Introduction: A Custody Schedule That Has to Cross an Ocean
What happens to a custody schedule when one parent moves across an ocean? For many Texas families, that question is real. Graduate programs, job transfers, and military assignments send parents overseas every year, and the children’s schedule has to adjust.
Per the published opinion, on November 5, 2026, the Austin Court of Appeals addressed that situation in S. v. S., No. 03-25-00748-CV, 2026 WL 3340502 (Tex. App.—Austin Nov. 5, 2026) (mem. op.). The court affirmed an order giving a mother living in Portugal possession during summer, Christmas break, spring break, and Mother’s Day weekend, while the children remained in Texas for school.
The opinion also answers procedural questions that arise in nearly every contested custody case. Must parents be sworn in? How does “makeup” possession work? What does a remand actually require, and can a judge appoint an attorney to draft the order?
After more than 25 years practicing family law in Dallas, our firm has seen procedural details decide outcomes as often as the facts do. Here is what the court held, and what any Dallas divorce attorney would want a parent to understand before walking into a custody hearing.
Case Background: From a 2012 Divorce to a Move to Portugal
The Original Decree
The parents, referred to here as K.S. (mother) and H.S. (father), divorced in 2012. They were named joint managing conservators of two sons. K.S. received the exclusive right to designate the children’s primary residence within Hays County and contiguous counties, and H.S. received a standard possession order.
In 2022, K.S. was accepted to a PhD program in Portugal. She filed to remove the geographic restriction and to enforce a passport provision in the decree. In 2023, H.S. counter-petitioned, asking to become sole managing conservator and requesting supervised visitation, a bond, and an assessment of international abduction risk.
The “Teenager Provision” and the First Appeal
Both parents represented themselves at the final hearing. The trial court kept them as joint managing conservators but moved the right to designate residence to H.S. Instead of a schedule, the order included a “Teenager Provision” directing the parents to work out visits together and barring either one from seeking contempt if the children did not want to go.
K.S. appealed and prevailed. In S. v. S., No. 03-23-00801-CV, 2025 WL 1141178 (Tex. App.—Austin Apr. 18, 2025, no pet.) (mem. op.), the court held that an “as agreed” order unenforceable by contempt restricted her access more than necessary. It reversed only the possession provisions and remanded for a specific, enforceable schedule.
The Order on Remand
At a June 2025 hearing, again with both parents self-represented, the trial court spoke with the children in chambers and announced a new schedule. K.S. received summer (beginning one week after school ends and running through August 1), the full Christmas break, spring break, and Mother’s Day weekend, plus FaceTime or phone calls at least twice a week. H.S. received Thanksgiving, Father’s Day, and all other times.
K.S. had requested $28,091.78 in fees and costs; the court awarded $970 in appellate costs. A friend of the court drafted the written order, and K.S. appealed again on five issues.
Legal Analysis: How a Dallas Divorce Attorney Reads the Court’s Five Rulings
The court applied the abuse-of-discretion standard that governs Texas custody appeals. A trial court’s best-interest determination is discretionary and will be reversed only if the court acted arbitrarily, unreasonably, or without reference to guiding principles. In re J.J.R.S., 627 S.W.3d 211, 218 (Tex. 2021). That deferential standard shaped every issue that followed.
Can a Texas court deviate from the Standard Possession Order when a parent moves overseas?
Yes, when the record supports it. Texas presumes the Standard Possession Order is in a child’s best interest, Tex. Fam. Code § 153.252, but a court may deviate based on the child’s age, needs, and circumstances under § 153.256. Any restriction may not exceed what is required to protect the child’s best interest. Tex. Fam. Code § 153.193.
The trial court found that the travel time and cost between Texas and Portugal made only long breaks practical, and that the children should not miss significant school time. The younger son was a 16-year-old high school junior. The court of appeals held that balancing his “stability in education” with a meaningful relationship with his mother was a reasonable exercise of discretion.
The trial court also found that higher travel expenses were an unavoidable consequence of the mother’s voluntary move. Parents considering relocation should expect courts to weigh who chose the distance, a question a Dallas child support lawyer often addresses alongside the possession schedule.
What is “makeup possession” in Texas, and how is it proven?
Makeup (compensatory) possession is additional time awarded when a parent was wrongfully denied court-ordered possession. Tex. Fam. Code § 157.168. It must match the type and duration of the time denied and occur within two years of the court’s finding.
K.S. asserted 27 months of denied possession, but the record contained no evidence quantifying the specific periods missed, and she had possession during both summer 2024 and summer 2025. Without that proof, the court found no abuse of discretion in declining to award more time.
