COURT OF APPEALS

SECOND DISTRICT OF TEXAS

FORT WORTH

NO. 02-11-00501-CV

IN RE LORIN A. STRICKLAND

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ORIGINAL PROCEEDING

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OPINION

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This original proceeding concerns whether a trial court’s temporary order in 

a modification proceeding fails to comply with section 156.006(b) of the family 

code. Tex. Fam. Code Ann. § 156.006(b) (West Supp. 2011). Because we hold 

that it does, we conditionally grant relief.

Background

Relator, Mother, and real party in interest, Father, were divorced on 

January 29, 2010. The agreed decree named them joint managing conservators 

of their two children. Additionally, the trial court named Mother the parent with 

the exclusive right to designate the primary residence of the children. The 

decree did not contain any geographic limitation on Mother’s right to designate 

the children’s primary residence.
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In November 2011, Father filed a petition to modify the parent-child 

relationship and an application for a temporary restraining order. In the attached

affidavit, Father averred that Mother was planning to move to Florida before 2012 

to live with her boyfriend, who intended to support the children. He also averred 

that he wanted to prevent Mother from “removing the children from their schools 

in Texas, their social functions in Texas, and their sports teams in Texas and 

specifically their family in Texas, including” Father. The trial court granted Father 

a temporary restraining order on November 22, 2011, restricting the children’s 

residence to “Denton and contiguous counties within Texas.” The trial court also 

set a hearing date for December 5, 2011.

At the hearing, Father asked that a social study be prepared and that the 

children not be allowed to move “until the [c]ourt renders a final decision that 

social studies put in place.” The trial court ordered that a social study be 

prepared “as quickly as possible” and further stated, “I will order that the parties 

remain in the area until the social study can be completed, and they not be 

moved to any other location where they will not be available for purposes of 

getting the information needed for the social study.”

Mother subsequently filed a petition for writ of mandamus. We granted her 

motion for emergency relief and stayed the trial court’s December 5, 2011 order

on December 12, 2011.

Standard of Review

Mandamus relief is proper only to correct a clear abuse of discretion when 

there is no adequate remedy by appeal. In re Columbia Med. Ctr. of Las Colinas, 

290 S.W.3d 204, 207 (Tex. 2009) (orig. proceeding).
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A trial court clearly abuses its discretion when it reaches a decision so

arbitrary and unreasonable as to amount to a clear and prejudicial error of law or 

if it clearly fails to correctly analyze or apply the law. In re Olshan Found. Repair 

Co., 328 S.W.3d 883, 888 (Tex. 2010) (orig. proceeding); Walker v. Packer, 827 

S.W.2d 833, 839 (Tex. 1992) (orig. proceeding). With respect to the resolution of 

factual issues or matters committed to the trial court=s discretion, we may not 

substitute our judgment for that of the trial court unless the relator establishes 

that the trial court could reasonably have reached only one decision and that the 

trial court=s decision is arbitrary and unreasonable. In re Sanders, 153 S.W.3d 

54, 56 (Tex. 2004) (orig. proceeding); Walker, 827 S.W.2d at 839–40. In other 

words, we give deference to a trial court=s factual determinations that are 

supported by evidence, but we review the trial court=s legal determinations de 

novo. In re Labatt Food Serv., L.P., 279 S.W.3d 640, 643 (Tex. 2009) (orig. 

proceeding).

Because a trial court’s temporary orders are not appealable, mandamus is 

an appropriate means to challenge them. See In re Derzapf, 219 S.W.3d 327, 

334–35 (Tex. 2007) (orig. proceeding); In re Russell, 321 S.W.3d 846, 853 (Tex. 

App.––Fort Worth 2010, orig. proceeding [mand. denied]).

Applicable Law

Section 156.006 of the family code provides that

(b) While a suit for modification is pending, the court may not 

render a temporary order that has the effect of changing the 

designation of the person who has the exclusive right to designate 

the primary residence of the child under the final order unless the 

temporary order is in the best interest of the child and:
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(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 to 

the court in chambers as provided by Section 153.009 the name of 

the person who is the child’s preference to have the exclusive right 

to designate the primary residence of the child.

Tex. Fam. Code Ann. § 156.006(b).

A temporary order that deprives a custodial parent of any discretion 

inherent in the right to determine the child’s primary residence has the effect of 

changing the designation of the person with the exclusive right to designate the 

child’s primary residence. In re Payne, No. 10-11-00402-CV, 2011 WL 6091265, 

at *2 (Tex. App.––Waco Dec. 2, 2011, orig. proceeding) (mem. op.); In re 

Winters, No. 05–08–01486–CV, 2008 WL 5177835, at *2 (Tex. App.––Dallas 

Dec. 11, 2008, orig. proceeding) (mem. op.). The Dallas and Waco Courts of 

Appeals, in similar factual circumstances, have both held that a trial court’s 

temporary order imposing a geographic restriction on a child’s residence when 

there is no geographic restriction in the decree is a change in the designation of 

the person who has the exclusive right to designate the primary residence in 

violation of section 156.006(b). Payne, 2011 WL 6091265, at *2; Winters, 2008 

WL 5177835, at *3. We agree with the reasoning of these cases and hold that 

the trial court’s order that the children remain “in the area” pending the 
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preparation of social studies has the effect of changing the designation of the 

parent with the primary right to determine the children’s residence under the 

decree because it imposes a restriction whereas the decree has none. See Tex. 

Fam. Code Ann. § 156.006(b); Payne, 2011 WL 6091265, at *2; Winters, 2008 

WL 5177835, at *3.

