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Click here for the full text of this decision FACTS:Jennifer Sanchez is the mother of 3-year-old J.H. In June 2006, Sanchez and Priest Anthony Holmes reached an agreement in a suit to establish the parent-child relationship between Holmes and J.H. At the time, Sanchez was attending a vocational training program in Houston during the week and returning to San Antonio on weekends. Meanwhile, J.H. stayed in San Antonio with Sanchez’s mother and stepfather and attended daycare. Holmes, who also lived in San Antonio, was not working due to an injury. Under the final agreed order, Sanchez had the “exclusive right to designate the primary residence” of J.H. “without regard to geographic location.” Holmes had overnight visits with J.H. either one night or three nights per week until December 2006, when Sanchez’s training program ended. Thereafter, Holmes’ periods of possession would follow the standard possession order. In August 2006, Sanchez was involved in an altercation that led to her arrest. Based on this incident, Holmes filed suit to modify the final order, seeking primary custody of J.H. Holmes requested temporary orders removing Sanchez as the person with the exclusive right to designate J.H.’s primary residence, alleging the child’s present environment placed her in jeopardy. Following an evidentiary hearing, the trial judge denied the temporary orders sought by Holmes. After discussing the evidence, the trial judge stated, “I guess what’s bothered the court more is this issue, you know, and Mr. Holmes talked about it a lot yesterday, with regards to why do the grandparents have [J.H.] when he’s available.” The trial judge then rendered “additional” temporary orders, awarding Holmes possession of J.H. during the week from Sunday evening to Friday evening and limiting Sanchez’s periods of possession to weekends. The temporary orders, which continued in effect “until further order of the court,” placed conditions on Sanchez’s right to possession and granted Holmes sole discretion to decide “whether or not the child is placed in a day care center.” Sanchez filed a petition for a writ of mandamus to challenge the temporary orders. HOLDING:The court conditionally granted the petition for a writ of mandamus and directed the trial court to vacate the temporary orders. Sanchez, the court stated, argued that the trial court clearly abused its discretion by ignoring the standard set forth in Texas Family Code �156.006(b)(1), which provides in pertinent part that while a suit for modification is pending, a trial court may not render a temporary order that alters which person has the exclusive right to designate the primary residence of the child unless the order is necessary because the child’s present circumstances would significantly impair the child’s physical health or emotional development. In response, Holmes argued that the trial court was not bound to follow �156.006(b)(1), because the temporary orders did not have the effect of changing Sanchez’s exclusive right to designate primary residence. Mandamus, the court first stated, is the appropriate mechanism to challenge temporary orders made while a child custody modification suit is pending because such orders are interlocutory and not appealable. When a temporary order, the court stated, deprives a custodial parent of any discretion inherent in the right to determine the child’s primary residence, it has the effect of changing the designation of the person with the exclusive right to designate a child’s primary residence. Holmes, the court stated, asserted that the temporary orders gave him possession of J.H. only when Sanchez was unavailable and thus did not change her exclusive right to designate primary residence. The court disagreed. The temporary orders, the court stated, granted Holmes possession of J.H. during the week beginning at 6 p.m. on Sunday and ending at 6 p.m. on Friday and gave him the sole discretion to decide if J.H. would attend daycare. Additionally, the court stated, the temporary orders required the parties to exchange possession of J.H. in San Antonio. The temporary orders did not expire when Sanchez completed her training program but instead extended indefinitely until further order of the court. Under the final order, Sanchez had greater possession and access to J.H. than Holmes and unrestricted authority to establish the child’s primary residence anywhere. The temporary orders took away these rights. As a practical matter, Sanchez no longer had the right to take J.H. to another city and establish the child’s main residence there. The temporary orders provided that if Sanchez’s training program required her to remain in Houston on the weekends and J.H. cannot be brought to Houston, the child must remain in Holmes’ custody. The record showed that this provision was made to limit Sanchez’s authority to leave J.H. in the grandparents’ care. In all, the court found that the substantial reduction in Sanchez’s overall possession time, the restrictions placed on her possession rights and the indefinite duration of the temporary orders operated to deprive Sanchez of any discretion inherent in her right to designate J.H.’s principal residence. Thus, the court concluded that the temporary orders effectively changed the designation of the person with the exclusive right to designate primary residence under the final order. As a result, the trial court lacked authority to render the temporary orders unless it found them to be necessary because the child’s present circumstances would significantly impair her physical health or emotional development. But the court found no evidence of such necessity in the record. OPINION:Angelini, J.; Stone, Angelini and Simmons, J.J.

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