Court of Appeals of Texas, Third District, Austin
PROCEEDING FROM BELL COUNTY
Justices Puryear, Field, and Bourland
China Charles filed a petition for writ of mandamus
complaining of the trial court's temporary order related
to child custody. See Tex. R. App. P. 52. As
explained below, we conditionally grant mandamus relief.
See id. 52.8(c).
seeking mandamus relief must show that the trial court
clearly abused its discretion and that the party has no
adequate remedy by appeal. In re Southwestern Bell Tel.
Co., L.P., 226 S.W.3d 400, 403 (Tex. 2007) (orig.
proceeding) (citing In re Prudential Ins. Co. of
Am., 148 S.W.3d 124, 135-36 (Tex. 2004) (orig.
proceeding)); In re Serio, No. 03-14-00786-CV, 2014
WL 7458735, at *1 (Tex. App.-Austin Dec. 23, 2014, orig.
proceeding) (mem. op.). Because a trial court's temporary
orders are not appealable, mandamus is an appropriate vehicle
for a challenge to such an order. See Little v.
Daggett, 858 S.W.2d 368, 369 (Tex. 1993) (orig.
proceeding) (per curiam); Serio, 2014 WL 7458735, at
*1 (citing In re Derzapf, 219 S.W.3d 327, 334-35
(Tex. 2007) (orig. proceeding) (per curiam)). We will not
grant extraordinary relief unless the temporary order
amounted to an abuse of discretion under section 156.006(b)
of the family code. Serio, 2014 WL 7458735, at *1.
section 156.006, when a petition seeking modification of an
order related to the parent-child relationship is pending,
the trial court "may not render a temporary order"
that changes which parent has the right to designate the
child's primary residence unless the temporary order is
in the child's best interest and, in relevant part,
"the order is necessary because the child's present
circumstances would significantly impair the child's
physical health or emotional development." Tex. Fam.
Code § 156.006(b). Further, a person who seeks a
temporary order changing that designation must attach to his
motion an affidavit
that contains facts that support the allegation that the
child's present circumstances would significantly impair
the child's physical health or emotional development. The
court shall deny the relief sought and decline to schedule a
hearing on the motion unless the court determines, on the
basis of the affidavit, that facts adequate to support the
allegation are stated in the affidavit.
Id. § 156.006(b-1).
and Procedural Summary
and real party in interest Michael Winfree are the parents of
C.S.C., a daughter who was born in August 2013. In January
2014, the trial court signed an order governing child support
and the child's custody, giving Charles the right to
determine C.S.C.'s primary residence and establishing a
visitation schedule for Winfree. In January 2016, the trial
court signed an order modifying the original order, making
findings related to Winfree's child-support obligations
and minor changes to his visitation arrangements. In a note
hand written by the trial court, the order stated that
C.S.C.'s primary residence would be kept "in Bell or
any contiguous county."
August 2017, Winfree filed a petition to modify, seeking the
right to designate C.S.C.'s primary residence. Winfree
alleged that the circumstances of the child or one of the
parents had materially and substantially changed and that the
current order was unworkable because Charles had refused to
comply with the child-possession exchanges and because
"it has become more and more obvious for a number of
additional reasons that it is not in the best interest of
[C.S.C.] for [Charles] to have primary custody." Winfree
further alleged that Charles had withdrawn the child from day
care and had refused to tell him who was currently providing
childcare and asserted that the requested changes were in
C.S.C.'s best interest. The affidavit attached to
Winfree's petition recited the same assertions but did
not provide any specific factual allegations.
trial court held a hearing in September 2017, and both
Winfree and Charles appeared pro se. At the conclusion of the
hearing, the court signed a temporary order allowing Winfree
to designate the child's primary residence. It is from
this order that Charles seeks relief.
hearing, Winfree testified that Charles had moved to
Arlington, violating the limitation that she stay in Bell
County or a contiguous county, that Charles had hidden the
child from Winfree, and that Charles would not tell Winfree
where C.S.C. was or let him speak to her. Winfree testified
that in early August, Charles had sent him a text message two
hours before his Thursday night visitation informing him that
she was moving to Arlington and that the child would be
starting school there the following Monday. Winfree testified
that he texted back to ask where the child would be living
and what school she would attend and that Charles did not
answer those questions and instead told him to refer to the
court order. Winfree answered several questions from the
trial court, stating that he had been regularly exercising
his visitation rights since the modified order in 2016,
including the full month of July 2017, just before Charles
moved to Arlington. He had not been able to have visitations
since Charles moved and he testified that Charles's
withholding of C.S.C. ruined a surprise ...