      TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN


                                        NO. 03-11-00222-CV



                             Chia-Ying Persephone Chen, Appellant

                                                   v.

                                   Marc A. Hernandez, Appellee


     FROM THE DISTRICT COURT OF TRAVIS COUNTY, 53RD JUDICIAL DISTRICT
      NO. D-1-FM-08-005282, HONORABLE ORLINDA NARANJO, JUDGE PRESIDING



                             MEMORANDUM OPINION


                Appellant Chia-Ying Persephone Chen appeals the trial court’s final order in a suit

affecting the parent-child relationship. In five issues, Chen challenges the portion of the trial court’s

order granting appellee Marc A. Hernandez the exclusive right to designate the primary residence

of their child. For the reasons that follow, we affirm the trial court’s order.


                      FACTUAL AND PROCEDURAL BACKGROUND

                Chen, a citizen of Taiwan, came to the United States in 2004 when she was admitted

to the University of Dallas Masters of Business Administration (MBA) program under an F-1 student

visa.1 She completed her MBA degree in May 2006, obtained employment in Austin, Texas, where


        1
         An F-1 student visa allows a nonimmigrant to enter the U.S. as a full-time student at an
accredited academic institution or language training program. The student must be enrolled in a
course of study that culminates in a degree, diploma, or certificate, and the institution must be
authorized by the U.S. government to accept international students. See U.S. Citizenship and
she moved in January 2007, and converted her visa to nonimmigrant H-1B status.2 Chen and

Hernandez met later in 2007 and had a brief relationship, during which Chen became pregnant with

K.R.H.C. Chen and Hernandez never married and, although the record is unclear, it appears that

they resided together only briefly, if at all. After K.R.H.C. was born in June 2008, the parents

followed an informal arrangement regarding possession and payment of expenses. In October 2008,

Chen filed suit requesting that the court appoint the parents joint managing conservators and name

Chen as the conservator with the exclusive right to designate K.R.H.C.’s primary residence.

Hernandez filed an answer, motion for temporary orders, and counterpetition, alleging that there was

a risk of international abduction and seeking passport and travel controls as well as to be named the

joint managing conservator with the exclusive right to designate K.R.H.C.’s primary residence. In

March 2009, Hernandez married Angela Millman, whom he had begun dating in December 2007.3

               In April 2009, Chen was laid off from her job. In September 2009, the trial court

appointed a guardian ad litem to determine the best interests of K.R.H.C. and make a



Immigration Services, http://www.uscis.gov/portal/site/uscis/menuitem.eb1d4c2a3e5b9ac89243c6
a7543f6d1a/?vgnextoid=e34c83453d4a3210VgnVCM100000b92ca60aRCRD&vgnextchannel=e
34c83453d4a3210VgnVCM100000b92ca60aRCRD (last visited July 30, 2012).
       2
          U.S. businesses use the H-1B program to employ foreign workers in speciality occupations,
such as science, engineering, or computer programming. An H-1B nonimmigrant may be admitted
for a period of up to three years, which may be extended but generally cannot go beyond a total of
six years. See id., http://www.uscis.gov/portal/site/uscis/menuitem.eb1d4c2a3e5b9ac89243c6a7543
f6d1a/?vgnextoid=73566811264a3210VgnVCM100000b92ca60aRCRD&vgnextchannel=73566
811264a3210VgnVCM100000b92ca60aRCRD (last visited July 30, 2012).
       3
          Millman has two children from a prior marriage and shares custody with her ex-husband
on a “50/50” basis. In addition, at the time of trial, she and Hernandez were expecting a child in
December 2010. Thus, K.R.H.C. has no siblings but does have one younger half-sibling and two
older step-siblings.

                                                 2
recommendation to the court regarding conservatorship, possession, and access. See Tex. Fam. Code

Ann. § 107.021(a)(3) (West 2008) (trial court has discretion to appoint guardian ad litem in suits

other than by governmental entity in which best interests of child at issue). The guardian ad litem,

Leslie Smith,4 worked with the parties to establish a visitation schedule and accommodate each

other’s needs for flexibility. At some point, the parties agreed to a schedule that provided for

K.R.H.C. to stay with Hernandez on Tuesday nights, Thursday evenings, and every first, third, and

fifth weekend.

                 Chen remained unemployed for more than a year and was required to change her visa

status to B-2.5 In April 2010, she began interviewing with PRG Group, a company that hires workers

and places them in contract positions. In early May 2010, PRG hired Chen, agreed to sponsor her

for an H-1B visa, and began attempting to locate a contract position for her. On June 9, 2010, Chen

notified Hernandez and Smith that PRG had located a position for her in Richardson, Texas, more

than 200 miles from Austin, and requested modifications to the visitation schedule to accommodate

her relocation. In mid-June, Chen began working in Richardson, where she and K.R.H.C. resided

temporarily with friends. Chen retained her apartment in Austin and for the next two months

returned to Austin at times on the weekends although the parties dispute the frequency.



       4
         At the hearing on temporary orders, Smith testified that she is a licensed professional
counselor and a licensed marriage family therapist and is credentialed and qualified to be a parent
coordinator and facilitator.
       5
            A B-2 visa is a visitor visa obtained if the purpose for travel to the U.S. is pleasure,
tourism, or medical treatment, as opposed to a B-1 visa, which applies to travel to the U.S. for such
purposes as consultation with business associates, professional conferences, or contract negotiations.
See U.S. Department of State website, http://travel.state.gov/visa/temp/types/types_1262.html#1
(last visited July 30, 2012).

                                                  3
               Smith filed her report in June 2010, and on July 30, 2010, the trial court held a

hearing on the parties’ competing motions for temporary orders.6 After hearing evidence, including

testimony regarding Chen’s relocation to Richardson, the trial court appointed the parties temporary

joint managing conservators and designated Chen as the temporary joint managing conservator with

the exclusive right to designate the primary residence of K.R.H.C. The trial court further ordered

that after August 22, 2010, the primary residence of K.R.H.C. was to be in Travis and contiguous

counties until further order.   On August 17, 2010, the trial court signed temporary orders

memorializing its rulings and also setting the case for trial on September 27, 2010.

               Four days after the hearing, on August 3, 2010, Chen signed a twelve-month lease

for an apartment in Richardson, and she and K.R.H.C. moved in two days later. Chen then obtained

permission to work remotely through September 29, 2010, and on or before August 22, 2010, she

and K.R.H.C. began staying with friends in Cedar Park, Texas, in Williamson County, which is

contiguous to Travis County. Trial was delayed several times, Chen’s permission to work remotely

expired, and she began working during the week in Richardson and returning to Cedar Park on

weekends. Chen’s mother, a Taiwanese resident temporarily visiting the U.S., cared for K.R.H.C.

at the home of Chen’s friends while Chen worked in Richardson.




       6
          The trial court originally signed temporary orders in May 2009 after a hearing that
Hernandez did not attend. Hernandez sought a de novo hearing on the ground that he did not attend
the hearing because counsel for Chen had agreed to cancel it. The parties then entered into a Rule 11
agreement setting aside the temporary orders and operated without temporary orders until the
July 2010 hearing.

