Kelly Stone v. Hayden Stone

TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN NO. 03-25-00748-CV Kelly Stone, Appellant v. Hayden Stone, Appellee FROM THE 274TH DISTRICT COURT OF HAYS COUNTY NO. 11-0363, THE HONORABLE SHERRI TIBBE, JUDGE PRESIDING MEMORANDUM OPINION Appellant Kelly Stone, proceeding pro se, appeals the district court’s custody order specifying the terms of her possession and access to her two children with her ex-husband, appellee Hayden Stone. 1 The district court rendered its order after this Court had reversed in part the district court’s previous order modifying the parent-child relationship and remanded with instructions that the district court devise a custody order that provides specific times and conditions for Kelly to have possession and access to the children. In five issues on appeal, Kelly asserts that the district court: (1) committed fundamental and structural error at the hearing on remand; (2) exceeded the scope of this Court’s mandate; (3) erred by refusing to grant Kelly “makeup possession”; (4) violated Kelly’s due-process rights by appointing a friend of the court to draft the custody order; and (5) abused its discretion by rendering an order that imposed a “severe restriction” on Kelly’s possession. We will affirm the district court’s order. 1 Because the parties share a last name, we refer to them by their first names.  BACKGROUND 2 Under the terms of their 2012 divorce decree, Kelly and Hayden were appointed joint managing conservators of their two children, M.M.S. (“Michael”), born November 20, 2007, and D.H.S. (“Drew”), born February 16, 2009. 3 The decree awarded Kelly the exclusive right to designate the children’s primary residence within Hays County, Texas, and any counties contiguous to it. The decree granted Hayden possession and access to the children under the standard possession order. In 2022, after Kelly had been accepted to a PhD program in Portugal, she filed a motion to enforce and modify the decree, seeking to remove the geographic restriction and to enforce a passport provision in the decree that required each parent to consent to the issuance of a passport for the children “unless the parent had good cause for withholding that consent.” Kelly alleged that despite her “best efforts at amicably resolving this matter before filing suit, the parties have been unable to come to agreement on passport provisions or a temporary schedule regarding possession and access of their two children.” The district court subsequently issued temporary orders requiring that Hayden obtain passports for the children and maintain them until further order from the court or agreement by the parties. 2 Because the parties are familiar with the facts of the case, we recite them in this opinion only to the extent necessary to advise the parties of the Court’s decision and the basic reasons for it. See Tex. R. App. P. 47.1. The facts are taken from the records in this appeal and in the earlier appeal involving the same parties. We grant Kelly’s motion to take judicial notice of the records in that appeal. See Tex. R. Evid. 201(b) (providing for judicial notice of adjudicative facts); Trevino v. Pemberton, 918 S.W.2d 102, 103 n.2 (Tex. App.—Amarillo 1996, no pet.) (“An appellate court may judicially notice its own records in the same or related proceeding involving the same or nearly the same parties.”). 3 Even though the older child is no longer a minor, we refer to both children using pseudonyms to protect their privacy. See Tex. Fam. Code 109.002(d) (“On the motion of the parties or on the court’s own motion, the appellate court in its opinion may identify the parties by fictitious names or by their initials only.”). 2  In 2023, Hayden filed his second amended counterpetition to modify the divorce decree, seeking appointment as the sole managing conservator with the right to designate the children’s primary residence. He also requested that Kelly’s access to or possession of the children be supervised, that the district court require Kelly to execute a bond to exercise possession and access, and that the district court determine whether there was a risk that Kelly would abduct the children while they were overseas. The case proceeded to a final hearing at which both Kelly and Hayden appeared pro se. After the hearing concluded, the district court conferred with the children off the record. The trial court later signed a modification order that granted, in part, Hayden’s counterpetition for modification. Kelly and Hayden remained joint managing conservators, but the district court modified the provision granting the exclusive right to designate the primary residence of the children, changing the parent with that right to Hayden instead of Kelly; the geographic restriction, changing it to also allow Nixon, Texas to be designated as the children’s primary residence; and the passport provision, giving each parent conservator “the right, subject to the agreement of the other parent conservator, to apply for passports for the children, to renew the children’s passports, and to maintain possession of the children’s passports.” The order did not establish a specific possession-and-access schedule for the children. Instead, it included a “Teenager Provision” that required the parents to “work together to work out an agreement for possession and access of the child with each parent, while recognizing the children’s age and extracurricular activities.” The provision also stated that Kelly and Hayden “shall in no event file for the other party to be held in Contempt of Court for failing to follow the Court-ordered possession order, if the children do not wish to spend time with the other parent for a period of possession.” 