authority to put anybody in jail for that, unlike this guy over here to my left does. We always take those matters extremely seriously. We have to know about it. And we hear a lot of allegations that are made that are never substantiated. But at the onset, we will almost — I think I can speak for everybody up here — we’ll err on the side of caution, . . . because no one wants to make a decision based on little to no evidence. And if someone comes in and makes that threat and it’s credible, either by affidavit form or by testimony and it’s credible, we’re going to put some orders in place that are going to keep the parties separated, restrict the amount of time they have to see each other if at all in exchanging children if children are involved. . . . [W]e have plenty of things we can do in order to try to protect everybody as long as everybody will behave by the rules. Well, someone who either threatens or has committed family violence is not a rule player. They don’t play by the rules. So it’s very iffy when it comes to stuff like that. . . .
[I]f these parties have attorneys, usually their attorneys will educate them as to whatever steps they can take to keep themselves safe. Then we’ll have a hearing on it, and then we’ll be able to flesh out whether or not these allegations are truly imminent and that the threat is real, the threat is a real perception, or it’s just wishful thinking. I mean, oftentimes people will be afraid — but not because of violence, for other reasons, but the fear is real. So, we have to have a hearing as quickly as possible on it and then we can do whatever it is that we need to do to adjust the erring on the side of caution that we did to begin with. This works very well for the person who is afraid or is in fear and also for the person who’s the alleged perpetrator. Because if this is, in fact, just someone in fear for no reason at all or not the reason that they’re telling us, the orders that we’ll put in place, at least initially, are going to protect that person as well so that false allegations don’t quadruple or multiply to the point where this person is so far under that they don’t know what they’re going to do about somebody who’s literally gone crazy with the allegations, and we see that as well too. So there’s a lot we can do. I don’t know, like I say, somebody is bent on destruction, they’re going to do it regardless of what we do.
Council: Judge Oldner, I guess you have more tools at your disposal since you’re a general jurisdiction judge, but how do you deal with the threats of family violence?
Oldner: I think that in the context of family law cases I kind of divide it into two categories: Protective order requests and protective order hearings and situations where there are maybe some nuances of potential violence but nothing occurs, maybe asking for a TRO that’s restrictive in some way versus a protective order. I consider myself, again, a pretty tough proof on an ex parte protective order, because the collateral consequences of that are severe. And if you’ve had a protective order entered against you, those are asking about obligations, they’re asked about when dealing with military clearance, they will affect your immigration status. They can have severe consequences. So, I will not likely grant a protective order ex parte, and I definitely won’t likely grant a protective order in the context of a hearing. That being said, my worst nightmare is failing to act in some way that I think could have protected somebody and have that person become injured. My wife will tell you: The only thing that really keeps me up at night are family law cases, and I deal with capital murder. I deal with aggravated sexual assault of a child. And what wakes me up in the middle of the night are the family law cases. I think, “Did I mess that up?” “Did I put a kid in harm’s way?” “Have I put a spouse in danger or potential danger?” That’s what really wears on me in these situations. So, yes, to some degree I think that, if it’s a very close call and there’s enough evidence there, if it’s a close call, you’re going to find the judge is erring on the side of caution. But I’m going to need to have the evidence there. Do not throw an allegation of domestic violence out lightly. You will hurt yourself as a lawyer, and you will hurt your client’s cause if you throw it out there and it turns out to be unsubstantiated. And there are lawyers who I know, I expect to hear that there’s violence even when the proof doesn’t support it when they show up in my courtroom. And you hurt yourself, and you hurt your client when you do that and it’s not substantiated. So you make sure it has some teeth to it before you come up and bring it to us.
Council: Judge Plumlee, we have had a history of this in the Dallas County Courthouse. We have had people die in family law cases that got shot in the courthouse. I’m going to ask you, when you’re aware you’ve got two litigants coming to your court and there’s a threat of violence, what do you do? I know you have bailiffs, but what if that case goes to associate court and they don’t have bailiffs? What do you do?
Plumlee: We get bailiffs down there to the associate judge’s court. We did that last week on a case where a litigant came in and was very upset about the process, I guess, that his case had been set at 1:30, he thought it was 8:00. He was very upset, had been there several times, and he went down to the clerk’s office and made several threats. Because we were aware of it, we were able to get the sheriff’s office to be present for the hearing when he arrived at the associate judge’s court, and I moved that case down to the district court so that I could hear it. One of the tools that I use quite effectively is just asking a lot of questions. I’m relying on the attorneys to not only be lawyers but be counselors at law, as well. That’s what our role is. If . . . you have a legitimate client who is in fear of family violence, then I’m relying on the lawyers to put that case before the court in a manner where the court can perceive the danger. Many times folks will come in and they allege something, but they don’t have any proof to back it up. Or they will come ask, you know, for some additional relief on a TRO, and where is the affidavit? Or the affidavit will be replete with nothing but hearsay, . . . or they’re in fear because of something that occurred four years ago and then maybe he said . . . something that makes them think about that event that occurred four years ago. . . .
I’m going to ask a lot of questions. No. 1, I’m not going to probably sign that. But the second thing I will do, if I perceive that there is some legitimate issue there, I will offer the lawyer a very quick set. I know I did that in two cases this past year and there was some allegation about child abuse. I said the child is now interviewed, [and] . . . based upon what the child said to me, I wouldn’t sign the affidavit. . . . [I]t was a Friday at 3:45. I told the lawyers, “Listen, I will give you a Monday morning setting 8:00 a.m.” and the lawyer who was bringing the action said, “No, that’s OK.” Well, that told me a lot about those allegations because I’m offering you a special set [to] you: Monday morning come on down to the courthouse, I’m going to give you an evidentiary hearing, I’m going to move my docket for you. And you tell me no. Well, that says something to me about the level of proof that you believe that you had to present to the court. And that case turned out the way the case was supposed to turn out. There was never any more allegations about family violence. So we want to do what is right, but . . . we’re [just] a cog in the wheel. . . . [M]y rulings and renditions are only going to be as good as the information that is before the court, so I need you to put the information before the court so that the court can properly act on it.