Opinion issued September 20, 2007

In The

Court of Appeals

For The

First District of Texas

NO. 01-06-00445-CV

JAMIE R. O'CONNOR, Appellant

V.

DANIEL K. O'CONNOR, Appellee

On Appeal from the 310th District Court

Harris County, Texas

Trial Court Cause No. 2004-52791

OPINION DISSENTING FROM DENIAL OF REHEARING

This is an appeal from a final decree of divorce and conservatorship of two minor children. In our opinion, we affirm the judgment of the trial court, which, in part, denies the mother visitation and physical access to the children. On rehearing, the mother observes that no party to the case requested that she be denied physical access, and thus the trial court's order went beyond the relief requested by the father, who had asked that the mother be limited to supervised visits with her children. I would grant rehearing, modify the trial court's judgment, and affirm, granting the relief requested by the father --supervised visitation, deleting the open-ended order barring all visitation and physical access.

A trial court has wide latitude in determining the best interests of a minor child and to promote the stability of the child's environment. Gillespie v. Gillespie, 644 S.W.2d 449, 451 (Tex. 1982). The denial of all visitation with their mother, however, could be as detrimental to the interests of the children as much as or more than allowing supervised access. Because no one requested such relief, none of the experts opined in the record as to whether the harm from the complete denial of physical access would be outweighed by the harm (if any) of supervised visits. The record thus does not support denial of all visitation. See Voros v. Turnage, 849 S.W.2d 353, 354-55 (Tex. App.--Houston [1st Dist.] 1992) (trial court abused its discretion in departing from the standard visitation order when it did not state "good reasons" to justify the deviation), appeal after remand, 856 S.W.2d 759 (Tex. App.--Houston [1st Dist.] 1993, writ denied) (affirming departure based on trial court's findings and an increase in visitation time); see also Tex. Fam. Code Ann. § 153.252 (Vernon 2002) (establishing a rebuttal presumption that the standard visitation order is in the best interests of a child and provides reasonable minimum possession of the child). Though the trial court doubtless sought to curb the effect that the mother's disruptive and erratic behavior might have on the children, the father thought that supervised visits would take care of the problem, and none of the experts in the case contradicted this approach. ⁽¹⁾ No evidence in the record indicates that supervised visits would be harmful to the children or that visits would endanger the children. Should the record contain such evidence, a trial court would be within its discretion to enjoin physical access. Depriving the children of all visitation with a parent, however, has its own physical and emotional impact --and without a request to do so, or evidence in the record that even limited contact would itself be harmful (as opposed to the general problems that the mother has), I would modify the judgment to grant the relief requested by the father, delete the provision enjoining physical access, and affirm as modified.

Jane Bland

Justice

Panel consists of Justices Nuchia, Hanks, and Bland.

Justice Bland, dissenting from denial of rehearing.

1. The father testified, "I'm asking the Court for supervised visitation for [the mother] and the children. . .I would like to make it as comfortable for the children as possible so that it doesn't interfere with their activities, but I do want the children to be able to see their mother."