3  Kelly appealed the district court’s order, arguing that the district court abused its discretion by not specifically stating in its order the periods that she was allowed possession and access and by removing her ability to enforce the order by contempt, which effectively denied her access to the children. Stone v. Stone, No. 03-23-00801-CV, 2025 WL 1141178, at *4 (Tex. App.—Austin Apr. 18, 2025, no pet.) (mem. op.). This Court agreed, holding that the district court “abused its discretion by rendering an ‘as agreed’ possession order that restricted Kelly’s access more severely than necessary to protect the children’s best interest and that is unenforceable by contempt.” Id. at *7. Accordingly, this Court “reverse[d] the provisions of the trial court’s order concerning possession and access” and “remand[ed] the case to the trial court for it to render an order that specifically articulates the times and conditions of Kelly’s possession of and access to the children and is enforceable by contempt.” Id. In its judgment, this Court ordered that “[t]he appellee shall pay all costs relating to this appeal, both in this Court and in the court below.” Following remand, Kelly filed a motion for recovery of fees and costs, in the amount of $28,091.78, which she alleged was based on “both the appellate court’s directive requiring Respondent to pay all costs of the appeal and the courts below, as well as the applicable terms of the original Final Decree of Divorce.” Kelly attached to this motion a table showing “the total attorney’s fees, court costs, and out-of-pocket litigation-related expenses” that she had incurred beginning in July 2022, when she filed her motion to modify and enforce the divorce decree, and June 2025, the date she filed her motion for recovery of fees. On June 26, 2025, the district court held a hearing on possession and access to the children and on costs. At the hearing, both parents again appeared pro se. Kelly informed the district court that she currently had custody of the children and that her custody had begun on 4 June 9. After hearing argument from the parents regarding custody moving forward and conferring with the children off the record, the district court announced that “summer visitation will continue with Mom, and they start school August 11th, and they need to be returned on August 1st. And next year [2026], it will work the same way. . . . One week after school ends, Mom’s possession begins.” The district court added that it was giving “the entire holiday period to [Kelly], 2025 Christmas,” after the children got out of school for Christmas break, and that it was giving the children to Kelly during spring break as well. The district court also announced that it was “going to get a friend of the court attorney to draft an order for y’all to review and look at once we get done.” The district court took Kelly’s motion for recovery of fees and costs under advisement. The district court subsequently appointed a friend of the court “to draft an order in this case reflecting the court’s ruling on June 26, 2025.” Kelly filed a motion to strike the appointment, objecting that it was improper because the friend of the court, attorney Jacqueline McNutt, had a conflict of interest and because, in her view “the appointment of a private attorney to perform judicial drafting responsibilities post-judgment violates the Texas Family Code and fundamental principles of due process.” The district court held a hearing on Kelly’s objections and overruled them. The district court later signed its order in the suit to modify the parent-child relationship, this time including provisions specifying the terms of each parent’s possession and access to the children. Kelly was awarded possession for spring break, summer vacation, Christmas break, and Mother’s Day. Hayden was awarded possession for Thanksgiving break, Father’s Day, and “all other times not specifically designated in this Possession Order for Kelly Ann Stone.” The order also included the following provision for “costs relating to appeal”: 5  IT IS ORDERED that pursuant to the Texas Court of Appeals, Third District, at Austin, judgment rendered April 18, 2025, Kelly Ann Stone is awarded a judgment in the amount of Nine Hundred Seventy Dollars ($970.00) for costs relating to this appeal, both in this Court and the Third Court of Appeals, incurred by Kelly Ann Stone, with interest at 6 percent per year compounded annually from the date the judgment is signed until paid. The judgment, for which let execution issue, is awarded against Hayden Marshal Stone, Respondent. .... IT IS ORDERED that costs of court are to be borne by Hayden Marshal Stone. Upon Kelly’s request, the district court later made the following findings of fact and conclusions of law: FINDINGS OF FACT l. The Court finds that the court has continuing exclusive jurisdiction over this case upon rendition of the Final Order in Suit Affecting Parent Child Relationship signed on October 26, 2023. 