Fort Worth Court of Appeals: Trial Court Must Vacate Temporary Orders Granting Nonparent Conservatorship Over Fit Parent’s Objection

In re M.S., 02-26-00016-CV, March 27, 2026.

On appeal from 231st District Court of Tarrant County, Texas

Synopsis

In a parent–nonparent SAPCR modification, the Fort Worth Court of Appeals held the trial court could not continue temporary orders leaving a nonparent as joint managing conservator with possession/access over the fit parent’s objection absent extraordinary circumstances sufficient to overcome the fit-parent presumption. Applying In re C.J.C., the court conditionally granted mandamus and ordered the trial court to vacate its order denying the parent’s requested temporary relief.

Relevance to Family Law

This opinion is a direct, litigation-driving reminder that temporary orders are not a “low-stakes” forum for keeping nonparents in the case by inertia. In divorce and post-divorce custody disputes—especially those involving former spouses, significant others, or other third parties who have historically exercised possession under agreed orders—In re M.S. reinforces that a previously-appointed managing conservator who remains a fit parent is entitled to control third-party contact unless the nonparent can prove extraordinary circumstances (or parental unfitness) that constitutionally justify judicial displacement of the parent’s decision-making.

Case Summary

Fact Summary

Mother and Nonparent divorced in 2018; the divorce decree stated there was no child of the marriage. In 2019, however, the parties became subject to SAPCR orders reflecting that they had contracted with a third party in an effort to impregnate Mother and raise the resulting child together. The trial court appointed Mother and Nonparent as joint managing conservators, gave Mother the exclusive right to designate the child’s primary residence, and awarded Nonparent a standard possession schedule with contractual child-support obligations. An agreed order later made minor modifications.

In June 2024, Mother filed a petition to modify and sought to remove Nonparent as a joint managing conservator. Mother also sought temporary orders and injunctive relief, asking to be named temporary sole managing conservator and to exclude Nonparent from possession and access (or, alternatively, to require continuous supervision). The associate judge found a material and substantial change but largely left the prior temporary framework intact; Mother requested a de novo hearing.

At the de novo hearing, Mother argued In re C.J.C. and emphasized the constitutional fit-parent presumption in a dispute between a parent and a nonparent. Nonparent testified she believed Mother was not a fit parent (though she had previously said Mother was fit), grounding that view in Mother’s alleged prioritization of “agenda” and “hatred” toward Nonparent. Mother testified the child had night terrors and attributed them to Nonparent; Nonparent disputed that. The district judge denied Mother’s requested temporary relief and later signed a written order (May 22, 2025) reflecting that denial, leaving Nonparent as joint managing conservator with possession/access over Mother’s objection.

Mother sought mandamus. On rehearing, the Second Court withdrew its prior opinion and granted mandamus.

Issues Decided

• Whether, in a SAPCR modification between a fit parent and a nonparent, a trial court may continue temporary orders naming the nonparent a joint managing conservator with possession/access over the parent’s objection absent extraordinary circumstances sufficient to overcome the fit-parent presumption.
• Whether mandamus relief is available to correct temporary orders (or the denial of temporary relief) that unconstitutionally accord a nonparent conservatorship/possession rights over a fit parent’s objection.

Rules Applied

• In re C.J.C., 603 S.W.3d 804 (Tex. 2020) (orig. proceeding):
  • In parent–nonparent disputes, the child’s best interest analysis is “embedded with the presumption” that a fit parent—not the court—decides whether to allow a nonparent conservatorship or possession/access.
  • Temporary orders are subject to mandamus when they improperly displace a fit parent’s constitutional rights absent extraordinary circumstances.
• Tex. Fam. Code § 160.201(a)(1), (3): statutory parentage; the court emphasized Nonparent was not a “parent” under the Code because she did not give birth to or adopt the child.
• (Not decided in the mandamus proceeding but noted in the opinion): 2025 legislative amendments effective September 1, 2025 involving Tex. Fam. Code §§ 153.002(b), 156.008, which Mother litigated below; those proceedings were expressly “not before” the court.

Application

The court framed the dispute squarely as parent versus nonparent, making C.J.C. the controlling lens. Critically, Mother was not merely asserting parental status in the abstract—she had previously been appointed a managing conservator, which triggered the fit-parent presumption in the modification posture. The appellate court treated the constitutional question as the organizing principle: a fit parent’s decision to restrict a nonparent’s contact does not itself establish unfitness, nor does interpersonal conflict, allegations of “agenda,” or generalized disagreement about the child’s best interest.

