Chapter 40 

Original Suit Affecting Parent-Child Relationship

§ 40.1Nature of Remedy

A suit affecting the parent-child relationship is any suit brought under title 5 of the Texas Family Code in which the relief requested includes (1) appointment of a manag­ing conservator, (2) appointment of a possessory conservator, (3) access to a child, (4) support of a child, (5) establishment of the parent-child relationship, or (6) termina­tion of the parent-child relationship. Tex. Fam. Code § 101.032(a).

The suit may include termination, adoption, possession or access by grandparents or other nonparents, and conservatorship or support incident to a divorce. Forms for these proceedings are found in other chapters of this manual.

§ 40.2Caption

The suit is to be styled “In the Interest of _____________, a Child.” Tex. Fam. Code § 102.008(a).

COMMENT:      Although the name of a minor is classified as sensitive data (see Tex. R. Civ. P. 21c(a), (b)), its inclusion in a pleading in a suit affecting the parent-child relation­ship is statutorily required. Since the pleading must contain sensitive data, the clerk must be notified of that fact. A document that is not electronically filed must contain, on the upper left-hand side of the first page, the phrase “NOTICE: THIS DOCUMENT CONTAINS SENSITIVE DATA.” Tex. R. Civ. P. 21c(d)(2). If the document is electroni­cally filed, it must be designated as containing sensitive data when it is filed. Tex. R. Civ. P. 21c(d)(1).

§ 40.3Who May Bring Suit

An original suit affecting the parent-child relationship may be brought at any time by—

1.a parent of the child;

2.the child, through a representative authorized by the court;

3.a custodian or person having the right of visitation with or access to the child appointed by an order of a court of another state or country;

4.a guardian of the person or of the estate of the child;

5.a governmental entity;

6.the Department of Family and Protective Services;

7.a licensed child-placing agency;

8.a man alleging himself to be the father of the child filing in accordance with Family Code chapter 160 (subject to the limitations of that chapter);

9.a person, other than a foster parent, who has had actual care, control, and pos­session of the child for at least six months ending not more than ninety days preceding the date of the filing of the petition;

10.a person designated as the managing conservator in a revoked or unrevoked affidavit of relinquishment under Family Code chapter 161 or to whom consent to adoption has been given in writing under Family Code chapter 162;

11.a person with whom the child and the child’s guardian, managing conservator, or parent have resided for at least six months ending not more than ninety days preceding the date of the filing of the petition if the child’s guardian, managing conservator, or parent is deceased at the time of the filing of the petition;

12.a person who is the foster parent of a child placed by the Department of Family and Protective Services in the person’s home for a period of at least twelve months ending not more than ninety days preceding the date of the filing of the petition;

13.a person who is a relative of the child within the third degree by consanguinity, as determined by chapter 573 of the Government Code if the child’s parents are deceased at the time of the filing of the petition;

14.a person who has been named as a prospective adoptive parent of a child by a pregnant woman or the parent of the child, in a verified written statement to confer standing executed under Family Code section 102.0035, regardless of whether the child has been born; or

15.a person who is an intended parent of a child or unborn child under a gesta­tional agreement that complies with the requirements of Code section 160.754, but only if the person is filing an original suit either jointly with or against the other intended parent under the gestational agreement.

Tex. Fam. Code § 102.003(a), (d).

Standing is a component of subject-matter jurisdiction and is a constitutional prerequi­site to maintaining a lawsuit under Texas law. The petitioner is required to allege facts sufficiently demonstrating that the trial court has jurisdiction to hear the case. In re M.K.S.-V., 301 S.W.3d 460, 463 (Tex. App.—Dallas 2009, pet. denied). Standing is simply the right to be heard; it does not mean a party also has a right to prevail. In re H.S., 550 S.W.3d 151, 155 (Tex. 2018). The Texas Family Code defines who has stand­ing to file an original suit affecting the parent-child relationship. In re E.G.L., 378 S.W.3d 542, 547 (Tex. App.—Dallas 2012, pet. denied). Because it is an element of subject-matter jurisdiction, the issue of standing can be raised at any time, including for the first time on appeal. Texas Ass’n of Business v. Texas Air Control Board, 852 S.W.2d 440, 445 (Tex. 1993).

If the evidence creates a fact question regarding jurisdiction, the trial court cannot grant the plea to the jurisdiction, and the fact issue will be resolved by the fact finder. How­ever, if the relevant evidence is undisputed or fails to raise a fact question regarding jurisdiction, the trial court rules on the plea to the jurisdiction as a matter of law. See Texas Department of Parks & Wildlife v. Miranda, 133 S.W.3d 217, 227–28 (Tex. 2004); see also In re R.E.R., 534 S.W.3d 1 (Tex. App.—Corpus Christi–Edinburg 2016, no pet.) (trial court failed to consider relevant evidence to determine whether nonparent petitioner had standing under section 102.003(a)(9) although petitioner’s pleadings and evidence presented raised fact issue regarding standing).

At a minimum, section 160.602(a)(3) of the Family Code confers standing on a man alleging himself to be the biological father of the child in question and seeking an adju­dication that he is the father of that child. The issue of the man’s status as a sperm donor under section 160.702 is to be decided at the merits stage of the litigation rather than as part of the threshold issue of standing. While section 160.102(6) of the Family Code defines “donor” as “an individual who provides eggs or sperm to a licensed physician to be used for assisted reproduction, regardless of whether the eggs or sperm are provided for consideration,” section 160.102(6)(C) specifically excludes from that definition “an unmarried man who, with the intent to be the father of the resulting child, provides sperm to be used for assisted reproduction by an unmarried woman, as provided by Section 160.7031.” In re E.Y.H., No. 09-18-00305-CV, 2019 WL 6755594, at *4 (Tex. App.—Beaumont Dec. 12, 2019, pet. struck) (mem. op.).

Gender-neutral treatment as set forth in Family Code section 160.106 obligates courts to treat a woman who is married to the mother of the child at the time of birth as a par­ent for purposes of standing and other obligations. In re D.A.A.-B., ___ S.W.3d ___, No. 08-2100058-CV, 2022 WL 3758574 (Tex. App.—El Paso Aug. 30, 2022, no pet.); Treto v. Treto, 622 S.W.3d 397, 402 (Tex. App.—Corpus Christi–Edinburg 2020, no pet.). But see In re A.E., No. 09-16-00019-CV, 2017 WL 1535101, at *10 (Tex. App.—Beaumont Apr. 27, 2017, pet. denied) (mem. op.) (rejecting nongestational spouse’s claim of standing based on presumed parentage in SAPCR portion of divorce of same-sex cou­ple).

Computing Time Necessary for Standing—Tex. Fam. Code § 102.003(a)(9), (a)(11), (a)(12):      In computing the time necessary for standing under the provisions in items 9., 11., and 12. above, the court may not require that the time be continuous and uninterrupted but shall consider the child’s principal residence during the relevant time preceding the date the suit is begun. Tex. Fam. Code § 102.003(b); In re H.S., 550 S.W.3d 151, 156 (Tex. 2018); see also In re J.A.T., 502 S.W.3d 834, 837 (Tex. App.—Houston [14th Dist.] 2016, no pet.). “Principal residence” means more than “primary residence.” A principal residence is (1) a fixed place of abode; (2) occupied consistently over a substantial period of time; and (3) that is permanent rather than temporary. Don­cer v. Dickerson, 81 S.W.3d 349, 362 (Tex. App.—El Paso 2002, no pet.); see also In re Brice, 648 S.W.3d 293 (Tex. App.—San Antonio 2019, orig. proceeding).

Actual Care, Control and Possession—Tex. Fam. Code § 102.003(a)(9):      Under section 102.003(a)(9) of the Family Code, an original suit affecting the parent-child relationship may be filed by a person, other than a foster parent, who has had actual care, control, and possession of the child for at least six months ending not more than ninety days preceding the date of the filing of the petition. Equitable tolling cannot be applied to confer standing if the ninety-day deadline is not met. In re N.M.B., No. 04-18-00111-CV, 2018 WL 6516120, at *2 (Tex. App.—San Antonio Dec. 12, 2018, pet. denied) (mem. op.).

Resolving a split of authority among the courts of appeals as to whether “actual con­trol” requires legal control, the Texas Supreme Court addressed the issue in In re H.S., 550 S.W.3d 151. The court held that a nonparent has “actual care, control, and posses­sion of the child” under section 102.003(a)(9) if, for the requisite six-month period, the nonparent served in a parent-like role by (1) sharing a principal residence with the child, (2) providing for the child’s daily physical and psychological needs, and (3) exercising guidance, governance, and direction similar to that typically exercised on a day-to-day basis by parents with their children. The statute does not require the non­parent to have ultimate legal authority to control the child, nor does it require the par­ents to have wholly ceded or relinquished their own parental rights and responsibilities. In re H.S., 550 S.W.3d at 160. In finding Troxel v. Granville, 530 U.S. 57 (2000), inapplicable to the facts before them, the court noted that in Troxel the visi­tation statute in question permitted “[a]ny person” to petition for rights “at any time.” In stark contrast to the Washington statute at issue in Troxel, section 102.003(a)(9) does not allow “any” nonparent to file a SAPCR; it allows only nonparents who have exer­cised “actual care, control, and possession” of a child for at least six months to do so. The nonparent standing threshold in Texas is thus much higher and narrower than the one rejected in Troxel. In re H.S., 550 S.W.3d at 161–62.

If possession is maintained in violation of a valid court order, that possession does not confer standing to bring a suit affecting the parent-child relationship. See Perez v. Wil­liamson, 726 S.W.2d 634, 636 (Tex. App.—Houston [14th Dist.] 1987, no writ). In In re S.S.G., 208 S.W.3d 1 (Tex. App.—Amarillo 2006, pet. denied), however, the court found no authority for an exception to the standing rule based on consent to actual care, control, and possession of the child for the requisite period.

Standing for Other Nonparents:      A foster parent may bring a suit to adopt a child the person is fostering at any time after the person has been approved to adopt the child, who must be eligible for adoption. Tex. Fam. Code § 102.003(c).

Standing of a grandparent under Family Code section 102.003(a)(9) is not conditioned on a biological relationship, but on a period of time; thus the affidavit requirement of Code section 153.432(c) (the grandparent access statute) does not apply. See In re C.D.M., No. 11-15-00319-CV, 2016 WL 5853261, at *3–4 (Tex. App.—Eastland Oct. 6, 2016, no pet.) (mem. op.) (grandparents sought to be appointed child’s joint manag­ing conservator and alternatively for possession of and access to child under section 153.432).

A former parent whose parent-child relationship with the child has been terminated by court order does not have standing under Family Code section 102.003(a)(9) to file an original suit affecting the parent-child relationship seeking conservatorship, as Code section 102.006(a)(1) prohibits the former parent from filing an original suit. A trial court lacks subject-matter jurisdiction over such a suit. See In re R.B., No. 02-16-00387-CV, 2016 WL 6803200, at *2–6 (Tex. App.—Fort Worth Nov. 17, 2016, orig. proceeding) (mem. op.).

Suits by grandparents and other nonparents are the subject of chapter 44 of this manual.

No provision of section 102.003 of the Family Code gives standing to a child to file an involuntary termination of parental rights through the child’s parent as next friend, nor does chapter 161 of the Code contain a provision giving a child standing to file a suit affecting the parent-child relationship. In re I.C.G., No. 05-14-01629-CV, 2015 WL 3454278, at *3 (Tex. App.—Dallas June 1, 2015, no pet.) (mem. op.).

In most cases, if the parent-child relationship between the child and every living parent of the child has been terminated, a suit affecting the parent-child relationship may not be brought by (1) a former parent whose parent-child relationship with the child has been terminated by court order; (2) the child’s father; or (3) a family member or rela­tive, by blood, adoption, or marriage, either of a former parent whose parent-child rela­tionship has been terminated or of the child’s father. These limitations on standing do not apply to a person who has a continuing right to possession of or access to the child under an existing court order or who has the consent of the child’s managing conserva­tor, guardian, or legal custodian to bring the suit. The limitations also do not apply to an adult sibling of the child, a grandparent of the child, or an aunt or uncle who is a sibling of a parent of the child if the adult sibling, grandparent, aunt, or uncle files an original suit or a suit for modification requesting managing conservatorship of the child not later than the ninetieth day after the date the parent-child relationship between the child and the parent is terminated in a suit filed by the Department of Family and Protective Ser­vices requesting termination of the parent-child relationship. Tex. Fam. Code § 102.006.

COMMENT:      Tex. Fam. Code § 102.006(c) may have the unintended effect of confer­ring standing on an adult sibling, grandparent, aunt, or uncle without the requirement of substantial past contact.

An authorization agreement for an adult caregiver executed under Family Code chapter 34 does not confer or affect standing or a right of intervention in any proceeding under title 5 of the Code. See Tex. Fam. Code § 34.007(c).

Family Code section 162.602(a)(8) does not confer standing on a girlfriend of the bio­logical mother to seek conservatorship as an intended parent, because that section per­tains to a proceeding to adjudicate parentage in which a trial court renders an order adjudicating whether a man alleged or claiming to be the father is the parent of the child. In re N.M.B., 2018 WL 6516120, at *2.

Title IV-D of the Social Security Act requires states to provide services for the enforce­ment of child support obligations for children who receive government assistance pay­ments. In Texas, the Office of the Attorney General is designated to provide these title IV-D services, including collecting and distributing child support payments and enforc­ing child support orders. An application for child support services constitutes an assign­ment of support rights to enable the title IV-D agency to establish and enforce child support obligations. In addition, to the extent authorized by federal law, the approval of an application for or the receipt of financial assistance as provided by chapter 31 of the Texas Human Resources Code constitutes an assignment to the title IV-D agency of any rights to support from any other person that the applicant or recipient may have person­ally or for a child for whom the applicant or recipient is claiming assistance. Office of Attorney General v. Moore, No. 14-18-00607-CV, 2019 WL 6317548, at *2 (Tex. App.—Houston [14th Dist.] Nov. 26, 2019, no pet.) (mem. op.).

§ 40.4Citation

Citation is the same as in civil cases generally. See generally Tex. R. Civ. P. 99–107.

The persons entitled to citation are—

1.any managing conservator;

2.any possessory conservator;

3.anyone having possession of or access to the child under an order;

4.anyone required by law or order to provide for the support of the child;

5.any guardian of the person of the child;

6.any guardian of the estate of the child;

7.each parent as to whom the parent-child relationship has not been terminated or process has not been waived under chapter 161 of the Family Code;

8.any alleged father unless there is attached to the petition an affidavit of waiver of interest executed by the alleged father under chapter 161 of the Family Code or unless the petitioner has complied with the provisions of section 161.002(b)(2), (b)(3), or (b)(4) of the Family Code;

9.a man who has filed a notice of intent to claim paternity as provided by chapter 160 of the Family Code;

10.the Texas Department of Family and Protective Services, if the petition requests that the department be appointed managing conservator of the child;

11.the title IV-D agency, if the petition requests termination of the parent-child relationship and support rights have been assigned to the title IV-D agency;

12.a prospective adoptive parent to whom standing has been conferred under Fam­ily Code section 102.0035; and

13.a person designated as the managing conservator in a revoked or unrevoked affidavit of relinquishment under Family Code chapter 161 or to whom consent to adoption has been given in writing under Family Code chapter 162.

Tex. Fam. Code § 102.009(a).

Citation may be served on any other person who has or who may assert an interest in the child. Tex. Fam. Code § 102.009(b); Texas Department of Protective & Regulatory Services v. Sherry, 46 S.W.3d 857, 861 (Tex. 2001). In an interstate custody case, cita­tion should be served on any person who has physical custody of the child. See Tex. Fam. Code § 152.205. If the petition seeks to establish, terminate, modify, or enforce any support right assigned to the title IV-D agency under chapter 231 of the Family Code or the rescission of a voluntary acknowledgment of paternity under chapter 160 of the Family Code, notice shall be given to the title IV-D agency. Tex. Fam. Code § 102.009(d).