                                                 4
Trial

               In a two-day trial, the court heard the testimony of eight witnesses, including

Hernandez, Chen, Smith, an immigration attorney, and friends and relatives of the parties. The

primary factual disputes concerned the parties’ ability to provide stability for K.R.H.C. and support

of the other parent and whether Chen had unduly restricted Hernandez’s access to K.R.H.C. Also

of primary concern was Chen’s visa status and intentions regarding returning to Taiwan. The trial

court also considered more than forty exhibits, including numerous email exchanges among Chen,

Hernandez, and Smith.


Hernandez’s Testimony

               Hernandez testified generally concerning his relationship with Chen. He stated that

he and Chen met through a mutual friend and had a “rocky turbulent relationship” that lasted three

months and that shortly after he ended the relationship, Chen informed him that she was pregnant.

He also stated that they initially decided to terminate the pregnancy, but Chen then asked him for a

“fake marriage” so that she could stay in the country. Hernandez further testified that they

considered “getting married for the sake of the child and to get her a green card with the plan of

getting divorced in two years, when she received her green card,” but that when he learned their

planned course of action was illegal, he decided not to enter into such an arrangement. He further

stated that initially Chen wanted him to be very involved with caring for K.R.H.C., but that after




                                                 5
their marriage plans were called off, she “was very upset” and “wanted [him] to go away.”

Hernandez also testified that he was present at the hospital when K.R.H.C. was born and when there

were health complications, he remained there during the week the child was in the intensive

care unit.

               Regarding their communication and informal visitation arrangements after K.R.H.C.

was born, Hernandez testified that initially the parents were relatively communicative, but that after

two or three weeks, Chen became unwilling to negotiate, they began to have disagreements about

Hernandez’s visitation, and Chen wanted him to be responsible for all the transportation of the child.

Hernandez testified that Chen usually refused his requests for additional time or schedule changes

and at one point indicated by email that she was “evaluating the pros and cons” of letting a friend

babysit K.R.H.C. “rather than his father.” He also stated that Chen told him he could relinquish his

role as a dad, she did not want K.R.H.C. to have two homes, K.R.H.C.’s time with Hernandez should

be a “vacation,” and she could “make [his seeing his child] not happen” by taking him back to

Taiwan. He further stated that Chen mentioned taking K.R.H.C. back to Taiwan “on one other

occasion” and that she made both comments soon after K.R.H.C. was born.

               As to Chen’s relocation, Hernandez testified that he first learned of Chen’s job

outside Austin in a email from her on June 10, 2010. He stated that after Chen moved to Richardson,

she proposed a “50/50” visitation schedule whereby he would continue to handle all of the

transportation of the child, would have possession every first, third, and fifth weekend, and “some

times during the week . . . could drive to Richardson, see [K.R.H.C.] at daycare for four hours, and

then return him to her and go back . . . to Austin the same day.” Hernandez also testified that he was



                                                  6
requesting a 50/50 possession schedule and to be named the joint managing conservator with the

exclusive right to designate K.R.H.C.’s primary residence because his understanding is that under

Taiwanese law, Chen can take the child to Taiwan without his consent. He stated his hope that his

being named primary conservator would “help facilitate [Chen’s] ability to work with us.”


Chen’s Testimony

               Concerning her relationship with Hernandez and their communication about

visitation, Chen testified that she considered terminating the pregnancy when Hernandez said he was

not ready to be a father, but within a week he changed his mind. She stated that they “considered

getting married so that [she] can have a green card, but [she] did not propose [the idea]” and that they

began planning their wedding but Hernandez decided not to get married. In response to Hernandez’s

testimony that she had been unwilling to work with him on flexible visitation, Chen testified about

an occasion on which Hernandez asked for extra time and she canceled her dinner plans with

K.R.H.C. so that Hernandez could have visitation. She also referred to an email exchange with

Hernandez regarding K.R.H.C.’s medical issues as an example that they were able to communicate

in a friendly way about that topic. She stated that she had tried to accommodate Hernandez’s

schedule but his last-minute requests made it difficult.

               Regarding her email comments to Hernandez that she was “evaluating the pros and

cons” of letting K.R.H.C. stay with friends rather than Hernandez, Chen stated that she never felt that

way but Hernandez was unable to take care of the child when she needed him to help her and that

she believes it depends on the circumstances whether it is better for someone other that K.R.H.C.’s

father to take care of him. She also stated that she has concerns that when K.R.H.C. is with

                                                   7
Hernandez he does not stay on his routine because he returns “very needy, very tired.” Concerning

her family and friends, Chen testified that she has an aunt and uncle in Plano, Texas, and two aunts

in Boston. She stated that her parents and only sibling live in Taiwan, and her mother visits yearly

on a visitor’s visa. Chen also stated that she has forty to fifty friends in Central Texas who are “very

caring and very supportive” and “a lot of friends in [the] Dallas area.”

                Chen also testified about her employment, relocation, and visa status. She stated that

PRG agreed to find her employment in Central Texas but was unable to locate an “affordable

contract” in the area that would meet the H-1B visas requirements. She testified that she notified

Hernandez and Smith on the same day that she got the job offer in Richardson and did not tell them

sooner because she was under the impression that she would get a job in Central Texas and did not

want to create a problem before one existed. She added that she is still searching for employment

in Central Texas but is “not applying.” Hernandez further testified that she signed a year-long lease

in Richardson after the trial court ordered her to establish K.R.H.C.’s residence in Travis or

contiguous counties by August 22, 1010, because she believed she could break the lease if the trial

court ordered her to return to Central Texas and that after she moved she brought K.R.H.C. home

every weekend to make up for the lack of weekday visitation. Chen stated her opinion that after she

moved to Cedar Park, it was preferable for her mother to take care of K.R.H.C. rather than

Hernandez because she wants K.R.H.C. to “spend as much time with his grandmother as possible.”

                Regarding future visitation, Chen testified that if she is awarded custody, she will “try

[her] best” to involve Hernandez in K.R.H.C.’s life; she will assist in transportation, encourage

Hernandez to participate in school events and phone and video conferences, and “pay or help him



                                                   8
find a hotel or a place to live for [K.R.H.C.] to be able to spend overnight visit[s] with his dad.” She

stated that she does not believe K.R.H.C. is ready for 50/50 visitation but when he is older it “would

be a good idea” if it did not “interfere with [his] routines and [his] school schedules.” As for her

intentions about returning to Taiwan, Chen testified that when she came to the U.S., she did not plan

to stay but changed her mind so that K.R.H.C. could have his father in his life. She added that her

father had been absent from her life and she did not want that for her child. When asked by the trial

court why the court should not be concerned that she would go back to Taiwan, Chen responded,

“because that’s not the decision I would make for my son. If I want to, I could have gone by now,

but it’s never an option for me.”


Guardian Ad Litem’s Testimony

                Smith testified as to her observations concerning the parents’ interaction and

communication, as well as their respective relationships with K.R.H.C. She testified that she

initially had a great deal of contact with the parties and “[i]t became clear to [her] that [she] was

working with two very well-educated, intelligent, articulate, very good parents, and that there were

no issues of drug use or . . . dangerous behavior.” She stated that the primary issues were custody

and visitation and she considers this a “high conflict” case. Smith also testified as to her concern

regarding Chen’s visa status and stated that every time she questioned Chen about it, Chen told her

“not to worry, she could go back to school” if she could not find a job. She stated that Chen’s

actions were not always consistent with her statements that she wanted Hernandez to spend more

time with K.R.H.C.




