The Fort Worth Court of Appeals vacated a permanent injunction that neither parent “have unrelated members of the opposite sex staying overnight during each party’s period of possession.” The court also vacated a permanent injunction that “the children shall have no access to . . . [Father’s girlfriend].” The father appealed, arguing that the mother did not plead for permanent injunctions, that the evidence was legally and factually insufficient to support the injunctions and that the injunction against overnight company was overly broad and not supported by the evidence. In re A.A.N., No. 02-13-00151-CV (July 31, 2014) (mem. op.) (per curiam).
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Pleading for a Permanent Injunction
The court noted that the Texas Family Code does not address permanent injunctions in suits affecting the parent-child relationship. Therefore, the court looked to the general civil law, per section 105.003(a) of the Texas Family Code: “Except as otherwise provided by this title, proceedings shall be as in civil cases generally.” Because the civil law requires pleading for a permanent injunction, the trial court abused its discretion when it granted a permanent injunction in the absence of a pleading seeking that relief.
The court also held that insufficient evidence existed for the trial court to grant the injunction prohibiting contact with the father’s girlfriend. The sole evidence before the court was that (1) the parties’ daughter saw “racy” pictures of the father’s girlfriend on the Internet; (2) the mother was disgusted by the pictures; and (3) the mother believed the father’s girlfriend to be a bad influence on the parties’ children. The court stated:
However, Mother presented no evidence that the children were harmed by these photographs or that the children would suffer irreparable injury if they were allowed further access to Father’s girlfriend.
The mother’s fear and apprehension of speculative injury to the children were not sufficient to support this injunction.
Overnight Guests of the Opposite Sex
Finally, neither the mother nor the father developed any testimony on the “impact” on the children of having overnight guests of the opposite sex. The record contained no evidence
showing the the children would be imminently harmed and would suffer irreparable injury if unrelated members of the opposite sex – even the children’s friends from school – were allowed to stay overnight during the parties’ periods of possession.
The trial court reversed, having sustained each of father’s arguments.