In re Levay – Case Brief Summary (Texas)

In In re Levay, 179 S.W.3d 93 (Tex. App.--San Antonio 2005, orig. proceeding), the trial court found that outside resources were necessary to facilitate visitation between mother and daughter. Id. at 94.

The trial court then entered temporary orders admitting the child to a residential facility for an indefinite period of time "at the discretion of the facility," and further ordered the mother would have temporary care and custody of her daughter while she remained at the facility, but that periods of possession would be determined by the facility. Id. at 95.

The father, who had been designated as the person with the exclusive right to determine the child's residence, filed a mandamus petition, arguing that the trial court's temporary orders effectively denied him the right to determine his daughter's primary residence.

The Court agreed with the father's argument and conditionally granted the writ in accordance with section 156.006 of the Family Code, which provides that while a suit for modification is pending, the trial court cannot change the designation of the person who has the exclusive right to determine the primary residence of the child unless one of three enumerated factors is present. Id. at 97; see also TEX. FAM. CODE ANN. § 156.006(b) (Vernon 2008).