                                                   9
                Smith also testified concerning her recommendations. Smith stated that the parties

were “equal in terms of parenting and education” and in making her recommendation, she had “to

take into consideration which parent is going to be more supportive of the other parent . . . and who

is going to provide the best emotional stability for the child and support of the other parent.” She

stated that her initial goal was 50/50 possession, which Chen opposed, but she believed was in the

best interest of K.R.H.C., who is very bonded to both parents. She stated that from January to June

2010, “it was pretty stable”and “was moving toward a 50/50 arrangement.” However, she stated,

after Chen’s move to Richardson, despite the standing orders prohibiting such a move, that

arrangement is too difficult and she now believes the child should remain in Travis County with his

father. Smith testified that at this point, her recommendation was that Hernandez be the primary

conservator and that only if Chen lives in Austin should there be a 50/50 possession schedule.

                Smith further testified that, although Chen said that she intended to stay in the U.S.,

she was concerned about her taking K.R.H.C. to Taiwan, does not think that issue should be

disregarded, and was asking the court to put in place appropriate statutory measures to alleviate that

concern. She stated that she “was told several things during the months that [she worked with Chen]

that have since not come to fruition” and she believes it is “fully in [K.R.H.C.]’s best interest not to

go to Taiwan” at this point. Smith also stated that in her observation, Chen has not always complied

with court orders and agreements between the parties.


Immigration Attorney’s Testimony

                Immigration attorney Myron Morales testified generally concerning Chen’s visa

applications and status and the rules and procedures for various types of visas. Regarding the


                                                  10
guidelines for an F-1 student visa, he testified that schools participating in the F-1 visa program

generally have enrollment periods, with no guarantee of acceptance, as well as income requirements

that Chen does not meet. He also testified that students cannot work or seek lawful residence while

under an F-1 visa. Based upon his review of documents related to Chen’s visa status and

applications, Morales stated his opinion that applying for an F-1 visa would not have been a viable

option for Chen and if she had not accepted the job in Richardson, Chen’s visa would have expired

and she would have had to leave the country. He further stated that Chen is not eligible for family-

based immigration because she does not have a qualifying relative who is a U.S. citizen and having

a child does not affect the parent’s status. Morales also testified that her current employer had begun

the labor certification process so that Chen should have her green card within six to eight months.

He stated that if the court orders Chen to return to Austin, he would advise her to remain in her

current job until she could find a new employer sponsor.


Passport Guidelines

               Following the testimony of the witnesses, the trial court questioned the attorneys,

reviewed exhibits, and reviewed government websites regarding the U.S. and Taiwanese

requirements for obtaining passports for minors. The court then stated that before ruling it needed

to review the government websites further to ensure a complete understanding of the “requirements

of the government as it relates to the passport of the child—not that that’s the only issue or concern

here, and the—but it is an issue, and the Court needs to make sure that I have all of the information

necessary for the court to make its ruling.”




                                                  11
The Trial Court’s Ruling

               In its final order, the trial court named the parents joint managing conservators and

awarded Hernandez the exclusive right to designate K.R.H.C.’s primary residence in Travis and

contiguous counties. With regard to possession and access, the trial court ordered a transition period

of gradually increasing possession by Hernandez until March 1, 2011. Thereafter, when Chen lives

within 100 miles of Hernandez, there is to be expanded standard visitation as set out in the family

code, see id. §153.312 (West Supp. 2011), until June 2012, as K.R.H.C. approaches the age of four,

at which time a 50/50 week-on/week-off possession schedule is to be implemented. When Chen

resides more than 100 miles from Hernandez, a modified expanded standard visitation schedule

without midweek visits is to be followed until June 2012, at which time standard possession

for parents residing more than 100 miles apart is to be implemented. See id. § 153.313 (West

Supp. 2011).

               The trial court found that credible evidence had been presented that there was a

potential risk of the international abduction of K.R.H.C. by Chen. The trial court further found that:


       a.      Chia-Ying Chen has taken, enticed away, kept, withheld, or concealed the
               child in violation of Marc A. Hernandez’s right of possession of or access to
               the child;

       b.      Chia-Ying Chen has previously threatened to take, entice away, keep,
               withhold, or conceal the child in violation of Marc A. Hernandez’s right of
               possession or access to the child;

       c.      Chia-Ying Chen has strong familial, emotional, or cultural ties to another
               country, Taiwan, which is not a signatory to or compliant with the Hague
               Convention on the Civil Aspects of International Child Abduction;

       d.      Chia-Ying Chen lacks strong ties to the United States.

                                                 12
See id. § 153.501 (West 2008) (if credible evidence presented, court shall determine if abduction

prevention measures appropriate), .502 (West Supp. 2011) (abduction risk factors court shall

consider to determine risk of international abduction of child by parent). To protect K.R.H.C. from

the risk of abduction, the trial court ordered certain abduction prevention measures. See id.

§ 153.503 (West 2008) (allowable abduction prevention measures). At Chen’s request, the trial court

made findings of fact and conclusions of law. This appeal followed.


                                   STANDARD OF REVIEW

               We review a trial court’s decisions regarding conservatorship and determination of

which conservator will have the exclusive right to establish the child’s primary residence under an

abuse of discretion standard. In re J.A.J., 243 S.W.3d 611, 616 (Tex. 2007); Gillespie v. Gillespie,

644 S.W.2d 449, 451 (Tex. 1982); In re K.L.W., 301 S.W.3d 423, 428 (Tex. App.—Dallas 2009, no

pet.). “A trial court abuses its discretion when its ruling is arbitrary, unreasonable or without

reference to any guiding rules or legal principles.” K-Mart Corp. v. Honeycutt, 24 S.W.3d 357, 360

(Tex. 2000). “The trial court is in the best position to observe the demeanor and personalities of the

witnesses and can ‘feel’ the forces, powers, and influences that cannot be discerned by merely

reading the record,” and a trial court does not abuse its discretion as long as there is some

substantive, probative evidence to support its decision. Echols v. Olivarez, 85 S.W.3d 475, 477

(Tex. App.—Austin 2002, no pet.) (citing Jeffers v. Wallace, 615 S.W.2d 252, 253 (Tex. Civ.

App.—Dallas 1981, no writ)) (quoting Thompson v. Haney, 191 S.W.2d 491, 493 (Tex. Civ.

App.—Amarillo 1945, no writ)).




                                                 13
                Under an abuse of discretion standard, legal and factual sufficiency challenges to the

evidence are not independent grounds of error but are relevant factors in assessing whether the trial

court abused its discretion. Zeifman v. Michels, 212 S.W.3d 582, 587 (Tex. App.—Austin 2006, pet.

denied); In re D.M., 191 S.W.3d 381, 393 Tex. App.—Austin 2006, pet. denied). Because we apply

an abuse of discretion standard to these issues, the traditional sufficiency standards of review overlap

the abuse of discretion standard, and appellate courts apply a hybrid analysis. Zeifman, 212 S.W.3d

at 587–88; Echols v. Olivarez, 85 S.W.3d at 476. Once it has been determined that the abuse of

discretion standard applies, an appellate court engages in a two-pronged inquiry: (1) whether the

trial court had sufficient information on which to exercise its discretion, and (2) whether the trial

court erred in its application of discretion. Zeifman, 212 S.W.3d at 588. The traditional sufficiency

review comes into play with regard to the first question; however, the inquiry does not end there.

