Stone v. Stone

Stone v. Stone, 03-25-00748-CV, November 05, 2026.

On appeal from 274th District Court of Hays County

Synopsis

A trial court may appoint a friend of the court under Texas Family Code § 107.021 to prepare a proposed custody order memorializing the court’s announced ruling. The appointment does not improperly delegate judicial authority—and satisfies due process—when the trial judge makes the substantive decisions, the parties may review and object to the proposed order, and the judge independently determines the order ultimately signed.

Relevance to Family Law

Stone addresses a recurring problem in custody litigation: converting an oral ruling into a detailed, enforceable possession order when the parties are unable to agree on form. The opinion distinguishes permissible order drafting from an impermissible delegation of adjudicative authority. A friend of the court may reduce the judge’s announced rulings to writing, but the friend may not decide disputed possession terms, resolve objections, or otherwise exercise authority reserved to the court.

The decision is particularly relevant in high-conflict SAPCRs, post-remand proceedings, and cases involving self-represented parties. It also reinforces the importance of a transparent order-entry process. Counsel should insist on a clear oral rendition or written ruling, compare every proposed provision against that ruling, and place any objections on the record before the court signs the order.

Case Summary

Fact Summary

Kelly and Hayden Stone were divorced in 2012 and appointed joint managing conservators of their two children. The decree gave Kelly the exclusive right to designate the children’s primary residence and awarded Hayden possession under the standard possession order.

After Kelly was accepted into a doctoral program in Portugal, litigation arose over relocation, passports, conservatorship, and possession. The trial court eventually modified the decree by giving Hayden the exclusive right to designate the children’s primary residence. Rather than establishing definite periods of possession for Kelly, however, the court adopted a “Teenager Provision” requiring the parents to work out possession by agreement while considering the children’s wishes, ages, and activities. The provision also restricted the parents’ ability to pursue contempt if the children declined to participate in a period of possession.

In the first appeal, the Third Court of Appeals held that the “as agreed” provision restricted Kelly’s access more severely than necessary and was not enforceable by contempt. The appellate court reversed the possession-and-access provisions and remanded for an order specifically articulating the times and conditions of Kelly’s possession and access. See Stone v. Stone, No. 03-23-00801-CV, 2025 WL 1141178, at *4–7 (Tex. App.—Austin Apr. 18, 2025, no pet.) (mem. op.).

On remand, the trial court conducted another hearing. Both parents appeared pro se, and the court conferred with the children off the record. The judge then announced the essential terms of Kelly’s possession, including periods during summer vacation, Christmas break, and spring break. The judge also announced that a friend of the court would prepare an order for the parties to review.

The trial court appointed attorney Jacqueline McNutt as friend of the court “to draft an order in this case reflecting the court’s ruling on June 26, 2025.” Kelly moved to strike the appointment, contending that the attorney had a conflict and that assigning a private attorney to draft the order violated the Family Code, improperly delegated judicial responsibilities, and denied due process. The trial court held a hearing on those objections and overruled them.

The court subsequently signed an order awarding Kelly possession during specified school breaks, summer periods, and Mother’s Day. Hayden received Thanksgiving, Father’s Day, and all periods not expressly awarded to Kelly. Kelly appealed again, challenging the remand proceedings, the scope of the mandate, the denial of makeup possession, the appointment of the friend of the court, and the restrictions imposed by the new possession order.

Issues Decided

The Third Court of Appeals considered whether:

1. The proceedings on remand involved fundamental or structural error.
2. The trial court exceeded the scope of the appellate mandate.
3. The trial court erred by declining to award Kelly makeup possession.
4. Appointing a friend of the court to draft the proposed custody order improperly delegated judicial authority or violated Kelly’s due-process rights.
5. The resulting possession order imposed an impermissibly severe restriction on Kelly’s possession of and access to the children.

Rules Applied

Texas Family Code § 107.021. In a suit affecting the parent-child relationship, the trial court may appoint a friend of the court to assist the court in determining and protecting a child’s best interest. The appointment does not transfer the trial court’s adjudicative authority to the appointed attorney.

