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Temporary Orders in Texas Custody Cases

The Texas Family Code limits a trial court’s ability to issue temporary orders during a pending suit to modify the parent-child relationship.  The court cannot issue a temporary order designating or changing the designation of the person with the exclusive right to designate the child’s primary residence unless it is in the child’s best interest and the current circumstances would significantly impair his or her physical health or emotional development, the designated person has voluntarily given up primary care and custody, or the child is at least 12 years old and has identified the person he or she prefers to have the right to designate the primary residence.  The court is also prohibited from creating, changing, or eliminating a geographic limitation on the child’s primary residence unless those same conditions are met.

A father recently challenged a temporary court order requiring his children be enrolled in a school district where neither parent lived.

The divorce decree named the parents joint managing conservators of their three children, but granted the father the exclusive right to designate their primary residence with no geographic restriction.  Each parent had the independent right to make decisions about the children’s education.

The father home-schooled the children until the mother expressed concerns the children were falling behind academically.  She said they discussed it and agreed to enroll the children in school and alternate possession of the children each week after school started.

Each parent enrolled the children in a school near their home.  The mother enrolled them in a school that was not in the same district as her home, despite being nearby.  The school near the mother’s home started about two weeks before the school near the father’s home.

The court entered a temporary restraining order to give possession of the children to the mother.  The order also prohibited the father from removing or dis-enrolling the children from the school near the mother’s home and from enrolling them in another district. After the first day of school, the court vacated the restraining order.  The mother sent the children to the school near her home when she had them, and the father sent them to the school near his home when it started.

At the hearing, the mother testified as to how each child was behind academically.  She testified she was concerned the father would take them out of school to home-school them.  The father said he intended to keep them in school.  He agreed they were slightly behind.

The mother also expressed concerns about the children’s hygiene when they were with their father.  She also said he did not treat one child’s eczema.  The father said that he did make sure the children bathed and brushed their teeth.  He also said he treated the eczema.

The trial court ordered that the children be enrolled in the school near the mother.  The court also modified the possession schedule so the parents would exchange the children weekly.  The father kept the right to designate the primary residence.

After a hearing on the father’s motion for reconsideration, the trial court denied the motion and signed temporary orders.  The court found the temporary orders were necessary because the children’s circumstances would significantly impair their physical health or emotional development.

The father then filed a mandamus petition, arguing the temporary orders violated the Family Code because they had the effect of changing his designation as the parent with the exclusive right to designate the primary residence.

The court also pointed out the temporary orders did not change the father’s designation.  However, the court found that, by requiring the children go to a specific school, the orders had the effect of creating a geographic limitation that was not previously in place.  The statute does not only limit the court’s discretion to creating a geographic area, but also limits the court’s discretion to enter a temporary order that has “the effect of creating a geographic area…”

The appeals court noted that “significant impairment” is a high burden. The court found the circumstances did not reach the level of significant impairment, even if the mother’s testimony was accepted as true.  The court cited a number of cases in which the children’s health and emotional development was found not to be significantly impaired, included cases involving evidence of poor hygiene, scabies, bugs in the children’s hair, and improper supervision.

The appeals court found the evidence was not sufficient to meet the significant impairment standard, even though there was evidence the children were slightly behind academically.  The court found the trial court abused its discretion in issuing the temporary orders that effectively limited the geographic area where the father must maintain the primary residence without sufficient evidence to meet the significant impairment standard.

The court conditionally granted the mandamus petition and directed the trial court to vacate the portions of the temporary orders related to the children’s school.

If you are facing a custody dispute or potential custody modification, a skilled Texas custody attorney can help protect your rights. Call McClure Law Group at 214.692.8200 to set up a consultation.