In re Zermeno, 07-26-00068-CV, April 16, 2026.
On appeal from 154th District Court, Lamb County, Texas
Synopsis
The Amarillo Court of Appeals conditionally granted mandamus relief after the trial court named Father a joint managing conservator in temporary orders despite uncontroverted evidence that he had committed family violence against Mother within the two years preceding the divorce filing. Under Texas Family Code section 153.004(b), credible evidence of a history or pattern of such abuse bars a joint managing conservatorship appointment, and the trial court therefore abused its discretion by entering an order the statute forbids.
Relevance to Family Law
This is a significant temporary-orders conservatorship decision for Texas family lawyers because it reinforces that section 153.004 is not merely a best-interest factor—it contains statutory prohibitions that cabin trial-court discretion. In divorce and SAPCR litigation, when the record contains credible, uncontroverted evidence of family violence against the other parent within the relevant period, a court cannot sidestep the statute by relying on competing evidence about household conditions, neglect allegations, or recent parental improvement. For litigators handling temporary hearings, this opinion is a reminder that mandamus remains a live corrective tool when a temporary conservatorship order conflicts with section 153.004.
Case Summary
Fact Summary
The parties were married for roughly twenty years and had five minor children. Father filed for divorce in September 2025 and sought to be named sole managing conservator, alleging concerns about Mother’s care of the children. Mother responded by seeking sole managing conservatorship based on Father’s history of family violence, specifically violence committed within the two years preceding the filing of the divorce.
At the temporary-orders hearing, the trial court heard testimony from both parents, two adult children, and Father’s former affair partner, Lisa. Much of the testimony focused on the parties’ parenting deficiencies, including allegations about housekeeping, supervision, food insecurity, medical care, and financial instability. But the appellate court’s focus was narrower: whether the evidence established family violence within the statutory window.
On that point, the record was unusually strong. Father admitted that he had hit Mother several times in the past while intoxicated. More importantly, he admitted striking her shortly before the parties separated in April 2025, which plainly placed the conduct within two years of the September 2025 filing. Mother also testified that Father assaulted her repeatedly during the marriage, including a slap after he had supposedly stopped drinking, an incident that left her with facial injuries, and another altercation that resulted in her breaking her ankle. She further testified that after separation he threatened suicide with a gun and pointed the gun at her. The adult children also described Father’s past drinking and violent conduct. No response was filed in the court of appeals contesting Mother’s mandamus petition.
Despite that record, the trial court entered temporary orders appointing both parents joint managing conservators and giving Father the exclusive right to designate the children’s primary residence in Lamb County. Mother sought mandamus.
Issues Decided
- Whether mandamus was an available remedy to challenge a temporary conservatorship order appointing Father joint managing conservator.
- Whether the trial court abused its discretion by appointing Father a joint managing conservator despite credible, uncontroverted evidence of a history or pattern of family violence against Mother within the two years preceding the divorce filing.
- Whether Texas Family Code section 153.004(b) prohibited the joint-managing-conservatorship appointment on this record.
Rules Applied
The court applied the standard mandamus framework: the relator must show a clear abuse of discretion and no adequate remedy by appeal. Because temporary orders in family cases are generally not subject to interlocutory appeal, mandamus is the appropriate vehicle to challenge a temporary conservatorship order that violates a statutory limitation.
The principal statute was Texas Family Code section 153.004. The opinion highlighted several components of that section:
- Section 153.004(a) requires the court to consider evidence of the intentional use of abusive physical force or sexual abuse by a party against the party’s spouse, a parent of the child, or a person under 18 if committed within the two years before suit or during the suit.
- Section 153.004(b) provides that a court may not appoint joint managing conservators if credible evidence is presented of a history or pattern of past or present child neglect, or physical or sexual abuse by one parent directed against the other parent, a spouse, or a child.
- Section 153.004(b) also creates a rebuttable presumption against appointing an abusive parent as sole managing conservator with the exclusive right to designate primary residence.
- Section 153.004(d) addresses restrictions on access where a history or pattern of family violence is shown by a preponderance of the evidence.
The court also relied on standard abuse-of-discretion authorities, including Walker v. Packer and Downer v. Aquamarine Operators, Inc., for the proposition that a misapplication of the law to undisputed facts constitutes an abuse of discretion reviewable by mandamus.
Application
The court treated the case as a straightforward statutory-constraint problem rather than a free-form best-interest dispute. Trial courts ordinarily have broad discretion in temporary conservatorship matters, but that discretion ends where section 153.004(b) begins. The statute does not merely permit a court to weigh family violence against other best-interest evidence; it prohibits a joint managing conservatorship appointment once credible evidence establishes the requisite history or pattern of abuse.
That is what drove the result here. The court emphasized that the evidence of domestic violence was not meaningfully controverted. Father himself admitted hitting Mother on several occasions and admitted a specific assault shortly before the parties’ April 2025 separation. Mother supplied additional testimony describing repeated assaults and a firearm incident. The adult children corroborated Father’s violent conduct. Although there was competing testimony about Mother’s alleged neglect, the cleanliness of the home, and Father’s claimed sobriety and recent improvement, those subjects did not neutralize the statutory bar. In the appellate court’s view, once credible and uncontroverted evidence of family violence within the relevant period was in the record, appointing Father as a joint managing conservator was beyond the trial court’s lawful discretion.