Judicial authority versus ministerial drafting. A court may obtain assistance in preparing a proposed order. The critical distinction is between drafting language that memorializes a judicial decision and making the decision itself. The trial judge must determine the substantive rights and obligations of the parties, rule on objections, and decide what language will appear in the signed order.

Procedural due process. Due process generally requires notice and a meaningful opportunity to be heard. In the order-entry context, those protections are present when the parties receive the proposed order, have an opportunity to identify provisions that do not conform to the court’s ruling, and may submit those objections to the judge before entry.

The appellate mandate. Following remand, the trial court must comply with the appellate court’s judgment and instructions. The court may take actions necessary to implement the mandate, but it may not reopen matters that the appellate disposition placed beyond the scope of remand.

Possession and access. Trial courts possess broad discretion in fashioning possession orders based on the children’s best interest and the circumstances presented. Restrictions may not be more severe than necessary to protect that best interest, and the order must state possession terms with sufficient specificity to be enforceable.

Application

The appellate court treated the friend of the court’s work as order drafting—not adjudication. The trial judge had already conducted the remand hearing and announced the material possession terms. The appointment order did not authorize the friend of the court to determine custody, choose between competing schedules, or resolve disputed legal issues. It directed the attorney to draft an order “reflecting the court’s ruling.”

The procedure also preserved judicial control over the final order. Kelly received notice of the appointment, moved to strike it, and obtained a hearing on her objections. The parties were permitted to review the proposed order and identify perceived departures from the ruling. The trial judge—not the appointed attorney—overruled the objections and signed the final order.

Those circumstances defeated both the delegation and due-process arguments. Preparing proposed language did not convert the friend of the court into a judicial officer because the attorney did not render judgment. Likewise, Kelly was not deprived of a meaningful opportunity to be heard merely because the proposed order was prepared by a court-appointed attorney rather than by one of the parties.

The court also considered the remand proceedings in light of the first appeal. The prior mandate required a possession order containing definite times and conditions that could be enforced by contempt. The new order supplied specific possession periods rather than leaving access dependent on future parental agreement or the children’s unilateral preferences. Its treatment of school breaks, summer vacation, and holidays therefore addressed the defect identified in the prior opinion.

Finally, the court evaluated the schedule in the context of the family’s actual circumstances. Kelly lived in Portugal, the children were teenagers attending school in Texas, and frequent short periods of possession would involve substantial international travel. Concentrating Kelly’s possession into longer periods aligned with school calendars was not equivalent to denying possession altogether.

Holding

The court held that the remand proceedings did not involve fundamental or structural error warranting reversal. The trial court conducted a hearing, made the operative decisions, entertained objections, and retained control over the judgment.

The court held that the trial court did not exceed the appellate mandate. The remand required the court to replace the indefinite “as agreed” arrangement with definite, enforceable possession terms, and the new order accomplished that task.

The court rejected Kelly’s claim to makeup possession. The prior reversal did not automatically entitle her to compensatory periods, and the trial court was not required to include such relief when fashioning the prospective schedule on remand.

The court held that the appointment of a friend of the court under Texas Family Code § 107.021 was proper. Drafting a proposed order that reflected the judge’s announced ruling was not an exercise of judicial power. Because the parties could review the proposed order, raise objections, and obtain rulings from the judge, the procedure also satisfied due process.

The court further held that the possession schedule was not an abuse of discretion. The order established definite periods of possession suited to the children’s school schedules and the practical consequences of Kelly’s residence abroad. The Third Court of Appeals therefore affirmed the trial court’s order.

Practical Application

Secure a sufficiently detailed rendition. When the court intends to use a friend of the court or another attorney to draft the order, ask the judge to state all material terms on the record. Dates, exchange times, locations, travel responsibilities, notice requirements, electronic access, passport provisions, and allocation of expenses should not be left to the drafter’s discretion.

Define the appointment narrowly. A proposed appointment order should state that the friend of the court is authorized to prepare language reflecting the court’s ruling—not to determine disputed terms or supplement the ruling based on the drafter’s assessment of the children’s best interest.

