by Dennis M. Saumier
The Texas Family Code (TFC) mandates that unless otherwise provided, in suits affecting the parent-child relationship, “proceedings shall be as in civil cases generally.” Tex. Fam. Code Ann. § 105.003(a) (West 2014). There is an apparent split among the appellate courts about whether a party needs to plead for a permanent injunction in a family law case. The most common statutory grounds for injunctive relief in civil cases are found in CPRC §65.011. The Texas Rules of Civil Procedure (TRCP) state in relevant part, “[t]he judgment of the court shall conform to the pleadings, the nature of the case proved and the verdict, if any and shall be so framed as to give the party all the relief to which he may be entitled either in law or equity.” Tex. R. Civ. P. 301.
The dispute regarding permanent injunctions in family law cases is how much has the TFC replaced the equitable principles under the civil rules. The TFC requires that parties in child custody cases must include in their petition a “statement describing what action the court is requested to take concerning the child and the statutory grounds on which the request is made.” Tex. Fam. Code Ann. §102.008(b)(10). The TFC also states that “[t]he best interest of the child shall always be the primary consideration of the court in determining the issues of conservatorship and possession of and access to the child.” Tex. Fam. Code §153.002.
So how tightly did the Legislature intend to tie the hands of a trial court to protect the best interest of a child with regard to permanent injunctions? The Texas Supreme Court has held that the trial court is given wide latitude in determining the best interests of a minor child. Gillespie v. Gillespie, 644 S.W.2d 449, 451 (Tex. 1982). The Fifth Court of Appeals has held that a trial court has broad authority to place conditions on visitation that are in the child’s best interest. Peck v. Peck, 172 S.W.3d 26, 34 (Tex. App.—Dallas 2005, pet. denied). So, balancing the best interest of the child with the requirement that the parties in child custody cases are to describe what action the court is “requested” to take has caused confusion and an apparent split among the appellate courts in Texas.
Those who argue that a permanent injunction must be pled for and tried, as in other civil cases, point out that the TFC contains specific sections for temporary restraining orders and temporary injunctions that differ from temporary restraining orders and temporary injunctions in other civil cases. See Tex. Fam. Code. Ann. §§6.501, 6.503 & 105.001; Tex. R. Civ. P. 680-684.
In light of the TFC not having a specific section covering permanent injunctions, the Fort Worth Court of Appeals has held that the normal requirements for permanent injunctions apply to family cases. Finley v. Finley, No. 02-11-00045-CV, 2015 WL 294012, (Tex.App.—Fort Worth, Jan. 22, 2015, no pet.). Both Houston District Courts of Appeal have also found that permanent injunctions not pled for could not be in the final order. King v. Lyons, 457 S.W.3d 122 (Tex.App.—Houston [1st Dist.] 2014, no pet.); Flowers v. Flowers, 407 S.W.3d 452 (Tex.App.—Houston [14th Dist.] 2013, no pet.). But Dallas, Corpus Christi, and Tyler Courts of Appeal have reached the opposite result, holding that the ordinary requirements do not apply in child custody matters. Peck, at 34; MacCallum v. MacCallum, 801 S.W.2d 579, 586 (Tex.App.—Corpus Christi 1990, writ denied); In re B.H.J.-T., No. 12-09-00157-CV, 2011 WL 721511, at *2 (Tex. App.—Tyler 2011, pet. denied) (mem. op.). The Court in Peck summarized their reasoning by stating, “whether the trial court entered an injunction—as in this case—or a simple order that made the same prohibition within the divorce decree appears to be a distinction without a difference.” Peck, at 35-36.
As it stands, in our own backyards Dallas and Fort Worth seem to have different results to this question. This issue balances protecting children in a family law case with proper pleadings. TRCP 301 allows the trial court to apply equitable principles to final orders, and TFC §153.002 requires the court to always put the best interest of the child first. But TFC §102.008(b)(10) requires the petition to include the requested relief concerning the child and the statutory grounds. To date, the legislature nor the Texas Supreme Court has offered clear guidance to this issue. In short, if you want a permanent injunction in a child custody case, plead for it and put on evidence, that approach is not in dispute.
Dennis M. Saumier is owner of Saumier Law Firm, P.C. He can be reached at firstname.lastname@example.org