Id.; Echols, 85 S.W.3d at 478. The appellate court then proceeds to determine whether, based on

the evidence, the trial court made a reasonable decision, that is, that the court’s decision was neither

arbitrary nor unreasonable. Zeifman, 212 S.W.3d at 588; Echols, 85 S.W.3d at 478.

                When the appellate record includes the reporter’s record, as in this case, the trial

court’s findings, express or implied, are not conclusive and may be challenged on appeal for

evidentiary sufficiency. Sixth RMA Partners v. Sibley, 111 S.W.3d 46, 52 (Tex. 2003). We review

a trial court’s findings of fact for legal and factual sufficiency of the evidence by the same

standard applied to a jury verdict. Ortiz v. Jones, 917 S.W.2d 770, 772 (Tex. 1996) (per curiam).

In reviewing the legal sufficiency of the evidence, we view the evidence in the light most

favorable to the judgment, crediting favorable evidence if a reasonable fact finder could, and



                                                  14
disregarding contrary evidence unless a reasonable fact finder could not. City of Keller v. Wilson,

168 S.W.3d 802, 807 (Tex. 2005). The test is “whether the evidence at trial would enable reasonable

and fair-minded people to reach the [judgment] under review.” Id. at 827. In reviewing factual

sufficiency of the evidence, we consider and weigh all of the evidence in the record, and we may

overturn a judgment only if it is so against the great weight and preponderance of the evidence as

to be clearly wrong and manifestly unjust. Ortiz, 917 S.W.2d at 772; Cain v. Bain, 709 S.W.2d 175,

176 (Tex. 1986) (per curiam). However, this Court is not a fact finder, and we may not pass upon

the credibility of the witnesses or substitute our judgment for that of the trier of fact, even if a

different answer could be reached upon review of the evidence. See Maritime Overseas Corp.

v. Ellis, 971 S.W.2d 402, 407 (Tex. 1998).

               We review a trial court’s conclusions of law de novo and will uphold the conclusions

if the judgment can be sustained on any legal theory supported by the evidence. BMC Software

Belg., N.V. v. Marchand, 83 S.W.3d 789, 794 (Tex. 2002); Kendall Builders, Inc. v. Chesson,

149 S.W.3d 796, 803 (Tex. App.—Austin 2004, pet. denied). Although a trial court’s conclusions

of law may not be challenged for factual sufficiency, we may review the legal conclusions drawn

from the facts to determine whether the conclusions are correct. BMC Software, 83 S.W.3d at 794.

In all suits regarding conservatorship and possession of and access to children, the best interest of

the children “shall always be the primary consideration of the court.” Tex. Fam. Code Ann.

§ 153.002 (West 2008); Lenz v. Lenz, 79 S.W.3d 10, 14 (Tex. 2002). The trial court is given wide

latitude in determining the best interest of a minor child. Gillespie, 644 S.W.2d at 451.




                                                 15
                                           DISCUSSION

               In the first four of her five issues, Chen contends that the trial court abused its

discretion in awarding Hernandez the exclusive right to designate K.R.H.C.’s primary residence.7


Employment in Richardson

               In issue one, Chen argues that the trial court abused its discretion by basing its ruling

on Chen’s decision to accept employment in Richardson. She cites a parent’s statutory duty to

support her child financially, see Tex. Fam. Code Ann. § 151.001(a)(3) (West 2008) (duty to support

child, including providing clothing, food, shelter, medical and dental care, and education), and relies

on cases in which the courts allowed a custodial parent to relocate when it was found to be in the

best interest of the child, see, e.g., In re Cooper, 333 S.W.3d 656, 661 (Tex. App.—Dallas 2009, no

pet.) (orig. proceeding) (vacating temporary order prohibiting custodial parent’s relocation pending

trial when evidence showed move would significantly improve custodial parent’s economic

circumstances to child’s benefit); Echols, 85 S.W.3d at 483 (upholding modification of joint

managing conservatorship lifting residency restriction on custodial parent based on finding under

standard in prior family code section 156.202 that modification was positive improvement for and

in best interest of child).8 In essence, Chen argues that her relocation was necessitated by

       7
          Although Chen couches her issues in terms of the trial court’s “altering conservatorship,”
because this is an appeal from an original determination of conservatorship, we construe Chen’s
issues as stated.
       8
         See Act of May 23, 1987, 70th Leg., R.S., ch. 744, § 7, 1987 Tex. Gen. Laws 2666, 2670,
repealed by Act of May 22, 2001, 77th Leg., R.S., ch. 1289, § 12(2), 2001 Tex. Gen. Laws 3108,
3111 (requiring showing that modification would be positive improvement). Section 156.202 was
replaced by section 156.101 of the family code, which does not require a showing that the
modification would be a positive improvement for the child. See Tex. Fam. Code Ann. § 156.101

                                                  16
circumstance and in line with her duty to support K.R.H.C.               See Tex. Fam. Code Ann.

§ 151.001(a)(3).

                We observe initially that the cases Chen cites involve modifications of

residency restrictions placed on the parent awarded primary custody in temporary orders or

previously-determined conservatorships, see, e.g., In re Cooper, 333 S.W.3d at 658; Echols,

85 S.W.3d at 476, not original determinations of conservatorship, as in this case. Here, the question

before the trial court was not whether Chen, as custodial parent, should be allowed to relocate, but

who should be the custodial parent. Thus, we find these cases inapposite.

                Further, the nature of Chen’s challenge is less than clear. She cites five of the trial

court’s findings of fact as “relevant to this issue” but does not appear to argue that the evidence is

factually or legally insufficient to support any of the findings.9 Rather, the thrust of Chen’s argument

is that the trial court appointed Hernandez as the custodial conservator because Chen accepted

employment in Richardson and to do so on that basis was an abuse of discretion. However, while

the findings of fact Chen cites as “relevant to this issue” do relate to her acceptance of employment


(West Supp. 2011); Echols v. Olivarez, 85 S.W.3d 475, 478 n.2 (Tex. App.—Austin 2002, no pet.).
       9
           In the Statement of Facts section of her brief, Chen comments on two of the five cited
findings. She notes that finding of fact 13 states that Chen was “let go” from her job when,
according to Chen, she was “laid off” and asserts that finding of fact 16 “incorrectly” states that
Chen received an offer of employment from a company in Plano, Texas, on April 15, 2010, when
Chen actually received the offer from a company in Richardson on June 9, 2010. In the Summary
of the Argument section of her brief Chen also refers to finding of fact 18—which states that Chen
notified Hernandez of her intention to leave Travis County on June 9, 2010—not to attack its
accuracy, but to contest the implication, when findings 16 and 18 are read together, that Chen waited
two months to inform Hernandez of her employment in Richardson. However, in her argument
of issue one, Chen does not assert that the evidence to support these findings is legally or
factually insufficient.


