• Beth M. Johnson

Injunctions in Family Law and the Best Interest of the Child

Generally, to be entitled to a permanent injunction, a party must show:

(1) a wrongful act;

(2) imminent harm;

(3) irreparable injury; and

(4) no adequate remedy at law.

Orix Capital Markets, LLC v. La Villita Motor Inns, J.V., 329 S.W.3d 30, 44 (Tex. App.—San Antonio 2010, pet. denied). A permanent injunction that is not supported by the pleadings or the evidence is an abuse of discretion and must be dissolved. See Webb v. Glenbrook Owners Ass’n, 298 S.W.3d 374, 391 (Tex. App.—Dallas 2009, no pet.).


“Persons seeking the extraordinary remedy of injunction must be specific in pleading the relief sought, and the courts are without authority to grant relief beyond that so specified.” Hitt v. Mabry, 687 S.W.2d 791, 795 (Tex. App.—San Antonio 1985, no writ). For injunctive relief to be proper, “the record must contain evidence supporting each injunctive provision.” Operation Rescue-Nat'l v. Planned Parenthood of Hous. & Se. Tex., Inc., 975 S.W.2d 546, 560 (Tex. 1998); cf. Sanchez v. Sanchez, No. 04-06-00469-CV, 2007 WL 1888343, at *5 (Tex. App.—San Antonio 2007, pet. denied) (mem. op.) (wife’s request for general relief justified permanent injunction because she alleged husband had abused the children and she requested an order to protect them).


In a divorce without children, this normal civil standard applies to permanent injunctions. E.g., Huang v. Chang, No. 04-20-00129-CV, 2021 WL 4555817 (Tex. App.—San Antonio 2021, no pet.) (mem. op.). However, when addressing injunctions in a suit affecting the parent-child relationship, the child’s best interest serves as the primary focus. In re K.J.B., No. 07-21-00235-CV, 2022 WL 2173203, at *2 (Tex. App.—Amarillo 2022, no pet. h.) (mem. op.). Providing children with a “safe” and “stable” environment remains an aspect of this State's public policy. See Tex. Fam. Code § 153.001(a)(2). For example, in affirming an injunction against drinking alcohol during possessory periods, the court noted that while adults enjoy certain freedoms, “once they bring children into the world; they [also] assume burdens.” Id.


The issue becomes more complicated when enjoining otherwise Constitutional rights. However, because Constitutional complaints can be waived, an appellant cannot bring these complaints for the first time on appeal. E.g., In re S.V., 599 S.W.3d 25, 40 (Tex. App.—Dallas 2017, pet. denied). The complaint must be timely raised to the trial court.


“[P]rior restraints on speech and publication are the most serious and least tolerable infringement on First Amendment rights.” Nebraska Press Ass’n v. Stuart, 427 U.S. 539, 559 (1976). Nevertheless, Texas courts regularly impose speech restrictions on parties to suits affecting the parent-child relationship. In fact, many counties have adopted standing orders that automatically limit how the parties may speak to each other and what they may say in front of the children involved in the suit.


Despite the seriousness of First Amendment concerns, wide latitude is given to courts to protect the best interest of the child. In re J.P., No. 13-18-00648-CV, 2020 WL 103858, at *9 (Tex. App.—Corpus Christi 2020, pet. denied) (mem. op.). In J.P., evidence showed that the mother had repeatedly slandered the father, had unpleasantries with the father’s wife, and caused emotional turmoil to the father’s family. Id. at *10. The mother additionally coached the children to make outcries against the father, worked to alienate the children from the father, and made false police reports against the father. Id. Due to the mother’s actions, the court found that certain specific injunctions against the mother’s speech would be in the best interest of the children. Id.


However, the injunctions could not restrain actions that were legal or about which there was no asserted complaint. Id. Because one injunction prohibited from communicating with the children in “any manner”—which was legal and in direct conflict with her right to possession—that injunction was overbroad. Id. at *11. The appellate court modified the injunction to allow legal acts. Id.


When entering injunctions on speech in a family-law context, courts must balance the best interest of the child with the rights of the parents. See Grigsby v. Coker, 904 S.W.2d 619 (Tex. 1995). Courts may enjoin speech if the parents agree that the injunction is in the child’s best interest. See In re Sanner, No. 01-09-00001-CV, 2010 WL 2163140, (Tex. App.—Houston [1st Dist.] 2010, no pet.) (mem. op.). Without a showing that speech may present impending danger, a prior restraint of that speech is unconstitutional. Miller v. Talley Dunn Gallery, LLC, No. 05-15-00444-CV, 2016 WL 836775, at *7 (Tex. App.—Dallas 2016, mand. denied) (mem. op.). Statements that are merely opinion of the speaker are not “derogatory remarks.” In re Peeble, No. 14-10-00973-CV, 2010 WL 4892634, at *4 (Tex. App.—Houston [14th Dist.] 2010, no pet.) (mem. op.).


Be alert when final orders contain injunctions. Were the injunctions pleaded for? Are they in the best interest of the children? Was there evidence to support the injunction? Are they overbroad: does the injunction prevent the party from speaking in front of the children or does it go so far as to prevent them from speaking to their therapist or future attorney? If there is a potential Constitutional violation, or if the injunction is inappropriate or overreaching, the objection must be made timely—when the injunction is being considered and rendered.



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