Thus, because we have determined that the trial court’s order does effect 

such a change, we must determine whether any of the statutory exceptions 

apply. The only exception that could apply in this case is subsection (b)(1): 

whether “the order is necessary because the child’s present circumstances would

significantly impair the child’s physical health or emotional development.” Tex. 

Fam. Code Ann. § 156.006(b)(1).

Father did not attach any evidence to his motion to modify, but he did 

attach an affidavit to his request for a temporary restraining order, which was 

filed about half an hour later. The affidavit alleges the following:

. . . Respondent is currently unemployed and dating a man 

that is looking to support her financially. She has stated to both

myself and the children on numerous accounts and against both 

mine and the children’s wishes that she plans on moving with the 

children to Florida prior to 2012, in order to be with her new 

boyfriend and for him to support her and the children. This would 

not be in the children’s best interests and would cause them harm.

. . . . I wish more than anything to prevent Respondent from 

removing the children out of the state of Texas permanently. 

Specifically, I would like to prevent Respondent from removing the 

children from their schools in Texas, their social functions in Texas, 

and their sports teams in Texas and specifically their family in Texas, 

including myself. It is in the children’s best interest to remain in 

Texas and allowing them to move outside of Texas would cause 
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irreparable harm to the children’s emotional health. My children are 

actively involved in school related [sic] and have strong connections 

with their friends and family members that live close by.

Both my children have a strong support system in the Dallas 

Fort-Worth area; they have 2 great grandmothers, 2 paternal 

grandparents, 2 aunts and an uncle, and their father. In Florida, the 

children do not have any such support system, as they will not know 

anyone. In addition, I am concerned because the Respondent has 

no job or source of income and is relying on her current boyfriend. 

Thus, if their relationship may end, my children would be residing 

with a parent with no income and further . . . Respondent may be 

forced to return back to Texas or to another state where she can 

have financial support.

Moving with the children outside of Texas, and withdrawing 

the children from school is preventing them from attending any and 

all their regular social activities here in Texas and would cause 

irreparable damage to both children as they would be traumatized. I 

believe that this will have an extremely harmful effect on my 

children’s wellbeing and it is imperative to create a sense of stability 

and a lack of harm for [them]. It is in their best interest to remain 

here in Texas where their schools are located, their doctors are 

located, their family and friends are located, and their father is 

located.

The parties did not present any new evidence at the December 5 hearing; the 

trial court only heard argument from counsel.

Father did not allege that the children would suffer any significant

impairment of their physical development by moving out of state other than 

speculation that they could be left without resources if relator’s relationship with 

her boyfriend ended.

1

 He did allege that moving them would emotionally harm 

the children; however, he did not allege any specific impairment to their 

 

1At the hearing, Mother’s counsel stated that Mother was moving to Florida 

to get married.
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emotional development other than being separated from their family, friends, and 

normal activities in Texas. Although this is evidence that the children will likely 

experience emotional distress from separation and loss, it is not by itself 

evidence of significant impairment of their emotional development as required to 

trigger the statutory exception. See, e.g., In re Rather, No. 14-11-00924-CV, 

2011 WL 6141677, at *2 (Tex. App.––Houston [14th Dist.] Dec. 8, 2011, orig. 

proceeding) (mem. op.); In re Payne, 2011 WL 6091265, at *2; In re Winters, 

2008 WL 5177835, at *3.

Father contends that this case is unlike those cited above because in 

those cases the parents were attempting to move within the State of Texas. But 

section 156.006 does not distinguish between geographical restrictions within or 

outside of the state, nor have we found any cases holding that a parent’s move 

outside of the state constitutes significant impairment per se to a child’s 

emotional development. Cf. Mobley v. Mobley, 684 S.W.2d 226, 229 (Tex. App.–

–Fort Worth 1985, writ dism’d) (determining that evidence showing that the child 

feared moving, that the child would not be able to see his younger sibling for 

months or years because of the prohibitive cost of travel to Panama, and that a 

psychologist concluded that moving the child away from his mother and sibling 

could prove to be detrimental to his mental health was sufficient evidence of 

significant impairment to require trial court to hold hearing on motion to modify). 

Because each child’s circumstances are different, conditions that could 

significantly impair the emotional development of one child may not affect 

another child as strongly. Thus, specific allegations as to how a child’s emotional 

development will be significantly impaired are statutorily required. Father’s 
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general allegations here do not show that the children’s present circumstances 

would significantly impair their emotional development. Based on the prohibition 

codified in family code section 156.006(b) precluding the trial court from issuing a 

temporary order effecting a change in the designation of the person having the 

right to designate the primary residence of the child, and the absence of 

evidence triggering a statutory exception to this prohibition, we are compelled to 

conclude that the trial court abused its discretion by ruling that the children must 

remain “in the area” pending the preparation of a social study. See Tex. Fam. 

Code Ann. § 156.006; In re Rather, 2011 WL 6141677, at *2; In re Payne, 2011 

WL 6091265, at *2; In re Winters, 2008 WL 5177835, at *3.
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Conclusion

Having determined that Mother is entitled to relief, we conditionally grant 

Mother’s petition for writ of mandamus, and we order the trial court to vacate its 

December 5, 2011 ruling.2 Mandamus will issue only if the trial court fails to 

comply with this order. Upon the trial court’s compliance with this order, our

December 12, 2011 stay order will automatically be lifted.

TERRIE LIVINGSTON

CHIEF JUSTICE

PANEL: LIVINGSTON, C.J.; WALKER and MCCOY, JJ.

MCCOY, J., dissents without opinion.

DELIVERED: January 10, 2012

 

2Our ruling should not be construed as preventing the continuation of the 

motion to modify proceeding; it applies to the December 5, 2011 temporary order 

only.