The court also noted a significant statutory change. Effective September 1, 2025, compensatory possession is mandatory unless a party shows good cause. Act of May 29, 2025, 89th Leg., R.S., ch. 617 (H.B. 3181), § 5. That shift makes careful documentation of every denied visit more valuable than ever.
Does a remand reopen the entire case?
Not unless the appellate court says so. K.S. argued the first reversal restored the 2012 decree and required new pleadings and a fresh “material and substantial change” finding. The court disagreed: only the Teenager Provision was reversed, so the rest of the 2023 order stood.
The same reasoning applied to costs. The prior judgment ordered H.S. to pay “costs relating to this appeal,” which matched the $970 bill of costs, not every attorney’s fee incurred in the litigation. The court added that any fee claim under § 157.167(b) still requires proof that fees were reasonable and necessary. R.V. v. U.D.H.L., 578 S.W.3d 469, 497–502 (Tex. 2019).
Must parents be sworn in at a custody hearing?
Texas Rule of Evidence 603 requires an oath before testifying, but the complaint must be raised at the hearing. No one objected to the informal, unsworn presentation, so the issue was not preserved. Tex. R. App. P. 33.1(a). Children interviewed in chambers under Tex. Fam. Code § 153.009 need not be sworn at all.
Likewise, when the trial court declined to consider co-parenting app messages, no offer of proof was made under Tex. R. Evid. 103(a)(2), so the ruling could not be reviewed. The court reiterated that “fundamental error” applies only rarely in civil cases. In re B.L.D., 113 S.W.3d 340, 350 (Tex. 2003).
Can a judge appoint a friend of the court to draft the order?
Yes. Tex. Fam. Code § 202.002 neither authorizes nor prohibits it, and courts routinely ask someone to reduce oral rulings to writing. Because the appointed attorney performed a ministerial task, communicated with both parties by email, and produced an order consistent with the court’s rulings, there was no showing of harm.
The appeal was dismissed as moot regarding the older son, who turned 18 shortly after the order was signed, and affirmed as to the younger son.
Why This Matters to a Dallas Divorce Attorney
Although issued by the Austin court, S. applies the same Family Code provisions Dallas County judges use every day. It confirms that relocation-based deviations receive deference on appeal, and that procedural steps at the trial level can determine whether an argument is ever heard.
The practical implications cut both ways. A parent planning a move should present a concrete, school-friendly schedule with travel logistics and communication terms already worked out, rather than leaving the details to the court. A parent staying in Texas should be prepared to show how the proposed schedule protects the child’s education and stability.
In either position, a Dallas divorce attorney can help frame the evidence around the Section 153.256 factors the court will actually weigh. Families with significant assets or support obligations tied to international travel should also address who pays for flights, passports, and unaccompanied-minor fees before the order is signed.
Key Takeaways for Dallas Divorcing Couples
- Specific beats flexible. An “as agreed” schedule that cannot be enforced by contempt may leave a parent without a remedy. Tex. Fam. Code § 153.006(c) favors specific terms.
- Distance reshapes schedules. An international move will likely shift possession toward extended summer and holiday blocks.
- Makeup time requires proof. Dates, messages, and records of each denied period matter.
- Preserve the record. Objections and offers of proof belong in the trial court.
- Costs are not fees. Appellate “costs” do not automatically include attorney’s fees.
For more Texas appellate case analyses, visit our family law blog.
Strategic Insights: What We’ve Learned From This Case
Different approaches might have built a fuller record. A request that parties be sworn, a formal offer of proof for the co-parenting app messages, a dated log of each denied visit, and itemized evidence that fees were reasonable and necessary could each have given the courts more to evaluate. An experienced Dallas child custody lawyer or Dallas family law attorney helps build that record before the hearing, when it matters most.
Schedule a Dallas Divorce Lawyer Consultation
If you are facing a relocation, a custody modification, or a co-parent who is not following your order, now is the time to protect your rights. At the Law Office of Michael P. Granata, we bring more than 25 years of Dallas family law experience, honest assessments instead of false promises, and a strategic approach balanced with compassion.
We serve families throughout Dallas, including Irving, Richardson, Garland, Mesquite, DeSoto, Grand Prairie, Lakewood, Highland Park, Cockrell Hill, Lancaster, Seagoville, and Duncanville. Searching for a “divorce attorney near me”? Call (214) 977-9050 to speak with a Dallas divorce attorney who will give you a transparent, realistic picture of where you stand.
