This is one issue where I did not need the mainstream media to pressure judges or politicians to do the right thing.  The clerk and judges were promptly acting on my concerns already.  I am a huge fan of Kiah Collier and I will continue to work with the Chronicle on stories, but I am disappointed with the editors of my newspaper competition in this instance, who decided to run the story before the problem had been rectified.

Click here to read the full Chronicle story, which quotes my letter to the judges and which does give me credit for first raising the issue.

I had drafted a lawsuit to file on behalf of an attorney ad litem representing a CPS child if no action had been taken to seek an injunction or mandamus, but I am glad I can stop researching standing for that sort of suit.

I thank Chris Daniel and David Farr for moving so quickly to solve this problem and protect children in CPS custody and their foster parents.

I am somewhat conflicted about using the information I got off the District Clerk website to find and contact foster parents to ask them if a particular attorney ad litem actually performed the home visits he billed the county for.  They obviously do not have to talk to me like they would an investigator from the police or District Attorney.  E-mail me at [email protected] with your thoughts on that dilemma.

At least in the counties contained within the Houston First and Fourteenth Courts of Appeals, family court judges cannot grant relief unless there are pleadings asking for that relief or unless the issue was tried by consent. A recent case provides a surprisingly broad view of what constitutes a "pleading" that can justify granting relief not explicitly mentioned in the current petition.

I represented the father who won on appeal in Flowers v. Flowers, 407 S.W.3d 452 (Tex. App. - Houston [14th Dist.] 2013, no pet.) and that case holds:

1.     A family court cannot grant relief unless there are pleadings asking for the relief or the issue was tried by consent.  The Rules of Civil Procedure apply in family cases, even those involving children.

2.     An issue is not tried by consent if it is never mentioned or discussed at trial.

The Fourteenth Court of Appeals in May 2014 reaffirmed the basic notion that relief cannot be granted without pleadings requesting the relief or trial by consent in In re A.D., No. 14-12-00914-CV (Tex. App. - Houston [14th Dist.] 5/6/2014)(no pet.).   This case, however, allowed the trial judge to rely on motions for temporary orders and not the current pleading to justify granting the mother only supervised visitation.

The Houston First Court of Appeals and numerous other courts of appeals in the last 20 years have also held that there must be pleadings or trial by consent in order to grant relief in a child custody case. See e.g.,  In re Sanner, No.(Tex. App.- Houston [1st Dist.] May 20, 2010, no pet.) (mem. op.)("without proper pleadings, the trial court exceeded its authority by modifying and reforming some of the conservatorship and possession provisions of its prior orders...").

Old fogeys and those without the ability to determine if cases have been overruled or bypassed by changes to the Texas Family Code might cite Leithold v. Pass, 413 S.W.2d 698 (Tex. 1967) and its progeny, which appear to apply very relaxed (or even non-existent) pleading requirements in child custody cases. An example of this old line of cases  said,"... the paramount concern is the best interest of the child, and the niceties of the procedural rules of pleading will not be used to defeat that interest." Boriack v. Boriack, 541 S.W.2d 237, 242 (Tex. Civ. App.-Corpus Christi 1976, writ dismissed) (trial court did not err in ordering wife to pay child support even though pleadings did not request support). The Houston Fourteenth Court of Appeals, in Baltzer v. Medina,  240 S.W.3d 469, 746 (Tex. App.- Houston [14th Dist.] 2007, no pet.)(note 5) explained that the Leithold decision was basically overruled when the Texas Family Code was enacted.

Some less informed courts of appeals continue to follow the 1967 Leithold case as if the Texas Family Code had never been adopted.  In re O'Neal, No. 07-13-003358-CV (Tex. App. - Amarillo 12/23/2013) (mem. op.)(orig. proc.) is a recent example.  The Amarillo Court of Appeals, whose law books only go up to the late 1960's apparently, granted mandamus on the trial court imposing a new geographic residence restriction without finding the child was in danger.  However, the court rejected the mother's argument that the father had no pleadings asking for the relief he received in temporary orders, citing cases from 1937 and 1967 that technical rules on pleadings are not followed in child custody cases.

ProDoc and standard State Bar forms for petitions and counterpetitions do not include very specific requests for relief.  The best and safest practice is for attorneys to add a specific list of all relief they seek for their clients in their pleadings and responses to requests for disclosure.

Click here to download my complete article.