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Click here for the full text of this decision FACTS:Christopher R. deFilippi is the father of three school-age children, D.F, M.F. and A.F. Christopher was married to Marissa Keene, the children’s mother and custodial parent. The couple divorced in Maryland in 2005 after a contentious custody dispute. Christopher was awarded regular, unsupervised visitation with the children. The Maryland court concluded that both parents were of good moral character and loved their children, but it declined to order joint custody based on the couple’s inability to communicate with each other. In 2006, after additional contested proceedings in Maryland, Marissa and the children moved to Laredo. Although Christopher continued to live in Maryland, he visited the children in Laredo approximately one week per month. Christopher did not have a home in Laredo, so he and the children stayed in a hotel suite during these visits. Also, during the year the children lived in Laredo, they returned to visit their father in Maryland on several occasions. Marissa was found dead in her swimming pool on June 3, 2007. The children’s grandparents, Gladys Cronfel Keene and Roger Keene, assumed immediate care of the children while Christopher traveled to Laredo. Three days after Marissa’s death, on June 6, 2007, the Keenes filed a suit affecting parent-child relationship in the district court in Webb County. The Keenes also obtained a temporary restraining order prohibiting Christopher from removing the children from Webb County. On June 13, 2007, Christopher filed a petition for a writ of habeas corpus in the same court seeking the immediate return of the children to him. The trial judge held a hearing on Christopher’s petition for a writ of habeas corpus on June 20, 2007. Numerous witnesses testified, including two child psychologists. Concluding that the evidence raised a serious immediate question concerning the children’s emotional welfare, the judge denied Christopher’s habeas corpus petition. Instead, the judge entered temporary orders appointing the Keenes temporary sole managing conservators of the children and providing Christopher with visitation. These temporary orders prohibited Christopher from removing the children from Webb County. On July 26, 2007, Christopher petitioned the 4th Court of Appeals for a writ of mandamus to compel the trial judge to vacate his order denying habeas corpus relief. In his petition, Christopher emphasized that he had a constitutional right to possession of his children and the trial court had a ministerial duty to return the children to him under the circumstances presented. Christopher contended that the trial court could have refused to return the children only if the evidence raised a serious and immediate question concerning the children’s welfare. Christopher argued that there was no such evidence presented to the trial court. HOLDING:The court conditionally granted mandamus relief. Texas Family Code ��157.371-.376 provides that if the right to possession of a child is governed by a court order, the court shall compel the return of a child if it finds that the party seeking relief is entitled to possession of a child under a court order. It further provides that if the right to possession of a child was not governed by an existing order, the court could compel the return of the child or issue temporary orders if a suit affecting the parent child relationship is pending and the parties have received notice of a hearing on temporary orders set for the same time as the habeas corpus proceeding. Nevertheless, under �157.374, “the court may render an appropriate temporary order if there is a serious immediate question concerning the welfare of the child.” Upon proof of the bare legal right of possession, the grant of the writ of habeas corpus should be automatic, immediate and ministerial, the court stated. The trial court is not permitted to consider the child’s best interest nor go beyond the immediate welfare of the child in a habeas corpus proceeding. Mandamus may issue to correct the erroneous denial of habeas corpus relief under the Texas Family Code, the court stated. The court found that Christopher clearly established a superior right over the grandparents to possession of his children. As the children’s father, Christopher possessed a fundamental, constitutional right to the care, custody and control of his children. When a party such as Christopher, the court stated, establishes his or her legal right to possession of a child, the trial court’s authority to refuse habeas corpus relief is very limited. Evidence raising a serious immediate question concerning a child’s welfare must be presented before the trial court has any discretion to deny the writ. The court found that the Keenes’ evidence did not meet this standard. They argued that returning the children to Christopher created a serious and immediate concern for the children’s emotional welfare. They also claimed Christopher was a suspect in Marissa’s death, but police ruled this out later. The court found that “a parent[] being a murder suspect” or even “a child’s aversion to being with a parent” did not reach the level of a serious and immediate question regarding the children’s emotional welfare. The Keenes urged, however, that their evidence was sufficient, because it went beyond any such single set of circumstances. The court disagreed. “The accumulation of evidence,” the court stated, “cannot create a need for immediate protection or a dire emergency where none exists.” Thus, the court concluded that as a matter of law that the evidence failed to raise a serious and immediate question as to the welfare of the children OPINION:Per curiam.

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