Fourth Court of Appeals

San Antonio, Texas

MEMORANDUM OPINION

No. 04-22-00325-CV

IN RE Christina REID

Original Mandamus Proceeding1

Opinion by: Patricia O. Alvarez, Justice

Sitting: Patricia O. Alvarez, Justice

Irene Rios, Justice

Lori I. Valenzuela, Justice

Delivered and Filed: July 20, 2022

PETITION FOR WRIT OF MANDAMUS CONDITIONALLY GRANTED

Relator Christina Reid filed a petition for writ of mandamus complaining of the trial court’s 

temporary orders that remove her right to designate the primary residence of her three children and 

give that right to Real Party in Interest Patrick Couch. Reid contends the order violates section 

156.006(b) of the Texas Family Code because, without sufficient evidence, the orders change the 

parent with the right to designate the primary residence of the children during a modification 

proceeding. 

We conditionally grant the writ.

1 This proceeding arises out of Cause No. 2020-CI-18954, styled In the Interest of M.R.C., T.J.C., and C.F.C., 

Children, pending in the 407th Judicial District Court, Bexar County, Texas, the Honorable Martha Tanner presiding.
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BACKGROUND

During their marriage, Christina Reid and Patrick Couch had three children: M.R., T.J., 

and C.F. At the time of the underlying proceeding, the children’s ages were 16, 14, and 8. Reid 

and Couch divorced in April 2021; the decree named each as joint managing conservators with 

Reid designated as the parent with the right to designate the primary residence of the children. 

Less than six months later, on October 5, 2021, Couch filed a petition to modify the parentchild relationship for all three children. Couch’s petition alleged, among other things, that Reid

had failed to abide by multiple sections of the parties’ divorce decree. In an affidavit filed on 

October 21, 2021 (the 2021 Affidavit), Couch alleged Reid “knowingly and willfully mentally 

abused and alienated” M.R., T.J., and C.F. by making several disparaging comments to M.R. and 

C.F. regarding the marital home and child support payments. Couch also alleged Reid refused to 

let the children communicate with Couch and withheld C.F.’s medical information from Couch. 

The 2021 Affidavit does not contain any specific allegations regarding Reid and T.J.

On February 2, 2022, Couch filed a motion for temporary orders. In his motion, Couch

requested, inter alia, that he should be named as the parent with the exclusive right to designate 

the primary residence of the children. Couch also requested that M.R. and T.J., who are over the 

age of twelve, be interviewed in chambers by the trial court. Couch then filed an amended motion 

for temporary orders and a new affidavit (the 2022 Affidavit). Couch’s amended motion modified 

his request to seek only that M.R. be interviewed in chambers.

On March 17, 2022, a hearing was held on Couch’s amended motion for temporary orders. 

Couch appeared represented by counsel; Reid appeared pro se. At the conclusion of the hearing, 

the trial court rendered temporary orders that removed Reid and substituted Couch as the parent 

with the right to designate the primary residence of the children. The trial court’s temporary orders 

found the orders were “for the safety and welfare and in the best interest of [M.R., T.J., and C.F.].”
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On May 31, 2022, Reid filed her petition for writ of mandamus, to which Couch filed a 

response.

STANDARD OF REVIEW

To be entitled to mandamus relief, Reid must show the trial court committed a clear abuse 

of discretion and that Reid has no adequate remedy by appeal. See In re Ford Motor Co., 165 

S.W.3d 315, 317 (Tex. 2005) (orig. proceeding) (per curiam). “[A] trial court abuses its discretion 

when it acts in an arbitrary or unreasonable manner without reference to guiding rules or 

principles.” Samlowski v. Wooten, 332 S.W.3d 404, 410 (Tex. 2011). When assessing the 

rendition of temporary orders, “[l]egal and factual sufficiency challenges to the evidence are 

relevant factors in assessing whether the trial court abused its discretion.” In re Lee, No. 04-19-

00440-CV, 2019 WL 3642640, at *1 (Tex. App.—San Antonio Aug. 7, 2019, orig. proceeding)

(mem. op.). “Temporary orders, entered while a motion to modify in a suit affecting the parentchild relationship is pending, are interlocutory and there is no statutory provision for appeal of 

these orders.” In re Walser, No. 04-21-00291-CV, 2021 WL 4296048, at *1 (Tex. App.—San 

Antonio Sept. 22, 2021, orig. proceeding) (mem. op.).