2. The Court finds that Petitioner and Respondent are the parents of the children, the subject of this suit. The children are 16 and 17 years old. The oldest is a senior in high school, and the other child, is a junior in high school. The children are currently residing in Seguin, Texas with Mr. Stone. 3. The Court finds that the parents, Kelly Ann Stone and Hayden Marshal Stone, are joint managing conservators of their two children, with joint decision-making authority remaining in effect as previously ordered. 4. The Court finds that Ms. Stone (the mother) resides in Portugal and is still living abroad. The Court further finds that the move abroad to Portugal by Ms. Stone was voluntary and she intends to remain there and finds that increased travel expenses for visitation are an unavoidable consequence of Ms. Stone’s decision to move. 6 5. The Court finds that the appellate court remanded the case to the district court to establish a possession and access order for the mother, Kelly Ann Stone, following her relocation to Portugal. The appellate court relied on Tex. Fam. Code§ 153.006(c), mandating that the trial court “specify and expressly state in the order the times and conditions for possession of or access to the child, unless a party shows good cause why specific orders would not be in the best interest of the child.” The trial court’s reliance on the “Teenager Provision,” which left access to parental agreement and children's desires, was determined to be impermissibly vague and insufficient under relevant statutes. The appellate court found that the burden of proof was not meant to reverse the custody arrangement, and the remand was limited to establishing an enforceable possession and access order. 6. The Court finds that the appellate court remanded the case to the district court to establish a specific and enforceable possession and access order for the mother, Kelly Ann Stone, following her relocation to Portugal. 7. The Court finds that the following modified possession schedule addresses the remand from the appellate court: a. The Court finds that the periods of possession vary from the Standard Possession Order for the following reasons: The cost and time involved in traveling from Texas to Portugal would only allow for the children to go to Portugal with their mother during long periods of possession, such as Spring Break, Summer, and Christmas Break. Further, the children are still in school which would prevent them from missing chucks [sic] of school time to visit with their mother in a distant country. i. Summer Possession: The court finds that Kelly Ann Stone shall have possession of the children during the summer, beginning one week after school concludes and ending on August 1st, to ensure the children return to Texas in time for the new school year. ii. Christmas Possession: The court finds that Kelly Ann Stone shall have possession of the children for the entire Christmas holiday period, from the day after school ends until two days before school resumes. iii. Spring Break Possession: The court finds that Kelly Ann Stone shall have possession of the children during their entire spring break each year. 7  iv. Communication Provisions: The court finds that the children be allowed to FaceTime and call their mother at least twice a week, with both parents facilitating this communication. v. Enforceability: The court finds that the possession schedule is specific and enforceable by contempt, ensuring compliance and addressing previous issues of access denial. vi. Best Interest of the Children: The court finds that the possession schedule was crafted with the children's best interest in mind, balancing their educational needs and maintaining their relationship with their mother despite geographical separation. These findings are based on the evidence presented and the directives from the appellate court, ensuring a clear and enforceable possession schedule for Kelly Ann Stone. 8. The Court finds that Jacqueline McNutt be appointed as Friend of Court to draft the modified possession and access order, as both parties were representing themselves (pro se). CONCLUSIONS OF LAW 1. A court with continuing exclusive jurisdiction in a modification and/or a remand on the modification may exercise that jurisdiction over the parties and the subject matter, and the authority to modify the possession schedule as remanded by the appellate court. 2. Deviation from the standard possession order is in the best interest of the children based on the right of a parent to relocate internationally. The schedule aligns with the rebuttable presumption that a standard possession order is in the best interest of the child, as outlined in Tex. Fam. Code § 153.252. 