Service of citation is not required on a counterpetition when the opposing party has already made an appearance in the case. See In re D.P.B., No. 05-17-00185-CV, 2018 WL 3014628, at *2 (Tex. App.—Dallas June 15, 2018, no pet.) (mem. op.).

Citation by Publication:      Provisions concerning service of citation by publication in a title 5 case are contained in section 102.010 of the Family Code. See Tex. Fam. Code § 102.010(a)–(c). If service is by publication, a statement of the evidence of service, approved and signed by the court, must be filed with the papers of the suit as part of the record. Tex. Fam. Code § 102.010(d). If citation by publication is authorized, the court may, on motion, prescribe a different method of substituted service if the court finds and recites in its order that the method so prescribed would be as likely as publication to give the respondent actual notice. Tex. R. Civ. P. 109a.

A diligent attempt must be made to personally serve a respondent before alternate ser­vice can be authorized by the court. A complete failure of service deprives a litigant of due process and a trial court of personal jurisdiction; the resulting judgment is void and may be challenged at any time. In re E.R., 385 S.W.3d 552, 565–66 (Tex. 2012).

Citation by publication should substantially follow the form promulgated in section 102.010 of the Family Code. To provide notice through publication, the citation must include the correct caption of the case and provide notice of the relief sought. If it does not, citation does not substantially comply with the statute. See Curley v. Curley, 511 S.W.3d 131, 133 (Tex. App.—El Paso 2014, no pet.).

Waiver of Service:      A party may waive service after the suit is filed by filing a waiver acknowledging receipt of a copy of the citation. The waiver may not be signed using a digitized signature. The waiver must contain the party’s mailing address, and it must be sworn before a notary public who is not an attorney in the suit unless the party waiving is incarcerated. The Texas Rules of Civil Procedure do not apply to these waivers. Tex. Fam. Code § 102.0091.

Strict Compliance Required:      In a direct attack on a default judgment, the record must show strict compliance with the rules regarding service of citation. PNS Stores, Inc. v. Rivera, 379 S.W.3d 267, 274 (Tex. 2012); Primate Construction, Inc. v. Silver, 884 S.W.2d 151, 152 (Tex. 1994) (per curiam). “ ‘Strict compliance’ means literal com­pliance with the rules governing issuance, service, and citation.” In re J.M., 387 S.W.3d 865, 870 (Tex. App.—San Antonio 2012, no pet.) (record showed that Department of Family and Protective Services attempted to serve father by publication using incorrect name although Department later learned father’s true name and location, record did not contain return of service on father, and record did not contain statement of evidence required by section 102.010(d) of Family Code). See In re J.B., No. 02-15-00040-CV, 2015 WL 9435961 (Tex. App.—Fort Worth Dec. 23, 2015, no pet.) (mem. op.) (return of service must include, among other things, description of what was served; affidavit of service that does not specify documents served is not sufficient). Similarly, there are no presumptions in favor of valid service of process in the face of an attack on a default judgment by restricted appeal. In re A.R.A.-G., No. 01-18-01073-CV, 2019 WL 6315194, at *1 (Tex. App.—Houston [1st Dist.] Nov. 26, 2019, no pet.) (mem. op.). Absent an appearance or waiver, the trial court does not have personal jurisdiction to enter a default judgment against the defendant unless the record affirmatively shows, at the time the default judgment is entered, proper service of citation on the defendant. Marrot Communications, Inc. v. Town & Country Partnership, 227 S.W.3d 372, 376 (Tex. App.—Houston [1st Dist.] 2007, pet. denied).

A return of service must include the address served. Tex. R. Civ. P. 107(b)(6). The fail­ure to do so renders service defective, deprives the trial court of personal jurisdiction over the defendant, and renders the resulting default judgment void. See In re L.R.M., No. 04-17-00503-CV, 2018 WL 3129447, at *2 (Tex. App.—San Antonio June 27, 2018, no pet.) (mem. op.).

In In re S.C., No. 02-15-00191-CV, 2015 WL 9435937 (Tex. App.—Fort Worth Dec. 23, 2015, no pet.) (mem. op.), the father filed a petition to modify a prior conservator­ship order. The citation and petition were served on the mother in Japan by certified mail, return receipt requested. The mother personally signed the return receipt. The return stated that service of “a true copy of this writ together with a copy of Chapter 158 Texas Family Code” was “by delivery certified mail, return receipt requested, to the employer named within, as herein directed.” The return receipt, the first page of the petition, and the citation were attached to the return of service filed with the clerk. After default judgment, the mother filed a notice of restricted appeal and argued that the return of service was defective, rendering the default judgment void. The court of appeals affirmed the trial court, finding that in determining whether service was proper, the court must consider the return of service together with any attached docu­ments, including the petition and citation. The clerk’s stamp on the filed return of ser­vice was sufficient to satisfy the time requirement of Tex. R. Civ. P. 107(b)(4). Although the return of service incorrectly stated service was “to the employer named within,” the certified mail return receipt and citation indicated the mother was served in Japan by certified mail. The first page of the petition was attached to the return of service and included handwritten notations regarding the service on the mother. In re S.C., 2015 WL 9435937 at *3–4.

Service on Incarcerated Persons:      The Texas Civil Practice & Remedies Code pro­vides a method of service for inmates incarcerated in a TDCJ facility:

(a)In this section, “inmate” means a person confined in a facility operated by or under contract with the Texas Department of Criminal Justice.

(b)In a civil action against an inmate, citation or other civil process may be served on the inmate by serving a person designated under Subsection (c) as an agent for service of civil process.

(c)The warden of each facility operated by or under contract with the Texas Department of Criminal Justice shall designate an employee at the facil­ity to serve as an agent for service of civil process on inmates confined in the facility.

(d)An employee designated under Subsection (c) as an agent for service of civil process shall promptly deliver any civil process served on the employee to the appropriate inmate.

Tex. Civ. Prac. & Rem. Code § 17.029.

In the absence of evidence that the person served is an employee designated by the warden of the facility “to serve as an agent for service of civil process on inmates con­fined in the facility,” the trial court lacks in personam jurisdiction to enter a default judgment against the inmate. See In re J.M.H., 414 S.W.3d 860, 863 (Tex. App.—Houston [1st Dist.] 2013, no pet.).

Caveat:      When there is uncertainty as to who is the agent for service of process on an incarcerated inmate, a rule 106 motion for alternative service may be appropriate.

Waiver of Defect in Service of Citation:      By signing an order in a suit affecting the parent-child relationship as “approved and consented to as to both form and substance,” a party consents to the personal jurisdiction of the trial court, enters a general appear­ance, and waives any defect in the service of citation. See In re C.R.B., 256 S.W.3d 876, 877–78 (Tex. App.—Texarkana 2008, no pet.).

Service of Amended Petition Seeking More Onerous Relief:      If a party amends a petition to seek more onerous relief against a defaulting party, service of a new citation on the defaulting party is not required. Service under rule 21a of the Texas Rules of Civil Procedure will suffice. See In re E.A., 287 S.W.3d 1, 8 (Tex. 2009).

In the absence of a waiver that includes language waiving service of an amended peti­tion, a party is obligated to serve the other party under rule 21a with an amended peti­tion requesting more onerous relief. The failure to do so deprives the other party of notice of the more onerous relief sought in the amended petition. See Garduza v. Cas­tillo, No. 05-13-00377-CV, 2014 WL 2921650, at *3 (Tex. App.—Dallas June 25, 2014, no pet.) (mem. op.).

§ 40.5Contents of Petition

The petition must contain a statement that no court has continuing jurisdiction, as well as a number of other items described in section 102.008(b) of the Family Code. See Tex. Fam. Code § 102.008.

If the suit involves a child custody proceeding, which includes a proceeding for legal custody, physical custody, or visitation with respect to a child, and not all of the parties reside in Texas, the first pleading by each party must also contain either in the body of the pleading or in an attached affidavit the information set forth in section 152.209 of the Family Code. See Tex. Fam. Code §§ 152.102(4), 152.209.

The first numbered paragraph of the petition must include an allegation of the intended discovery level. Tex. R. Civ. P. 190.1.

The petition must state whether, in regard to a party to the suit or a child of a party to the suit, there is in effect a protective order under Family Code title 4, a protective order under chapter 7A of the Code of Criminal Procedure, or an order for emergency protec­tion under article 17.292 of the Code of Criminal Procedure. The petition also must state whether an application for any of these orders is pending. The petitioner must attach a copy of each such protective order in which a party to the suit or the child of a party to the suit was the applicant or victim of the conduct alleged in the application or order and the other party was the respondent or defendant of an action regarding the conduct alleged in the application or order without regard to the date of the order. If a copy of the order is not available at the time of filing, the petition must state that a copy will be filed with the court before any hearing. Tex. Fam. Code § 102.008(b)(11), (c).

The petition must include the name and date of birth of the child, except that if an adop­tion is requested, the name of the child may be omitted. Tex. Fam. Code § 102.008(b)(2).

COMMENT:      Although the name and birth date of a minor are classified as sensitive data (see Tex. R. Civ. P. 21c(a), (b)), their inclusion in a pleading in a suit affecting the parent-child relationship is statutorily required. Since the pleading must contain sensi­tive data, the clerk must be notified of that fact. A document that is not electronically filed must contain, on the upper left-hand side of the first page, the phrase “NOTICE: THIS DOCUMENT CONTAINS SENSITIVE DATA.” Tex. R. Civ. P. 21c(d)(2). If the doc­ument is electronically filed, it must be designated as containing sensitive data when it is filed. Tex. R. Civ. P. 21c(d)(1).

The petition must also clearly state the precise relief being requested. To determine whether a claim was pleaded, the court must find those pleadings adequate to state, with reasonable certainty and without reference to information from another source, the relief sought with sufficient information on which to base a judgment. Stoner v. Thomp­son, 578 S.W.2d 679, 683 (Tex. 1979). In cases affecting the parent-child relationship, however, the pleading requirements are of lesser importance. In re Marriage of Chris­tensen, 570 S.W.3d 933, 939 (Tex. App.—Texarkana 2019, no pet.). In cases affecting the parent-child relationship, when the best interest of the child is always the overriding consideration, technical rules of pleading and practice are of little importance, and fair notice is afforded when the pleadings generally invoke the court’s jurisdiction over cus­tody and control of the children. In re Marriage of Christensen, 570 S.W.3d at 940; see also Leithold v. Plass, 413 S.W.2d 698, 701 (Tex. 1967). Merely requesting joint man­aging conservatorship in a pleading, even by both parents, does not entitle the parties to that relief. It may be the most likely outcome, given the statutory presumption in favor of joint managing conservatorship, but it is not guaranteed. Instead, the issue of conser­vatorship must always turn on a determination of the child’s best interest. By placing this determination in the trial court’s hands, a party has fair notice that the opposing party may be appointed sole managing conservator if the trial court determines that doing so is in the child’s best interest. In re J.M.M., No. 13-20-00086-CV, 2021 WL 4897665, at *7 (Tex. App.—Corpus Christi–Edinburg Oct. 21, 2021, no pet.) (mem. op.).

Before a hearing on temporary orders or a final order, if no hearing on temporary orders is held, the court shall require the parties to the proceedings to disclose in a pleading or other statement (1) if private health insurance is in effect for the child, the identity of the insurance company providing the coverage, the policy number, which parent is responsible for payment of any insurance premium for the coverage, whether the cover­age is provided through a parent’s employment, and the cost of the premium or (2) if private health insurance is not in effect for the child, whether (a) the child is receiving medical assistance under chapter 32, Human Resources Code, (b) the child is receiving health benefits coverage under the state child health plan under chapter 62, Health and Safety Code, and the cost of any premium, and (c) either parent has access to private health insurance at reasonable cost to the obligor. Tex. Fam. Code § 154.181(b). “Rea­sonable cost” means the cost of health insurance coverage for a child that does not exceed 9 percent of the obligor’s annual resources, as described by section 154.062(b), if the obligor is responsible under a medical support order for the cost of health insur­ance coverage for only one child; if the obligor is responsible under a medical support order for the cost of health insurance coverage for more than one child, “reasonable cost” means the total cost of health insurance coverage for all children for whom the obligor is responsible under a medical support order that does not exceed 9 percent of the obligor’s annual resources, as described by section 154.062(b). Tex. Fam. Code § 154.181(e).

Before a hearing on temporary orders, or a final order if no hearing on temporary orders is held, the court shall require the parties to the proceedings to disclose in a pleading or other document whether the child is covered by dental insurance. If the child is covered, the parties must disclose the following: the identity of the insurer providing the cover­age, the policy number, which parent is responsible for payment of any insurance pre­mium for the coverage, whether the coverage is provided through a parent’s employment, and the cost of the premium. If dental insurance is not in effect for the child, the parties must disclose whether either parent has access to dental insurance at reasonable cost to the obligor. Tex. Fam. Code § 154.1815(c). “Reasonable cost” means the cost of a dental insurance premium  that does not exceed 1.5 percent of the obligor’s annual resources, as described by section 154.062(b), if the obligor is responsible under a dental support order for the cost of dental insurance coverage for only one child; if the obligor is responsible under a dental support order for the cost of dental insurance cov­erage for more than one child, “reasonable cost” means the total cost of dental insur­ance coverage for all children for whom the obligor is responsible under a dental support order that does not exceed 1.5 percent of the obligor’s annual resources, as described by section 154.062(b). Tex. Fam. Code § 154.1815(a).

§ 40.6Jurisdiction

General:      The possibility that a Texas court will have only partial jurisdiction over the issues in a suit affecting the parent-child relationship (SAPCR) when the parties or the child reside in different states is explicitly recognized in Family Code section 102.012. This provision states that a Texas trial court may exercise jurisdiction over only those portions of the suit for which it has authority. See Tex. Fam. Code § 102.012.

A child support order may be rendered against a nonresident obligor only if the court has personal jurisdiction over that party. Tex. Fam. Code § 159.201. See In re A.B., 207 S.W.3d 434 (Tex. App.—Dallas 2006, no pet.). This principle has been ingrained in U.S. jurisprudence for decades. See Kulko v. Superior Court, 436 U.S. 84 (1978). In 1980, the principle was confirmed by federal statute to ensure universal understanding of the mandate. See 28 U.S.C. § 1738B(c). The impact of this restriction of the trial court’s jurisdiction is mitigated by the expansive long-arm statute contained in the Uni­form Interstate Family Support Act. See Tex. Fam. Code § 159.201. (Identical provi­sions are in effect in all states.) Long-arm jurisdiction is discussed in section 40.7 below.

Similarly, the court’s authority to resolve all custody and visitation issues in contro­versy between the parties may be restricted because another state is the “home state” of the child, even if the Texas court has the requisite, albeit subordinate, jurisdiction under the Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA) (chapter 152 of the Texas Family Code). In Powell v. Stover, 165 S.W.3d 322 (Tex. 2005) (orig. pro­ceeding), the parents had moved from Texas and lived with their then-only child in another state for more than six months, thereby establishing it as the child’s “home state.” The mother returned to Texas with that child and gave birth to a second child. She then filed for divorce and for custody of and child support for both children. The Texas Supreme Court reversed the trial and appellate courts’ determination that Texas had custody jurisdiction over both children. The court held that the explicit terms of the UCCJEA, in effect in both states, mandate that the home state has jurisdictional priority regarding the father’s subsequent custody suit for the first child, which prevails over the “significant-connection” jurisdiction of Texas; Texas has jurisdictional priority regard­ing custody of the second child.