SIGNIFICANT IMPAIRMENT

In her first issue, Reid asserts the trial court abused its discretion by rendering temporary 

orders that remove her right to designate the primary residence of the children because there is 

insufficient evidence that the children’s residing with her significantly impairs their physical health 

or emotional development.

A. Statutory Prerequisite for Change of Designation

Section 156.006(b) provides, in part, as follows:

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

order that has the effect of creating a designation, or changing the designation, of 

the person who has the exclusive right to designate the primary residence of the 
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child, or the effect of creating a geographic area, or changing or eliminating the 

geographic area, within which a conservator must maintain the child’s primary 

residence, under the final order unless 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;

[or]

. . . .

(3) the child is 12 years of age or older and has expressed to the court in 

chambers . . . 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)(1), (3). 

B. Parents’ Arguments

Reid argues Couch’s motion for temporary orders and his accompanying affidavit, even if 

taken as true, do not significantly impair the children’s physical health or emotional development.

Couch contends just the opposite, that his 2021 Affidavit, 2022 Affidavit, and 

uncontradicted testimony at the hearing show the children’s present circumstances significantly

impair the children’s physical health and emotional development. 

C. Applicable Law

1. Changing Designated Parent

When a trial court issues an order changing the designation of the parent with the right to 

determine the primary residence of a child during the pendency of a modification suit, the trial 

court must find that the modification is in the child’s best interest.

2 Id.(b). If the trial court finds 

a modification is in the child’s best interest, the trial court is then required to find either “that the 

2 The non-exhaustive factors to determine the best interest of a child include (1) the desires of the child; (2) the 

emotional and physical needs of the child now and in the future; (3) the emotional and physical danger to the child 

now and in the future; (4) the parental abilities of the individuals seeking custody; (5) the programs available to assist 

these individuals to promote the best interest of the child; (6) the plans for the child by the individuals seeking custody; 

(7) the stability of the home or proposed placement; (8) the acts or omissions of the parent, which may indicate that 

the existing parent-child relationship is not a proper one; and (9) any excuse for the acts or omissions of the parent.

In re C.S., No. 04-20-00421-CV, 2021 WL 5496159, at *3 (Tex. App.—San Antonio Nov. 24, 2021, no pet.) (mem. 

op.) (citing Holley v. Adams, 544 S.W.2d 367, 371–72 (Tex. 1976)).
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children’s living environment with [R]elator may endanger their physical health or significantly 

impair their emotional development” or that a child twelve years of age or older has expressed to 

the court in chambers the name of the person who is the child’s preference to have the exclusive 

right to designate the primary residence of the child. In re Ostrofsky, 112 S.W.3d 925, 929 (Tex. 

App.—Houston [14th Dist.] 2003, orig. proceeding); see TEX. FAM. CODE ANN. § 156.006(b)(1), 

(3).

2. High Burden to Change

Emphatically, “Texas courts have recognized that the ‘significant impairment’ standard in 

section 156.006(b)(1) is a high one . . . requiring evidence of bad acts that are more grave than 

violation of a divorce decree or alienation of a child from a parent.” In re Serio, No. 03-14-00786-

CV, 2014 WL 7458735, at *2 (Tex. App.—Austin Dec. 23, 2014, orig. proceeding) (mem. op.); 

see In re J.W., No. 02-18-00419-CV, 2019 WL 2223216, at *3 (Tex. App.—Fort Worth May 23, 

2019, orig. proceeding) (mem. op.). To satisfy this “high burden,” the movant must “present 

evidence of bad acts or omissions committed against the children.” In re Walser, 2021 WL 

4296048, at *2. The evidence of bad acts or omissions must be factually and legally sufficient for 

each child individually, “[b]ecause each child’s circumstances are different, conditions that could 

significantly impair the emotional development of one child may not affect another child as 

strongly.” In re Strickland, 358 S.W.3d 818, 822–23 (Tex. App.—Fort Worth 2012, orig. 

proceeding.).