3. The possession schedule complies with the appellate court’s directive to establish specific and enforceable terms for the mother’s access to the children. 4. The schedule is designed to serve the best interest of the children, balancing their need for stability in education with maintaining a meaningful relationship with their mother. 8  5. The schedule adheres to the legal standards set forth in Tex. Fam. Code § l53.006(c), requiring specific times and conditions for possession and access. 6. The order includes provisions for regular communication between the children and their mother, supporting their relationship despite geographical separation. 7. The appointment of Jacqueline McNutt as Friend of Court to draft the order is within the court’s discretion and does not constitute a conflict of interest, as the role is ministerial and does not create an attorney/client relationship. 8. The modified judgment based on the remand is in the best interest of the child and should be granted. This appeal followed. 4 5 STANDARD OF REVIEW We review a trial court’s modification of conservatorship or possession for an abuse of discretion. In re J.A.J., 243 S.W.3d 611, 616 (Tex. 2007). “The best interest of the child shall always be the primary consideration of the court in determining the issues of conservatorship and possession of and access to the child.” In re J.J.R.S., 627 S.W.3d 211, 218 (Tex. 2021) (quoting Tex. Fam. Code § 153.002). Conservatorship suits are “intensely fact driven.” Lenz v. Lenz, 79 S.W.3d 10, 19 (Tex. 2002). For this reason, “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.’” In re 4 Hayden has not filed a brief on appeal. 5 We note that the appeal of the order is now moot as to Michael, who turned 18 approximately two months after the order was signed. See In re Marriage of Comstock, 639 S.W.3d 118, 127 (Tex. App.—Houston [1st Dist.] 2021, no pet.) (“Once the child has become an adult, ‘there is no live controversy’ with respect to custody, possession, and access.”). The appeal of the order is not moot as to Drew, who turns 18 in February 2027. 9 J.J.R.S., 627 S.W.3d at 218 (quoting Echols v. Olivarez, 85 S.W.3d 475, 477 (Tex. App.—Austin 2002, no pet.)). The factfinder “is the sole judge of the credibility of witnesses and the weight to be given to their testimony.” Golden Eagle Archery, Inc. v. Jackson, 116 S.W.3d 757, 761 (Tex. 2003). “A trial court’s determination of what is in the child’s best interest,” when specifying terms and conditions of conservatorship, “is a discretionary function.” In re J.J.R.S., 627 S.W.3d at 218. Thus, “the trial court’s judgment will be reversed only when it appears from the record as a whole that the court has abused its discretion.” Id. (citing Gillespie v. Gillespie, 644 S.W.2d 449, 451 (Tex. 1982)). A trial court abuses its discretion by acting “without reference to any guiding rules or principles” or arbitrarily or unreasonably. Id. (quoting Worford v. Stamper, 801 S.W.2d 108, 109 (Tex. 1990) (per curiam)). A trial court abuses its discretion “if it imposes restrictions that exceed those required to protect the child’s best interest.” In re H.D.C., 474 S.W.3d 758, 764 (Tex. App.—Houston [14th Dist.] 2014, no pet.); see also In re J.J.R.S., 627 S.W.3d at 218-19. Under an abuse-of-discretion standard, challenges to the legal and factual sufficiency of the evidence are not independent grounds of error but instead are factors used to assess whether the trial court abused its discretion. Zeifman v. Michels, 212 S.W.3d 582, 587 (Tex. App.—Austin 2006, pet. denied). Under this standard, an appellate court considers (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. Id. at 588. “The traditional sufficiency review comes into play with regard to the first question; however, the inquiry does not end there.” Id. (citing Echols, 85 S.W.3d at 478). We then proceed “to determine whether, based on the evidence, the trial court made a reasonable decision, that is, that the court’s decision 10 was neither arbitrary nor unreasonable.” Id. A trial court does not abuse its discretion if there is some substantive, probative evidence to support its decision. Id. at 587. DISCUSSION No fundamental or structural error at the hearing on remand In her first issue, Kelly asserts that the order “is the product of a procedurally invalid hearing that violated the most fundamental principles of due process and evidentiary law.” Specifically, she claims that the hearing on remand “[w]as structurally defective as no witness was sworn” or placed under oath in violation of Texas Rule of Evidence 603 (“Before testifying, a witness must give an oath or affirmation to testify truthfully. It must be in a form designed to impress that duty on the witness’s conscience.”), and that the district court “denied her a meaningful opportunity to be heard” by “precluding [Kelly] from presenting her case.” These complaints are without merit. The record reflects that neither Kelly nor Hayden called any witnesses to testify at the hearing. The district court conferred with the children off the record, but the children were not required to be placed under oath during that conference. See Tex. Fam. Code § 153.009 (providing procedures for interviewing children in chambers); In re A.C., 387 S.W.3d 673, 677 (Tex. App.