Court of Appeals of Texas, Twelfth District, Tyler
consisted of Worthen, C.J., Hoyle, J., and Neeley, J.
T. Worthen, Chief Justice.
Apollonia Ellis, filed this original proceeding to challenge
Respondent's temporary order. We deny the writ.
Party in Interest, Joshua Moore, and Ellis are the parents of
A.J.E. In March 2014, Respondent signed an order in suit
affecting the parent-child relationship, which appointed
Ellis and Moore joint managing conservators and gave Ellis
the exclusive right to designate A.J.E.'s primary
residence. On April 26, 2018, Moore filed a motion to modify
seeking appointment as the person with the right to designate
the primary residence.
9, Respondent held a hearing on the motion. During the
hearing, Ellis testified to meeting Daniel Torres in November
2017, marrying him on February 14, 2018, and moving to
Austin, where Torres lived, at the end of March 2018. She
verbally gave Moore notice of her intent to move. On March
22, she offered Moore a week-on week-off rotating weekly
schedule. She found a job in Austin sooner than expected, so
she left A.J.E. with Moore. She agreed that A.J.E. needs
consistency and stability, which is why she left him with
Moore. That March, she saw A.J.E. once and testified to
calling him approximately every other day, but she could not
recall how many days in April she called him. She saw A.J.E.
once in March and on the weekend of April 21. Ellis did not
want A.J.E. to be removed from his speech therapy program in
the middle of the school year, but she wanted A.J.E. to stay
in Austin once school ended. She believed it would benefit
A.J.E. to be in Austin to receive therapy.
testified that A.J.E. is attached to her and is uncomfortable
and crying when he has to go with Moore, but she does not
believe he is in any harm with Moore. She denied alienating
A.J.E., actively discouraging him from leaving for
visitations with Moore, or telling A.J.E. that he did not
have to listen to Moore and that Moore was not his family or
his father. She testified that she does not like Moore and he
is physically abusive. Ellis also acknowledged a preexisting
history with the Department of Family and Protective
Services. She testified to being arrested for abandonment and
neglect because she was working and attending school and her
other son wandered off while she was sleeping. Witnesses
testified that she is a good mother.
testified that Ellis left A.J.E. with him on March 5 and that
his cellular telephone records reflect that Ellis called one
time in March and twelve times in April. He testified to
receiving notice via a text message that she was moving.
A.J.E. initially asked about Ellis, but later stopped asking.
After Moore filed the motion to modify, Ellis began calling
two to three times a day. He testified that A.J.E. is four,
is autistic, attends school, and is doing great in school. He
testified to previously spanking A.J.E., but now only
utilizes timeout because of a doctor's recommendation.
According to Moore, Ellis led A.J.E. to believe that Moore is
physically abusive and encourages him not to see Moore. He
also testified that Ellis routinely curses at him. Moore
denied physically abusing Ellis. Nor has a protective order
been filed against him. Moore's wife testified that
A.J.E.'s grades are consistent and he has a "very
strong bond" with Moore. She testified to witnessing
Ellis curse at Moore in front of A.J.E. She also testified
that Ellis tells A.J.E. that he does not have to listen to
Moore or do what Moore says and that Moore is not his father.
end of the hearing, Moore's counsel asked that the
parties be appointed joint managing conservators, neither
parent establish A.J.E.'s residence, A.J.E. complete
schooling in Nacogdoches County, Ellis have standard
possession until the end of the school year, the parties
exercise week-on week-off visitation thereafter, and a social
study or child custody evaluation be conducted with the cost
to be shared equally between the parties. Ellis, who acted
pro se at the hearing, indicated her desire to have a
standard possession order and appeared agreeable to meeting
halfway so that Moore could have custody every other week.
She wanted to take A.J.E. home with her for the weekend, but
Respondent stated that A.J.E. was still in school. Ellis
declined to see A.J.E. for dinner before returning to Austin
because it would not be good for him and would hurt him.
11, Respondent signed a letter to the parties, in which he
stated that the parents are both loving and "mostly
appropriate" as to raising A.J.E. He also recognized
"evidence of inappropriate behavior, particularly foul
language and put-downs in the presence of the child."
Respondent expressed concern over Ellis moving to Austin with
her husband, who she had known a short time and with whom
there is a "significant communication
issue." For these reasons, and because Ellis left
A.J.E. with Moore and wanted him to complete the school year,
Respondent found that the "temporary order should
require the child to remain with Mr. Moore until school is
out, then proceed to live in both homes, on a week on and
week off basis." Respondent stated that the parties
could exchange the child in Marquez, Texas at 6:00 p.m. on
Saturdays, or the parties may agree otherwise. Respondent
also ordered a custody evaluation, with each party paying his
or her share.
6, Respondent signed a temporary order, which requires that
A.J.E. remain in Moore's possession until completion of
the school year, at the conclusion of which, the parties will
exchange A.J.E. on a weekly basis beginning on the first
Saturday at the end of the regular school term. The order
gives Ellis possession of A.J.E. during the first week-long
period of possession and provides that the parties exchange
A.J.E. in Marquez at 6:00 p.m. each Saturday, but that they
may modify the order by agreement. The order further requires
a child custody evaluation and report, the cost of which the
parties split equally. Respondent ordered that neither party
pay child support.
August, Moore filed a motion for additional temporary orders
and requested a temporary restraining order. On August 29,
Ellis's counsel proposed that the temporary restraining
order be extended, the hearing thereon reset, and Ellis
receive standard possession pending the temporary orders
hearing. Moore's counsel agreed. On October 2, the
parties' respective counsel signed another Rule 11
agreement that required the parties to continue operating
under standard visitation, except that drop off and pick up
would occur at 8:00 p.m. in Marquez and Ellis would receive
Thanksgiving break and the first half of Christmas break,
complete the child custody evaluation, proceed to mediation
before a final hearing, and cancel the hearing scheduled for
October 3. On January 28, 2019, the child custody evaluation
was completed. This proceeding followed.