3. Evidence of Present Circumstances

Moreover, the statute requires a finding of sufficient evidence for each child that his

“present circumstances—not past circumstances—and evidence that remaining in those 

circumstances during the pendency of the custody proceedings would significantly impair their 

physical or emotional development.” In re Barker, No. 03-21-00036-CV, 2021 WL 833970, at *7 
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(Tex. App.—Austin Mar. 4, 2021, orig. proceeding) (mem. op.). Thus, specific individual 

allegations, supported by sufficient evidence, as to how each child’s physical health or emotional 

development will be significantly impaired in their present circumstances is statutorily required. 

See id.; see also In re Coker, No. 03-17-00862-CV, 2018 WL 700033, at *5 (Tex. App.—Austin 

Jan. 23, 2018, orig. proceeding) (mem. op.).

D. 2021 Affidavit is Not Evidence

Couch asserts the trial court was within its discretion to consider his 2021 Affidavit filed 

shortly after he filed his original petition to modify the parent-child relationship. However, the 

2021 Affidavit concerns the children’s circumstances as they existed on October 21, 2021. The 

hearing took place on March 17, 2022—one hundred and forty-seven days later. Further, the 2021 

Affidavit was not offered or admitted into evidence. See Shah v. Star Anesthesia, P.A., 580 S.W.3d 

260, 266 (Tex. App.—San Antonio 2019, no pet.); Ahmed v. Shimi Ventures, L.P., 99 S.W.3d 682, 

684 n.2 (Tex. App.—Houston [1st Dist.] 2003, no pet.) (“[A]bsent the parties’ agreement to treat 

the affidavits as evidence, affidavits attached to pleadings and not admitted into evidence do not 

constitute evidence.”). The 2021 Affidavit, at the time of the hearing on March 17, 2022, was no 

evidence of the children’s present circumstances. See In re Barker, 2021 WL 833970, at *7. 

E. 2022 Affidavit is Not Evidence

Couch attached only the 2022 Affidavit to his amended motion for temporary orders. In 

the 2022 Affidavit, Couch alleged Reid “knowingly and willfully mentally abused and alienated” 

M.R., T.J., and C.F by (1) accusing M.R. of doing drugs, M.R. being molested, M.R. being bribed 

by Couch, M.R. being mentally unstable, and Reid taking her anger out on M.R.; (2) refusing to 

let M.R. live with Couch; (3) making several disparaging comments about Couch to M.R while 

she removed his journal and furniture from M.R.’s room; (4) smothering C.F. with a pillow or her 

hand; (5) failing to meet M.R.’s, T.J.’s, and C.F’s educational needs; and (6) refusing to surrender 
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possession of M.R., T.J., and C.F. However, just like Couch’s 2021 Affidavit, the 2022 Affidavit 

attached to Couch’s motion was not offered or admitted into evidence during the hearing; 

therefore, we do not consider the 2022 Affidavit as evidence in support of the trial court’s ruling.

See Ahmed, 99 S.W.3d at 684 n.2; see also In re E.W., No. 05-01-01463-CV, 2002 WL 1265541, 

at *2 (Tex. App.—Dallas June 7, 2002, pet. denied) (not designated for publication). 

F. Testimony at Hearing

Nevertheless, during the hearing, Couch testified to the validity of the alleged fight between 

Reid and M.R., during which Reid allegedly removed furniture from M.R.’s room and blocked 

him from leaving the room. Couch also testified to the allegation that, according to what he heard 

from M.R., Reid had assaulted C.F. by smothering him. Finally, Couch testified C.F. had a mental 

episode because of Reid and that Reid was not meeting the educational needs of all three children. 

We turn now to the present circumstances evidence pertaining to the significant impairment 

of the physical health or emotional development of the children. See In re Strickland, 358 S.W.3d 

at 822–23. 

G. Evidence of Significant Impairment for M.R.

Regarding M.R.’s present circumstances, Couch testified that: Reid locked M.R. out of the 

house on October 5, 2021, because she was angry with him; M.R. and C.F. have asked Couch if 

he is “jacking” with the Internet at Reid’s home; Reid told M.R. about the modification suit but 

did not share the details with him; M.R. has been late to school twenty-one times and absent three 

times; Reid failed to attend a school meeting for M.R. and T.J.; M.R. is “stressed” when Couch 

picks him up for visits; and M.R. does not like to go back to Reid at the end of Couch’s possession 

periods. 