—Texarkana 2012, pet. denied) (examining section 153.009 and observing that “[n]othing in the statute indicates that the child in such an interview is to be sworn and nothing reflects that anything resembling the Texas Rules of Evidence should apply during the interview”). To the extent that Kelly and Hayden themselves should have been placed under oath at the hearing, Kelly did not object at the hearing to the absence of an oath. Thus, she has failed to preserve error, if any, in the district court’s procedure. See Tex. R. Evid. 33.1(a); De La Garza v. Salazar, 851 S.W.2d 380, 383 (Tex. 11 App.—San Antonio 1993, no pet.) (“[B]y failing to object to the informal presentation of evidence appellant has not preserved the right to complain about the absence of sworn evidence.”). Further, the record of the hearing reflects that the district court did not preclude Kelly from presenting her case. The district court questioned Kelly extensively and heard her arguments as to why she believed she was entitled to greater custody of the children moving forward. The only evidence Kelly offered that the district court declined to consider was alleged communication between Kelly and Hayden from the “OurFamilyWizard” co-parenting application. However, Kelly failed to make an offer of proof as to the substance of this evidence and thus failed to preserve any error in its exclusion. See Tex. R. Evid. 103(a)(2); In re Matter of Marriage of Rangel & Tovias-Rangel, 580 S.W.3d 675, 680 (Tex. App.—Houston [14th Dist.] 2019, no pet.) (“The offer must include ‘the meat of the actual evidence’ rather than a general, cursory summary, so that the appellate court can meaningfully assess whether the exclusion of the evidence was erroneous and harmful.”). Moreover, we cannot conclude that any evidentiary ruling at the hearing on remand rises to the level of fundamental or structural error such that error preservation was not required. See In re B.L.D., 113 S.W.3d 340, 350 (Tex. 2003) (explaining that fundamental error is “a discredited doctrine” in civil cases that applies only in rare circumstances, usually involving jurisdictional or “quasi-criminal” matters). We overrule Kelly’s first issue. District court did not exceed scope of this Court’s mandate In her second issue, Kelly asserts that the district court abused its discretion by exceeding the scope of this Court’s mandate in three ways. First, she claims that this Court 12 effectively reversed the entire 2023 modification order and that the district court therefore was required to “restore the parties to the legal status quo under the 2012 [divorce] decree.” Second, Kelly argues that the new modification order is void because on remand, there was no new pleading requesting modification and no finding by the district court of a “material and substantial change in circumstances.” Third, Kelly contends that the district court was required to award her all the costs to which she believes she was entitled. Kelly misconstrues this Court’s mandate and the relief that the district court could provide on remand. This Court reversed the district court’s 2023 modification order only in part, specifically the “Teenager Provision” relating to possession and access. This Court did not reverse the remainder of the order and thus all other provisions of that order were to remain in effect. Accordingly, contrary to Kelly’s contention, this Court’s mandate did not allow the district court to restore the parties to their former positions under the 2012 divorce decree. Similarly, this Court’s mandate did not require that a modification pleading be filed by either party or that a modification finding be made by the district court. All that this Court required was for the district court “to render an order that specifically articulates the times and conditions of Kelly’s possession of and access to the children and is enforceable by contempt.” The district court complied. As for costs, this Court did not order Hayden to pay Kelly’s “total attorney’s fees, court costs, and out-of-pocket litigation-related expenses” in the case, which Kelly asserts was $28,091.78. Rather, this Court’s judgment ordered that “[t]he appellee shall pay all costs relating to this appeal, both in this Court and in the court below.” In accordance with that order, the district court ordered that “costs of court are to be borne by Hayden Marshal Stone” and awarded a judgment to Kelly “in the amount of Nine Hundred Seventy Dollars ($970.00) for costs relating 13 to this appeal, both in this Court and the Third Court of Appeals.” That amount is consistent with costs reflected in this Court’s bill of costs for the appeal of the 2023 order. We conclude that the district court’s orders on costs complied with this Court’s judgment. 