The Texas Legislature closed the 2017 session on May 29. Several laws were passed that affect Texas Family Law. Here is one small – yet important – child custody change in the statute that governs modification of an order for the Conservatorship, Support, or Possession and Access to a Child.

Temporary Orders in a Suit to Modify Primary Conservatorship

What the new language states is that – in cases where no parent has been granted the exclusive right to determine the child’s primary residence (primary conservatorship) – a court may not create a temporary order that has the effect of granting one parent this exclusive right. And also, no temporary order may be created that has the effect of changing or eliminating the geographic area within which a parent must maintain the child’s primary residence.

This new language does provide for an exception when the temporary order is in the best interest of the child AND

  1. The order is necessary because the child’s present circumstances would significantly impair the child’s physical health or emotional development;
  2. The person designated in the final order has voluntarily relinquished the primary care and possession of the child for more than six months; or
  3. The child is 12 years of age or older and has expressed a preference to the judge about who the child wants to have the exclusive right to designate the child’s residence.

What this means is that if you have an order (whether a decree of divorce or simply an order in suit affecting the parent-child relationship) that does not grant either party the exclusive right to determine the child’s primary residence (the parent that essentially has “primary custody” of the child), then the court may not appoint one parent with that exclusive right in a temporary order unless one of the above three requirements are met AND it is in the best interest of the child.

Prong (2) and (3) are fairly self-explanatory. In prong two, the parent with primary custody must have given the child to someone else to raise for more than six months.

The third prong means the child must tell the judge, in the judge’s chambers, who he or she wants to live with. It is never a good idea to coach a child to tell the judge he wants to live with a particular parent because it puts a burden on the child that is not for the child to bear. If a parent were to do such a thing and the judge believed the child had been coached, the judge may deny a change of custody because it is not in the child’s best interest.

The first prong is a very high burden. This is for cases where a child is in danger by continuing to live with a parent. The child simply being miserable is typically not enough to meet this burden unless the underlying reason for the child’s misery is that the child is in danger.

Child Custody Changes To Primary Conservatorship

Back in 2009, the Texas Legislature gave divorcing parents an option to not designate either parent as primary conservator, so long as they agreed to a restricted geographic area for the residence of the child (usually within a certain county). Courts call this restricted geographic area a “domicile restriction.”

This is an apparent limitation by the legislature on what courts can do – with temporary orders – when the parents already agreed that neither one would have the exclusive right to designate the child’s primary residence.

Domicile Restriction (or Relocation) Cases

The foregoing rationale also applies to a court creating, changing or eliminating a domicile restriction in a temporary order for a modification.

By modifying a domicile restriction, a court could allow one parent to move with the children a long distance away, thereby effectively giving primary custody to that parent, even if not specifically giving them the right to determine residence.

In a situation where there is no domicile restriction, but one of the parents has primary custody, to impose a domicile restriction on a temporary basis would be unfair to the parent who has primary custody. That parent would be suddenly restricted from moving to another city or state, when they had every reason to believe that they had the right to move.

As a side note, the only way no parent is given the exclusive right to determine the primary residence of the child is if the parties reach an agreement to that effect. If the matter is litigated in court, the Judge must award this exclusive right to decide the child’s primary residence to only one of the parents.

Just because you have a parenting order that gives one parent a Standard Possession Order and the other parent all other times with the child, unless one parent has been granted this exclusive right to determine the child’s primary residence, neither parent has “custody” in the common that term.