Furthermore, Couch testified that M.R. told him that on February 16, 2022, he desired to 

live with Couch. When Reid learned about M.R.’s decision, Couch alleges, Reid began arguing 
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with M.R. and removed personal items from his room. Couch asserted that it was during this 

argument that Reid physically blocked M.R. from leaving the room and alleged M.R. was doing 

drugs, being molested, being bribed by Couch, and was mentally unstable.3

Couch’s testimony, without more, does not show that M.R.’s present circumstances 

significantly impair his physical health or emotional development. See In re Kyburz, No. 05-15-

01163-CV, 2015 WL 6935912, at *2 (Tex. App.—Dallas Nov. 10, 2015, orig. proceeding) (mem. 

op.) (noting that testimony that the children’s clothes did not fit, and they looked “disheveled” was 

insufficient to show significant impairment); In re Serio, 2014 WL 7458735, at *2; 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.). 

We conclude Couch’s testimony is insufficient to meet the elevated burden to show

significant impairment for M.R. See In re Charles, No. 03-17-00731-CV, 2017 WL 5985524, at 

*4 (Tex. App.—Austin Dec. 1, 2017, orig. proceeding) (mem. op.) (finding interference with 

visitation, communication; that the child wore dirty or unkempt clothing; and that the child 

appeared dirty or unkempt did not rise to a level of showing significant impairment); see also In 

re Coker, 2018 WL 700033, at *5.

Further, there is no indication in the temporary orders that the trial court’s decision was

based on M.R.’s in-chambers interview. Thus, the trial court’s findings rely solely on section

156.006(b)(1), and on this record, there is insufficient evidence of significant impairment.

Therefore, the trial court abused its discretion when it changed the parent with the right to designate 

M.R.’s primary residence. 

3 Reid contested these allegations through her controverting testimony. 
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H. Evidence of Significant Impairment for C.F.

Regarding C.F.’s present circumstances, Couch testified that around March 6, 2022, M.R. 

told him C.F. and Reid had “gotten in an altercation” and that Reid “physically assaulted” C.F. 

Couch asserted that M.R. said it sounded as if Reid was “smothering” C.F. Couch added that C.F. 

stated Reid told him that Couch did not want Reid and the children living in the marital home and 

that Couch did not pay Reid child support payments. Couch also testified that C.F. has been late 

to school eleven times and absent five times.4

Couch’s testimony, even if taken as true, does not show that C.F.’s present circumstances 

significantly impair his physical health or emotional development. See In re Coker, 2018 WL 

700033, at *5 (opining that allegations that a child’s schedule has been inconsistent and that a 

parent may be alienating the child or that a parent occasionally does not supervise a child, without 

more, does not satisfy the significant impairment standard); In re Escamilla, No. 0402-00258-CV, 

2002 WL 1022945, at *2 (Tex. App.—San Antonio May 22, 2002, orig. proceeding) (mem. op.).

I. Evidence of Significant Impairment for T.J.

Regarding T.J.’s present circumstances, Couch testified he called T.J. on March 3, 2022 

and T.J. asked him questions about Couch and Reid’s child support arrangement. Couch also 

testified that T.J. has been late to school twenty times and absent four times. Couch’s testimonial 

evidence, without more, does not show that T.J.’s present circumstances significantly impair his 

physical health or emotional development. See id. 

J. Abuse of Discretion

Having reviewed the evidence with respect to each child’s present circumstances, we 

conclude it does not meet the high burden to show a significant impairment of the physical health 

4 Reid contested these allegations through her controverting testimony.
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or emotional development of any of the children. See In re J.W., 2019 WL 2223216, at *4; In re 

Serio, 2014 WL 7458735, at *2. 

PREMATURE MODIFICATION

For her second issue, Reid contends that the trial court abused its discretion by modifying 

the exclusive right to designate the primary residence of the children within one year of the entry 

of her and Couch’s divorce decree. Because Reid’s first issue was dispositive, we need not address 

her second issue.

CONCLUSION

Because we have concluded that the trial court abused its discretion in rendering the 

temporary orders, and Reid does not have an adequate appellate remedy, we conditionally grant 

Reid’s requested relief and direct the trial court to vacate its temporary orders of March 17, 2022, 

within fifteen days of this opinion. The writ will issue only in the unlikely event that the trial court 

does not act in accordance with this opinion.

Patricia O. Alvarez, Justice