Court of Appeals of Texas, Thirteenth District, Corpus Christi-Edinburg
appeal from the 105th District Court of Nueces County, Texas.
Chief Justice Contreras and Justices Hinojosa and Tijerina
LETICIA HINOJOSA Justice
K.S. (mother) appeals an order in a suit affecting the
parent-child relationship awarding B.A.S. (father) "week
on/week off" possession of their minor child
Z.K.S. By three related issues, which we treat as
one, mother argues the trial court erred because the
possession order contravenes the jury's finding that
mother should have the right to designate the primary
residence for Z.K.S. anywhere within the State of Texas and
the possession order is not in the child's best interest.
We reverse and remand.
was born to father and mother who were not married. When
Z.K.S. was almost two months old, father filed a petition
requesting that he be named as a joint managing conservator
with the exclusive right to designate the primary residence
for Z.K.S. Father further requested equal possession of
Z.K.S. Mother filed a counterpetition seeking the exclusive
right to designate Z.K.S.'s primary residence within
Mecklenburg County, North Carolina or, in the alternative,
those counties contiguous to Nueces County and the cities of
San Antonio, Austin, Houston, and Dallas.
parties' competing claims were tried to a jury, which
found that mother should have the exclusive right to
designate the primary residence of Z.K.S. with a geographic
restriction "within the State of Texas." A bench
trial was then held to determine possession of and access to
Z.K.S., who was then eighteen months old. At the conclusion
of the hearing, the trial court issued an oral possession
order providing father with "week on/week off"
possession of Z.K.S. At that time, mother and father lived
240 miles apart-father in Corpus Christi, Texas and mother in
Spring, Texas. At mother's request, the trial court
issued the following written findings of fact in support of
its oral ruling:
4. The Court considered the circumstances for possession of
the child who is less than three years old. The Court
considered all relevant evidence presented on all relevant
facts and finds that the periods of possession by the father
should vary from the Standard Possession Order for the
following reasons, including but not limited to:
a. At the time of [the jury] trial both parties lived in
b. The father had frequent contact with the child from the
birth of the child and he and his family provided a major
amount of child care before and during the suit.
c. From the child's birth the child had frequent and
loving periods of possession of and access by the father and
the father's extended family.
d. The father and his family are available all day as
caretakers and are willing to personally take care for the
child during the father's periods of possession. No
non-family child care need be employed in Corpus Christi.
e. The physical and medical condition of the child was a
major concern to the father from the time of the child's
birth since the child did not gain weight normally. The
mother insisted on only breast milk for the child although at
one time in the child's very young life he was at 2% of
the weight of most children his age.
f. It is in the best interest of the child that his father
continues to have frequent extended possession of and access
to the child in order to continue a healthy attachment and
bond with the child.
g. Shortly after trial the mother moved the child's
residence to Spring, Texas, 241 miles from the father's
residence, travel time 4.5-5 hours one way.
h. It is in the best interest of the child that he have
longer periods of possession of and access to his father and
extended family than those of the standard possession order
until the child is old enough to attend kindergarten.
i. The only extended family that the child has in Texas is
his paternal family who loves the child very much and has had
extensive time with the child. It is in the child's best
interest to continue this relationship.
j. Ordering a standard possession order for this child would
be extremely detrimental to the development of the child
since it would remove the child's father from his life
much of the time.
k. The father's circumstances provide continuity and
stability for the child in that the father is purchasing his
home and is engaged to be married.
4. The following factors were
considered in rendering the possession order for [Z.K.S.],
who is less than three years of age:
a. It is in the best interest of the child that he have
continuing contact with both parents.
b. The Court considered all the relevant factors stated at
§ 153.254 of the Texas Family Code in determining the
circumstances for possession of the child who is less than
three years of age.
c. The standard possession order is inappropriate and
unworkable under the circumstances considering the distance
between the residence of the parents, a one-way 4.5-5 hour
drive, the circumstances of the parents and of the child
during the pendency of the case, and all other relevant
d. With a standard possession order, the child would be in
day care for 7 to 10 hours per day, 5 days per week and 20
days of the month while with his mother. Whereas under the
order from this Court, the child will be in day care only
when in possession of his mother, about 10 days per month.
When the child is with his father, he will be supervised by