Mandamus conditionally granted to correct temporary order that effectively changed a mother’s right to designate the primary residence of children

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In this child custody modification matter, the Dallas Court of Appeals, in a Memorandum Opinion In re Kyburz on November 10, 2015, conditionally granted a mandamus to reverse the trial court’s temporary order changing the primary residence from mother to father. The parties were divorced in 2013, and the mother was designated primary of the two children.

In 2015, the father filed a motion to modify, asking to be appointed primary. While the suit was pending, the trial court rendered a temporary order that required the mother by a date certain to refinance the home she received in the divorce, and if she did not do so, then the father would be appointed the joint managing conservator with the exclusive right to determine the children’s residence.

The Court of Appeals conditionally granted the mandamus, finding that the temporary order violated the Family Code prohibition on issuing a temporary order in a modification that had the effect of changing the designation of the person who had the exclusive right to determine the primary residence of the children, without a showing that the children’s circumstances would significantly impair their physical health on emotional development.

This opinion contained details the father was alleging, but they did not rise to the level of impairment of physical health or emotional development.