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When are Temporary Orders Changing Child Custody Appropriate in Texas?

In a recent Texas child custody decision, a mother petitioned complaining about temporary orders that kept her from removing her three youngest kids from the county or any contiguous county in order to establish the kids’ primary residence.

The father petitioned to modify the parent-child relationship in October, trying to modify the couple’s divorce decree signed in July. The final divorce decree approved and incorporated the couple’s mediated settlement agreement signed by the couple in January. At the time of divorcing, the couple had 15 kids, and six of the kids were minors.

The settlement agreement gave the mother the right to decide the primary residence of the three youngest kids and the father the right to determine the other three kids’ primary residence. The final decree also gave the mother the exclusive right to designate the three youngest kids’ primary residence without regard to geographic location and granted the same right to the father as to the other three minor kids. During this time, the father lived in Burnet County. When the couple entered into the mediated settlement agreement, the mother lived in Amarillo, but she moved to Temple in a county contiguous to Burnet prior to the signing of the final order. The final decree allowed access and possession on the statutory basis provided, due to the couple living within 100 miles of each other.

When petitioning to modify, the father tried to enjoin the mother from taking the children out of Burnet or any contiguous county in establishing their primary residence. He wanted temporary orders to stop her. He petitioned to modify this request after getting notice she was going back to Amarillo with the three youngest kids. She had already signed a lease in Amarillo by the time she was served with the petition to modify.

The lower court had a hearing. The three youngest kids were then staying with the mother’s sister. The couple and their 15-year-old daughter testified. The father testified he wanted the three youngest kids to stay with their siblings so that he could see them. He also said he’d made a mistake in signing the agreement that allowed the kids to be apart. He claimed that the kids’ uninsured medical expenses would be greater if they lived in Amarillo, since they wouldn’t be in his health insurance network.

The mother testified that they lived in Amarillo at the time of signing the agreement, but she and the kids had moved to Temple before the decree was signed. She said that she had a lot of extended family in Amarillo and that her current husband had accepted a job in Amarillo, and this job would provide health insurance. The couple testified in conflicting ways about the three youngest kids’ wishes about moving to Amarillo.

When the hearing was over, the lower court found it was in the kids’ best interest to live within 50 miles of Burnet County and granted the temporary orders. It didn’t find it was in the kids’ best interest to stay in Amarillo, away from their father and other siblings.

The mother appealed. She argued that the father didn’t provide the affidavit required by section 156.102 of the Texas Family Code and that the court had entered temporary orders that effectively changed the designation of the person who had the exclusive right to designate the three youngest children’s primary residence.

Under Section 156.006(b), the lower court has discretion to render temporary orders with the effect of creating or altering the designation of the person with the exclusive right to designate the child’s primary residence. In this case, the mother had the right to designate the three youngest kids’ primary residence without regard to geographic limitations under both the mediated settlement agreement and the final divorce decree. The trial court’s order conflicted with these provisions. The issue in this case was whether the evidence showed such temporary orders were necessary because the kids’ circumstances would restrict their health or emotional development.

The appellate court determined that the testimony presented by the father didn’t support the lower court’s temporary orders. His testimony about the kids not wanting to move and his daughter’s testimony about how important it was for them to be near their siblings didn’t evince bad acts by the mother that were more serious than violating the divorce decree or alienating the kids from their father. The appellate court granted the mother’s requested relief and directed the lower court to vacate its temporary orders.

If your divorce involves matters related to child custody, call the Texas attorneys at the McClure Law Group at 214.692.8200.

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