Section 6.406(b) of the Texas Family Code does not vest the trial court with subject-matter jurisdiction if another state would have jurisdiction under the UCCJEA. The UCCJEA specifically provides that it is the “exclusive jurisdictional basis” for making a child custody determination. Tex. Fam. Code § 152.201(b). Moreover, the UCCJEA provides that if its provisions conflict with another Texas statute, the UCCJEA controls. Tex. Fam. Code § 152.002. See Seligman-Hargis v. Hargis, 186 S.W.3d 582, 586 (Tex. App.—Dallas 2006, no pet.).

In Villarreal v. Villarreal, No. 04-15-00551-CV, 2016 WL 4124067 (Tex. App.—San Antonio Aug. 3, 2016, no pet.) (mem. op.), the petitioner filed for a divorce, coupled with a suit affecting the parent-child relationship, in state district court. When the trial court entered an order of conditional dismissal for failure to pay court costs, the peti­tioner filed a petition for divorce in a tribal court. The state district court case was never dismissed, nor was it stayed. The appellate court held that the Indian Child Welfare Act (ICWA) was not applicable to a custody case within a divorce proceeding. Accordingly, the appellate court held that the Indian tribe within which the tribal court was located should be treated as a state of the United States under the UCCJEA. As Texas was the home state of the children when the petitioner filed the divorce in state district court, the trial court had jurisdiction to make the initial child custody determination. Villar­real, 2016 WL 4124067, at *3.

The shorthand terminology for the complexity of the jurisdictional rules governing child custody and visitation and child support is “bifurcated jurisdiction,” which in the Texas Family Code is labeled “partial jurisdiction.” For a more detailed explanation of these jurisdictional rules, see chapter 43 of this manual. A more comprehensive expla­nation of these rules is found in Russell J. Weintraub, Commentary on the Conflict of Laws (5th ed., Foundation Press 2006).

Original Suit:      An original suit is filed only if there has been no prior order affecting the parent-child relationship. For this reason, the petition will always state that no court has continuing jurisdiction. Tex. Fam. Code § 102.008(b)(1). However, the following final orders do not create continuing, exclusive jurisdiction in a court:

1.A voluntary or involuntary dismissal of a suit affecting the parent-child rela­tionship.

2.In a suit to determine parentage, a final order finding that an alleged or pre­sumed father is not the father of the child, except that the jurisdiction of the court is not affected if the child was subject to the jurisdiction of the court or some other court in a suit affecting the parent-child relationship before the com­mencement of the suit to adjudicate parentage.

3.A final order of adoption, after which a subsequent suit affecting the child must be commenced as though the child had not been the subject of a suit for adop­tion or any other suit affecting the parent-child relationship before the adoption.

Tex. Fam. Code § 155.001(b).

In the absence of specific provisions to the contrary in an order establishing conserva­torship, the death of the managing conservator does not end the conservatorship order, except for purposes of seeking a writ for habeas corpus. Greene v. Schuble, 654 S.W.2d 436, 437–38 (Tex. 1983) (orig. proceeding); In re P.D.M., 117 S.W.3d 453, 458 (Tex. App.—Fort Worth 2003, pet. denied).

Jurisdictional issues that may arise in a suit affecting the parent-child relationship in the context of a divorce are discussed in section 3.42 in this manual. Jurisdictional issues that may arise in interstate matters are discussed in chapter 43 of this manual.

§ 40.7Long-Arm Jurisdiction   

In an original suit affecting the parent-child relationship (SAPCR), the court may exer­cise status or subject-matter jurisdiction over custody and visitation issues in the suit as provided in the Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA) in section 152.201 of the Family Code. Further, the court may exercise personal juris­diction regarding the child support issues under sections 102.011 and 159.201 of the Family Code over a person on whom service of citation is required, although the person is not a resident or domiciliary of Texas, if—

1.the person is personally served with citation in Texas;

2.the person submits to the jurisdiction of Texas by consent, by entering a general appearance, or by filing a responsive document having the effect of waiving any contest to personal jurisdiction;

3.the child resides in Texas as a result of the acts or directives of the person;

4.the person resided with the child in Texas;

5.the person resided in Texas and provided prenatal expenses or support for the child;

6.the person engaged in sexual intercourse in Texas and the child may have been conceived by that act of intercourse;

7.the person, as provided by chapter 160 of the Family Code, registered with the paternity registry maintained by the bureau of vital statistics or signed an acknowledgment of paternity of a child born in Texas; or

8.there is any basis consistent with the constitutions of Texas and of the United States for the exercise of personal jurisdiction.

Tex. Fam. Code § 102.011.

Note that the fact that a Texas court may have personal jurisdiction over both parents in a SAPCR does not always mean that the court may decide all the issues that may be implicated in typical cases. The possibility that a Texas court will have only partial jurisdiction over all issues in a SAPCR when the parties or the child reside in different states is explicitly recognized in Family Code section 102.012. This provision states that a Texas trial court may exercise jurisdiction over only those portions of the suit for which it has authority. See Tex. Fam. Code § 102.012. For example, the court’s author­ity to resolve all custody and visitation issues in controversy between the parties may be restricted because another state is the “home state” of the child, even if the Texas court has the requisite, albeit subordinate, jurisdiction under the UCCJEA. Powell v. Stover, 165 S.W.3d 322 (Tex. 2005) (orig. proceeding).

As noted above, the existence of federal and state legislation has had a significant effect on this area of the law. See the UCCJEA, Tex. Fam. Code §§ 152.001–.317, and the Parental Kidnapping Prevention Act of 1980, 28 U.S.C. § 1738A. For a more detailed explanation of these statutes, see chapter 43 of this manual. A more comprehensive explanation of these laws is found in Russell J. Weintraub, Commentary on the Conflict of Laws (5th ed., Foundation Press 2006).

§ 40.8Venue

Venue is in the county of the child’s residence unless another court has continuing, exclusive jurisdiction under Family Code chapter 155 or venue is fixed in a suit for dis­solution of a marriage under Family Code chapter 6. Tex. Fam. Code § 103.001(a). However, a suit in which an adoption is requested may be filed in the county where the child resides or in the county where the petitioners reside, regardless of whether another court has continuing, exclusive jurisdiction; except as provided by Family Code section 155.201, the court with continuing, exclusive jurisdiction is not required to transfer the suit affecting the parent-child relationship to the court in which the adoption suit is filed. Tex. Fam. Code § 103.001(b).

Generally, a child resides in the county where the child’s parents reside or the child’s parent resides, if only one parent is living. Tex. Fam. Code § 103.001(c). If the parents of the child do not reside in the same county and if a managing conservator, custodian, or guardian of the person has not been appointed, the child resides in the county where the parent having actual care, control, and possession of the child resides. Tex. Fam. Code § 103.001(c)(2); see In re Narvaiz, 193 S.W.3d 695 (Tex. App.—Beaumont 2006, orig. proceeding) (per curiam) (where parents living in different counties shared posses­sion of child, residence of parent having actual care, control, and possession of child at time of filing suit governed venue).

While Family Code section 103.001 sets forth no minimum time frame for length of residency, chapter 103 establishes venue in the county where the parent in actual pos­session resides, and a residency requirement imputes an element of permanency before a party can be considered a resident of a county. The elements of residency include (1) a fixed place of abode within the possession of the party, (2) occupied or intended to be occupied consistently over a substantial period of time, (3) that is permanent rather than temporary. To be a resident, there must be an intention to establish a permanent domi­cile or home, and the intention must be accompanied by some act done in the execution of the intent. In re Martinez, 592 S.W.3d 170, 176 (Tex. App.—Tyler 2019, orig. pro­ceeding). For a place of abode to become a residence, the party must have some right of possession and not be a mere visitor. See Snyder v. Pitts, 241 S.W.2d 136, 140 (Tex. 1951).

If venue is improper in the court in which an original suit is filed and no other court has continuing, exclusive jurisdiction, on the timely motion of any party other than the peti­tioner, the court shall transfer the proceeding to the county where venue is proper. Tex. Fam. Code § 103.002(a).

§ 40.9Trial before Associate Judge

The powers vested in an associate judge are prescribed by statute. In re A.G.D.M., 533 S.W.3d 546, 547 (Tex. App.—Amarillo 2017, no pet.). The judge of a court having jurisdiction of suits under Family Code title 1, 4, or 5 or chapter 45 may appoint a full-time or part-time associate judge to perform specified duties if the commissioners court of a county in which the court has jurisdiction authorizes employment of an associate judge. Tex. Fam. Code § 201.001(a). The provisions of Family Code section 201.001 do not apply to an associate judge appointed under sections 201.101 (title IV-D cases) or 201.201 (child protection cases). Tex. Fam. Code § 201.001(e).

The judge may refer to the associate judge any aspect of a suit under title 1, 4, or 5 or chapter 45, including a trial on the merits, unless a party objects in writing within ten days of receiving notice of the referral to the associate judge. See Tex. Fam. Code § 201.005(a)–(c).

A court reporter is not required to be provided during a hearing held by an associate judge except when the associate judge presides over a jury trial or a contested final ter­mination hearing. A party, the associate judge, or the referring court may provide for a reporter during the hearing if one is not otherwise provided. Tex. Fam. Code § 201.009(a), (b).

COMMENT:      The local rules in some counties refer all cases for final trial to the asso­ciate judge on filing, requiring that the objection to the referral be made in the initial pleading or be waived.

Failure to timely object to referral to an associate judge does not deprive a party of the right to appeal to the referring court. See In re T.S., 191 S.W.3d 736, 740 (Tex. App.—Houston [14th Dist.] 2006, pet. denied).

A party’s failure to request, or waiver of the right to request, a de novo hearing before the referring court does not deprive the party of the right to appeal to or request other relief from the proper appellate court. Tex. Fam. Code § 201.016(a).

Pending a de novo hearing before the referring court, a proposed order or judgment of the associate judge is in full force and effect and is enforceable as an order or judgment of the referring court, except for an order providing for the appointment of a receiver. Tex. Fam. Code § 201.013(a). Except as provided by Family Code section 201.007(c) (default, agreed, or temporary orders or final order where notice, appearance, or right to de novo hearing is waived), if a request for a de novo hearing before the referring court is not timely filed, the proposed order or judgment of the associate judge becomes the order or judgment of the referring court only on the referring court’s signing the pro­posed order or judgment. Tex. Fam. Code § 201.013(b); see also Tex. Fam. Code § 201.007(c).

Judicial review by trial de novo is not a traditional appeal, but a new and independent action characterized by all the attributes of an original civil action, only to the extent of the challenged finding—that is, the effect of the appeal is to begin again only as to the issues appealed. See In re A.A.T., No. 13-16-00269-CV, 2016 WL 8188946, at *2 (Tex. App.—Corpus Christi–Edinburg Aug. 25, 2016, no pet.) (mem. op.).

Generally, when a matter is heard de novo, the referring court is limited to the evidence presented during the de novo hearing. However, Family Code section 201.015(c) expressly permits the referring court to consider the record from the hearing before the associate judge. See Tex. Fam. Code § 201.015(c); see also In re R.S.-T., 522 S.W.3d 92, 108 (Tex. App.—San Antonio, no pet.); but see In re R.R., 537 S.W.3d 621, 624 (Tex. App.—San Antonio 2017, no pet.) (while referring court is permitted to consider record from hearing before associate judge, court is not authorized to bar party from calling witnesses at de novo hearing).

An order by an associate judge for the temporary detention or incarceration of a witness or party shall be presented to the referring court on the day the witness or party is detained or incarcerated. If the referring court is not immediately available, the associ­ate judge may order the release of the party or witness, with or without bond, pending a de novo hearing or may continue the person’s detention or incarceration for not more than seventy-two hours. Tex. Fam. Code § 201.013(c).

Associate judges appointed under Family Code section 201.001 have the judicial immunity of a district judge. Tex. Fam. Code § 201.017.

§ 40.10Trial before Assigned Judge

The Court Administration Act, chapter 74 of the Texas Government Code, divides the state into eleven administrative judicial regions and empowers the presiding judge of each region to assign visiting judges to the courts in that region. See Tex. Gov’t Code §§ 74.042(a), 74.056; In re Canales, 52 S.W.3d 698, 701 (Tex. 2001) (orig. proceed­ing). Section 74.053 of the Act allows the parties to a civil case to object to a judge assigned to a trial court and sets out the procedure for doing so. An active judge assigned to hear the case is not subject to an objection. Tex. Gov’t Code § 74.053(e).

When a judge is assigned to a trial court under chapter 74 of the Government Code, the order of assignment must state whether the judge is an active, former, retired, or senior judge. If it is reasonable and practicable and if time permits, the presiding judge must give notice of the assignment to each attorney representing a party to the case that is to be heard in whole or in part by the assigned judge. If a party to a civil case files a timely objection to the assignment, the judge may not hear the case. The objection must be filed not later than the seventh day after the date the party receives actual notice of the assignment or before the date the first hearing or trial, including pretrial hearings, com­mences, whichever date occurs earlier. The presiding judge may extend the time to file an objection on written motion by a party who demonstrates good cause. Tex. Gov’t Code § 74.053(a)–(c).

If an objection is timely, the assigned judge’s disqualification is automatic. See Tex. Gov’t Code § 74.053(b). A party is entitled to only one objection, except with regard to an assigned judge who was defeated in the last primary or general election for which the judge was a candidate for reelection. Tex. Gov’t Code § 74.053(b), (d). When an assigned judge overrules a timely objection to his assignment, all of the judge’s subse­quent orders are void and the objecting party is entitled to mandamus relief. In re Cana­les, 52 S.W.3d at 701.

The assigned judge must have a valid assignment. When an assigned judge’s action exceeds the scope of the assignment, the judgment is void. Ex parte Eastland, 811 S.W.2d 571, 572 (Tex. 1991) (orig. proceeding) (per curiam); In re B.F.B., 241 S.W.3d 643, 647 (Tex. App.—Texarkana 2007, no pet.) (after denying motion to recuse, assigned judge went forward with trial on merits although assignment order limited assignment “for the purpose of the assigned judge hearing a Motion to Recuse”).

§ 40.11Managing Conservatorship

Except as provided by Code section 153.004, the court may appoint a sole managing conservator or joint managing conservators. A managing conservator must be a parent, a competent adult, or the Department of Family and Protective Services. If the parents are or will be separated, the court must appoint at least one managing conservator. Tex. Fam. Code § 153.005(a), (b); see Tex. Fam. Code § 153.004.

In making the appointment, the court must consider whether, before the suit was filed or while it is pending, a party engaged in a history or pattern of family violence, as defined by Code section 71.004; a party engaged in a history or pattern of child abuse or child neglect; or a final protective order was rendered against a party. Tex. Fam. Code § 153.005(c).

Parental Presumption:      There is a presumption that the appointment of the parents of a child as joint managing conservators is in the best interest of the child. To overcome this presumption, a court must find that (1) appointment of the parents would signifi­cantly impair the child’s physical health or emotional development; (2) the parents have exhibited a history of family violence; or (3) the parents voluntarily relinquished care, control, and possession of the child to a nonparent for a year or more. Critz v. Critz, 297 S.W.3d 464, 470 (Tex. App.—Fort Worth 2009, no pet.).

Subject to the provisions of Family Code section 153.004 concerning a history of domestic violence or sexual abuse, one or both parents shall be appointed managing conservator(s) unless the court finds that appointment of the parent or parents would not be in the child’s best interest because the appointment would significantly impair the child’s physical health or emotional development. Tex. Fam. Code § 153.131(a). It is a rebuttable presumption that the appointment of the parents as joint managing con­servators is in the child’s best interest, but a finding of a history of family violence involving the parents removes the presumption under section 153.131. Tex. Fam. Code § 153.131(b).

