The Volokh Conspiracy

Mostly law professors | Sometimes contrarian | Often libertarian | Always independent

Parental Rights

May Court Order Parent Not to Rent Out Children's Bedrooms When the Children Aren't In His Custody?


In Gardner v. McKenney, McKenney (the mother) and Gardner (the father) had joint custody, but mother sought to be appointed the primary custodian, and to "render an order 'preclud[ing] [Gardner] from renting out the children's bedrooms at their primary residences as short term rentals.'" The Texas Court of Appeals affirmed that yesterday, in an opinion by Justice Thomas Baker, joined by Justices Edward Smith and Rosa Lopez Theofanis:

Mindful that the trial judge is "best able to observe and assess the witnesses' demeanor and credibility" and sense the "forces, powers, and influences" that may not be apparent from merely reading the record on appeal, we conclude that there is sufficient evidence from which the trial court could exercise its discretion, and that the court's exercise of discretion in rendering the room-rental provision of the order was reasonable…

McKenney testified that she believed the issue of strangers staying in K.L.G.'s bedroom and sleeping in her bed when she was not there was important to the teenager, who had noticed that her things had been rifled through when she was gone. McKenney explained that the children's closets and cabinets had no locks and that she was concerned for the physical and emotional well-being of her children based on the risks associated with the ongoing COVID-19 pandemic and the possibility that strangers might leave cameras in the bedrooms or take things. There was considerable evidence about K.L.G.'s ongoing mental and emotional issues, for which she was currently undergoing partial hospitalization and about which the parties did not always agree on the best course of treatment.

Gardner confirmed that he had rented out the children's rooms for nearly 100 days in a single year—the same year that encompassed K.L.G.'s suicide attempt and many behavioral concerns as well as estrangement between K.L.G. and Gardner. While Gardner testified that the room rentals did not "bother" K.L.G., that the children know they are "welcome" to lock anything up in his closet that they do not want left out when he rents out their rooms, and that the children enjoy the "extra money" he gives them for renting out their rooms, the trial court could have found such testimony not credible or outweighed by the teenagers' needs for stability in each of their two homes, to include not having to remember to lock things up each time they transfer to their mother's home, especially considering K.L.G.'s significant and ongoing emotional and mental issues. The trial court also could have reasonably inferred that the parent-child relationship and the children's awareness of the parties' custody disputes constrained the children from telling their father how they felt about having their rooms rented out.