The record, as described by the court, showed a classic temporary-orders fact conflict: Mother attributed the child’s night terrors to Nonparent; Nonparent denied the problem occurred in her care. But even taking that dispute seriously, the court held the trial court’s continued award of possession/access to Nonparent over Mother’s objection could not stand without extraordinary circumstances sufficient to overcome the fit-parent presumption. The opinion also underscored the nonparent’s lack of inherent rights: a prior marriage to the parent and prior agreed SAPCR orders did not convert Nonparent into a legal parent under the Family Code, and the constitutional presumption remained centered on the fit parent’s choices.

Finally, the court’s remedy tracked C.J.C.: it did not dictate the precise new temporary orders. It required vacatur of the order that left the nonparent’s conservatorship and possession/access intact over Mother’s objection—leaving the trial court to reconsider temporary relief under the correct constitutional framework (and in light of any additional evidence later developed).

Holding

The Second Court of Appeals conditionally granted mandamus and held the trial court abused its discretion by leaving Nonparent as a joint managing conservator with rights of possession and access over Mother’s objection when Mother was a previously-appointed managing conservator and the record did not establish extraordinary circumstances or parental unfitness sufficient to overcome the fit-parent presumption under In re C.J.C..

The court directed the trial court to vacate its May 22, 2025 order denying Mother’s requested temporary relief. Consistent with C.J.C., the court declined to order entry of specific replacement temporary orders, particularly because additional evidence had been presented in later trial-court proceedings not included in the mandamus record.

Practical Application

For Texas family-law litigators, In re M.S. is best understood as a procedural and evidentiary warning: if you represent the fit parent, you should treat temporary orders as the critical constitutional battleground, not a mere bridge to final trial. Conversely, if you represent a nonparent, you must build a mandamus-proof record demonstrating extraordinary circumstances; “best interest” rhetoric, relational history, and generalized critiques of the parent’s motives are unlikely to survive C.J.C. scrutiny.

Practical implications you can leverage immediately:

• Temporary orders strategy (parent’s side): Preserve the C.J.C. objection early and often, and force the hearing to confront the constitutional presumption expressly. If the court continues third-party possession by “status quo” reasoning, that is a mandamus posture.
• Temporary orders strategy (nonparent’s side): Do not assume prior agreed JMC status or years of possession will carry you. You need evidence that fits the constitutional exception—extraordinary circumstances—tethered to the child, not to adult conflict.
• Remedy framing: Request vacatur as the primary mandamus relief. Both C.J.C. and In re M.S. reflect appellate reluctance to dictate specific temporary orders where additional evidence may exist or where trial-court discretion remains (once the constitutional presumption is correctly applied).
• De novo hearings matter: When appealing an associate judge’s temporary recommendation to the referring court, ensure the de novo record is fully developed. Mandamus review lives and dies on what the record affirmatively establishes.

Checklists

Fit-Parent Mandamus Readiness (When Opposing Nonparent Temporary Possession)

• Plead and argue the dispute as parent vs. nonparent and cite In re C.J.C. explicitly.
• Establish that your client is a fit parent and (if applicable) a previously-appointed managing conservator.
• Object on constitutional grounds to any temporary order that:
• appoints the nonparent as a conservator over the parent’s objection, or
• grants possession/access over the parent’s objection without extraordinary circumstances.
• Secure a clear ruling (written order preferred) that preserves the error for mandamus timing.
• Build the record: reporter’s record, exhibits, offers of proof, and any findings the court will make.
• Request mandamus-appropriate relief: vacatur of the offending temporary order/denial of relief.

Building “Extraordinary Circumstances” Proof (Nonparent’s Checklist)

• Confirm standing and frame requested relief realistically (avoid overreaching JMC if you cannot prove the constitutional threshold).
• Present evidence tied to the child that supports extraordinary circumstances—avoid relying on:
• adult conflict, hostility, or “agenda” narratives,
• generalized disagreement with parenting choices, or
• “status quo” alone.
• Develop admissible, specific facts (dates, incidents, third-party corroboration) relevant to:
• safety risks, significant impairment, or similar constitutionally weighty concerns.
• Address the fit-parent presumption head-on and explain why your evidence overcomes it.
• Request narrowly tailored temporary relief as an alternative (e.g., supervised access), supported by evidence of necessity.

Trial-Court Drafting and Hearing Hygiene (Both Sides)

• Ensure the written temporary order precisely matches the oral ruling and clearly states what is being granted or denied.
• If you need the appellate court to act, prioritize creating a clean mandamus record:
• hearing transcript,
• the challenged written order,
• key pleadings and motions for temporary orders,
• exhibits admitted and any excluded evidence preserved by offer of proof.
• When an associate judge is involved, treat the de novo hearing as the true record-builder—do not rely on what “the associate already heard.”

Citation

In re M.S., No. 02-26-00016-CV (Tex. App.—Fort Worth Mar. 27, 2026) (mem. op. on reh’g) (orig. proceeding).

Full Opinion

Read the full opinion here

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