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In re Z.K.S.

Court of Appeals of Texas, Thirteenth District, Corpus Christi-Edinburg

January 9, 2020

IN THE INTEREST OF Z.K.S., A CHILD

          On appeal from the 105th District Court of Nueces County, Texas.

          Before Chief Justice Contreras and Justices Hinojosa and Tijerina

          MEMORANDUM OPINION

          LETICIA HINOJOSA Justice

         Appellant 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.[1] 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.

         I. Background

         Z.K.S. 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.

         The 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 Nueces county.
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.[2] 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 factors.
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 ...

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