Changing Custody Under Temporary Orders
Texas Family Code § 156.006 sets forth the circumstances under which a trial court may temporarily change custody of a child while a motion to modify is pending. One of the circumstances exists when "the order is necessary because the child's present circumstances would significantly impair the child's physical health or emotional development." On this finding the trial court may "render a temporary order that has the effect of changing the designation of the person who has the exclusive right to designate the primary residence of the child."
So when does a temporary order have the "effect" of changing custody of a child? The San Antonio Court of Appeals considered this issue in In re: Sanchez, 2007 Tex. App. LEXIS 2603 (Tex. App. - San Antonio Apr. 4, 2007, orig. proceeding).
In Sanchez, the mother and father lived in San Antonio, as did the mother's parents. The mother left the child with her parents during the week while she attended vocational school in Houston. The mother was arrested following an unspecified "altercation." The father moved the trial court for temporary orders granting him custody of the child. The trial court ordered that the child stay with the father during the week in San Antonio rather than with the mother's parents.
In the court of appeals, the father argued that the trial court's order did not have the "effect" of changing custody. The court of appeals disagreed, noting that under the prior order, the mother had greater possession and access to the child than the father and the unrestricted right "to establish the child's primary residence anywhere." In summary, the court of appeals identified three factors underlying its decision:
So when does a temporary order have the "effect" of changing custody of a child? The San Antonio Court of Appeals considered this issue in In re: Sanchez, 2007 Tex. App. LEXIS 2603 (Tex. App. - San Antonio Apr. 4, 2007, orig. proceeding).
In Sanchez, the mother and father lived in San Antonio, as did the mother's parents. The mother left the child with her parents during the week while she attended vocational school in Houston. The mother was arrested following an unspecified "altercation." The father moved the trial court for temporary orders granting him custody of the child. The trial court ordered that the child stay with the father during the week in San Antonio rather than with the mother's parents.
In the court of appeals, the father argued that the trial court's order did not have the "effect" of changing custody. The court of appeals disagreed, noting that under the prior order, the mother had greater possession and access to the child than the father and the unrestricted right "to establish the child's primary residence anywhere." In summary, the court of appeals identified three factors underlying its decision:
- A substantial reduction in the mother's overall possession time;
- Restrictions placed on the mother's possession rights; and
- The indefinite duration of the temporary orders.
