Nichelle-Marie Guadalupe v. Benjamin Rodriguez, 03-25-00569-CV, August 13, 2026.
On appeal from 264th District Court of Bell County
Synopsis
Texas Family Code section 153.009(f) does not require a court reporter’s record of an in-chambers child interview unless a party, the amicus attorney, the attorney ad litem, or the court affirmatively moves for one. In Guadalupe v. Rodriguez, the Austin Court of Appeals held that when no one requests a record, the lack of a transcript is not trial-court error, and the unrecorded interview is treated on appeal as missing evidentiary material that supports the conservatorship ruling rather than undermines it.
Relevance to Family Law
This is a practical preservation case for custody litigators. In modification suits, SAPCR trials, and any proceeding where a child age 12 or older may express a residence preference under Family Code sections 153.009 and 156.101(a)(2), Guadalupe confirms that appellate complaints about the absence of an interview record will fail unless counsel made the request required by section 153.009(f). The case also reinforces a broader family-law lesson: in bench trials, missing evidentiary material typically hurts the appellant, especially in conservatorship disputes reviewed for abuse of discretion.
Case Summary
Fact Summary
The parties were divorced in Bell County and were appointed joint managing conservators of two sons born in 2009 and 2011. The mother retained the exclusive right to designate the children’s primary residence within Texas, while the father exercised standard possession and paid child support.
In 2024, the father filed a modification seeking the exclusive right to designate the children’s primary residence. He specifically alleged that both children were at least 12 years old and would tell the court in chambers that they wanted him to have that right. While the case was pending, the father also pursued enforcement, and the trial court found the mother had failed to release the children for possession on six days.
The modification case was tried to the bench before an associate judge. Multiple witnesses testified, including both parents, the father’s brother, the mother’s adult daughter, and two of the mother’s friends. After the hearing, the judge interviewed the children in chambers on the father’s motion. No party requested that the interview be recorded. The associate judge ruled for the father, and the district judge later adopted that ruling, appointing both parents joint managing conservators but awarding the father the exclusive right to designate the children’s primary residence within Texas and ordering the mother to pay child support.
On appeal, the mother—appearing pro se—argued among other things that the trial court erred by failing to ensure a record was made of the in-chambers interviews and that the missing record was harmful.
Issues Decided
The court addressed these issues:
- Whether Texas Family Code section 153.009(f) required the trial court to make a record of the in-chambers child interviews when no party, amicus attorney, attorney ad litem, or the court itself requested one.
- Whether the absence of a record from interviews with children age 12 or older created reversible error in a conservatorship modification appeal.
- Whether the missing interview record should be treated as presumptively harmful to the appellant or instead as omitted evidentiary material supporting the judgment.
- Whether the trial proceedings were fundamentally unfair to the pro se appellant.
- Whether the absence of findings of fact constituted reversible error when no party requested findings.
Rules Applied
The court relied primarily on the following authorities:
- Texas Family Code section 153.009(f): a record of an in-chambers interview must be made only “[o]n the motion of a party, the amicus attorney, or the attorney ad litem for the child, or on the court’s own motion,” when the child is 12 or older.
- Texas Family Code section 156.101(a)(2): conservatorship may be modified if the child is at least 12 and has expressed in chambers the name of the person the child prefers to have the exclusive right to designate primary residence, provided modification is in the child’s best interest.
- Udall v. Minns, 730 S.W.3d 704, 724–25 (Tex. App.—Austin 2026, pet. denied): an unrecorded child interview may be treated as missing evidentiary material supporting the judgment on appeal.
- In re C.J., 689 S.W.3d 417, 422–23 (Tex. App.—Dallas 2024, no pet.): same principle regarding unrecorded in-chambers interviews.
- Zeifman v. Michels, 212 S.W.3d 582 (Tex. App.—Austin 2006, pet. denied): conservatorship modifications are reviewed for abuse of discretion, with sufficiency principles folded into that review.
- Texas Rule of Civil Procedure 296: findings of fact and conclusions of law must be requested.
The court also reiterated the standard principle that pro se litigants are held to the same procedural rules as represented parties.
Application
The court’s analysis on the recording issue was straightforward and text-driven. Section 153.009(f) does not impose a self-executing duty on the trial court to make a record every time it interviews a child who is 12 or older. Instead, the statute identifies the triggering mechanism: a motion by a party, the amicus attorney, the attorney ad litem, or the court’s own motion. In this case, the father moved for the interview itself, but no one moved to have the interview recorded. That distinction controlled the outcome.
From there, the court rejected the mother’s attempt to convert the absence of a record into presumptive appellate harm. Because the statute did not require a record absent a request, there was no procedural error in conducting the interviews off the record. More importantly, the court treated the unrecorded interviews as evidentiary material that had been before the trial court but was not brought forward in the appellate record. Under Udall and In re C.J., that omission cuts against the appellant. The appellate court therefore presumed the interviews supported the conservatorship order.