The requirement that a nonparent prove that appointment of the parent as managing conservator would significantly impair the child’s physical or emotional development imposes a heavy burden on the nonparent to rebut the parental presumption. In re T.R.B., 350 S.W.3d 227, 233–34 (Tex. App.—San Antonio 2011, orig. proceeding); see Lewelling v. Lewelling, 796 S.W.2d 164, 167 (Tex. 1990). To meet this burden, the non­parent must present evidence of specific, identifiable behavior or conduct of the parent, as shown by specific acts or omissions, and evidence that such acts or omissions will probably cause that harm. In re S.M.D., 329 S.W.3d 8, 16 (Tex. App.—San Antonio 2010, pet. dism’d); see Lewelling, 796 S.W.2d at 167. The evidence must be sufficient to support a logical inference that the parent’s specific, identifiable behavior will proba­bly result in the child’s emotional or physical impairment. Evidence that merely raises a surmise or speculation of possible harm does not meet the burden. In re S.M.D., 329 S.W.3d at 16. Further, evidence of past misconduct alone is not sufficient to prove the parent is presently unsuitable to have custody. In re S.M.D., 329 S.W.3d at 16; In re M.W., 959 S.W.2d 661, 666 (Tex. App.—Tyler 1997, pet. denied) (when determining parent’s fitness, material time to consider is present, while keeping in mind that future conduct may be somewhat determined by recent past conduct). Evidence showing that the nonparent would be a better custodian of the child or has a strong, ongoing relation­ship with the child also will not suffice to rebut the parental presumption. In re S.M.D., 329 S.W.3d at 16; see Lewelling, 796 S.W.2d at 167. When a nonparent and a parent are both seeking managing conservatorship, “close calls” go to the parent. Taylor v. Taylor, 254 S.W.3d 527, 536 (Tex. App.—Houston [1st Dist.] 2008, no pet.); see Lewelling, 796 S.W.2d at 168.

Immigration status, standing alone, is not probative of a parent’s fitness to be a parent so as to deny that parent joint managing conservatorship. Absent evidence showing that it has had a material, adverse effect on the ability to parent, immigration status should not be used as a basis to deny joint managing conservatorship. See Turrubiartes v. Olvera, 539 S.W.3d 524, 529–30 (Tex. App.—Houston [1st Dist.] 2009, pet. denied); see also E.T.-M. v. Texas Department of Family & Protective Services, No. 03-18-000622-CV, 2019 WL 988222, at *3 (Tex. App.—Austin Mar. 1, 2019, no pet.) (mem. op.) (although father admitted he was not in country legally, considering other factors, trial court did not abuse its discretion by designating father as conservator with exclu­sive right to determine child’s primary residence).

In determining whether to appoint a party as a sole or joint managing conservator, the court shall consider evidence of the intentional use of abusive physical force, or evi­dence of sexual abuse, by a party directed against the party’s spouse, a parent of the child, or any person younger than eighteen years of age committed within a two-year period preceding the filing of the suit or during the pendency of the suit. Tex. Fam. Code § 153.004. The court may not appoint joint managing conservators if credible evi­dence is presented of a history or pattern of past or present child neglect, or physical or sexual abuse by one parent directed against the other parent, a spouse, or a child, including a sexual assault in violation of section 22.011 or section 22.021 of the Texas Penal Code that results in the other parent becoming pregnant with the child. A history of sexual abuse includes a sexual assault that results in the other parent becoming preg­nant with the child, regardless of the prior relationship of the parents. It is a rebuttable presumption that the appointment of a parent as the sole managing conservator of a child or as the conservator who has the exclusive right to determine the primary resi­dence of a child is not in the best interest of the child if credible evidence is presented of a history or pattern of past or present child neglect, or physical or sexual abuse by that parent directed against the other parent, a spouse, or a child. Tex. Fam. Code § 153.004(b). When the trial court is the fact finder, it is the sole judge of the weight and credibility of the evidence; if it does not find credible evidence of a history of domestic violence, it is not bound by section 153.004. Madore v. Strader, No. 14-20-00147-CV, 2021 WL 4617936, at *6 (Tex. App.—Houston [14th Dist.] Oct. 7, 2021, no pet.) (mem. op.); see also In re J.N., No. 05-20-00695-CV, 2022 WL 1211200, at *2 (Tex. App.—Dallas Apr. 25, 2022, pet. filed) (mem. op.).

A single act of violence or abuse can constitute a “history” of physical abuse for pur­poses of section 153.004. In re L.C.L., 396 S.W.3d 712, 717 (Tex. App.—Dallas 2013, no pet.). By using the more generalized “history or pattern” language in section 153.004(b), the legislature has signaled that the trial court should determine whether a single incident, or even multiple incidents, constitutes clear evidence of a “history or pattern” based on the particular facts presented in each case. As a result, section 153.004(b) gives the trial court discretion to decide whether there is such a history of abuse that the parents cannot act in a joint parenting role. Chacon v. Gribble, No. 03-18-00737-CV, 2019 WL 6336184, at *4 (Tex. App.—Austin Nov. 27, 2019, no pet.) (mem. op.). Evidence of “altercations and confrontations” will not automatically pre­vent the trial court from appointing parents as joint managing conservators. In re J.N., 2022 WL 1211200, at *3.

In determining under section 153.004 whether there is credible evidence of a history or pattern of past or present child neglect or abuse or family violence by a parent or other person, as applicable, the court shall consider whether a protective order was rendered under chapter 85, title 4, against the parent or other person during the two-year period preceding the filing of the suit or during the pendency of the suit. Tex. Fam. Code § 153.004(f). In section 153.004, “abuse” and “neglect” have the meanings assigned by section 261.001, and “family violence” has the meaning assigned by section 71.004. Tex. Fam. Code § 153.004(g).

The presumption that a parent should be appointed managing conservator is also rebutted if the court finds that (1) the parent has voluntarily relinquished actual care, control, and possession of the child to a nonparent for a period of one year or more, a portion of which was within ninety days preceding the date of intervention in or filing of the suit, and (2) the appointment of the nonparent as managing conservator is in the child’s best interest. Tex. Fam. Code § 153.373.

While the supreme court found the parental presumption in section 153.131 is applica­ble only in original custody determinations and not to modifications (see In re V.L.K., 24 S.W.3d 338, 343 (Tex. 2000)), the court later recognized a fit parent presumption that it is in a child’s best interest to be raised by his or her parents. In re C.J.C., 603 S.W.3d 804, 812 (Tex. 2020). Although the best interest of the child is the paramount issue in a custody determination, the presumption is that the best interest of a child is served by awarding the child to a parent. In re C.J.C., 603 S.W.3d at 812. Any best-interest determination in which a court weighs a fit parent’s rights against a claim to conservatorship or access by a nonparent must include a presumption that a fit parent acts in his or her child’s best interest. In re C.J.C., 603 S.W.3d at 818–19. The court did not alter the burden of proof for modifications of court-ordered custody arrangements in which neither parent is named a managing conservator in the original order. But when nonparents seek court-ordered custody of a child subject to an existing order under which one or both fit parents were appointed managing conservators, that parent or parents retain the presumption that protects their fundamental right to determine their child’s best interest. In re C.J.C., 603 S.W.3d at 819. However, in her concurring opin­ion, Justice Lehrmann pointed out that “[t]he question of the degree of evidence neces­sary to overcome the presumption that a fit parent’s decisions are in the best interest of the child when a nonparent who has acted in a parent-like role seeks visitation remains unanswered.” In re C.J.C., 603 S.W.3d at 823. While the parental presumption in sec­tion 153.131 does not apply to modification suits, the fit parent presumption applies if a parent had been appointed as sole managing conservator in the original suit. S. C. v. Texas Department of Family & Protective Services, No. 03-20-00179-CV, 2020 WL 4929790, at *2 (Tex. App.—Austin Aug. 21, 2020, no pet.) (mem. op.).

Actions outside Cognitive Presence of Child:      Texas case law holds that sexual activity of a parent committed outside the presence of a child is insufficient evidence on which to base conservatorship of the child. See Wolfe v. Wolfe, 918 S.W.2d 533, 539–40 (Tex. App.—El Paso 1996, writ denied) (father retained custody because no evidence child exposed to any of father’s sex paraphernalia); In re W.G.W., 812 S.W.2d 409, 414–15 (Tex. App.—Houston [1st Dist.] 1991, no writ) (mother retained custody because no evidence mother had overnight visitors or that her visitors behaved improperly in front of child, who was between ages three months and six months); Schwartz v. Jacob, 394 S.W.2d 15, 18 (Tex. App.—Houston 1965, writ ref’d n.r.e.) (mother retained custody because her indiscretions took place outside presence of children and children likely unaware of conduct).

Split Custody:      The Texas Family Code contains no requirement that a party show or that trial court find “clear and compelling reasons” for separating children during peri­ods of possession. See In re K.B.K., No. 11-12-00155-CV, 2014 WL 1285784, at *4 (Tex. App.—Eastland Mar. 27, 2014, no pet.) (mem. op.); Gardner v. Gardner, 229 S.W.3d 747, 754 (Tex. App.—San Antonio 2007, no pet.). Split custody of two or more children of the same marriage is a factor, among many, to consider in determin­ing the best interest of the child. See In re M.H., 319 S.W.3d 137, 154 (Tex. App.—Waco 2010, no pet.). Although section 153.251(c) of the Texas Family Code espouses a preference for all children in a family to be together during periods of possession, it is simply a factor the trial court considers in deciding what is in the child’s best inter­est. Gardner, 229 S.W.3d at 754.

Rights and Duties:      The Family Code sets forth the rights and duties for parents appointed as joint managing conservators (sections 153.133–.138), the rights and duties of a parent appointed sole managing conservator (section 153.132), the rights and duties of a managing conservator who is not the parent of the child (section 153.371), guidelines to be followed by courts in determining the terms and conditions for posses­sion of a child (sections 153.251–.258, 153.311–.3171), and temporary orders concern­ing rights, duties, possession, and access during and immediately following a parent conservator’s military deployment, military mobilization, or temporary military duty (sections 153.701–.709). See Tex. Fam. Code §§ 153.132–.138, 153.251–.258, 153.311–.3171, 153.371, 153.701–.709.

It was not an abuse of discretion for a trial court to order that a parent named as posses­sory conservator have none of the parental rights listed in Code section 153.073 (rights of a parent at all times) and that the parent have supervised possession when there was extensive evidence that was not favorable, specifically the parent’s lengthy history of aggressive, violent behavior. See In re T.N.R., No. 05-16-00261-CV, 2016 WL 3660331, at *5 (Tex. App.—Dallas July 7, 2016, no pet.) (mem. op.).

If a written agreed parenting plan is filed with the court, the court shall render an order appointing the parents as joint managing conservators only if the parenting plan desig­nates the conservator who has the exclusive right to designate the primary residence of the child and (1) establishes, until modified by further order, the geographic area within which the conservator shall maintain the child’s primary residence or (2) specifies that the conservator may designate the child’s primary residence without regard to geo­graphic location. Tex. Fam. Code § 153.133(a)(1). Notwithstanding subsection (a)(1), the court shall render an order adopting the provisions of a written agreed parenting plan appointing the parents as joint managing conservators if the parenting plan meets all the requirements of subsections (a)(2) through (a)(6) and provides that the child’s primary residence shall be within a specified geographic area. Tex. Fam. Code § 153.133(c).

If a written agreed parenting plan is not filed with the court, the court shall designate the conservator who has the exclusive right to determine the primary residence of the child and (1) establish, until modified by further order, a geographic area within which the conservator shall maintain the child’s primary residence or (2) specify that the conser­vator may determine the child’s primary residence without regard to geographic loca­tion. Tex. Fam. Code § 153.134(b)(1).

The factors relevant to the determination of whether a geographic restriction is in the best interest of the child include (1) the reasons for and against the move, including the parents’ good faith motives in requesting or opposing it; (2) health, education, and lei­sure opportunities afforded by the move; (3) the degree of economic, emotional, and educational enhancement for the custodial parent and the child; (4) the effect on extended family relationships; (5) accommodation of the child’s special needs or tal­ents; (6) the effect on visitation and communication with the noncustodial parent to maintain a full and continuous relationship with the child; (7) the possibility of a visita­tion schedule allowing the continuation of a meaningful relationship between the non­custodial parent and the child; and (8) the ability of the noncustodial parent to relocate. Geographic restriction cases are intensely fact-driven and therefore involve the balanc­ing of these numerous factors, as opposed to formulaic tests. C.B. v. A.B., No. 02-19-00041-CV, 2020 WL 241382, at *6 (Tex. App.—Fort Worth Jan. 16, 2020, no pet.) (mem. op.) (citing Lenz v. Lenz, 79 S.W.3d 10, 15–16 (Tex. 2002)).

Where neither party pleads for a geographic restriction but each requests the court to designate that party as the parent with the exclusive right to designate the child’s pri­mary residence, the request necessarily invokes the jurisdiction of the trial court over matters of custody and control, instilling the trial court with “decretal powers” over the child’s geographic residence. See In re Marriage of Christensen, 570 S.W.3d 933, 940 (Tex. App.—Texarkana 2019, no pet.).

A trial court did not abuse its discretion when it declined to impose a geographic restriction on a parent joint managing conservator’s right to determine the child’s pri­mary residence where there was no bad faith or ill motive for that conservator’s desire to leave Texas and that conservator expressed willingness to facilitate a long-distance relationship between the child and the other parent. See Cruz v. Cruz, No. 04-17-00594-CV, 2018 WL 6793847, at *2 (Tex. App.—San Antonio Dec. 27, 2018, no pet.) (mem. op.).

Although section 153.134(b)(1)(A) specifies only that the trial court may impose a geo­graphic restriction on the child’s residence when it appoints parents as joint managing conservators, there is no authority that expressly denies such authority to a trial judge when a parent is awarded the status of sole managing conservator. While section 151.132(1) grants the sole managing conservator the exclusive right to designate the primary residence of the child, that right is subject to limitation by court order. The state’s public policy is to assure that children will have frequent and continuing contact with parents who have shown the ability to act in the best interest of the child. Since the best interest of the child shall be the primary consideration of a court in determining issues of conservatorship and possession of and access to a child, a geographic restric­tion may be imposed in a sole managing conservatorship if it is in the child’s best inter­est. See In re A.S., 298 S.W.3d 834, 836 (Tex. App.—Amarillo 2009, no pet.).

A family court’s authority to designate the conservator who has the exclusive right to determine the primary residence of the child and establish a geographic area within which the conservator shall maintain the child's primary residence does not extend to limiting the geographic area within which a conservator without the authority to deter­mine the child’s primary residence may reside. In re Barnes, No. 05-21-00807-CV, 2022 WL 1702516, at *4 (Tex. App.—Dallas May 27, 2022, no pet.) (mem. op.).

COMMENT:       Relevant orders in suits affecting the parent-child relationship in this manual provide an option for the geographic restriction to be lifted without further order of the court if, at the time the joint managing conservator with the right to designate the child’s primary residence wishes to remove the child from the specified geographic area for the purposes of changing the primary residence of the child, the other joint managing conservator no longer resides in the specified geographic area. The Family Code does not provide this automatic remedy. A change of a geographic restriction is governed by the statutory provisions for modification of an order in a suit affecting the parent-child relationship. For a detailed treatment of modification, see chapter 41 of this manual.

Careful consideration is urged before including in an order the provision for an automatic lifting of the geographic restriction, as the inclusion may lead to unintended consequenc­es. As an example, assume that at the time an order is rendered, both parties live in Dal­las County. The order provides the child’s primary residence is restricted to Dallas County. Subsequently, the parent joint managing conservator who does not have the ex­clusive right to determine the child’s primary residence relocates to Harris County. Under the provisions for an automatic lifting of the geographic restriction, the parent joint man­aging conservator with the exclusive right to designate the child’s primary residence may relocate the child to any place of that parent’s choosing, including a foreign country, with­out further order of the court.

