Temporary Orders in Modification Cannot Change Custody

 Ruling prohibiting moving the children as temporary order in modification had the effect of changing the primary custody designation so was improper.

When a suit for modification of issues related to conservatorship is filed, temporary orders may only be granted in certain situations provided by statute. For example, a court may not change custody (primary right to determine domicile in joint managing conservatorship) unless it is necessary to prevent some immediate danger to the child. If the underlying order gives the parent the right to determine the child’s domicile without restrictions, the court in a temporary hearing upon modification cannot impose new restrictions, like a domicile restriction, because such would have the effect of changing custody. Or, at least, that’s what the Fort Worth Court of Appeals said on January 17, 2012. In re Strickland, 2012 WL 117614 (Tex. App. – Ft. Worth 2012, orig. proceeding), click here for a full copy of the opinion.

In Strickland, the mother was appointed joint managing conservator with the right to establish the primary residence of the children without restriction on the domicile. Father filed for modification, stating that the mother intended to move to Florida and seeking a temporary order preventing the move. The trial court judge restricted the mother’s residence to Denton County, Texas and counties contiguous to Denton County while the modification was pending. Mother sought mandamus relief from the Fort Worth Court of Appeals, which was granted.

The problem with Mr. Strickland’s situation was that he didn’t insist on a geographic restriction in the divorce decree. If he had, this whole dispute would have turned out differently. Take-away lesson: think of the possible consequences of the wording of the order before you agree to it, so you don’t regret it later.

 

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Comments (2) Read through and enter the discussion with the form at the end
MJ Young - September 24, 2013 9:15 AM

Does changing a child's school have the effect of changing primary conservatorship? Thank you.

Ashley Brown - June 16, 2014 9:00 AM

My sons father has primary custody of him. he resides in texas and I in Illinois. I have my son for the summer and have learned of some things that i feel put him in immediate danger for example physical harm to him, and i would like to file for emergency temp custody if that exists and would like to not send him back if any way possible. do i have a chance? can i file in Illinois? and do i have to send him back to texas if i feel hes not being properly cared for?

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