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.
 

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Photo of Michelle O'Neil Michelle O'Neil

Michelle May O’Neil has 27 years’ experience representing small business owners, professionals, and individuals in litigation related to family law matters such as divorce, child custody, and complex property division. Described by one lawyer as “a lethal combination of sweet-and-salty”, Ms. O’Neil exudes…

Michelle May O’Neil has 27 years’ experience representing small business owners, professionals, and individuals in litigation related to family law matters such as divorce, child custody, and complex property division. Described by one lawyer as “a lethal combination of sweet-and-salty”, Ms. O’Neil exudes genuine compassion for her client’s difficulties, yet she can be relentless when in pursuit of a client’s goals. One judge said of Ms. O’Neil, “She cannot be out-gunned, out-briefed, or out-lawyered!”

Family Law Specialist

Ms. O’Neil became a board-certified family law specialist by the Texas Board of Legal Specialization in 1997 and has maintained her certification since that time. While representing clients in litigation before the trial court is an important part of her practice, Ms. O’Neil also handles appellate matters in the trial court, courts of appeals and Texas Supreme Court. Lawyers frequently consult with Ms. O’Neil on their litigation cases about specialized legal issues requiring particularized attention both at the trial court and appellate levels. This gives her a unique perspective and depth of perception that benefits both her litigation and appellate clients.

Top Lawyers in Texas and America

Ms. O’Neil has been named to the list of Texas SuperLawyers for many years, 2011-2018, a peer-voted honor given to only about 5% of the lawyers in the state of Texas. In 2014-2018, Ms. O’Neil received the special honor of being named by Texas SuperLawyers as one of the Top 50 Women Lawyers in Texas, Top 100 Lawyers in Texas, and Top 100 Lawyers in DFW. She was named one of the Best Lawyers in America for 2016 and received an “A-V” peer review rating by Martindale-Hubbell Legal Directories for the highest quality legal ability and ethical standards.

Author and Speaker

A noted author, Ms. O’Neil released her second book Basics of Texas Divorce Law in November 2010, with a second edition released in 2013, and a third edition expected in 2015.  Her first book, All About Texas Law and Kids, was published in September 2009 by Texas Lawyer Press. In 2012, Ms. O’Neil co-authored the booklets What You Need To Know About Common Law Marriage In Texas and Social Study Evaluations.  The State Bar of Texas and other providers of continuing education for attorneys frequently enlist Ms. O’Neil to provide instruction to attorneys on topics of her expertise in the family law arena.