Appellate Court Reverses Retroactive Amicus Attorney Appointment

By June 16, 2014 March 8th, 2019 Court Decisions, Press Releases

In a suit to modify the parent-child relationship, the Eleventh Court of Appeals has reversed a final order that significantly restricted a mother’s access to her children, thereby allowing the mother to pursue a new trial.

As recommended by an amicus attorney purportedly appointed under Texas Family Code § 107.021, the trial court issued temporary orders switching the right to designate the children’s primary residence to the father and greatly reducing the mother’s time with the children. Over the mother’s objection, the amicus attorney—whose role was initially quite limited—was appointed retroactively to serve in a general capacity and participated as an advocate at trial. At the amicus attorney’s request, the trial court excluded from evidence a social study and testimony from the author that would have favored the mother’s position. After the jury found for the father, the trial court rendered a final order granting the father the exclusive right to designate the children’s residence, ordering the mother to pay more than $10,000 in amicus attorney fees, and awarding the father $25,000 in conditional appellate attorney fees.

The mother hired Smith Law Group, P.C. to pursue an appeal. SLG lawyers D. Todd Smith and Maitreya Tomlinson persuaded the appellate court that the amicus attorney’s actions were invalid because she had not been appointed in compliance with the statue and that the trial court committed reversible error by excluding evidence favorable to the mother on which the jury could have reached a different decision. The appellate court reversed the final order and remanded the case for further proceedings, thus wiping out the amicus attorney’s fee award, rendering the father’s conditional appellate fee award moot, and giving the mother another opportunity to present her case to a jury.

Hutchins v. Donley, No. 11-12-00204-CV (Tex. App.—Eastland June 12, 2014, no. pet.) (slip opinion available here).

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