In re Gentri Renee McLean

Summary

The Eleventh Court of Appeals of Texas conditionally granted Gentri Renee McLean’s petition for writ of mandamus challenging temporary orders in a suit affecting the parent-child relationship. The court held that the evidence was legally insufficient to establish that the children’s present circumstances would significantly impair their physical health or emotional development as required by Texas Family Code Section 156.006(b)(1). The court directed the trial judge to vacate the April 9 letter ruling and April 24 temporary orders, and did not reach the challenge to asymmetric drug-testing requirements.

Holdings

1. Gentri had no adequate remedy by direct appeal because temporary orders entered while a modification proceeding is pending are interlocutory and are not subject to statutory appeal.
2. A trial court may not temporarily change the designation of the parent with the exclusive right to designate a child's primary residence unless the order is in the child's best interest and is necessary because each child's present circumstances would significantly impair the child's physical health or emotional development. The evidence presented here was legally insufficient to satisfy that requirement.
3. The court did not decide whether the asymmetric drug-testing requirements were permissible because vacatur of the temporary orders in their entirety made it unnecessary to reach that issue.

Questions Presented

1. Whether the trial court clearly abused its discretion by changing the designation of the parent with the exclusive right to determine the children's primary residence without legally sufficient evidence that each child's present circumstances would significantly impair the child's physical health or emotional development under Texas Family Code section 156.006(b)(1).
2. Whether Gentri had an adequate remedy by appeal from the challenged temporary orders.
3. Whether the trial court's asymmetric drug-testing requirements were permissible.

Disposition

writ_granted