                                                  17
in Richardson, there is nothing in the record to suggest that the trial court based its ruling on Chen’s

employment decision. The record shows that the trial court named Hernandez as the conservator

with the right to designate K.R.H.C.’s primary residence based primarily on the recommendations

of Smith and on the concern that Chen may return to Taiwan with K.R.H.C., not primarily on the fact

that Chen accepted employment in Richardson.10

                To the extent Chen intends issue one to be a factual sufficiency challenge to the

evidence supporting the cited findings, we find her argument unpersuasive. The undisputed evidence

showed that Chen accepted a job in Richardson and relocated there with K.R.H.C. with, at best,

minimal notice to Hernandez and Smith. There was conflicting testimony regarding when Chen

made it clear to Hernandez that she intended to move to Richardson, and Smith testified that Chen

did not request her permission to relocate until June 20, 2010, almost two weeks after her move. We

defer to the trial court’s first-hand assessments of the credibility of the witnesses and conclude

that the trial court assessments could have informed its view of the testimony. See City of Keller,

168 S.W.3d at 819; Echols, 85 S.W.3d at 477.             Thus, to the extent there are any minor

mischaracterizations of fact in the findings, such as whether Chen was “laid off” or “let go” or how




       10
            Smith testified that although she believed that a 50/50 possession schedule would be the
best solution, it was not possible with Chen living in Richardson, that Hernandez could provide the
most emotional stability, that of the two parents Hernandez had been the more flexible and
supportive, and that she recommended K.R.H.C. remain in Travis County with Hernandez. Both
Smith and the trial court expressed concerns that Chen would return to Taiwan with K.R.H.C., and
the trial court reviewed the applicable passports guidelines and questioned the attorneys regarding
Chen’s ability to do so. Read as a whole, the record shows that it was this evidence, as well as
additional evidence addressed in our discussion of subsequent issues, that formed the basis of
the trial court’s decision to award Hernandez the exclusive right to designate K.R.H.C.’s
primary residence.

                                                  18
many days notice of her move Chen gave, they do not render the findings so against the great weight

of the evidence as to be clearly wrong and manifestly unjust, and there was factually sufficient

evidence to support the findings. See Cain, 709 S.W.2d at 176. Accordingly, we conclude that the

trial court had sufficient information on which to exercise its discretion and that, even to the extent

it considered the evidence that Chen accepted employment in Richardson, its decision was neither

arbitrary nor unreasonable in light of the entire record. See Zeifman, 212 S.W.3d at 588; Echols,

85 S.W.3d at 478. We overrule issue one.


Sufficiency of Evidence

               In issues two through four, Chen alleges that the trial court abused its discretion in

basing its decision to name Hernandez the custodial conservator on its findings of fact related to

(1) whether Chen violated the temporary orders, (2) the potential risk of international abduction, and

(3) Chen’s level of cooperation with Hernandez. We address each issue in turn.


       Violation of Temporary Orders

               In her second issue, Chen contends that the trial court abused its discretion in

awarding Hernandez primary custody because the evidence that Chen violated the trial court’s

temporary orders was legally insufficient to support the relevant findings. Chen challenges the

following findings of fact:


       21.     The Honorable Judge Sheppard ruled that Chia-Yeng [sic] “Persephone”
               Chen could remain in North Texas for her employment but that the child
               would remain in Travis County during the pendency of the suit.

        ...

                                                  19
        24.     The credible evidence at the trial showed that Chia-Ying “Persephone” Chen,
                in direct contravention of Judge Sheppard’s Order, moved the child in with
                friends into their home in Williamson County and she was able to arrange her
                work to telecommute from Austin for a period of time while the case
                continued.

Chen argues that there is no evidence to support findings of fact 21 and 24. She further contends that

finding of fact 24 is erroneous because the temporary orders were “not a command to return to Travis

County only” but an order to return to Travis or contiguous counties and that by moving in with

friends in Williamson County, which is contiguous to Travis County, Chen did not violate the order.

                We agree that finding of fact 21 misstates the language of the temporary orders. The

temporary orders did not expressly address Chen’s location or require K.R.H.C. to remain in Travis

County during the entire pendency of the suit; instead, the orders required that after August 22, 2010,

K.R.H.C.’s primary residence must be in Travis or contiguous counties, giving Chen the right to

designate K.R.H.C.’s primary residence within Travis or contiguous counties, and leaving open the

residence of K.R.H.C. prior to August 22, 2010. However, although findings of fact form the basis

of the trial court’s judgment, see Tex. R. Civ. P. 299, finding 21, as a recitation of a prior trial court

order, is a finding on an evidentiary matter, not on an ultimate, controlling, and material issue. See

Flanary v. Mills, 150 S.W.3d 785, 792–93 (Tex. App.—Austin 2004, pet. denied) (distinguishing

between findings on controlling matters, which are essential to cause of action and have direct effect

on judgment, and evidentiary matters, which trial court may consider in deciding controlling issues,

but are not themselves controlling); MacGillivray v. MacGillivray, No 04-10-00109-CV, 2011 Tex.

App. LEXIS 4160, at *23–24 (Tex. App.—San Antonio 2011, pet. denied) (mem. op.) (same).




                                                   20
Finding 21 thus serves an evidentiary predicate to finding 24, in which the trial court found that Chen

violated the temporary orders.

               We turn, then, to finding of fact 24. Chen’s complaint with finding 24 is that it refers

only to Travis County while the temporary orders required that the child be returned to Travis “and

contiguous counties.” (Emphasis added). While Chen’s characterization of the temporary orders’

statement regarding counties is accurate, the record shows that on multiple occasions both parties,

whether by mistake or as a shorthand reference, referred to Travis County only. In fact, as Chen

concedes, trial counsel for Chen “misstated” at least twice that the order was to return the child to

“Travis County.” In any event, regardless of the fact that this misstatement was repeated in finding

of fact 24 and regardless of any misstatements in finding 21, the critical fact is that the temporary

orders actually required that “after August 22, 2010, the primary residence of the child shall be in

Travis or contiguous counties until further order of the Court.” (Emphasis added). Because Chen

and K.R.H.C. only resided temporarily in Cedar Park as guests in the home of Chen’s friends, the

evidence shows that Chen did, in fact, violate the order that she establish the child’s residence in

Travis or contiguous counties after August 22, 2010. Viewing the evidence in the light most

favorable to the final order, we conclude that the evidence was sufficient to allow reasonable and

fair-minded people to reach the decision reached by the trial court and was therefore legally

sufficient to support findings 21 and 24. See City of Keller, 168 S.W.3d at 807, 827. Based on the

facts of this case, we therefore further conclude that the trial court had sufficient evidence on

which to exercise its discretion and did so appropriately. See Zeifman, 212 S.W.3d at 588; Echols,

85 S.W.3d at 478. We overrule issue two.



                                                  21
       Potential Risk of International Abduction

               In her third issue, Chen contends the trial court abused its discretion in naming

Hernandez the conservator with the exclusive right to designate K.R.H.C.’s primary residence

because there is legally and factually insufficient credible evidence to support the trial court’s

findings related to the potential risk of international abduction. The family code provides trial courts

a statutory basis for determining the risk of international abduction in certain cases and ordering

preventive measures based on that risk. See Tex. Fam. Code Ann. §§ 153.501–.503. If there is

credible evidence of a potential risk of international abduction, the trial court must determine

whether to take one or more of the preventive measures described in section 153.503. See id.

§§ 153.501(a), .503(1)–(8). In determining whether to take any measures, the court shall consider

(1) public policies described in section 153.001(a)11 and the best interest of the child under section

153.002;12 (2) the risk of international abduction based on the court’s evaluation of risk factors set

out in section 153.502; (3) any obstacles to locating, recovering and returning the child if

international abduction occurs; and (4) the potential physical or psychological harm to the child if

international abduction occurs. Id. §153.501(b)(1)–(4).