§ 40.12Possessory Conservatorship or Access to Child

If a managing conservator is appointed, the court may appoint one or more possessory conservators. The court shall specify the rights and duties of the possessory conservator and, unless a party shows good cause why specific orders would not be in the child’s best interest, shall specify the times and conditions for possession of or access to the child. Tex. Fam. Code § 153.006.

The court shall appoint as a possessory conservator a parent who is not appointed sole or joint managing conservator unless it finds that the appointment of the parent is not in the child’s best interest and that parental possession of or access to the child will endan­ger the child’s physical or emotional welfare. Tex. Fam. Code § 153.191. A parent not appointed as a managing or possessory conservator may be ordered to perform other parental duties, including paying child support. Tex. Fam. Code § 153.075. In the absence of a nonparent’s intervention, the trial court has no authority to award any non­party possession of or access to a child. See In re Marriage of D.E.L. & J.J.P., No. 14-17-00216-CV, 2019 WL 545911, at *3 (Tex. App.—Houston [14th Dist.] Feb. 12, 2019, no pet.) (mem. op.).

While there is a parental presumption when appointing a managing conservator, whether to appoint a possessory conservator should be determined by what is in the child’s best interest. See In re Ryan, No. 12-16-00284-CV, 2016 WL 6996639, at *2 (Tex. App.—Tyler Nov. 30, 2016, orig. proceeding) (mem. op.).

While the guidelines in the standard possession order are intended to guide courts as to the minimum possession for a joint managing conservator, there is a rebuttable pre­sumption that the standard possession order provides the reasonable minimum posses­sion of a child for a parent named as a joint managing conservator and that the order is in the child’s best interest. Tex. Fam. Code §§ 153.251(a), 153.252; In re N.P.M., 509 S.W.3d 560, 564 (Tex. App.—El Paso 2016, no pet.).

A parent is not entitled to longer periods of possession than the other simply because that parent was awarded the exclusive right to designate the child’s primary residence. See In re W.B.B., No. 05-17-00384-CV, 2018 WL 3434588, at *3 (Tex. App.—Dallas July 17, 2018, no pet.) (mem. op.) (award of roughly equal periods of possession to joint managing conservators does not pose inherent conflict with child’s having pri­mary residence, nor does it render right to designate child’s primary residence mean­ingless).

In determining whether to deny, restrict, or limit the possession of a child by a parent appointed possessory conservator, the court shall consider the commission of family violence or sexual abuse by that parent. Tex. Fam. Code § 153.004(c). See also In re N.P.M., 509 S.W.3d at 565 (father had history of aggression with children, resulting in arrest for assault, and he had been physically, mentally, and sexually abusive toward mother in presence of children); In re B.N.F., 120 S.W.3d 873 (Tex. App.—Fort Worth 2003, no pet.) (under Family Code section 153.004(c), mother’s past history of sexual assault of a child does not automatically require supervised visitation; it merely requires court to take that history into consideration).

The court may not allow a parent access to a child if there is a history or pattern of com­mitting family violence within the two years before the suit was filed or during its pen­dency or if the parent engaged in conduct constituting an offense under section 21.02, 22.011, 22.021, or 25.02 of the Texas Penal Code and as a direct result the victim of the conduct became pregnant with the child. Tex. Fam. Code § 153.004(d). Notwithstand­ing that provision, the court may allow the parent access if the court finds that doing so would not endanger the child’s physical health or emotional welfare and would be in the child’s best interest and also renders a possession order designed to protect the safety and well-being of the child and any other person who has been a victim of family violence committed by the parent. Tex. Fam. Code § 153.004(d–1).

There is also a rebuttable presumption that it is not in the best interest of a child for a parent to have unsupervised visitation with the child if credible evidence is presented of a history or pattern of past or present child neglect or abuse or family violence by that parent or any person who resides in that parent’s household or who is permitted by that parent to have unsupervised access to the child during that parent’s periods of posses­sion of or access to the child. Tex. Fam. Code § 153.004(e). There is no requirement that the parent be convicted of family violence to sustain a finding that credible evi­dence of family violence exists. See In re A.A.E., No. 05-18-00210-CV, 2019 WL 1552450, at *4 (Tex. App.—Dallas Apr. 10, 2019, no pet.) (mem. op.).

Persistent alienation of the other parent can be a guiding consideration in making pos­session and access determinations. Allen v. Allen, 475 S.W.3d 453, 458 (Tex. App.—Houston [14th Dist.] 2015, no pet.).

The terms of an order denying possession or imposing restrictions or limitations on a parent’s right to possession or access shall not exceed those that are required to protect the child’s best interest. Tex. Fam. Code § 153.193; see In re P.A.C., 498 S.W.3d 210 (Tex. App.—Houston [14th Dist.] 2016, pet. denied) (trial court may continue super­vised possession for parent appointed joint managing conservator if warranted by cir­cumstances); see also In re K.G., No. 05-14-01171-CV, 2016 WL 3265215, at *13–14 (Tex. App.—Dallas June 13, 2016, no pet.) (mem. op.) (trial court abused discretion by imposing right of first refusal to grandmother in absence of evidence that child’s best interest requires mother to consult specifically with grandmother about supervi­sion instead of making other suitable arrangements); Newell v. Newell, 349 S.W.3d 717 (Tex. App.—Fort Worth 2011, no pet.) (trial court’s order requiring alcohol tests exceeded restrictions required to protect child’s best interest considering limited facts regarding father’s alcohol use in past and at time of trial; considering that in year before trial he tested negative for drug use multiple times; and considering drastic restriction placed on his alcohol use and severe consequences of positive alcohol test—which could be attributable to alcohol he drank while child was not in his possession); In re Walters, 39 S.W.3d 280, 286 (Tex. App.—Texarkana 2001, no pet.) (trial court may deny possession and limit or deny access even though it finds that parent should be appointed as possessory conservator).

Even when restrictions are in the best interest of the child, it remains the court’s respon­sibility to specifically define those terms in its decree. In re J.S.P., 278 S.W.3d 414, 423 (Tex. App.—San Antonio 2008, no pet.); see In re A.P.S., 54 S.W.3d 493, 499 (Tex. App.—Texarkana 2001, no pet.). The judgment must state in clear and unambiguous terms what the parties must do to comply with the possession order in a manner that is specific enough to allow an aggrieved party to obtain enforcement of the judgment by contempt. In re J.S.P., 278 S.W.3d at 423; see In re A.P.S., 54 S.W.3d at 499.

An order permitting a person the right to determine all the times a parent can have pos­session of or access to a child is permitted in rare cases. Generally, rulings from courts of appeals have held that such an order was an abuse of discretion by the trial court. An order allowing a parent possession of and access to a child solely at the discretion of the other parent affords the other parent complete discretion over a parent’s possession, is a complete denial of possession and access to the child, denies the remedy of enforce­ment to a parent, and is an abuse of the trial court’s discretion. See In re Marriage of Collier, 419 S.W.3d 390 (Tex. App.—Amarillo 2011, no pet.). By conditioning access to times agreeable to the child or children, a trial court creates the potential for a denial of all access and gives a parent no ability to enforce the order by contempt. See In re S.V., 599 S.W.3d 25, 37 (Tex. App.—Dallas 2017, pet. denied). The Texas Supreme Court, however, held that in certain cases such orders are permissible. In deciding that a trial court properly gave the managing conservators, an aunt and uncle, the right to authorize the mother to have supervised visitation with the children at the managing conservators’ sole discretion, the Texas Supreme Court examined the meanings of “deny,” “restriction,” and “limitation.” To “deny” is “to not allow someone to have or do something.” A “restriction” is something that “confines within bounds” or “restrains,” and a “limitation” is something that “bounds, restrains, or confines.” In other words, a denial is an outright refusal to allow certain conduct to occur, whereas a restriction or limitation confines conduct to certain bounds. The court held that the trial court’s visitation order fell into the limitation category, reasoning that under the visita­tion order, the mother could obtain access to her children either (a) when she and the managing conservators agree or, if they cannot reach an agreement, (b) when the man­aging conservators consent to access. In re J.J.R.S., 627 S.W.3d 211, 220 (Tex. 2021), cert. denied sub nom. R.S.  C. v. Texas Department of Family & Protective Services, 142 S. Ct. 1139 (2022). “In other words, the order restricts and limits the mother’s access to her children to supervised visitation at the managing conservators’ discretion.” In re J.J.R.S., 627 S.W.3d at 220. The court concluded that the restriction was undoubtedly a severe one, permissible only if necessary to protect the children's best interest, but it was not an outright denial that forecloses all access. In re J.J.R.S., 627 S.W.3d at 220. The court held that Texas Family Code sections 153.006(c) and 153.193, read in con­junction, permit the kind of “as agreed” order at issue in In re J.J.R.S. in the narrow cir­cumstance where such a severe restriction is necessary to protect the child’s best interest. In re J.J.R.S., 627 S.W.3d at 221. The court further held that the Family Code does not require—nor has the Texas Supreme Court ever held—that trial courts must issue orders that are always enforceable by contempt. Whether a conservator may enforce an order by contempt depends on the contents of the order and the facts and cir­cumstances of the particular case. In re J.J.R.S., 627 S.W.3d at 224. The court reasoned that the mother had a remedy in that if she and the managing conservators were unable to reach an agreement for access, the mother could move for a modification of the orig­inal order if the circumstances have materially or substantially changed and if a modifi­cation would be in the best interest of the children. In re J.J.R.S., 627 S.W.3d at 224.

A court may require a parent to complete a fifty-two-week batterer’s intervention pro­gram as a precondition to increased possession without a finding that the party has a history of physical abuse if there is evidence supporting a finding that such an order is in the child’s best interest. See Barndt v. Barndt, No. 03-17-00796-CV, 2019 WL 1746995, at *4–5 (Tex. App.—Austin Apr. 19, 2019, no pet.) (mem. op.).

A court may order a party to participate in counseling with a qualified mental health professional if it finds at the time of the hearing that the parties have a history of con­flict in resolving an issue of conservatorship or possession of or access to the child. Tex. Fam. Code § 153.010; see In re Scheller, 325 S.W.3d 640, 645 (Tex. 2010) (orig. pro­ceeding) (per curiam). There is no requirement in section 153.010 that the ordered counseling be conditioned on or linked to any possession of the children or tied as a condition to lifting restrictions imposed on the party’s possession of or access to the party’s child. See Tex. Fam. Code § 153.010; In re J.H.C., No. 11-17-00187-CV, 2019 WL 2557542, at *9 (Tex. App.—Eastland June 20, 2019, no pet.) (mem. op.); but see In re Marriage of Swim, 291 S.W.3d 500 (Tex. App.—Amarillo 2009, no pet.) (stand-alone order of indefinite duration imposing conditions requiring parent to continue tak­ing medication, going to counseling, and attending AA meetings that are not conditions precedent to possession and access, and compliance with which is not a requirement in order to obtain or enhance parent’s rights of possession and access, is abuse of discre­tion).

A court may deny, restrict, or suspend possession of a child by a parent until the parent has attended therapeutic family counseling. See Acosta v. Soto, 394 S.W.3d 665, 667 (Tex. App.—El Paso 2012, no pet.).

Generally, trial courts must exercise their judicial power to decide disputed issues and not delegate the decision of questions within their jurisdiction. However, limited cir­cumstances may require the delegation of some authority to a neutral third party to pro­tect the best interest of a child and to minimize, when possible, the restrictions placed on a parent’s right to possession of and access to a child. The trial court’s ability to obtain assistance from a third party is not limitless, however. The trial court must main­tain the power to enforce its judgment, and the trial court’s order appointing a third party to assist in deciding issues related to possession and access must be sufficiently specific as to be enforceable by contempt. See Waters v. Waters, No. 04-16-00690-CV, 2017 WL 6345223, at *5 (Tex. App.—San Antonio Dec. 13, 2017, no pet.) (mem. op.). In addition, a court errs if it appoints a person or entity not a party to the suit or other­wise a participant in the litigation as a “tiebreaker” in a custody dispute when that per­son or entity objects to serving in that role. See In re A.C.P.C., No. 12-22-00080-CV, 2022 WL 3452267, at *2 (Tex. App.—Tyler Aug. 17, 2022, no pet. h.) (mem. op.).

The court may also condition access on a bond and is empowered to set the amount and conditions. See Tex. Fam. Code § 153.011; In re A.R., 236 S.W.3d 460, 470 (Tex. App.—Dallas 2007, no pet.).

The Family Code provides guidelines to be followed by courts in determining the terms and conditions for possession of a child by a parent named as a possessory conservator. See Tex. Fam. Code §§ 153.192(b), 153.251–.258, 153.311–.3171. There is a rebuttable presumption that a standard possession order is in the best interest of the child. See Tex. Fam. Code § 153.252. A court may deviate from the terms of the standard order if those terms would be unworkable or inappropriate. See Tex. Fam. Code § 153.253. The Fam­ily Code does not require that a trial court make a predicate finding of endangerment before it deviates from the standard possession order. See Tex. Fam. Code §§ 153.253, 153.256; In re S.C.B., 581 S.W.3d 434, 439 (Tex. App.—El Paso 2019, no pet.). The Family Code also allows the trial court to consider the following when ordering the terms of possession of a child: the age, developmental status, circumstances, needs, and best interest of the child; the circumstances of the managing conservator and of the par­ent named as a possessory conservator; and any other relevant factor. See Tex. Fam. Code § 153.256. The commission of family violence is a relevant factor. In re M.C., No. 06-18-00072-CV, 2019 WL 1983384, at *3 (Tex. App.—Texarkana May 6, 2019, no pet.) (mem. op.).

Alternative beginning and ending times for possession may be elected by a possessory conservator who lives 100 miles or less from the child’s primary residence. Tex. Fam. Code § 153.317(a). However, all the alternative times will generally be provided with­out the election if the possessory conservator lives not more than fifty miles from the child’s primary residence. The alternative times will not be provided if such a conserva­tor declines one or more of the alternative times or the court finds the provision would not be in the child’s best interest. Tex. Fam. Code § 153.3171(a), (b). An election for the expanded standard possession order must be made before or at the time of the rendi­tion of a possession order. Tex. Fam. Code § 153.317(b). An election made after rendi­tion comes too late. See Howe v. Howe, 551 S.W.3d 236, 260 (Tex. App.—El Paso 2018, no pet.).

When possession of a child by a parent is contested and the possession of the child var­ies from the standard possession order, on proper request by a party the court shall state in writing the specific reasons for the variance from the standard possession order. See Tex. Fam. Code § 153.258. The use of the word shall in the statute imposes a duty, and the failure of a trial court to comply with that duty is an abuse of discretion. See In re Rangel, No. 04-17-00060-CV, 2017 WL 1161173 (Tex. App.—San Antonio Mar. 29, 2017, orig. proceeding) (mem. op.) (even when temporary order is rendered that devi­ates from standard possession order, party has right to request findings, and trial court must comply with duty imposed by statute). On request by a party, the court shall make findings of fact and conclusions of law with respect to an order under Family Code sec­tion 153.3171, which concerns alterations of the standard possession order to provide alternative beginning and ending possession times without an election for those alterna­tives when the possessory conservator resides not more than fifty miles from the child’s primary residence. Tex. Fam. Code § 153.3171(c).

Provisions regarding temporary orders that may affect possession during and immedi­ately following the military deployment, military mobilization, or temporary military duty of a parent possessory conservator are contained in Tex. Fam. Code §§ 153.701–.709.

§ 40.13Alternative Possession and Access for Certain Religious Holidays

In addition to or in lieu of periods of holiday possession or access specified in the stan­dard possession order, some parties of faith wish to include religious holidays or dates of religious observance in an order for possession of and access to a child. The follow­ing discussion is an effort to inform of the dates of religious observance by three of the more common faiths and guide the practitioner in an understanding of the meaning of those observances. This manual does not attempt to present a thorough study of any religion or its holidays, just a brief overview of the principal holidays of the more com­mon faiths.

