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Texas Possession Order Can’t Contravene Jury Verdict on Primary Residence

A parent may demand a jury trial in a Texas custody case.  After the jury decides certain foundational issues, the trial court then determines the specific terms and conditions.  The Texas Family Code prohibits the court from contravening the jury’s verdict on certain specified issues, including primary residence. Tex. Fam. Code Ann. § 105.002.

A mother recently challenged a trial court’s possession order on the grounds it contravened the jury’s verdict and was not in the child’s best interest.  The father petitioned to be named joint managing conservator with the exclusive right to designate the child’s primary residence when the child was two months old.  The jury found the mother should have the exclusive right to designate the child’s primary residence within the state of Texas.  Following a bench trial on possession and access, the trial court orally ordered the father would have “week on/week off” possession.

The court issued a final order appointing the parents joint managing conservators with the mother having the exclusive right to designate the primary residence in Texas.  The order also granted the father week-on/week-off possession until the child turned five and started kindergarten.  In August 2022, the father would be subject to a standard possession order.

The mother appealed, arguing the order awarding the father week on/week off periods of possession contravened her exclusive right to designate primary residence under the jury award.  She also argued the possession order was not in the child’s best interest.

The appeals court agreed with the mother.  The court found the possession order contravened the jury’s finding the mother should have the right to designate the primary residence.  The appeals court also pointed out that the trial court’s findings reflected its disagreement with the jury’s verdict.  The trial court noted the mother’s move after the jury trial, despite the move being authorized by the jury’s verdict.  The trial court also noted the mother’s lack of familial support for child care and mentioned her decision to feed only breast milk when describing the father’s concern regarding his low weight.  The appeals court found the jury would have considered these factors in rendering its decision.

The appeals court also found the possession order contravened the jury’s finding regarding the geographic restriction.  The geographic restriction allowed the mother to designate residence anywhere in the state of Texas.  The appeals court noted the vast size of the state and found the possession order operated as an additional de facto geographic restriction, further limiting the mother to areas where a weekly exchange would be possible.

The mother also argued the possession order was not in the child’s best interest.  The appeals court found the trial court did not issue an order to take effect on the child’s third birthday, even though the Texas Family Code requires it to do so.  Instead the court rendered an order to take effect when the child is more than five years old.  The appeals court found the trial court abused its discretion in failing to issue a prospective order to take effect on the child’s third birthday.

The appeals court also found the trial court failed to consider all the factors required by the Texas Family Code.  Specifically, the court failed to properly consider the child’s need for continuity of routine and the location and proximity of the parties’ residences.  The appeals court found the possession order failed account for the distance between the parents’ homes.  The week on/week off scheduling did not provide continuity of the child’s routine.

The appeals court also noted the record showed the parties had a contentious relationship and found an equal time order would magnify those issues.  The appeals court also found alternating so frequently could make it difficult for the mother to maintain child care, which would not be in the child’s best interest.

The appeals court found that the possession order contravened the jury’s finding and that the trial court abused its discretion in rendering an order that was not in the child’s best interest.  The appeals court remanded the case to the trial court with instructions to issue a possession order that does not contravene the jury’s finding.  The appeals court also instructed the trial court to account for the relevant factors required in the Texas Family Code.

The trial court in this case failed to follow the requirements of the Texas Family Code. Although the court determines the terms and conditions of the possession order, it cannot render an order that contravenes the jury’s verdict on certain issues.

If you anticipate a custody dispute, you should contact a skilled Texas child custody attorney.  McClure Law Group has the experience to help you fight for the best possible custody arrangement.  Call us at 214.692.8200 to set up an appointment.

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