In re McPeak, 525 S.W.3d 310

Mother and Father executed Agreed Temporary Orders (approved Nov. 22, 2016) that required Mother to move the children to Brazoria or contiguous counties by Jan. 1, 2017, or turn the children over to Father.
Mother moved with the children to Thorndale, obtained employment there, retained counsel, and filed motions (set aside temporary orders; modify temporary orders) and a request that the court confer with the oldest child (age 13).
At a Jan. 18, 2017 hearing the trial court stopped the proceeding because Mother had not filed an affidavit the court said was required by Tex. Fam. Code § 156.102; on Jan. 19 the court entered orders declining to consider the modification and denying the motion to confer.
Mother filed a mandamus petition asking the appellate court to compel the trial court to vacate its Jan. 19 orders, confer with the oldest child, and reconsider the motion to modify the Temporary Orders.
The appellate court considered whether §156.102 (affidavit requirement for modifying designation of primary residence) or §105.001 (standard for modifying temporary orders based on safety and welfare) applied, and whether the court was required to interview the 13-year-old under §153.009(a).

Issue	Plaintiff's Argument (Mother)	Defendant's Argument (Father)	Held
Whether §156.102 applies to a motion to modify temporary orders that effectively designate who has the exclusive right to choose the child’s primary residence	§156.102 does not apply; motion to modify temporary orders is governed by §105.001 (safety and welfare)	Trial court’s application of §156.102 was proper or, alternatively, even if wrong, the court reached the correct result on the merits	Held: §156.102 does not apply to temporary orders; §105.001 governs. Trial court abused discretion by declining to consider Mother’s motion for failure to file a §156.102 affidavit; mandamus relief granted in part.
Whether the court was required to interview the 13‑year‑old child under §153.009(a) before ruling on the modification	§153.009(a) requires an in‑chambers interview of children >=12 on application of a party; Mother requested it	(Implicit) Trial court properly denied request (no argument preserved on statutory requirement)	Held: Trial court abused its discretion by denying the motion to confer; §153.009(a) required interviewing the 13‑year‑old.

Walker v. Packer, 827 S.W.2d 833 (Tex. 1992) (appellate review of legal conclusions is de novo)
Little v. Daggett, 858 S.W.2d 368 (Tex. 1993) (mandamus is proper to attack temporary custody orders because no adequate appellate remedy)
In re G.P., 495 S.W.3d 927 (Tex. App.—Fort Worth 2016) (chapter 156 does not apply to modifications of temporary orders)
In re Herring, 221 S.W.3d 729 (Tex. App.—San Antonio 2007) (§105.001 governs modifications of prior temporary orders)
In re Ostrofsky, 112 S.W.3d 925 (Tex. App.—Houston [14th Dist.] 2003) (temporary orders may effect a change in the designation of who has the exclusive right to designate a child’s primary residence)