       11
          Section 153.001 states that it is the public policy of the state to assure that children have
frequent contact with parents who act in the best interest of the child; to provide a safe, stable, and
nonviolent environment for the child; and to encourage parents to share in the rights and duties of
raising their child after separation or divorce. See Tex. Fam. Code Ann. § 153.001(a)(1)–(3)
(West 2008).
       12
          Section 153.002 provides that the best interest of the child shall always be the primary
consideration in determining issues of conservatorship, possession, and access. See id. § 153.002
(West 2008).

                                                  22
                In determining the risk of international abduction under section 153.502, the trial

court is to engage in a two-step process: (1) determine if there is credible evidence of a risk of

abduction; (2) if so, evaluate the risk. Id. § 153.502. Subsection (a) provides a list of evidentiary

factors the court shall consider in determining whether there is a potential risk of

abduction—whether the parent (1) has taken, enticed away, kept, withheld, or concealed the child;

(2) has threatened to do so; (3) lacks financial reason to stay in the U.S.; (4) has recently engaged

in planning activities that could facilitate the removal of the child from the U.S.; (5) has a history

of domestic violence; or (6) has a criminal history or a history of violating court orders. Id.

§ 153.502(a)(1)–(6). An affirmative finding of one of the factors is sufficient evidence for the court

to proceed to the second step of considering the additional statutory factors listed in subsection (b).

See In re Sigmar, 270 S.W.3d 289, 299–300 (Tex. App.—Waco 2008, orig. proceeding) (observing

that statute does not specify the number of factors on which court must make affirmative

findings and lists factors in the disjunctive) (citing Unif. Child Abuse Prevention Act § 7 cmt.,

9 Part IA U.L.A. at 42) (suggesting no particular number of risk factors listed in statute, which are

essentially same as in section 153.502, is required).

                Subsection (b) of section 153.502 proscribes two mandatory factors for the court to

consider in evaluating the risk found to exist under subsection (a): whether the parent (1) has strong

familial, emotional, or cultural ties to another country, particularly one that is not a signatory to or

compliant with the Hague Convention on the Civil Aspects of International Child Abduction; or

(2) lacks strong ties to the U.S., regardless of whether the parent is a citizen or permanent resident

of the U.S. Tex. Fam. Code Ann. § 153.502(b)(1),(2). Subsection (c) sets out additional,



                                                  23
discretionary factors the court may consider in evaluating the risk. See id. § 153.502 (c)(1)–(4).

Section 153.503 authorizes certain measures that the court may take if it finds preventive measures

necessary under section 153.501. Id. §§ 153.501, .503.

               We turn first to the factors under section 153.502(a). Of the numerous findings of

fact that Chen contends “labeled [her] a kidnapper,” only findings 10 and 29 relate to the risk factors

the court is to consider under subsection (a). In these findings, the trial court found that:


       10.     Chia-Ying “Persephone” Chen stated via email and otherwise after the birth
               of [K.R.H.C.] that her family lived in Taiwan and that she would like to
               return at some point, even threatening to take [K.R.H.C.] away from
               his father.

       ...

       29.     The credible evidence presented at trial showed that Chia-Yeng [sic]
               “Persephone” Chen has taken, enticed away, kept, withheld, or concealed
               K.R.H.C. in violation of the visitation rights of Marc Hernandez; Chia-Yeng
               [sic] “Persephone” Chen did not present credible evidence that she believed
               in good faith that her conduct was necessary to avoid imminent harm to
               K.R.H.C. or to herself.


See id. § 153.502 (a)(1), (2). With regard to finding 10, the undisputed evidence showed that Chen

had on two occasions threatened to return to Taiwan with K.R.H.C. In cross examination of

Hernandez, Hernandez stated that it was possible that Chen made the statements because of the

emotion of recently giving birth, but Chen did not offer testimony on this issue. Chen argues on

appeal that “[m]ore evidence than one parent’s accusation should be required.” However, this

argument ignores the fact that in her testimony Chen did not dispute the allegation, and her appellate

argument is not supported by any authority. See Tex. R. App. P. 38.1(i). Viewed in the light most



                                                  24
favorable to the trial court’s decision, this uncontroverted evidence could be considered “credible

evidence” of a “risk of abduction” under subsection (a). See Tex. Fam. Code Ann. § 153.501(a);

In re Sigmar, 270 S.W.3d at 300.13

               Having found credible evidence of at least one factor in section 153.502(a), the trial

court was then required to consider the mandatory factors under subsection (b): whether Chen “has

strong familial, emotional, or cultural ties to another country” that is not a signatory to the Hague

Convention of the Civil Aspects of International Child Abduction and whether she lacks strong ties

to the U.S. See Tex. Fam. Code Ann. § 153.502(b)(1)–(2); In re Sigmar, 270 S.W.3d at 300–01;

Boyo v. Boyo, 196 S.W.3d 409, 423–24 (Tex. App.—Beaumont 2006, no pet.); Karenev v. Karenev,

No. 02-06-00269-CV, 2008 Tex. App. LEXIS 2087, at *5–6 (Tex. App.—Ft. Worth 2008, no pet.)

(mem. op.). Chen challenges the following findings related to subsection (b):


       30.     The credible evidence presented at trial showed that Chia-Yeng [sic]
               “Persephone” Chen has strong ties with Taiwan, a country that is not a
               signatory to or compliant with the Hague Convention on the Civil Aspects of
               International Child Abduction.


       13
           Because an affirmative finding on only one of the preliminary factors in subsection (a),
if supported by the evidence, is all that is required for the court to proceed to a consideration of the
additional factors listed in subsections (b) and (c), see In re Sigmar, 270 S.W.3d 289, 299–300 (Tex.
App.—Waco 2008, orig. proceeding), we confine our analysis to finding 10 and do not reach Chen’s
challenge to finding 29. See Tex. R. Civ. P. 47.1; In re Sigmar, 270 S.W.3d at 300. However, we
observe that the record also supports finding 24—a finding that Chen does not challenge in this
issue—in which the trial court found that Chen had violated the temporary orders. The
uncontroverted evidence showed that Chen failed to established K.R.H.C.’s primary residence in
Travis or contiguous counties by August 22, 2010, in violation of the trial court’s temporary orders.
In addition, both Hernandez and Smith testified that Chen did not always abide by the trial court’s
orders. Thus, there was credible evidence that Chen has a history of violating court orders, an
additional risk factor under subsection (a). See Tex. Fam. Code Ann. § 153.502(a)(6) (trial court
shall consider evidence that parent has history of violating court orders).

                                                  25
       31.     The credible evidence presented at trial showed that Chia-Yeng [sic]
               “Persephone” Chen lacks strong ties to the United States.

       32.     Chia-Yeng [sic] “Persephone” Chen’s immediate family lives in Taiwan.

       33.     Chia-Yeng [sic] “Persephone” Chen testified that she is on a temporary visa
               to the United States and that her employer in Plano, Texas, was willing to
               sponsor her in her attempt to obtain a permanent work visa; however, if
               Chia-Yeng [sic] “Persephone” Chen relocated back to Travis County, Texas,
               to be closer to [K.R.H.C.], there was no guarantee that any new employer
               would continue to sponsor her.