In each case, consultation with the client about how the family celebrates their faith and culture is advised in order to carefully craft appropriate holiday provisions.

§ 40.13:1Christian Holidays

There are many Christian denominations, each with its own customs, liturgies, and observances. This manual does not advocate one denomination over another, denomi­national churches over nondenominational churches, or Christianity over other reli­gions. References to “our Lord” come from the names of the holidays. The dates of holidays can differ between Orthodox churches and Western Christian churches due to their use of different calendars.

Christmas:      Christmas (the Feast of our Lord’s Nativity) remembers the birth of Christ and celebrates the Incarnation—God’s becoming human. In the Western churches, Christmas Day occurs on December 25. In some Orthodox churches, Christ­mas Day may fall on January 6 or 7. Many Christians attend church on Christmas Eve in the evening or late at night, and many do so instead of going to church on Christmas Day. There are many Christmas customs, including displays of evergreen garlands, crèches (also known as Nativity scenes), and Christmas trees. The exchange of presents is common among most Christians and many non-Christians. The Christmas season lasts twelve days.

Epiphany:      The Epiphany of our Lord Jesus Christ occurs on January 6 in the West­ern church calendar. In some Orthodox churches, Epiphany may occur on January 19 or 20. The feast celebrates the day the Christ was revealed to the Gentiles, represented by Wise Men from the East following a star. “Epiphany” comes from the Greek “to show forth” or “reveal.”

Lent:      The season of Lent begins on Ash Wednesday and lasts forty days, but Sundays are not counted among these forty days. As a result, the last day of Lent, Holy Saturday, occurs forty-six days after Ash Wednesday but is considered the fortieth day of Lent. On Ash Wednesday, ashes are placed on foreheads as a reminder of mortality and the need for repentance. Lent is a season of penitence and fasting to prepare for Easter. The last week of Lent is Holy Week, which begins with Palm Sunday, a commemoration of Jesus’s entry into Jerusalem. Many Christians attend church services each day of Holy Week, especially the services at the end of the week. The Maundy Thursday service remembers Jesus’s washing the feet of his disciples, the Last Supper with his disciples, and his commandment to his disciples to love one another. (Maundy comes from the Latin word “mandatum,” which means “command.”) On Good Friday, the church remembers Jesus’s arrest, trial, crucifixion, and death. On the night of Holy Saturday, some churches will hold an Easter Vigil, a service beginning in darkness changing to light, at which the resurrection of the Lord is celebrated.

Easter:      Easter Day celebrates the resurrection of Jesus Christ and is the most import­ant of all Christian holidays. Church services may begin at dawn. Easter Day is a time of great celebration. Easter Day is always the first Sunday after the full moon that falls on or after March 21. It cannot occur before March 22 or after April 25. Easter deter­mines the beginning of Lent on Ash Wednesday, the days of Holy Week, Ascension Day, day of Pentecost, and Trinity Sunday.

Other Holidays:      Throughout the church year, there are other greater and lesser holi­days, not all celebrated by each Christian denomination. For example, forty days after Easter Day is Ascension Day, the day the risen Christ ascended to heaven. Pentecost Sunday occurs seven weeks after Easter Sunday, making it the fiftieth day after Easter inclusive of Easter Sunday. (Pentecost comes from the Greek word meaning “fiftieth.”) Also known as Whitsunday, Pentecost remembers the Holy Spirit’s descending on the disciples. There are numerous saints’ days and All Saints’ Day (November 1), which can have particular significance to members of certain parishes and congregations that are named after those saints. The Roman Catholic Church and the Orthodox churches have other days of observation that may be special to a client.

Websites:      Some useful websites for identifying Christian holidays and determining their dates are—

www.officeholidays.com—Shows public holidays of countries and religions up to two years into the future. Go to the “Calendars” tab for dates. For explanations of some hol­idays, go to the “Upcoming” tab, then “Religious Holidays.”

www.bcponline.org—Book of Common Prayer of the Episcopal Church. Go to the tabs marked “The Calendar of the Church Year” and “Tables for Finding Holy Days.”

www.lectionarypage.net—Liturgical calendar of the Episcopal Church in calendar format.

www.usccb.org/about/divine-worship/liturgical-calendar/index.cfm—United States Conference of Catholic Bishops: liturgical calendar page with PDFs of the current and next two years.

www.goarch.org/chapel/calendar—Greek Orthodox Archdiocese of America: Calen­dar of Saints, Feasts, and Readings in the Orthodox Church.

§ 40.13:2Jewish Holidays

Jewish holidays and festivals are celebrated according to the lunar calendar. The Jewish year contains twelve months of twenty-nine or thirty days, with an extra month added seven times every nineteen years in order to align it with the solar calendar approxi­mately every three years, so that the festival of Passover is always celebrated in the spring.

In the United States there are generally three “denominations” of Judaism—Orthodox, Conservative, and Reform. Which Jewish holidays and festivals are celebrated and for how long depends on the branch with which a person affiliates or identifies.

Orthodox Jews celebrate and attend religious services on all holidays and festivals and every Sabbath, which begins at sundown on Friday night and ends after sundown on Saturday. Most Orthodox Jews will refrain from riding in a car, working, and adjusting the electricity in their homes on the Sabbath or holidays. Reform Jews generally cele­brate only Rosh Hashanah, Yom Kippur, Passover, and Hanukkah. Rosh Hashanah and Yom Kippur are celebrated by attending synagogue services, and Passover and Hanuk­kah are celebrated by Reform Jews in their homes. Synagogue attendance is not as cen­tral to Reform Judaism. Conservative Jews are closer to Orthodox Jews in their observance, but they will drive and work and utilize electricity in their homes on holi­days and the Sabbath.

Rosh Hashanah and Yom Kippur:      The most important holidays to all Jews are Rosh Hashanah and Yom Kippur, which occur in the early fall. Rosh Hashanah is the Jewish New Year and is celebrated for two days by Orthodox and Conservative Jews. Many Reform Jews observe it for one day, although some observe it for two days. Yom Kippur is the Day of Atonement and is celebrated by fasting and prayer in the syna­gogue.

Passover:      Passover is celebrated by attendance at a “seder” meal with family and friends and the reading of the story of Moses and the Exodus from Egypt. Orthodox and Conservative Jews have two seder meals, on the first and second days of the eight-day Passover holiday. Most Reform Jews hold only one seder meal.

Hanukkah:      Hanukkah commemorates the rededication of the Jewish Temple in 165 B.C.E. by the Maccabees after its destruction by the Syrians. The holiday lasts eight days and is marked by the kindling of candles and the giving of gifts.

Other Holidays:      There are many other Jewish holidays and festivals, including—

Purim—Purim is based on the Book of Esther and celebrates the saving of the Jews from genocide at the hands of Haman, an official in the court of King Ahasuerus around the 4th Century B.C.E., by Queen Esther and her adopted father Mordechai. Purim is sometimes called Jewish Hallowe’en, since Jewish children wear masks and costumes on the holiday and drown out the name of Haman with noisemakers when they listen to the reading of the Purim story.

Sukkot—Sukkot is a harvest festival, celebrated by eating all meals out of doors for the eight days of the festival. Jews build temporary structures (sukkots) outside their homes, with the roofs covered in greenery. The last day of the festival is called Shemini Atzeret.

Simchat Torah—Jews read a portion of the Torah (the five books of Moses—Genesis, Exodus, Leviticus, Numbers, and Deuteronomy) each Sabbath for an entire year. Sim­chat Torah celebrates the conclusion of the public reading of the Torah and the begin­ning of a new cycle for the next year.

Shavuot—Shavuot, another harvest festival, commemorates the anniversary of the day that Moses received the Ten Commandments on Mount Sinai.

§ 40.13:3Muslim Holidays

Muslims around the world typically celebrate Eid Al-Fitr and Eid Al-Adha, two major religious holidays. The exact way that these holidays are celebrated varies by country and by different Sunni and Shia Islam sects. In addition, some Muslims from certain countries celebrate cultural holidays, such as Nowruz, the Persian New Year.

Eid Al-Fitr:      Eid Al-Fitr is celebrated for one, two, or three days and marks the end of Ramadan, the holy month of dawn-to-sunset fasting. The date for the start of the holi­day varies based on the Islamic lunar calendar, but generally the date shifts approxi­mately eleven days earlier each year. The holiday typically involves prayers, celebratory feasts, and visiting with friends and family.

Eid Al-Adha:      Eid Al-Adha, also called the “Festival of the Sacrifice,” honors the willingness of Abraham to sacrifice his son as an act of obedience to God’s command; in commemoration, an animal is sacrificed. Some families go to a local farm for the sacrifice, while other families have the sacrifice done for them elsewhere; a portion of the meat is distributed to the poor. The date for the start of the holiday varies based on the Islamic lunar calendar, but generally the holiday occurs two months and ten days after Eid Al-Fitr. The holiday also involves prayers and visiting with friends and family.

§ 40.14Interview with Child

In a nonjury trial or at a hearing, on the application of a party, the amicus attorney, or the child’s attorney ad litem, the court shall interview a child twelve years of age or older, and may interview a child younger than twelve years of age, in chambers to deter­mine the child’s wishes about conservatorship or about the person who will have the exclusive right to determine the child’s primary residence. The court may also interview a child in chambers on the court’s own motion for such a purpose. Tex. Fam. Code § 153.009(a). Section 153.009(a) does not require a formal motion, nor does it distin­guish between an oral or written application. In re J.N., No. 05-20-00695-CV, 2022 WL 1211200, at *5 (Tex. App.—Dallas Apr. 25, 2022, pet. filed) (mem. op.).

In a nonjury trial or at a hearing, on the application of a party, the amicus attorney, or the child’s attorney ad litem, or on the court’s own motion, the court may interview the child in chambers to determine the child’s wishes about possession, access, or any other issue in the suit affecting the parent-child relationship. Tex. Fam. Code § 153.009(b).

In a jury trial, the court may not interview a child in chambers about an issue on which a party is entitled to a jury verdict. Tex. Fam. Code § 153.009(d).

In any trial or hearing, the court may permit the attorney for a party, the amicus attor­ney, the child’s guardian ad litem, or the child’s attorney ad litem to be present at the interview. Tex. Fam. Code § 153.009(e). On the motion of a party, the amicus attorney, or the child’s attorney ad litem, or on the court’s own motion, the court shall cause a record of the interview to be made when the child is twelve years of age or older, and the record of the interview shall be a part of the record in the case. Tex. Fam. Code § 153.009(f).

Despite the fact that section 153.009(a) imposes a mandatory duty, the trial court’s fail­ure to conduct the required interview is subject to a harm analysis. In re J.N., 2022 WL 1211200, at *5. Even if the trial court abuses its discretion by not performing a manda­tory in-chamber interview of a child, the party requesting the interview must make an offer of proof demonstrating the expected discussion between the court and the child for an appellate court to be able to determine whether the trial court’s error was harm­ful. See In re T.A.L., No. 07-17-00274-CV, 2018 WL 3862994, at *3 (Tex. App.—Amarillo Aug. 14, 2018, pet. denied) (mem. op.); see also In re N.W., No. 02-12-00057-CV, 2013 WL 5302716, at *10 (Tex. App.—Fort Worth Sept. 19, 2013, no pet.) (mem. op.). Even if a party can show a child would have expressed a preference to live with that party, the court is not obligated to make a conservatorship decision in accordance with the child’s wishes. See In re J.N., 2022 WL 1211200, at *5–6.

COMMENT:      If the trial court refuses to conduct a properly requested mandatory inter­view of a child twelve years of age or older or refuses to cause a record of the interview to be made after proper request, the party seeking the mandatory interview or record of the interview should consider preserving the error on appeal by making an offer of proof under Tex. R. Evid. 103(a)(2).

Interviewing a child does not diminish the court’s discretion in determining the child’s best interests. Tex. Fam. Code § 153.009(c).

COMMENT:      As a precaution, the practitioner should always ensure that a record of the interview is made. See Long v. Long, 144 S.W.3d 64, 69 (Tex. App.—El Paso 2004, no pet.) (court apparently based decision on what children said in interview, but no record of interview was made). If a record is not made, it is presumed that the interview of the minor child supports the trial court’s ruling. Ohendalski v. Ohendalski, 203 S.W.3d 910 (Tex. App.—Beaumont 2006, no pet.); Patterson v. Brist, 236 S.W.3d 238 (Tex. App.—Houston [1st Dist.] 2006, pet. dism’d).

§ 40.15Child Support

Child support is discussed in chapter 9 of this manual.

§ 40.16Attorney’s Fees and Costs

The court may award costs in a suit or motion under title 5 of the Family Code and in a habeas corpus proceeding. Tex. Fam. Code § 106.001. The court may also render judg­ment for reasonable attorney’s fees and expenses in a suit under title 5 of the Family Code and may order the judgment and postjudgment interest to be paid directly to an attorney. A judgment for attorney’s fees and expenses may be enforced in the attorney’s name by any means available for the enforcement of a judgment for debt. Tex. Fam. Code § 106.002.

Tex. Fam. Code § 106.002 does not impose a prevailing-party requirement on an award for attorney’s fees. Although success on the merits may be relevant, it is not a compulsory requirement under the statute. In re R.E.S., 482 S.W.3d 584, 586–87 (Tex. App.—San Antonio 2015, no pet.).

Attorney’s Fees in Temporary Orders:      In a suit affecting the parent-child relation­ship, the court can make a temporary order for the safety and welfare of a child, includ­ing an order for payment of reasonable attorney’s fees and expenses. Tex. Fam. Code § 105.001(a)(5). A party seeking a temporary order for interim attorney’s fees under this section has the burden of showing that payment of the requested attorney’s fees is necessary for the safety and welfare of the children. The trial court may not make a temporary order for payment of attorney’s fees under this section for another purpose, including an order for the purpose of leveling the playing field. See In re Payne, No. 03-17-00757-CV, 2018 WL 1630933, at *2 (Tex. App.—Austin Apr. 5, 2018, orig. proceeding) (mem. op.).

Attorney’s Fees on Appeal:      Attorney’s fees on appeal are discussed in section 20.16 in this manual.

Fees for Court-Appointed Representatives:      In a suit other than a suit filed by a governmental entity requesting termination of the parent-child relationship or appoint­ment of the entity as conservator of the child, in addition to the attorney’s fees that may be awarded under Family Code chapter 106, the following persons are entitled to rea­sonable fees and expenses in an amount set by the court and ordered to be paid by one or more parties to the suit: (1) an attorney appointed as an amicus attorney or as an attorney ad litem for the child and (2) a professional who holds a relevant professional license and who is appointed as guardian ad litem for the child, other than a volunteer advocate. Tex. Fam. Code § 107.023(a). The court may determine that such fees are necessaries for the benefit of the child. Tex. Fam. Code § 107.023(d). A friend of the court is entitled to compensation for services rendered and for expenses incurred in ren­dering the services. Tex. Fam. Code § 202.005(a).

Attorney’s Fees as Condition Precedent to Filing Suit:      Denying a party access to courts absent payment of money has been found to be a denial of access to courts under due course of law. Byars v. Evans, No. 07-14-00064-CV, 2016 WL 105671, at *5 (Tex. App.—Amarillo Jan. 8, 2016, no pet.) (mem. op.) (citing In re Flores, 135 S.W.3d 863, 865 (Tex. App.—Houston [1st Dist.] 2004, orig. proceeding)). In Byars, the trial court’s order provided that “except upon good cause shown by sworn affidavit, prior to filing any further Motions regarding the children, Father shall demonstrate that he has paid no less than $10,000 of the attorney’s fees awarded” to the mother. The court dis­tinguished Flores because the father in Flores was not permitted to proceed to trial under any circumstances other than payment of interim attorney’s fees, resulting in a complete denial of his access to courts. In Byars, the court found that the trial court’s order—in a family law case where there was a strong level of animosity between the parties—conditioning the filing of further motions on compliance with a reasonable condition to be akin to the denial of access to the courts imposed on a vexatious liti­gant through the use of a prefiling order. Because the father’s access to court was ini­tially conditioned “upon good cause shown by sworn affidavit” before filing a motion regarding his children, the denial of access to the courts was not absolute. See Byars, 2016 WL 105671, at *5.

