The 2nd Court of Appeals in Fort Worth issued a very important opinion today in a big win for O’Neil Wysocki’s appellate team on Michelle O’Neil and Karri Bertrand. The underlying order awarded Father the exclusive right to determine the children’s primary residence without regard to geographic restriction and gave each parent the independent right to make educational decisions. Mother filed to modify the orders and sought temporary orders in the modification suit. The trial court left the primary designation with Father but ordered the children to be enrolled in the Mother’s school district. In the intial hearing, the trial court made no finding of significant impairment, but later entered such finding.

This issue has been an open question in modification litigation, as to the meaning of Texas Family Code section 156.006, but is now determined.

In 2017, the Legislature changed 156.006 to include “or the effect of changing or eliminating the geographic area within which a conservator must maintain the child’s primary residence”. Based on this language, the 2nd Court of Appeals held today that limiting the school district within which the children must attend school such order had the effect of changing the primary designation. Thus, the elevated standard — significant impairment — would apply to make such changes in a temporary hearing in a modification suit.

Because section 156.006(b) precludes a trial court from issuing
an order effecting a change in the designation of the person having the right to
designate the children’s primary residence without evidence triggering a statutory
exception to this prohibition, the trial court abused its discretion by effectively
creating a geographic area in which Father must maintain the children’s primary
residence [by restricting the designation of the school].

Read the entire opinion here: Wells opinion