       34.     Chia-Yeng [sic] “Persephone” Chen does not own a home in the
               United States.

       35.     The credible evidence presented at trial, and supplemented by the parties,
               showed that there exists a risk of international abduction as set out in Texas
               Family Code Section 153.502(a)(1), (b)( 1) and (b)(2).


See Tex. Fam. Code Ann. § 153.502(b)(1), (2). The evidence relating to these findings showed that,

although Chen has three aunts who reside in the U.S. and has made friends who reside in Texas,

Chen’s parents and only sibling live in Taiwan and she had not intended to stay in the U.S. until she

became pregnant. Although Chen testified that she now intends to stay in the U.S. so that her child

could have a relationship with his father, Smith testified that what Chen had told her did not always

“come to fruition,” that in her observation Chen had not always complied with the agreements of the

parties and the trial court’s orders, and that she believed the risk that Chen would return to Taiwan

should not be disregarded. The evidence also showed that Chen had been in the U.S. more than

two years, was currently in the U.S. under an H-1B visa that can be extended up to six years, had

worked with three employer sponsors, and had yet to obtain a green card. Viewed in the light most




                                                 26
favorable to the trial court’s final order, this evidence constitutes credible evidence of the trial court’s

findings under subsection (b). See id.; In re Sigmar, 270 S.W.3d at 301.

                Because the trial court found credible evidence of a risk of international abduction

under subsection (a), it could also consider evidence relevant to the factors listed in subsection (c).

See Tex. Fam. Code Ann. § 153.502(c)(1)–(4). The trial court’s only finding under subsection (c)

is contained in finding 30, in which the trial court found that Taiwan is a country that is not a

signatory to or compliant with the Hague Convention on the Civil Aspects of International Child

Abduction. See id. § 153.503(c)(4)(H). Chen contends that there is no evidence on this issue in

the record for this Court to consider. However, this finding is a matter of legislative fact of

which the trial court took judicial notice. See In re Sigmar, 270 S.W.3d at 301–02; In re Graves,

217 S.W.3d 744, 750 (Tex. App.—Waco 2007, orig. proceeding) (“Legislative facts . . . are not

normally the objects of evidentiary proof. As to them, judicial notice instead of record evidence is

the rule rather than the exception, and indisputability is not required to justify judicial notice.”)

(quoting 1 Steve Goode et al, Texas Practice Series: Guide to the Texas Rules of Evidence § 201.2

(3d ed. 2002)). “Evidence regarding the legal practices and procedures of a foreign country are

legislative facts” subject to judicial notice. In re Sigmar, 270 S.W.3d at 302 (citing Rodriquez

v. State, 90 S.W.3d 340, 360 (Tex. App.—El Paso 2001, pet. ref’d)). In addition, although the rules

of evidence provide a method for parties to request that a court take judicial notice of laws of a

foreign country, see Tex. R. Evid 203, “facts regarding another country’s compliance with the Hague

Convention on the Civil Aspects of International Child Abduction . . . are legislative facts about

which a trial or appellate court may take judicial notice without prompting by the parties.” In re



                                                    27
Sigmar, 270 S.W.3d at 302; see also Dutton v. Dutton, 18 S.W.3d 849, 856 (Tex. App.—Eastland

2000, pet. denied) (“This court may take judicial notice, even if no one requested the trial court

to do so and even if the trial court did not announce that it would do so.”); Trujillo v. State,

809 S.W.2d 593, 595–96 (Tex. App.—San Antonio 1991, no. pet.) (trial court or appellate court

could take judicial notice that school was accredited by state).

               The record reflects that the trial court took judicial notice of the guidelines for

obtaining passports for minors in the U.S. and Taiwan at the request of the parties and reviewed

exhibits and government websites concerning passport procedures and the “Hague Convention issues

with regard to countries who are not signatories to the Hague convention and the passport

restrictions.” The trial court stated that before ruling it needed to review the information more

thoroughly to ensure a complete understanding of the passport requirements and “to make sure that

[it had] all of the information necessary for the Court to make its ruling.” The website for the U.S.

Department of State provides a helpful resource concerning international travel and practices and

procedures relevant to international abduction. It states that Taiwan is not a party to the Hague

Convention on the Civil Aspects of International Child Abduction and that there are no treaties in

force between the U.S. and Taiwan.14 Viewing the record and judicially-noticed information in the

light most favorable to the trial court’s order, we conclude that there was credible evidence to

support the finding under subsection (c) that Taiwan is not a signatory to the Hague Convention on




       14
           See U.S. Department of State, http://travel.state.gov/abduction/country/country_527.html
(last visited July 30, 2012); see also id.,http://adoption.state.gov/hague_convention/countries.php
(last visited July 30, 2012) (list of countries that are parties to Hague Convention does not
include Taiwan).

                                                 28
the Civil Aspects of International Child Abduction. Accordingly, we further conclude that credible

evidence supports the trial court’s finding of a potential risk of international abduction. See

In re Sigmar, 270 S.W.3d at 304; Boyo, 196 S.W.3d at 424; Karenev, 2008 Tex. App. LEXIS 2087,

at *9–10.

                In its order, the trial court ordered several abduction prevention measures authorized

under section 153.503: that Chen and any person acting on her behalf are prohibited from removing

K.R.H.C. from Texas or the U.S., see Tex. Fam. Code Ann. § 153.503(4)(A); that Chen shall

surrender any passport issued in the name of K.R.H.C. and is prohibited from applying for a passport

or visa on his behalf, see id.§ 153.503(4)(B), (C); that Chen shall provide to the appropriate

authorities a properly authenticated copy of the order and her agreement to it and provide to the trial

court proof of receipt by the authorities, see id.§ 153.503(5)(A)(i), (ii) & (B); and that the appropriate

law enforcement agencies are authorized to take measures to prevent Chen from abducting K.R.H.C.,

see id.§ 153.503(7). The order further included provisions stating that the trial court had jurisdiction

over the case and the parties, the U.S. is the habitual residence of K.R.H.C., and Chen’s violation

of the international abduction order may subject her to civil or criminal penalties. See id.

§ 153.503(8)(A)–(C).

                Chen challenges the following conclusions of law related to the abduction prevention

measures:


        7.      Based upon the testimony presented at trial, the best interest of the child and
                the relevant factors set forth in the Texas Family Code, relief stated in Texas
                Family Code Sections 153.503(4)(A), (4)(C), (5)(A), (5)(B), (7), (8)(A),
                (8)(B) and (8)(C) should be granted.



                                                   29
       8.      Based upon the testimony presented at trial, the best interest of the child and
               the relevant factors set forth in the Texas Family Code, Marc Hernandez
               should have the exclusive right to obtain and maintain the passport for the
               Child.


As we have discussed, there was credible evidence to support the trial court’s findings under section

153.502. In addition, the guardian ad litem expressed concerns regarding the potential for

international abduction by Chen and requested the trial court to implement abduction prevention

measures. We therefore conclude that the trial court had sufficient evidence on which to exercise

its discretion and did so appropriately in ordering the abduction prevention measures. See Zeifman,

212 S.W.3d at 588; Echols, 85 S.W.3d at 478. We overrule issue three.


       Lack of Cooperation

               In her fourth issue, Chen argues that the trial court abused its discretion in awarding

Hernandez the exclusive right to designate K.R.H.C.’s primary residence based on Chen’s lack of

cooperation with Hernandez. She challenges the following findings of fact:


       11.     There were frequent problems regarding communication, visits and
               possession schedules and the parties consistently had difficulties being able
               to agree on what was in the child’s best interest.

