In re McPeak
2017 WL 1366672, 525 S.W.3d 310, 2017 Tex. App. LEXIS 3242 (2017)
Rule of Law:
Motions to modify temporary orders in suits affecting the parent-child relationship are governed by the 'safety and welfare' standard of Texas Family Code § 105.001, not the strict affidavit requirements of § 156.102, which apply only to final orders. Additionally, a trial court has a mandatory duty to interview a child 12 years or older regarding primary residence upon a party's application.
Facts:
- Mother and Father separated, and Mother moved with their three children to Thorndale, Texas, enrolling them in school there.
- Father filed for divorce, and during the initial stages, Mother and Father executed Agreed Temporary Orders.
- The Agreed Temporary Orders required Mother to move the children back to Brazoria County (where Father lived) by a specific deadline or turnover possession of the children to Father.
- After signing the agreement, Mother obtained employment in Thorndale and retained an attorney.
- Mother decided to challenge the move-back requirement, arguing the agreement was no longer in the children's best interest.
- The oldest child involved in the custody dispute was 13 years old at the time of the dispute.
Procedural Posture:
- The trial court entered the Agreed Temporary Orders impacting the children's residence.
- Mother filed a motion to modify the temporary orders and a motion to confer with the child in the trial court.
- The trial court halted the hearing on Mother's motions, ruling that she failed to file a specific affidavit required by Texas Family Code section 156.102.
- The trial court issued an order declining to consider the modification motion and an order denying the motion to confer with the child.
- Mother filed a petition for writ of mandamus in the Court of Appeals challenging the trial court's refusal to hear the motions.
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Issue:
Does Texas Family Code section 156.102, which requires a specific affidavit alleging endangerment, apply to motions to modify temporary custody orders, and is the trial court required to confer with a child over age 12 upon request?
Opinions:
Majority - Justice Brett Busby
No, section 156.102 applies exclusively to final orders, and Yes, the court must confer with the child. The Court held that the trial court erred in applying Chapter 156 to a temporary order modification. Section 156.102 is predicated on the doctrine of res judicata regarding final judgments. In contrast, temporary orders are intended to provide flexibility during ongoing litigation and are governed by section 105.001, which allows modification based on the 'safety and welfare of the child.' By demanding an affidavit proving endangerment under the wrong statute, the trial court imposed an incorrectly high burden of proof on the Mother. Furthermore, regarding the interview with the child, the Court ruled that Texas Family Code section 153.009(a) is mandatory. It states a court 'shall' interview a child 12 years or older upon application. Since the child was 13 and Mother filed a proper motion, the trial court had no discretion to refuse the interview.
Analysis:
This decision clarifies the procedural distinction between interlocutory (temporary) orders and final judgments in Texas family law. By ruling that the strict affidavit requirements of Chapter 156 do not apply to temporary orders, the court preserved the ability of trial judges to adjust custody arrangements during pending litigation based on the broader 'safety and welfare' standard rather than the higher 'endangerment' threshold. This ensures that temporary arrangements can be corrected if they become unworkable before a final trial. The ruling also reinforces the statutory right of children 12 and older to have their preferences heard by the court, removing judicial discretion to deny such interviews when properly requested.
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