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Click here for the full text of this decision FACTS:Judy Thorn, grandmother of M.A.H. and S.J.B., sought custody of the children. The trial court held a hearing on the matter on Jan. 6, 2006. Attending were Thorn, Thorn’s attorney, Marcus Wayne Hass (father of M.A.H.) and the attorney ad litem who had been appointed to represent Kerri Sue Hass, mother of the two children. Marcus had also filed a waiver of service. This was the only hearing on the merits conducted in this matter. At the outset of that hearing, Thorn’s attorney pointed out that the fathers of the children were in agreement with Thorn’s course of action and that an order would be circulated among them to be presented to the trial court at a later time. During this hearing, it was indicated by Thorn that she had made numerous unsuccessful attempts to achieve personal service citation upon Kerri and detailed those efforts; she also testified concerning the best interests of the children, the subject of the suit, relating that S.J.B. had suffered violence at the hands of the mother and her boyfriend, with whom she cohabited. At the conclusion of the hearing, the court indicated that it was granting Thorn the relief she had requested. Thorn’s attorney indicated that an order needed to be circulated and, after this had been accomplished, it would be presented to the court for entry. On March 13, 2006, a waiver of service was filed by Joseph Michael Baker (father of S.J.B.). An Order in Suit to Modify Parent-Child Relationship, which recited that it was taken on the default of Kerri to appear and that the parties waived the making of a record, was filed on June 21, 2006, which incorrectly recited that a hearing took place on that same date; that order bore the signatures of approval by Marcus and Joseph. In its order, the court removed Kerri as the managing conservator of both minor children and appointed Thorn as managing conservator and Kerri as possessory conservator of both children. The order went on to require Kerri to pay Thorn child support and provide health insurance for the children; it also gave the sole discretion to Thorn to unilaterally determine the times and circumstances for visitation or custody of the children. Kerri filed a motion for new trial, challenging the diligence employed by Thorn in attempting to achieve personal service citation. After a lengthy hearing, the court determined that due diligence had been attempted in an effort to locate and personally serve notice on Kerri before the citation by publication and denied the motion for new trial. On appeal, Kerri raised several unrelated arguments; Thorn chose to file no responsive brief. HOLDING:Affirmed in part, reversed and remanded in part. Kerri first argued for reversal of the custody order on grounds that the parties waived a court reporter. Kerri, the court stated, correctly noted that in child custody cases the general rule is that a reporter may only be waived on the agreement of all parties. If one party does not appear, the court stated, waiver of the making of a record by the other party is not sufficient. But the court noted that no hearing was conducted on June 21, 2006. Thus, the court stated, “there can be no error in having no record from a nonexistent hearing. Despite the incorrect recitation in the order that the parties waived the making of a record on June 21, 2006, the court stated that a record was actually made of the hearing on the merits held Jan. 6, 2006. Kerri also argued that the trial court abused its discretion in ordering visitation on the days and times prescribed by Thorn. That order read as follows: “The Court finds that credible evidence has been presented that KERRI SUE HASS has a history or pattern of physical abuse directed against [S.J.B.] and [M.A.H.]. IT IS THEREFORE ORDERED that visitation shall be under the supervision of JUDY THORN on the days and times prescribed by JUDY THORN.” Under Texas Family Code �153.002, the best interest of the child, the court stated, is always the primary consideration in determining issues of conservatorship and possession. The court stated that it would reverse the trial court’s order only if it appeared from the record as a whole that the trial court abused its discretion. Thus, in reviewing the substance of the trial court’s order, the court asked whether the court acted without reference to any guiding rules or principles, i.e., whether the order was arbitrary or unreasonable. Kerri argued that any order � such as the one from which she appealed � which gives one party complete discretion to determine when, where and if the other party will have visitation with a child was an abuse of discretion because it effectively denied any right to visitation to the other party. Citing its case law, the court agreed. Thus, because the order in the present case could effectively deny Kerri access to the children, because complete denial was not shown at the hearing on the merits held Jan. 6, 2006, to be in the children’s best interests and because Thorn did not show sufficiently good cause at that hearing why specific orders were inappropriate, the court ordered the trial court to fashion an order that specifically articulated the times and conditions of Kerri’s access to the children or, alternatively, with proper justification completely bar access and visitation by Kerri. OPINION:Moseley, J.; Morriss, C.J., and Carter and Moseley, J.J.

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