       12.     Chia-Ying “Persephone” Chen had a particularly difficult time abiding by the
               terms of their agreements, showing flexibility in co-parenting,
               communicating and fostering a relationship between the child and his father.




                                                 30
Chen contends that there was “insufficient evidence to support this as a basis for altering custody.”15

We construe this issue as a challenge to the factual sufficiency of the evidence to support findings

11 and 12 and conclude that parental cooperation can be considered in decisions regarding the right

to designate primary residence and the record as a whole supports findings 11 and 12.

                There was conflicting evidence related to cooperation between the parties, including

the testimony of, and email exchanges between, Chen, Hernandez, and Smith, as well as Smith’s

report. Chen testified generally that she always tried her best to accommodate Hernandez’s visitation

requests and described instances in which she had changed plans to do so. However, Hernandez

testified about a number of times that Chen had refused his requests, and his testimony was generally

supported by emails and the testimony and report of Smith, who characterized the case as one of

“high conflict” and expressed concern that Chen consistently declined to participate in transportation

for visitation and attempted to limit Hernandez’s time with K.R.H.C. Both Hernandez and Smith

also observed that Chen had not always complied with the parties’ agreements and the court’s orders.

                We must defer to the trial court’s assessments of demeanor and credibility. See City

of Keller, 168 S.W.3d at 819; Turner v. KTRK Television, Inc., 38 S.W.3d 103, 120 (Tex. 2000).

“The trial court is in the best position to observe the demeanor and personalities of the witnesses and

can ‘feel’ the forces, powers, and influences that cannot be discerned by merely reading the record,”

and a trial court does not abuse its discretion as long as there is some substantive, probative evidence

to support its decision. Echols, 85 S.W.3d at 477) (citing Jeffers, 615 S.W.2d at 253) (quoting




       15
         Again, we observe that this case involves an original determination of conservatorship,
not a modification.

                                                  31
quoting Thompson, 191 S.W.2d at 493). On this record, we conclude that the trial court could have

reasonably credited Hernandez’s and Smith’s testimony, that findings 11 and 12 are not so against

the great weight of the evidence as to be clearly wrong and manifestly unjust, and that there was

factually sufficient evidence to support the findings. See Cain, 709 S.W.2d at 176. Accordingly,

we conclude that the trial court had sufficient information on which to exercise its discretion and

did so appropriately. See Zeifman, 212 S.W.3d at 588; Echols, 85 S.W.3d at 478. We overrule

issue four.


Best Interest of the Child

                In her fifth issue, Chen contends that it was not in the best interest of K.R.H.C. for

Hernandez to be named conservator with the exclusive right to designate his primary residence. The

trial court is given wide latitude in determining the best interest of a minor child. Gillespie,

644 S.W.2d at 451. The supreme court set out a number of factors for a trial court to consider in

determining a child’s best interest in Holley v. Adams, 544 S.W.2d 367 (Tex. 1976). Those factors

include the desires of the child, the emotional and physical needs of and danger to the child now and

in the future, the parental abilities of the individuals seeking custody, the plans for the child by the

individual seeking custody, the programs available to assist these individuals to promote the best

interest of the child, the stability of the home, the acts or omissions of the parent that may indicate

that the existing parent-child relationship is not a proper one, and any excuse for the acts or

omissions of the parent. Id. at 371–72. This list of factors is not exhaustive, not all of them are

present in every case, and not all of them need to be proven to determine a child’s best interest. In

re C.H., 89 S.W.3d 17, 27 (Tex. 2002); Holley, 544 S.W.2d at 372.

                                                  32
               Several of the Holley factors are implicated in this case. Although K.R.H.C. is very

young, there was some evidence of his desires. Smith testified that he was very bonded to both

parents. However, Hernandez’s wife testified that K.R.H.C. typically does not want to leave their

home at the end of visitation, and Smith testified that she witnessed one such instance in which

K.R.H.C. stated that he did not want to go when it was time to return to Chen. Regarding parenting

abilities, Smith testified that Chen and Hernandez were equally qualified to care and provide for

K.R.H.C. Chen testified about her plan for K.R.H.C. if she were granted the right to designate his

primary residence. She stated that she had selected a daycare facility for K.R.H.C. to attend,

K.R.H.C. is learning Spanish, and she has plans for him to learn French. She also stated that she

would do her best to involve Hernandez by allowing phone and video conference access, helping

with transportation, and allowing K.R.H.C. to spend the night in an area hotel with Hernandez.

               Concerning his plans for the child, Hernandez testified that his flexible work schedule

and his wife’s status as a stay-at-home mother would enable them both to care for K.R.H.C. during

the day. He also stated that he would enroll K.R.H.C. in daycare or other programs for socialization

and continue K.R.H.C.’s Chinese education by using flash cards and learning Chinese himself. In

addition, Hernandez testified that K.R.H.C. would often be around Hernandez’s step-children, with

whom he is very bonded, as well as K.R.H.C.’s half-sister, who was born in December 2010.

Finally, there was evidence regarding the stability of the home that each parent would provide. The

evidence showed that Chen had lived in a number of different places in the last two years, two of

which were temporary places with different families and different daycare hours. Smith testified that

she was concerned that K.R.H.C. had been “bounced around quite a bit.” In contrast, the evidence



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showed that Hernandez had moved once during the same time period, and Smith testified that “the

only stability [K.R.H.C.] has continued to have is at Mr. Hernandez’s house because it is the same

house and it’s the same place and it’s the same people.”

                When a trial court designates parents as joint managing conservators, it must award

one of them the exclusive right to designate the child’s primary residence. Tex. Fam. Code Ann.

§ 153.134(b)(1) (West 2008). In making this determination, the trial court is vested with broad

discretion. In re K.L.W., 301 S.W.3d at 428. We will not disturb the trial court’s order unless the

record as a whole shows that the trial court abused its discretion. Id. at 424. Here, the trial court was

faced with a difficult choice between two fit parents who both love and are capable of caring for their

child. Its extensive findings of fact affirmatively indicate that it considered the relevant factors under

family code section 153.001(a) and applicable factors discussed in Holley. See id. § 153.001(a)

(West 2008); Holley, 544 S.W.2d at 371–72. Those findings are supported by the record, including

the testimony of the guardian ad litem. Additionally, the findings support the trial court’s

conclusions of law that it was in the best interest of K.R.H.C. for Hernandez to have the right to

designate K.R.H.C.’s residence. Therefore, on this record, we conclude that the trial court had

sufficient evidence upon which to exercise its discretion and did not abuse that discretion in

designating Hernandez as the conservator with the exclusive right to determine K.R.H.C.’s primary

residence. See Zeifman, 212 S.W.3d at 588; Echols, 85 S.W.3d at 478. We overrule issue five.


                                           CONCLUSION

                Having overruled Chen’s five issues, we affirm the trial court’s order.




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                                            __________________________________________

                                            Melissa Goodwin, Justice

Before Justices Puryear, Rose and Goodwin

Affirmed

Filed: August 28, 2012




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