Sanctions in the nature of attorney’s fees cannot be awarded for a hypothetical suit that may be filed in the future. See In re S.V., 599 S.W.3d 25, 42 (Tex. App.—Dallas 2017, pet. denied) (trial court ordered that if father should initiate further litigation other than child support modification or enforcement, he would pay all attorney’s fees for both parties and pay mother or her attorney $5,000 on filing of suit).

§ 40.17Temporary Orders

In a suit affecting the parent-child relationship, the court may make a temporary order, including the modification of a prior temporary order, for the safety and welfare of the child, including an order (1) for the temporary conservatorship of the child, (2) for the temporary support of the child, (3) restraining a party from disturbing the peace of the child or of another party, (4) prohibiting a person from removing the child beyond a geographical area identified by the court, or (5) for payment of reasonable attorney’s fees and expenses. Tex. Fam. Code § 105.001(a).

The fact-driven nature of temporary orders does not mean that trial courts may rely completely on their own ad hoc determinations of what best serves the safety and wel­fare for the child. Rather, a trial court’s order must comport with the legislatively pro­nounced public policy guidelines that apply in all suits affecting the parent-child relationship. See Lenz v. Lenz, 79 S.W.3d 10, 14 (Tex. 2002).

A court abuses its discretion in imposing temporary orders without due regard for the current living situations of the parties, especially the stability of the child’s current liv­ing situation, and without regard for the financial or practical ability of the parties to comply with the court’s orders. In re Casanova, No. 05-14-01166-CV, 2014 WL 6486127, at *4 (Tex. App.—Dallas Nov. 20, 2014, orig. proceeding) (mem. op.).

A court may not render a temporary order in a suit for modification that has the effect of creating a designation, or changing the designation, of the person who has the exclusive right to designate the primary residence of the child, or the effect of creating a geo­graphic area, or changing or eliminating the geographic area, within which a conserva­tor must maintain the child’s primary residence, under the final order unless the temporary order is in the best interest of the child and other conditions are satisfied. Tex. Fam. Code § 156.006(b)(1), (b)(2), (b)(3), (b–1). In re Barker, No. 03-21-00036-CV, 2021 WL 833970, at *8 (Tex. App.—Austin Mar. 4, 2021, orig. proceeding) (mem. op.) (trial court abused its discretion in rendering temporary orders that changed desig­nation of conservator with exclusive right to designate children’s primary residence in absence of evidence to support finding of risk of significant impairment of children’s physical health or emotional development under their present circumstances).

In entering temporary orders, a trial court is required to attempt to avoid disrupting the child’s education. See In re Casanova, 2014 WL 6486127, at *5 (finding trial court’s order would have required five-and-a-half year-old child to attend her fourth school in three years).

The trial court must also consider the positive benefit of frequent contact with the child’s extended family. The opportunity to strengthen the child’s relationship with extended family members who may serve as emotional support during the difficult change in the configuration of the child’s immediate family is a further benefit the trial court is required to take into account in assessing whether altering the child’s primary residence is advisable. See In re Casanova, 2014 WL 6486127, at *5.

The trial court must give effect to the policy imperative that dictates the enforcement, to the degree possible, of agreements reached without judicial intervention. Public policy particularly favors the nonjudicial resolution of disputes concerning the parent-child relationship. See In re Casanova, 2014 WL 6486127, at *5 (citing Tex. Civ. Prac. & Rem. Code § 154.002, which states that it is the public policy of Texas to “encourage the peaceable resolution of disputes, with special consideration given to disputes involving the parent-child relationship”).

An order may not be entered for temporary conservatorship of a child (except in an emergency order sought by a governmental entity under Family Code chapter 262), for temporary support of a child, or for payment of reasonable attorney’s fees and expenses, except after notice and hearing. See Tex. Fam. Code § 105.001(b), (h).

Absent a finding supported by evidence that the safety and welfare of a child will be significantly impaired by the appointment of a parent as the child’s managing conserva­tor, the parent’s decision regarding whether the child will have any contact with third parties is a fundamental right of a parent, and it is unconstitutional for the trial court to enter temporary orders appointing third parties as temporary possessory conservators. In re Aubin, 29 S.W.3d 199, 203–04 (Tex. App.—Beaumont 2000, orig. proceeding).

A temporary order in a suit affecting the parent-child relationship rendered in accor­dance with Family Code section 105.001 is not required to include a temporary parent­ing plan. The court may not require the submission of a temporary parenting plan in any case or by local rule or practice. Tex. Fam. Code § 153.602.

A court does not have the authority to issue a temporary order that effects a permanent name change. See In re Pacharzina, No. 03-12-00353-CV, 2012 WL 2161005, at *2 (Tex. App.—Austin June 14, 2012, orig. proceeding) (mem. op.).

Chapter 156 of the Family Code (modification) does not apply to modifications of tem­porary orders. The policy concerns regarding finality of judgments and the cessation of custody litigation are not implicated in the same way by modifications of temporary orders because at the time of their entry or modification the litigation concerning the child is ongoing. For that reason, the Family Code expressly sets forth a different test by which the propriety of temporary orders and any modifications of temporary orders are to be measured, namely whether temporary orders are for the “safety and welfare” of the child. In re McPeak, 525 S.W.3d 310, 314 (Tex. App.—Houston [14th Dist.] 2017, orig. proceeding); In re Casanova, 2014 WL 6486127, at *3.

Temporary orders for the payment of reasonable attorney’s fees and expenses are dis­cussed in section 40.16 above.

Modification of temporary orders is further discussed in section 4.15 in this manual, and temporary orders pending appeal are discussed in section 4.18.

§ 40.18Jury

A party has a limited right to a jury trial on timely demand and payment of the jury fee. Tex. Fam. Code § 105.002(a); Tex. R. Civ. P. 216. In a jury trial, a party is entitled to a verdict by the jury and the court may not contravene a jury verdict on the issues of (1) the appointment of a sole managing conservator; (2) the appointment of joint man­aging conservators; (3) the appointment of a possessory conservator; (4) the determina­tion of which joint managing conservator has the exclusive right to designate the primary residence of the child; (5) the determination of whether to impose a restriction on the geographic area in which a sole or joint managing conservator may designate the child’s primary residence; and (6) if such a restriction is imposed, the determination of the geographic area within which the sole or joint managing conservator must designate the child’s primary residence. Tex. Fam. Code § 105.002(c)(1).

The court may not submit to the jury questions on the issues of (1) support under Fam­ily Code chapter 154 or 159; (2) a specific term or condition of possession of or access to the child; or (3) any right or duty of a conservator, other than which joint managing conservator has the exclusive right to designate the primary residence of the child and determinations concerning geographic restrictions on the child’s primary residence imposed on either a sole or joint managing conservator. Tex. Fam. Code § 105.002(c)(2).

§ 40.19Child Custody Evaluation

In a suit affecting the parent-child relationship, the court may order the preparation of a child custody evaluation regarding (1) the circumstances and conditions of the child, a party to the suit, and, if appropriate, the residence of any person requesting conservator­ship of, possession of, or access to the child and (2) any issue or question relating to the suit at the request of the court before or during the evaluation process. Tex. Fam. Code § 107.103(a). A person who has not conducted a child custody evaluation may not offer an expert opinion or recommendation relating to conservatorship, possession, or access except in a suit in which the Department of Family and Protective Services is a party. Tex. Fam. Code § 104.008(a), (c). See In re Gopalan, No. 03-21-00209-CV, 2021 WL 2964263 (Tex. App.—Austin July 15, 2021, orig. proceeding [mand. denied]) (mem. op.) (expert witness hired to critique child custody evaluation was excluded from testi­fying because he did not qualify as a child custody evaluator and his testimony suffi­ciently “related to” conservatorship, possession, and access to warrant exclusion under section 104.008(a)). But see In re Ortegon, 616 S.W.3d 48, 52 (Tex. App.—San Anto­nio 2020, orig. proceeding) (because guardian ad litem is entitled by statute to testify about best interests of child in custody proceeding, trial court abused its discretion in excluding ad litem’s report in which he concluded that it was not in child’s best interest to lift geographic restriction).

Child Custody Evaluator:      A ‘‘child custody evaluator’’ means an individual who conducts a child custody evaluation. The term includes a private child custody evalua­tor. Tex. Fam. Code § 107.101(2).

Specific minimum educational, licensure, and experience qualifications are required of most child custody evaluators. Tex. Fam. Code § 107.104(b)(1), (b)(2), (c), (d). An individual who is employed by or under contract with a domestic relations office may conduct a child custody evaluation, provided that the individual conducts child cus­tody evaluations relating only to families ordered by a court to participate in child cus­tody evaluations conducted by the domestic relations office. Tex. Fam. Code § 107.104(b)(3). Training in family violence dynamics is also required. Tex. Fam. Code § 107.104(e). In certain counties with a population of less than 500,000, if an individual meeting the requirements is not available in the county to conduct a child custody eval­uation in a timely manner, the court may appoint an individual the court determines to be otherwise qualified to conduct the evaluation. Tex. Fam. Code § 107.106(a), (a–1). Provisions concerning conflicts of interest or bias on the part of the child custody eval­uator are set out at Tex. Fam. Code § 107.107.

General Provisions for Evaluation and Report:      The child custody evaluator must conform to professional standards and any local or court-imposed rules, using evi­dence-based practice methods and using the current best evidence in making assess­ments and recommendations. The evaluator must disclose communications with an attorney of record in the case (except an attorney ad litem or amicus attorney), verify pertinent facts and information in the report, and state the basis for conclusions or rec­ommendations. If only one side of a disputed case has been evaluated, no recommenda­tion may be made, but the evaluator may state whether the party evaluated appears suitable for conservatorship. The report must include the identification and basis for qualification of each evaluator who conducted any part of the evaluation. Tex. Fam. Code § 107.108.

Elements of Child Custody Evaluation:      Elements required in a child custody evalu­ation, including interviews, observation, evaluation of home environments, contact with collateral sources, and assessment of the child’s relationship with each party seek­ing possession or access, are set out in detail in Tex. Fam. Code § 107.109(c) and (d). The evaluator must complete the basic elements identified in section 107.109(c) and any additional element ordered by the court, unless the failure to complete an element is satisfactorily explained, before offering an opinion about conservatorship. The evalua­tor must identify any basic element identified in subsection (c) or additional element identified in subsection (d) that was not completed, explain why the element was not completed, and explain the likely effect of the missing element on the evaluator’s confi­dence in his expert opinion. Tex. Fam. Code § 107.109(a), (b).

Testing:      A child custody evaluator may conduct psychometric testing as part of a child custody evaluation if it is ordered by the court or determined necessary by the child custody evaluator and the child custody evaluator is appropriately licensed and trained to administer and interpret the specific psychometric and tests selected and is trained in the specialized forensic application of psychometric testing. Tex. Fam. Code § 107.110(a). If a child custody evaluator considers psychometric testing necessary but lacks specialized training or expertise to use the specific tests, the evaluator may des­ignate a licensed psychologist to conduct the testing and may request additional orders from the court. Tex. Fam. Code § 107.110(d).

Communications and Recordkeeping:      Notwithstanding any rule, standard of care, or privilege applicable to the professional license held by a child custody evaluator, a communication made by a participant in a child custody evaluation is subject to dis­closure and may be offered in any judicial or administrative proceeding if otherwise admissible under the rules of evidence. Tex. Fam. Code § 107.112(a). Provisions for the making and retention of records by the child custody evaluator are set out in Tex. Fam. Code § 107.112(b)–(h).

COMMENT:      A child custody evaluation report will likely contain private information about a party or child, such as information about the health care and mental health of such an individual, including any results of psychometric testing conducted by the child custody evaluator, and other information of a personal nature that may not be appropri­ate for public consumption. Because there is no express statutory provision for sealing of the child custody evaluation report, it may be appropriate to seek an order from the court to seal the report to maintain some measure of privacy for the individual.

Fees:      If the court orders a child custody evaluation to be conducted, the court must award the person appointed as the child custody evaluator a reasonable fee for the preparation of the evaluation to be imposed in the form of a money judgment and paid directly to the agency or other person. The person may enforce the judgment for the fee by any means available under law for civil judgments. Tex. Fam. Code § 107.115.

Expert Testimony:      In measuring the reliability of an expert’s testimony regarding parenting and psychological assessments, the “soft” science factors provided in Nenno v. State, 970 S.W.2d 549 (Tex. Crim. App. 1998), apply—that is, whether (1) the field of expertise is a legitimate one, (2) the subject matter of the expert’s testimony is within the scope of that field, and (3) the expert’s testimony properly relies on the prin­ciples involved in that field of study. See In re J.R., 501 S.W.3d 738, 747 (Tex. App.—Waco 2016, pet. denied).

§ 40.20Preferential Setting

In any suit affecting the parent-child relationship, after a hearing the court may grant a motion for a preferential setting for a trial on the merits filed by a party, the amicus attorney, or the attorney ad litem for the child and may give precedence to that hearing over other civil cases if the court finds that the delay created by ordinary scheduling practices will unreasonably affect the best interest of the child. Tex. Fam. Code § 105.004.

§ 40.21Best Interest of Child

The best interest of the child shall always be the primary consideration of the court in determining questions of conservatorship or possession of and access to a child. Tex. Fam. Code § 153.002. In determining the best interest of a child, a court may consider the nonexhaustive list of Holley factors. In re S.D.A., 587 S.W.3d 484, 491 (Tex. App.—El Paso 2019, no pet.). Those factors include (1) the desires of the child, (2) the child’s emotional and physical needs now and in the future, (3) any emotional and physical danger to the child now and in the future, (4) the parental abilities of the indi­viduals seeking primary possession, (5) the programs available to assist these individu­als to promote the child’s best interest, (6) the plans for the child by those seeking primary possession, (7) the stability of the home or proposed placement, (8) the acts or omissions of the parent that may indicate that the existing parent-child relationship is not a proper one, and (9) any excuse for the acts or omissions of the parent. Holley v. Adams, 544 S.W.2d 367, 371–72 (Tex. 1976). Not all the Holley factors apply in every case, and the presence of a single factor may, in some instances, be adequate to support a best-interest finding. Chacon v. Gribble, No. 03-18-00737-CV, 2019 WL 6336184, at *5 (Tex. App.—Austin Nov. 27, 2019, no pet.) (mem. op.). Trial courts have wide dis­cretion when deciding matters of custody, control, possession, support, or visitation. In re S.D.A., 587 S.W.3d at 490.

§ 40.22Mandatory Provisions in Order

Identification:      The order must contain the Social Security number and driver’s license number of each party to the suit, including the child, except that the child’s Social Security number or driver’s license number is not required if such a number has not been assigned to the child. Tex. Fam. Code § 105.006(a)(1).

COMMENT:      Although the Social Security and driver’s license numbers are classified as sensitive data (see Tex. R. Civ. P. 21c(a), (b)), their inclusion in a pleading in a suit affecting the parent-child relationship is statutorily required. Since the pleading must contain sensitive data, the clerk must be notified of that fact. A document that is not electronically filed must contain, on the upper left-hand side of the first page, the phrase “NOTICE: THIS DOCUMENT CONTAINS SENSITIVE DATA.” Tex. R. Civ. P. 21c(d)(2). If the document is electronically filed, it must be designated as containing sensitive data when it is filed. Tex. R. Civ. P. 21c(d)(1).