6 We overrule Kelly’s second issue. “Makeup” possession In her third issue, Kelly asserts that the district court abused its discretion by failing to award her compensatory, i.e., “makeup” possession. According to Kelly, Hayden denied her possession of the children for 27 months and thus she was entitled to that amount of compensatory possession. Pursuant to the version of Section 157.168 of the Texas Family Code in effect at the time the district court made its ruling on possession and access, the court had discretion to award additional periods of possession of or access to the children to compensate for the denial of court-ordered possession or access. See former Tex. Fam. Code § 157.168(a). 7 The possession “must be of the same type and duration of the possession or access that was denied,” it “may include weekend, holiday, and summer possession or access,” and it “must occur on or 6 In her brief on appeal, Kelly also cites to a fee-shifting provision in the 2012 divorce decree relating to passport violations and a statutory provision that provides for an award of attorney’s fees to the prevailing party if a respondent is found to have failed to comply with a possession order. See Tex. Fam. Code § 157.167(b). Assuming without deciding that those provisions are applicable here, the district court would not have abused its discretion in finding that Kelly failed to satisfy her burden to prove that her attorney’s fees were “reasonable and necessary.” See Rohrmoos Venture v. UTSW DVA Healthcare, LLP, 578 S.W.3d 469, 497-502 (Tex. 2019) (summarizing various factors that party must prove to show entitlement to fees). 7 Effective September 1, 2025, the award of compensatory possession is now mandatory, “[u]nless a party shows good cause why the order should not be rendered.” See Act of May 29, 2025, 89th Leg., R.S., ch. 617 (H.B. 3181), § 5, 2025 Tex. Sess. Law Serv. [page cite pending publication] (codified at Tex. Fam. Code Ann. § 157.168(a)). 14 before the second anniversary of the date the court finds that court-ordered possession or access has been denied.” Tex. Fam. Code § 157.168(a-2). Here, Kelly claimed at the hearing on remand that Hayden denied her 27 months of possession. When the district court questioned that, pointing out that Kelly had possession of the children the previous summer, Kelly stated, “I have evidence to present of Mr. Stone denying the children to come for Thanksgiving, for Christmas, for spring break. The only reason they were able to come last summer was because I had to get further intervention of the court beyond the order that was presented by this Court.” She added that Hayden further denied her possession “after the appellate ruling,” although she did not provide details about the length of that denial. Hayden acknowledged that he had “denied that visitation based on [the children’s] testimony to me about neglect,” but he did not elaborate on the amount of visitation that had been denied. The district court then asked Kelly, “They’re with you now?” Kelly answered, “They are, yes.” The district court awarded Kelly possession of and access to the children “during the summer, beginning one week after school concludes and ending on August 1st,” “for the entire Christmas holiday period, from the day after school ends until two days before school resumes,” “during their entire spring break each year,” and on Mother’s Day, “beginning at the time the child’s school is regularly dismissed on the Friday preceding Mother’s Day and ending at the time the child’s school resumes after Mother’s Day.” On this record, in the absence of evidence showing the amount of visitation that Hayden had denied to Kelly and in light of evidence showing that Kelly had possession of the children during both summer 2024 and summer 2025, we cannot conclude that the district court abused its discretion by failing to award Kelly additional possession of and access to the children beyond these amounts. 15  We overrule Kelly’s third issue. Friend of the court In her fourth issue, Kelly asserts that the district court abused its discretion by appointing a friend of the court to draft the custody order. Specifically, she contends that the friend of the court was not impartial, that the appointment was “a pretextual and unnecessary procedural error,” that the friend of the court engaged in ex parte communications that “fatally tainted the drafting process,” and that the district court “illegally delegated its core judicial duty and abdicated its responsibility.” The district court appointed the friend of the court pursuant to Section 202.002(a) of the Texas Family Code, which provides that A friend of the court may coordinate nonjudicial efforts to improve compliance with a court order relating to child support or possession of or access to a child by use of: (1) telephone communication; (2) written communication; (3) one or more volunteer advocates under Chapter 107; (4) informal pretrial consultation; (5) one or more of the alternate dispute resolution methods under Chapter 154, Civil Practice and Remedies Code; (6) a licensed social worker; (7) a family mediator; and (8) employment agencies, retraining programs, and any similar resources to ensure that both parents can meet their financial obligations to the child. Tex. Fam. Code § 202.002(a). The statute neither expressly authorizes nor prohibits a friend of the court from drafting a written order consistent with a trial court’s rulings. However, “[i]t is not uncommon for a trial judge to ask a movant to draft an order incorporating the trial court’s rulings on a motion.” Vadackaneth v. Asariyathu, No. 05-21-00893-CV, 2023 WL 3881128, at *4 (Tex. App.