Unreported / Non-Citable
Background
Amber Gene Ward and Wayne Michael Fox, Jr. are the parents of A.G.F. Their 2022 agreed divorce decree appointed Ward sole managing conservator and Fox possessory conservator. Fox, who lived in Ohio, visited the child in March 2026 for the first time in more than three years and then petitioned to modify the parent-child relationship, seeking appointment as sole managing conservator.
At the temporary-orders hearing, Fox raised concerns about the child’s hygiene, weight, eating habits, and a former residence where Ward and the child no longer lived. Ward presented evidence that their current apartment was clean and appropriate and testified that Child Protective Services had ruled out allegations of neglectful supervision, physical neglect, and hygiene-related neglect. The trial court nevertheless gave Fox the exclusive right to designate the child’s primary residence, limited Ward to supervised visitation, and ordered Ward to pay child support.
The Court’s Holding
The Seventh Court of Appeals conditionally granted Ward’s mandamus petition. Under Texas Family Code section 156.006(b)(1), a temporary order changing the person entitled to designate a child’s primary residence must be in the child’s best interest and necessary because the child’s present circumstances would significantly impair the child’s physical health or emotional development.
The evidence did not meet that demanding standard. Fox’s concerns did not establish specific acts or omissions by Ward causing significant impairment, and conditions at a former residence could not establish impairment from the child’s present circumstances. Because the trial court lacked discretion to make the temporary change on this record, the appellate court directed it to vacate the May 11, 2026 temporary orders. The writ would issue only if the trial court failed to comply, and Ward’s motion for temporary relief was dismissed as moot.
Key Takeaways
- General concerns about parenting choices, hygiene, weight, eating habits, or living arrangements do not by themselves satisfy section 156.006(b)’s significant-impairment standard.
- Conditions at a residence where the child no longer lives cannot establish that the child’s present circumstances significantly impair physical health or emotional development.
- Mandamus is available to challenge temporary custody orders because those orders are not appealable.
Why It Matters
The decision reinforces the high evidentiary threshold for temporarily changing the parent who controls a child’s primary residence while a modification case is pending. Evidence supporting concern or further investigation is not necessarily enough; the record must show that the child’s current circumstances pose the significant impairment required by statute.