That presumption is especially consequential in family-law appeals because conservatorship rulings are reviewed for abuse of discretion and appellate courts defer heavily to trial-level factfinding. Once the children’s interviews were treated as supporting evidence, the mother’s challenge to the modification order became even harder to sustain.
The court likewise rejected the mother’s other procedural complaints. It found no indication in the record that the trial court had treated her unfairly because she was pro se, and it held there was no error in the absence of findings of fact because no party had requested them under Rule 296.
Holding
The court held that Texas Family Code section 153.009(f) requires a record of an in-chambers child interview only when a party, the amicus attorney, the attorney ad litem, or the court moves to have one made. Because no such request was made here, the trial court did not err by interviewing the children off the record.
The court further held that the absence of a requested record is not presumptively harmful to the appellant. Instead, the unrecorded interviews are treated as missing evidentiary material, and the appellate court presumes that material supports the conservatorship modification order.
The court also held that the mother’s remaining procedural complaints did not warrant reversal, including her complaints about fairness and the lack of findings of fact, because the record did not substantiate unfair treatment and no findings were requested.
Practical Application
For Texas family-law litigators, Guadalupe is a preservation case disguised as a conservatorship appeal. The immediate lesson is simple: if you want an appellate record of a child interview, ask for it expressly and on the record. Do not assume that because the child is 12 or older, the court reporter will automatically transcribe the interview or that the judge has an independent statutory duty to ensure a record exists.
The case matters most in modification litigation under section 156.101(a)(2), where a child’s in-chambers preference may supply one of the statutory predicates for modifying primary-residence rights. But it also has implications in original SAPCRs and relocation fights whenever the court intends to confer privately with a child. If the interview may affect conservatorship, possession, restrictions, or best-interest findings, trial counsel should make a strategic decision before the interview occurs: either preserve the content through a record, or accept that any later appeal may proceed under a presumption that the unseen interview supports the judgment.
The opinion also highlights the asymmetry of appellate risk. The appellee can often live comfortably with no record because the omission may strengthen the presumption in favor of affirmance. The appellant usually cannot. If you represent the party who may need to challenge the judgment later, failing to request the record is a serious avoidable error.
There is also a secondary preservation point. If the case is tried to the bench and you anticipate a sufficiency or abuse-of-discretion appeal, consider pairing the section 153.009(f) record request with a timely request for findings of fact and conclusions of law. Guadalupe reminds practitioners that appellate courts will not rescue litigants from omissions that the rules place on counsel to correct.
Checklists
Preserve the Child-Interview Record
- Determine before trial whether the court is likely to interview a child in chambers.
- If the child is 12 or older, decide affirmatively whether you want the interview recorded under Texas Family Code section 153.009(f).
- Make an express on-the-record motion requesting that a record of the interview be made.
- Obtain a ruling or ensure the request is otherwise reflected in the reporter’s record.
- Confirm that the court reporter or recording mechanism will be available for the in-chambers interview.
- After trial, verify that the interview record is included in the appellate record if an appeal is anticipated.
Handle Section 156.101(a)(2) Modification Cases Strategically
- Plead the child’s age and anticipated in-chambers preference when relying on section 156.101(a)(2).
- Remember that the child’s preference is not enough by itself; develop independent best-interest evidence.
- Prepare your client for the distinction between the child’s preference and the court’s ultimate best-interest determination.
- If you represent the respondent, be prepared to rebut both the alleged preference and the broader best-interest showing.
- Treat the child interview as potentially central evidence, not a procedural afterthought.
Protect the Appellate Record in Bench Trials
- Request findings of fact and conclusions of law under Rule 296 when the ruling may be appealed.
- Monitor whether proceedings are being stenographically or electronically recorded.
- If part of the record is missing, move promptly to supplement it where possible.
- Do not assume a missing record creates reversible error; in family cases, it may instead support affirmance.
- Frame objections and requests with appellate preservation in mind, especially in conservatorship and modification hearings.
Avoid the Appellant’s Problem in Guadalupe
- Do not rely on the court to sua sponte order a record of the child interview.
- Do not wait until appeal to argue that the interview should have been recorded.
- Do not assume pro se status, opposing counsel’s silence, or the court’s familiarity with family practice will cure preservation defects.
- Do not overlook how an unrecorded interview may become presumed support for the judgment.
- Do not separate trial strategy from appellate strategy in custody cases involving child interviews.
Citation
Nichelle-Marie Guadalupe v. Benjamin Rodriguez, No. 03-25-00569-CV, 2026 WL ___ (Tex. App.—Austin Aug. 13, 2026, no pet.) (mem. op.).
Full Opinion
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