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In re J.W.

Court of Appeals of Texas, Second District, Fort Worth

May 23, 2019

In re J.W., Relator

          Original Proceeding Trial Court No. 15-02463-16

          Before Sudderth, C.J.; Kerr and Pittman, JJ.

          MEMORANDUM OPINION

          ELIZABETH KERR, JUSTICE

         Relator 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).

         Background

         Mother 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.

         The 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 started.

         Father 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.

         School 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 school there.

         On the 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."[1] 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."

         Father 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.

         Mother 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.

         There 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.

         At the 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 ...


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