Other Required Information:      The order must also contain each party’s current resi­dence address, mailing address, home telephone number, employer’s name, employ­ment address, and work telephone number. Tex. Fam. Code § 105.006(a)(2). The court may order this information not to be disclosed to another party or may render any other order the court considers necessary if it finds after notice and hearing that requiring a party to provide the information to another party is likely to cause the child or a conser­vator harassment, abuse, serious harm, or injury or to subject the child or a conservator to family violence. Tex. Fam. Code § 105.006(c).

Requirement of Notice of Change in Required Information:      Each party shall be ordered to inform each other party, the court that rendered the order, and the state case registry under Family Code chapter 234 of an intended change in residence address, mailing address, home telephone number, name of employer, address of employment, driver’s license number, and work telephone number as long as any person is obligated to pay child support or entitled to possession or access under the order. Tex. Fam. Code § 105.006(b).

The court may order the information not to be disclosed to another party or may render any other order the court considers necessary if the court finds after notice and hearing that requiring a party to provide the information to another party is likely to cause the child or a conservator harassment, abuse, serious harm, or injury or to subject the child or a conservator to family violence. Tex. Fam. Code § 105.006(c).

The order must contain certain language in a prominently displayed statement in bold-faced type, in capital letters, or underlined ordering each party to inform each other party, the court, and the state case registry of any change of residence address, mailing address, home telephone number, name of employer, address of employment, driver’s license number, and work telephone number and warning that a failure to do so may result in further litigation to enforce the order, including contempt of court, which may be punished by confinement in jail for up to six months, a fine of up to $500 for each violation, and a money judgment for payment of attorney’s fees and court costs. Tex. Fam. Code § 105.006(e). The address for notice to the state case registry is State Case Registry, Contract Services Section, MC046S, P.O. Box 12017, Austin, TX 78711-2017.

A party shall comply with the order by giving written notice to each other party of an intended change in any of the required information. The party must give written notice by registered or certified mail of an intended change in the required information to each other party on or before the sixtieth day before the change is made. If the party does not know or could not have known of the change soon enough to provide the sixty-day notice, written notice shall be given on or before the fifth day after the date the party knew of the change. This notice may be waived by the court on motion by a party if the giving of the notice is likely to expose the child or the party to harassment, abuse, seri­ous harm, or injury. Tex. Fam. Code § 105.007.

Notice to Peace Officers:      An order in a suit that provides for the possession of or access to a child must contain certain language in a prominently displayed statement in bold-faced type, in capital letters, or underlined giving notice that any Texas peace offi­cer may use reasonable efforts to enforce the terms of the child custody order, that the peace officer and the officer’s agency are entitled to the applicable immunity regarding the officer’s good-faith performance in the scope of the officer’s duty in enforcing the terms of the order that relate to child custody, and that any person who knowingly pres­ents for enforcement an order that is invalid or no longer in effect commits an offense punishable by confinement in jail for as long as two years and a fine of as much as $10,000. Tex. Fam. Code § 105.006(e–1).

Notice Regarding Child Support:      An order in a suit that orders child support must contain certain language in a prominently displayed statement in bold-faced type, in capital letters, or underlined giving notice that the court may modify the order if the cir­cumstances of the child or a person affected by the order have materially and substan­tially changed or if it has been three years since the order was rendered or last modified and the monthly amount ordered differs by either 20 percent or $100 from the amount that would be ordered under the child support guidelines. Tex. Fam. Code § 105.006(e–2).

Warning:      The order must also contain certain language in a prominently displayed statement in bold-faced type, in capital letters, or underlined regarding the penalty for denial of possession of or access to a child and the possible consequences of failure to make child support payments exactly as ordered and informing the parties that the fail­ure of a party to pay child support does not justify denying that party court-ordered pos­session of or access to the child, nor does a party’s refusal to allow possession of or access to the child justify failure to pay court-ordered child support. Tex. Fam. Code § 105.006(d).

§ 40.23Parenting Plan

The final order in a suit affecting the parent-child relationship must include a parenting plan. Tex. Fam. Code § 153.603. Parenting plans are discussed in chapter 16 of this manual.

§ 40.24Parent Education and Family Stabilization Course; Counseling

In a suit affecting the parent-child relationship the court may order the parties to attend a parent education and family stabilization course if the court determines that the order is in the child’s best interests. The parties may not be required to attend the course together and may be prohibited from taking the course together if there is a history of family violence. Tex. Fam. Code § 105.009(a), (b).

The course, which must be at least four hours but not more than twelve hours long, must be designed to educate and assist parents about the consequences of divorce on parents and children and must cover certain topics specified in the Family Code. It may not be designed to provide individual mental health therapy or individual legal advice, and it must be available in both English and Spanish. Tex. Fam. Code § 105.009(c), (d), (m).

Information obtained in a course or a statement made by a participant to a suit during a course may not be considered in the adjudication of the suit or in any subsequent legal proceeding, and any report that results from participation may not become a record in the suit unless the parties stipulate to the record in writing. Tex. Fam. Code § 105.009(f).

A party who fails to attend or complete a course ordered by the court may be held in contempt, have his pleadings stricken, or be the subject of sanctions under rule 215 of the Texas Rules of Civil Procedure. Failure or refusal to attend or complete a course may not delay the court from rendering judgment. Tex. Fam. Code § 105.009(g).

COMMENT:      The attorney should check the local rules to determine whether the courts in that jurisdiction require parent education courses and, if so, under what cir­cumstances.

Counseling:      If the court finds at the time of a hearing that the parties have a history of conflict in resolving an issue on conservatorship or possession of or access to the child, the court may order a party to participate in counseling with a mental health pro­fessional with specialized training and to pay for that counseling. Tex. Fam. Code § 153.010(a).

§ 40.25Passport Application for Minor

Federal regulations control who may apply for a passport for a minor child. See 22 C.F.R. § 51.28.

A minor aged sixteen or above must appear in person and may execute a passport appli­cation on his own behalf unless the minor’s personal appearance is specifically excused by a senior passport authorizing officer or unless, in the judgment of the person before whom the application is executed, it is not advisable for the minor to execute his own application. In such a case, it must be executed by a parent or guardian of the minor or by a person in loco parentis, unless the personal appearance of the parent, legal guard­ian, or person in loco parentis is excused. 22 C.F.R. § 51.28(b)(1). The passport autho­rizing office may at any time require such a minor to submit the notarized consent of a parent, a legal guardian, or a person in loco parentis to the issuance of the passport. 22 C.F.R.§ 51.28(b)(2).

Minors under the age of sixteen years must appear in person, unless the minor’s per­sonal appearance is specifically excused by a senior passport authorizing officer. If the minor’s personal appearance is thus excused, the person or persons executing the appli­cation on the minor’s behalf must appear in person and verify the application by oath or affirmation unless these requirements are also excused. 22 C.F.R. § 51.28(a)(1).

Except as specifically provided in the regulation, both parents or each of the minor’s legal guardians, if any, whether applying for a passport for the first time or for a renewal, must execute the application on behalf of the minor and provide documentary evidence of parentage or legal guardianship showing the minor’s name, the minor’s date and place of birth, and the names of the parent or parents or legal guardian. 22 C.F.R. § 51.28(a)(2).

A passport application may be executed on behalf of a minor under age sixteen by just one parent or legal guardian if that person provides either a notarized written statement or notarized affidavit from the nonapplying parent or guardian, if applicable, consenting to the issuance of the passport or documentary evidence that he or she is the sole parent or has sole custody of the child. 22 C.F.R. § 51.28(a)(3).

An individual may apply in loco parentis on behalf of a minor under age sixteen by sub­mitting a notarized written statement or a notarized affidavit from both parents or each legal guardian, if any, specifically authorizing the application. However, if only one parent or legal guardian provides the notarized written statement or notarized affidavit, documentary evidence that an application may be made by one parent or legal guardian, consistent with section 51.28(a)(3), must be presented. 22 C.F.R. § 51.28(a)(4).

Documentary evidence in support of an application executed on behalf of a minor under age sixteen by one parent or legal guardian or by a person in loco parentis may include, but is not limited to—

1.a birth certificate providing the minor’s name, the minor’s date and place of birth, and the name of only the applying parent;

2.a Consular Report of Birth Abroad of a Citizen of the United States of America or a Certification of Report of Birth of a United States Citizen providing the minor’s name, the minor’s date and place of birth, and the name of only the applying parent;

3.a copy of the death certificate for the nonapplying parent or legal guardian;

4.an adoption decree showing the name of only the applying parent;

5.an order of a court of competent jurisdiction (1) granting sole custody to the applying parent or legal guardian and containing no travel restrictions inconsis­tent with issuance of the passport, (2) specifically authorizing the applying par­ent or legal guardian to obtain a passport for the minor, regardless of custodial arrangements, or (3) specifically authorizing the travel of the minor with the applying parent or legal guardian;

6.an order of a court of competent jurisdiction terminating the parental rights of the nonapplying parent or declaring the nonapplying parent or legal guardian to be incompetent.

22 C.F.R. § 51.28(a)(3)(ii)(A)–(F).

An order of a court of competent jurisdiction providing for joint legal custody or requir­ing the permission of both parents or the court for important decisions will be inter­preted as requiring the permission of both parents or the court, as appropriate. Even if such an order exists, a passport may be issued when there are compelling humanitarian or emergency reasons relating to the minor’s welfare. 22 C.F.R. § 51.28(a)(3)(ii)(G).

Provisions for issuance of a passport when only one parent, legal guardian, or person acting in loco parentis executes the application in cases of exigent or special family cir­cumstances are set out in subsection (a)(5) of the regulation. See 22 C.F.R. § 51.28(a)(5).

Any State Department official adjudicating a passport application on behalf of a minor may require an applicant to submit other documentary evidence deemed necessary to establish the applying adult’s entitlement to obtain a passport on behalf of a minor under the age of sixteen in accordance with the provisions of 22 C.F.R. section 51.28. See 22 C.F.R. § 51.28(a)(6).

An interested party may object to the issuance of a passport to a minor. At any time before the issuance of a passport to a minor, the application may be disapproved, and a passport may be denied on receipt of a written objection from a parent or legal guard­ian, as long as the objecting party provides sufficient documentation of his custodial rights or other authority to object. An order from a court of competent jurisdiction pro­viding for joint legal custody or requiring the permission of both parents or the court for important decisions will be interpreted a requiring the permission of both parents or the court, as appropriate. The Department of State will consider a court of competent juris­diction to be a U.S. state court or a foreign court located in the child’s home state or place of habitual residence and may require that conflicts regarding custody orders, whether domestic or foreign, be settled by the appropriate court before a passport may be issued. 22 C.F.R. § 51.28(c)(1)–(4).

Either parent or any legal guardian may on written request obtain information regarding the application for and issuance of a passport to a minor unless the inquiring parent’s parental rights have been terminated by a court order, a copy of which has been pro­vided to the Department of State. The department may deny that information to a parent or legal guardian if it determines that the minor (1) objects to disclosure and is sixteen years of age or older or (2) is of sufficient age and maturity to invoke his own privacy rights. 22 C.F.R. § 51.28(c)(5).

A valuable resource for attorneys and clients is the International Parental Child Abduc­tion tab on the Department of State’s Bureau of Consular Affairs’ webpage, https://travel.state.gov/content/travel/en/International-Parental-Child-Abduction/prevention/passport-issuance-alert-program.html. The webpage contains specific information about the Children’s Passport Issuance Alert Program (CPIAP), including a link to the CPIAP request form, DS-3077. It also has frequently asked questions about child abduction, steps for stopping an abduction in progress, and resources for parents.

§ 40.26Electronic Communication with Child

On request by a conservator, the court may award the conservator reasonable periods of electronic communication with the child to supplement the conservator’s periods of possession. In deciding whether to award such communication, the court must consider whether electronic communication is in the child’s best interest, whether the necessary equipment is reasonably available to all the affected parties, and any other factor the court considers appropriate. Tex. Fam. Code § 153.015(b). “Electronic communica­tion” includes communication facilitated by the use of a telephone, electronic mail, instant messaging, videoconferencing, or webcam. Tex. Fam. Code § 153.015(a).

If the court awards a conservator electronic communication periods, each conservator must provide the other conservator with the child’s email address and other electronic communication access information; notify the other conservator of any change in that information not later than twenty-four hours after the date the change takes effect; and, if necessary equipment is reasonably available, accommodate electronic communica­tion with the child with the same privacy, respect, and dignity accorded all other forms of access, at a reasonable time and for a reasonable duration subject to any limitation in the court’s order. Tex. Fam. Code § 153.015(c).

The court may not consider the availability of electronic communication as a factor in determining child support, and it is not intended as a substitute for physical possession or access where otherwise appropriate. Tex. Fam. Code § 153.015(d).

If the court’s order contains provisions related to a finding of family violence in the suit, including supervised visitation, the court may award periods of electronic communica­tion only if the award and terms of the award are mutually agreed to by the parties and the terms of the award are printed in the court’s order in bold-faced, capitalized type and include any specific restrictions relating to family violence or supervised visitation, as applicable, required by other law to be included in a possession or access order. Tex. Fam. Code § 153.015(e).

§ 40.27Permanent Injunctive Relief

The Family Code does not expressly address permanent injunctions in suits affecting the parent-child relationship. See Peck v. Peck, 172 S.W.3d 26, 35 (Tex. App.—Dallas 2005, pet. denied). Therefore, one must apply the rules applicable to permanent injunc­tions in civil cases generally. See In re A.A.N., No. 02-13-00151-CV, 2014 WL 3778215 (Tex. App.—Fort Worth July 31, 2014, no pet.) (per curiam) (mem. op.). To be entitled to a permanent injunction, the party seeking the injunction must plead and prove (1) a wrongful act, (2) imminent harm, (3) irreparable injury, and (4) absence of an adequate remedy at law. See In re A.A.N., 2014 WL 3778215. But see Peck, 172 S.W.3d at 36 (where Family Code speaks specifically to injunctive relief (that is, in temporary orders), it specifically dispenses with requirement of establishing such prerequisites).

There are limits to seeking a permanent injunction on speech. While a permanent injunction against adjudicated speech is not a prior restraint, an injunction prohibiting future speech based on that adjudication impermissibly threatens to sweep protected speech into its prohibition and is an unconstitutional infringement on Texans’ free speech rights under article I, section 8, of the Texas Constitution. See Kinney v. Barnes, 443 S.W.3d 87, 101 (Tex. 2014).

§ 40.28International Issues in Suits Affecting the Parent-Child Relationship

International issues in suits affecting the parent-child relationship are discussed in chap­ter 55 of this manual.

§ 40.29Conditions Precedent to Filing Suit for Modification

A trial judge has no authority to require mediation as a precondition to filing a modifi­cation suit. See In re K.L.D., No. 12-10-00386-CV, 2012 WL 2127464, at *8 (Tex. App.—Tyler June 13, 2012, no pet.) (mem. op.).

In an agreed divorce, a contractual condition precedent requiring a parent to pay the other parent a sum of money on the date a suit for modification is filed was found void because it violated section 154.124(c) of the Texas Family Code prohibiting agree­ments regarding child support to be enforced as a contract. In re I.R.H., No. 04-12-00366-CV, 2013 WL 1850778 (Tex. App.—San Antonio May 1, 2013, pet. denied) (mem. op.).

§ 40.30Transfer of Permanent Physical Custody of Adopted Child

Court approval is required for the transfer of permanent physical custody of an adopted child by a parent, managing conservator, or guardian to any person who is not a relative or stepparent of the child or an adult who has a significant and long-standing relation­ship with the child. See Tex. Fam. Code § 162.026. It is a felony offense to conduct, facilitate, or participate in an unregulated custody transfer of an adopted child except as provided in Tex. Penal Code § 25.081(d). See Tex. Penal Code § 25.081. This topic is discussed in more depth in section 51.30 in this manual.