Court of Appeals of Texas, Second District, Fort Worth
Original Proceeding Trial Court No. 15-02463-16
Sudderth, C.J.; Kerr and Pittman, JJ.
ELIZABETH KERR, JUSTICE
J.W. (Father) filed a mandamus petition challenging the trial
court's temporary orders requiring him to enroll his
three children in school in Keller ISD, a district in which
neither parent lives. Father contends that the temporary
orders violate family code section 156.006(b) because they
have the effect of changing his designation in the final
divorce decree as the parent with the exclusive right to
designate the children's primary residence while a
modification suit is pending. See Tex. Fam. Code
Ann. § 156.006(b). We will conditionally grant relief.
See Tex. R. App. P. 52.8(c).
and Father divorced in April 2016. The agreed divorce decree
named them joint managing conservators of their three
children who were six, four, and two years old at the time.
Father was designated as the conservator with "the
exclusive right to designate the primary residence of the
children without regard to geographic restriction."
Mother had possession of the children on Tuesdays and every
other weekend during the school year, and the parties had a
two-week-on-two-week-off summer possession schedule.
decree granted each parent the independent right to make
decisions regarding the children's education. Father
homeschooled them, but during the summer of 2018, Mother
became increasingly concerned that the children were behind
academically so she had them tested. According to her, she
and Father discussed the situation and agreed that the
children needed to be enrolled in school and that they would
change to a week-on-week-off possession schedule once school
lives in Northwest ISD and enrolled the children in an
elementary school in the district. They were set to start
school there on August 27, 2018. Mother, who lives in
Birdville ISD, decided that she wanted to enroll the children
in an elementary school in Keller ISD near her house.
According to Mother, even though neither she nor Father lives
in that district, she could enroll her children there because
Keller has open enrollment.
started in Keller ISD on August 15, 2018. Two days before,
Mother moved to modify the parent-child relationship. That
same day, the trial court entered a temporary restraining
order giving Mother possession of the children and
restraining Father from taking any action to remove or
unenroll the children from Keller ISD or to enroll the
children in any other school district. The children started
school in Keller on Wednesday, August 15. Later that day, the
trial court vacated the restraining order, and the children
went back to Father on Thursday and Friday. The next week,
Mother had possession, and she sent the children to school in
Keller that week. The following Monday, Father had
possession, and the children were dropped off at an
elementary school in Northwest ISD for their first day of
children's first day at Northwest ISD, the trial court
held a lengthy evidentiary hearing at which Mother, Father,
and Father's mother testified. Mother testified that when
she had the children tested at Sylvan Learning Center at the
end of July, they tested below grade level. According to
Mother, the oldest child, who was eight years old at the time
of the hearing and starting the third grade, was "having
a hard time with math to the point of being frustrated, not
wanting to try it." The middle child, who was six and
entering the first grade, was functioning as a
"mid-kindergarten aged child" and could not read.
It was Mother's understanding that the child "should
be reading above his grade level. So he should be reading
about almost at a second grade level." The youngest
child, who had just turned five and was going into
kindergarten, "was testing at a preK level" and,
other than the letters A and B and the numbers 0 and 1, did
not know his letters or numbers. Mother wanted the children
to go to school in Keller ISD because she feared that if the
children went to school in Northwest ISD, Father would pull
them out of school and homeschool them; according to Mother,
he had pulled the oldest child out of public school after
kindergarten and believed that "home-schooling was the
way to go because that's how he was raised."
stated that he intended to keep the children in school in
Northwest ISD. He agreed that they were slightly behind and
that "they are a little bit lower" than he
preferred. He admitted that the middle child struggled with
reading. He also conceded that the youngest child had trouble
identifying letters and numbers other than A, B, 0, and 1 but
testified that the child could say the ABCs and could count.
Father's mother did not agree that the children were
behind in school.
also expressed concern with the children's hygiene and
living conditions when they were in Father's possession.
Mother was not sure whether Father was living with his
parents in Denton or was living in his house in Justin
(which, according to Mother, was uninhabitable because it was
undergoing renovations and was without running water for a
time because a pipe had burst). Mother also stated that
Father did not ensure that the children were bathed or that
their hair and teeth were brushed and did not treat one of
the children's eczema. Father countered that he was no
longer living with his parents but was back at his home in
Justin, which had been renovated to a point where it was
habitable and had running water. He contended that he made
sure that the child's eczema was treated and that the
children bathed and brushed their teeth. He complained that
they were dirty when they returned from Mother.
was also testimony regarding Father's
24-hours-on-48-hours-off work schedule (he's a fireman).
Because of his schedule, the children are left in the care of
his mother or a friend from Father's church when he is
working. In contrast, Mother's work schedule allows her
to spend time with the children each day, and the children
are enrolled at an after-school program at Mother's
workplace, where she coaches gymnastics.
hearing's conclusion, the trial court ordered that the
children be enrolled in the elementary school in Keller that
they had attended the week before and modified the possession
schedule to week-on-week-off. But the trial court made clear
that Father ...