Use the order-entry process to preserve error. A generalized complaint that the proposed order is “inaccurate” is rarely useful. Identify each disputed paragraph, quote the corresponding oral ruling, provide substitute language, and obtain an express ruling on the objection.

Do not confuse drafting influence with judicial authority. The fact that a court-appointed attorney selects wording or organizes provisions does not itself establish an unconstitutional delegation. The better appellate record will show that the drafter resolved substantive disputes or added material terms never decided by the judge.

Treat remand as a limited assignment. Before the remand hearing, reduce the appellate mandate to a list of permitted and prohibited subjects. If the opposing party seeks relief outside that scope, object under the mandate and law-of-the-case doctrines rather than relying solely on a general relevance objection.

Draft for enforceability. Possession provisions should identify objectively ascertainable dates, times, conditions, and exchange obligations. A provision requiring future agreement may be practically attractive, but it becomes problematic when it leaves a parent without a definite right enforceable by contempt.

Develop the record supporting nonstandard possession. When geography, school schedules, a child’s age, or international travel makes a standard schedule impractical, present evidence connecting the proposed schedule to those circumstances. The order should remain specific even if the periods are less frequent and longer in duration.

Checklists

Before the Court Appoints a Friend of the Court

• Confirm that the appointment is authorized under Texas Family Code § 107.021.
• Request a written appointment order defining the assignment.
• Limit the assignment to memorializing the court’s announced ruling.
• Identify any potential conflicts of interest promptly and with supporting evidence.
• Ask whether the friend of the court will communicate with the parties jointly or through a defined submission process.
• Confirm that all parties will receive the proposed order before it is presented for signature.
• Establish a deadline and procedure for written objections.

Build a Clear Record of the Court’s Ruling

• Request an on-the-record rendition of every material possession term.
• Clarify exact beginning and ending dates and times.
• Address exchange locations and transportation responsibilities.
• Address domestic or international travel requirements.
• Specify passport possession, consent, and delivery obligations when relevant.
• Clarify holiday priority and conflicts with regular possession.
• Address electronic communication and access between possession periods.
• Ask the court to resolve any omitted or ambiguous term before drafting begins.
• Obtain the reporter’s record before approving the proposed order.

Review the Proposed Order

• Compare each provision against the oral rendition and written findings.
• Flag terms that were not announced by the court.
• Identify language that changes a right rather than merely clarifying it.
• Confirm that the order does not grant the friend of the court continuing decision-making authority.
• Verify that all possession periods are objectively ascertainable.
• Check internal priority provisions for holiday and summer conflicts.
• Confirm that geographic and travel provisions match the evidence and ruling.
• Submit precise replacement language for every disputed paragraph.
• Obtain an express ruling on each material objection.

Preserve a Delegation or Due-Process Complaint

• Object as soon as the scope of the appointment becomes apparent.
• Distinguish substantive decision-making from ministerial drafting.
• Identify the specific decision allegedly made by the appointed attorney.
• Explain where that decision differs from or exceeds the judge’s rendition.
• Request access to every proposed draft submitted to the court.
• Request a hearing before the order is signed.
• Make a written proffer of the language counsel contends should be used.
• Obtain a ruling on the objection and ensure it appears in the record.
• File any necessary post-judgment motion addressing discrepancies in the signed order.

Litigate Effectively After Remand

• Read the appellate opinion and judgment together.
• Identify the precise defect the appellate court directed the trial court to correct.
• Separate matters within the mandate from matters already finally adjudicated.
• Object when requested relief exceeds the scope of remand.
• Present evidence relevant to the discretion the mandate leaves open.
• Propose an order that tracks the mandate verbatim where practical.
• Ensure that the resulting provisions are enforceable by contempt.
• Preserve complaints about both the substance of the order and the procedure used to enter it.

Citation

Stone v. Stone, No. 03-25-00748-CV (Tex. App.—Austin Nov. 5, 2026, no pet. h.) (mem. op.).

Full Opinion

Read the full opinion in Stone v. Stone.

~~ca9ca9c6-90a4-4a03-a0b7-6c2b433775b6~~