Move to Florida without Notice Equalized Change in Primary Residence

Archive, Blog, Brad M. LaMorgese

On February 17, 2016, the Court of Appeals in Amarillo, released In Re Shaley Abney, denying Mother’s petition for writ of mandamus seeking to vacate the trial court’s temporary orders.

When the child was born, Mother and Father were designated as joint managing conservators with Mother having the exclusive right to designate the child’s primary residence without a geographic restriction. Mother eventually moved to Fort Meyers, Florida with the child. Mother was required to give Father written notice of such action but failed to do so. In response, Father filed for a modification seeking the right to designate the child’s primary residence or, alternatively, restrict the child’s residence to Garza County.

The trial court reasoned that Mother had frustrated Father’s ability to exercise any possession. As a result, the trial court ordered the child’s primary residence to be restricted to Garza County and directed Mother to deliver the child to Father for an extended period of summer possession. The trial court ordered a longer period of possession for Father to make up for the lost periods of possession that occurred because Mother moved to Florida. Further, the Court relieved Father from his child support obligation during his possession of the child. Mother filed a petition for writ of mandamus seeking to vacate the trial court’s orders relieving Father of child support and interfering with Mother’s right to designate the child’s primary residence.

The Court of Appeals did not issue writ in regards to Father’s obligation to pay child support because Mother did not brief that issue fully. Further, the Court of Appeals denied Mother’s petition for writ of mandamus regarding interference of her right to designate the child’s primary residence. The Court of Appeals reasoned that Mother did not voice her objection timely. The child was delivered to Father in June of 2015 and Mother did not raise an objection to that directive for almost six months. Mother participated in several hearings between the Court’s order and her petition for Writ of Mandamus whilst never voicing a complaint.