—Dallas June 8, 2023, no pet.) (mem. op.); see also Bolinger v. Contreras, No. 13-21-00151-CV, 2021 WL 3411867, at *3 (Tex. App.—Corpus Christi–Edinburg Aug. 5, 16 2021, no pet.) (mem. op.) (“We note that as a matter of practicality, one party will often draft a proposed order for the trial court to sign.”). At the hearing on Kelly’s motion to strike, the following occurred: [Kelly]: Your Honor, the motion to strike is because the friend of the Court that you appointed is an attorney with an express conflict in the case. She denied representation of me at the beginning of this case because she had a conflict in the case. 8 And we are not given notice or the ability to object prior to this appointment. [The Court]: All right. Ms. McNutt? [Ms. McNutt]: Yes, Your Honor. Mr. Stone—there was a conflict in the original underlying for me to represent Ms. Stone. But when I was appointed, I did look into it. We spoke. I was appointed to do a ministerial act for the Court. It is not a conflict because I was told what to do in a prescribed manner. I gave no individual discretion or professional judgment. I did not represent either party. I was just helping the Court in drafting what the Court had already ruled. [The Court]: Okay. All right. [Kelly]: And I object to that because even just the filing of her time shows that she had individual teleconferences with both the Court and with Mr. Stone, and so ex parte communications were taking place and parties were not noticed or included in those communications. So that is not ministerial. [Ms. McNutt]: Your Honor, I—the contact was really getting them to have their responses, their redlines, any concerns about the order. Nothing about the facts of the case, what was before the case. Purely about drafting. [The Court]: And you talked to both parties? 8 McNutt did not specify the nature of the conflict of interest. 17  [Ms. McNutt]: I did. [The Court]: Okay. [Kelly]: Your Honor, no, that’s not true. I have—never was invited into a teleconference or a phone conversation. Only through email communications through her staff. I’ve never had direct communications with Ms. McNutt. [Ms. McNutt]: There was communication between me and Ms. Stone via email. We did not because she’s in Portugal, so there was no telephone communications. I don’t think I—I may—I don’t even think I spoke to you—Mr. Stone on the phone. It was all email communications so that everything was a paper trail. [The Court]: Okay. All right. I’m going to deny the motion to strike, and I’m going to go ahead and sign the order. We cannot conclude on this record that the district court erred in denying Kelly’s motion to strike. The record does not reveal the nature of the conflict of interest that prompted McNutt to decline representation of Kelly earlier in the case, but there is no indication that this conflict caused Kelly any harm. As McNutt observed, she was “appointed to do a ministerial act for the Court” and “was told what to do in a prescribed manner.” She “gave no individual discretion or professional judgment,” “did not represent either party,” and “was just helping the Court in drafting what the Court had already ruled.” There is also no indication in the record that McNutt’s communication with the parties was improper in any way, that her communication with the court “fatally tainted the drafting process,” or that the district court “abdicated its responsibility.” The record reflects that the written order, which was signed by the district court itself, was consistent with the district court’s rulings at the hearing on remand. We overrule Kelly’s fourth issue. 18 Custody order does not impose “impermissibly severe restriction” on possession and access Finally, Kelly asserts that the district court’s order imposes an “impermissible severe restriction” on her possession and access. She contends that the order infringes on her fundamental parental rights, imposes “disparate, arbitrary conditions” on her possession, is not supported by the record, is “fatally inflexible and untethered to the children’s actual schedule,” and is “not the product of reasoned judicial decision-making but is instead the result of an arbitrary process.” “The best interest of the child shall always be the primary consideration of the court in determining the issues of conservatorship and possession of and access to the child.” Tex. Fam. Code § 153.002(a). There is a rebuttable presumption that a standard possession order is in the best interest of the child. Id. § 153.252. “When determining whether to deviate from the standard possession order, a court may consider ‘(1) the age, developmental status, circumstances, needs, and best interest of the child; (2) the circumstances of the managing conservator and of the parent named as a possessory conservator; and (3) any other relevant factor.’” In re J.J.R.S., 627