What can you do if you lack an adequate remedy by appeal and the trial judge clearly misapplies the law in your case, violates your constitutional rights, or clearly abuses their discretion? As we discussed in my last blog, the remedy of a traditional appeal is not available to challenge rulings in all family law cases. A petition for writ of habeas corpus is only if a person’s liberty is restrained (which usually means jail). A petition for writ of mandamus in the court of appeals is your answer.

The burden is higher in a mandamus proceeding than in a direct appeal. To be entitled to relief, the “relator” (the party asking for a writ of mandamus) must show that the trial court violated a ministerial duty (like referring a case to arbitration when there is an existing arbitration order in place or refusing to enter an order after rendition of judgment), or that the trial court clearly abused its discretion. In both instances, the relator must also show that they lack an adequate remedy by appeal. Mandamus is also available to vacate a void order.

Most often in family law cases a petition for writ of mandamus is filed to correct a clear abuse of discretion by the trial court. The burden is high in these cases. On fact issues, the court of appeals cannot substitute its judgment for that of the trial court. This means that the relator must show that the trial court could reasonably have reached only one decision in order to prevail. For legal issues, the relator must establish that the trial court clearly failed to analyze or apply the law correctly.

Situations where petitions for writs of mandamus may be appropriate in family law cases include (1) incorrect rulings on standing and jurisdiction (under the UCCJEA or UIFSA), (2) appointment of a receiver in temporary orders, (4) change of the conservator with the right to designate the primary residence of a child in temporary orders, (4) certain discovery disputes, (5) and failure of the trial court to enter an order after rendition (the court’s oral ruling on the record). In these situations, given the issues at stake, it is often appropriate to request that the court of appeals enter an emergency stay prohibiting the trial court from taking any action to enforce or proceed with the challenged order until the court of appeals can decide the mandamus case.

Like a writ of habeas corpus, time is of the essence when it comes to a mandamus. Typically steps need to be taken immediately to try to prevent the trial court from acting on, enforcing, or otherwise proceeding with the order that you are challenging before irreparable damage is done to your family, your property, and/or your constitutional rights. If you think that this remedy might be appropriate in your case, contact an attorney with experience in family law appeals immediately.