The court’s approach is important strategically. It did not hold that Father could never have possession, access, or any conservatorship-related rights. Nor did it render Mother sole managing conservator as requested. Instead, it held only that the temporary order actually entered—a joint managing conservatorship—could not stand under section 153.004(b). That distinction matters in mandamus practice: the appellate court corrected the unlawful order but left the trial court room to craft a lawful replacement order on remand.
Holding
The Seventh Court of Appeals held that Mother lacked an adequate remedy by appeal because the challenged order was a temporary order in a pending divorce case, and such orders are ordinarily reviewable only by mandamus. That satisfied the second prerequisite for extraordinary relief.
The court further held that the trial court abused its discretion by appointing Father joint managing conservator. The record contained credible, uncontroverted evidence—including Father’s own admissions—that he had committed family violence against Mother within the two years preceding the filing of the divorce. Under Texas Family Code section 153.004(b), a joint managing conservatorship appointment was therefore prohibited.
The court conditionally granted the writ of mandamus and directed the trial court to vacate its temporary order. Although Mother also requested rendition appointing her sole managing conservator, the opinion as provided reflects that the court granted relief by requiring vacatur of the unlawful order rather than substituting its own temporary conservatorship framework.
Practical Application
For family law litigators, the immediate lesson is evidentiary and procedural: if section 153.004(b) is in play, build the hearing record around the statutory elements and time window, not around generalized best-interest rhetoric. Establish the dates of the assaults, identify the victim’s relationship to the child, and obtain clean testimony or admissions showing a history or pattern of abuse. If the opposing parent admits even one or more qualifying incidents within the two-year lookback, counsel should argue explicitly that joint managing conservatorship is statutorily unavailable, not merely disfavored.
The case also matters for how lawyers frame competing proof. Trial courts routinely hear temporary-orders records full of allegations running in both directions—neglect, instability, poor supervision, substance abuse, paramour issues, and school or medical concerns. In re Zermeno shows that those issues do not restore discretion where the Legislature has removed it. If there is credible, uncontroverted evidence of qualifying family violence, the court cannot balance its way back into a joint managing conservatorship order.
For the respondent’s side, the case is a warning against conceding or casually admitting violent conduct without confronting the legal consequences. Where damaging facts cannot be denied, counsel must shift to limiting the relief sought, developing lawful alternatives, and addressing possession, supervised access, geographic restrictions, exchange logistics, and support. What counsel cannot do effectively after Zermeno is defend a joint-managing-conservatorship structure as a permissible middle ground when section 153.004(b) has been triggered.
From an appellate-preservation standpoint, this is also a strong reminder to make the statutory objection unmistakable at the temporary-orders hearing. Tie the evidence to the statutory language, request a compliant order, and if the trial court nevertheless appoints joint managing conservators, move quickly on mandamus. Temporary orders can shape the practical course of the case for months, and this opinion reinforces that appellate courts will intervene when the order violates a mandatory conservatorship prohibition.
Checklists
Proving the Section 153.004(b) Bar at Temporary Orders
- Plead family violence expressly in the petition or counter-petition.
- Identify conduct occurring within two years before filing or during the suit.
- Elicit testimony describing intentional abusive physical force with dates or approximate dates.
- Obtain admissions from the opposing parent whenever possible.
- Offer corroborating testimony from adult children, third parties, police witnesses, or medical providers when available.
- Introduce text messages, police reports, photographs, medical records, or prior protective-order materials if admissible.
- Argue that section 153.004(b) is a statutory prohibition on joint managing conservatorship, not just one best-interest consideration.
- Request a ruling that expressly denies joint managing conservatorship based on the statute.
Defending Against a Family-Violence-Based Conservatorship Challenge
- Assess immediately whether the alleged conduct fits the statutory time window.
- Determine whether the evidence truly shows a history or pattern, or whether the record can legitimately contest credibility or characterization.
- Avoid unnecessary admissions that conclusively establish the statutory predicate.
- If adverse facts are unavoidable, focus on lawful alternatives to joint managing conservatorship.
- Develop evidence relevant to possession terms, supervision, exchange conditions, counseling, substance-abuse monitoring, and child support.
- Request findings or a clear record reflecting the court’s basis for any temporary relief.
- File a prompt response if mandamus is sought; silence in the appellate court invites a one-sided record.
Preserving Error for Mandamus
- Cite section 153.004(a), (b), and when relevant, (d), on the record.
- State clearly that the requested joint-managing-conservatorship order is prohibited by statute.
- Tie each assault or abuse incident to the statutory language and timing requirement.
- Object to an order naming joint managing conservators if credible evidence of qualifying abuse has been admitted.
- Ensure the reporter’s record contains the admissions and testimony supporting the statutory challenge.
- Obtain and review the signed temporary order immediately.
- File mandamus promptly because temporary orders can have immediate and continuing practical effects.
Drafting a Compliant Alternative Temporary Order
- Propose a conservatorship structure that does not name the abusive parent a joint managing conservator if section 153.004(b) applies.
- Address primary residence, possession, exchanges, and communication in detail.
- Include safeguards tailored to the violence evidence, such as supervised possession or neutral exchange locations where appropriate.
- Address firearms restrictions if supported by the record and applicable law.
- Include child support and medical support provisions to stabilize the temporary arrangement.
- Request counseling, sobriety monitoring, batterer’s intervention, or other remedial provisions if the facts support them.
- Draft with mandamus review in mind so the trial court has a lawful alternative readily available.
Citation
In re Zermeno, No. 07-26-00068-CV, 2026 Tex. App. LEXIS ___ (Tex. App.—Amarillo Apr. 16, 2026, orig. proceeding) (mem. op.).
Full Opinion
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