ON RELATOR’S PETITION FOR WRIT OF MANDAMUS
CANTU, Justice.
Relator, Janeann Grimes, petitioned this court seeking a Writ of Mandamus to compel the Honorable Romeo Flores, Judge of the 79th District Court of Brooks County to vacate Temporary Orders he issued appointing Joe Grimes, the real party in inter[950]*950est, the managing conservator of the Grimes’ two minor daughters.
Relator was appointed managing conservator of the minor children by virtue of a decree of divorce dated August 26, 1983.1 Thereafter Relator moved to Illinois where she joined her younger daughter. The older child remained in Texas by permission of Relator. On July 4, 1984, the oldest child was reunited with her sister and Relator in Illinois. Following some problems, Relator obtained an Illinois order enjoining Joe from attempting to remove the children from the State of Illinois. Joe then returned to Texas and instituted a modification proceeding involving custody which resulted in the removal of Relator as managing conservator and the substitution of Joe and his new wife as managing conservators of the minor children. See Grimes v. Grimes, 706 S.W.2d 340 (Tex.App.—San Antonio 1986, writ dism’d w.o.j.).
Thereafter, Relator, on or about October 4, 1984, filed an Application for Writ of Habeas Corpus with the District Court in Brooks County seeking to recover possession of the children based upon the status of managing conservator granted Relator in the divorce decree dated August 26, 1983. No hearing was ever granted Relator on the application because of the modification order changing custody from Relator to Joe dated September 6, 1984. On appeal to this court, a panel of this court, on February 19, 1986, held that Texas courts had no jurisdiction over one child, and although having jurisdiction over the other child, should have deferred to the Illinois courts the question of custody of both children. Grimes v. Grimes, supra.
On February 24, 1986, Relator requested that the trial court set a hearing on the Application for Writ of Habeas Corpus filed back in October of 1984. A hearing on the application was set for February 26, 1986. At the hearing, Relator presented evidence on the issue of the present right to possession. Instead of making its ruling, the trial court ordered the preparation of a social study concerning the children.
On March 11, 1986, an Application for Writ of Mandamus was filed with this court by Relator seeking to compel the trial judge to rule on the Application for Habeas Corpus. This court accepted jurisdiction and conditionally granted the Writ of Mandamus. The trial court was instructed to conduct a full hearing on the Application for Writ of Habeas Corpus and into the existence of an alleged serious immediate question concerning the children’s welfare.
On April 23,1986, the trial court conducted the hearing ordered by this court. Instead of entering its ruling at the termination of the hearing, the trial court requested briefs of counsel. On May 5, 1986, by letter, the trial court advised the parties of its decision to deny the Writ of Habeas Corpus and to enter “Temporary Orders.” The temporary orders impliedly deny the Writ of Habeas Corpus and appoint Joe and his present wife temporary managing conservators of the children. While the “Temporary Orders” do not purport to remove Relator from acting as the managing conservator, they do effectively deprive her of immediate possession of the children, and place custody of the children with Joe and his wife “until it is demonstrated that (1) the Relator, who has pending criminal charges in the State of Illinois, will not be delivered to a penal institution; and (2) the children would not suffer physical or emotional harm if immediately delivered to Relator.” It is apparent that the trial court sought to enter its “Temporary Orders” based upon what it considered a serious immediate question concerning the welfare of the children. See TEX.FAM. CODE ANN. § 14.10(c).
On May 27, 1986, Relator filed her Petition for Writ of Mandamus seeking to compel the trial court to vacate its “Temporary [951]*951Orders” and to order the return of the children to Relator. Relator alleges that there is legally and factually insufficient evidence in support of the trial court’s temporary orders.
On June 9, 1986, this Court heard oral arguments and deferred its ruling pending consideration of controlling authority. While this court was considering the disposition to be made, the Texas Supreme Court, on June 11, 1986, dismissed Joe’s Application for Writ of Error in Grimes v. Grimes, supra for Want of Jurisdiction.
This court has jurisdiction under § 22.-221 of the Texas Government Code to issue writs of mandamus agreeable to the principles of law regulating such writs against a judge of a district or county court. TEX. GOV’T CODE ANN. § 22.221 (Vernon 1986).
Mandamus is an appropriate remedy to compel a trial court to grant an application for writ of habeas corpus to secure possession of minor children. Saucier v. Pena 559 S.W.2d 654 (Tex.1977); Lamphere v. Chrisman 554 S.W.2d 935 (Tex.1977).
Section 14.10 of the Family Code provides in a mandatory provision:
(a) If the right to possession of a child is presently governed by a court order, the court in a habeas corpus proceeding involving the right to possession of the child shall compel the return of the child to the relator if and only if it finds that the relator is presently entitled to possession by virtue of the court order.
* * * * * *
(c) The court may issue any appropriate temporary order if there is a serious immediate question concerning the welfare of the child.
TEX.FAM. CODE ANN. § 14.10(a) & (c) (Vernon Supp.1986).
Generally, once a Relator has proven she is entitled to possession of the children under a prior valid order, the grant of a writ of habeas corpus is automatic, immediate and ministerial, based upon the bare legal right to possession. See Greene v. Schuble, 654 S.W.2d 436 (Tex.1983); Schoenfeld v. Onion, 647 S.W.2d 954 (Tex.1983); Marshall v. Wilson, 616 S.W.2d 932 (Tex.1981).
However, if an exception under section 14.10 is established, the trial court may make appropriate temporary orders. Greene v. Schuble, supra at 438. But the writ may not be used to relitigate the question of custody, Greene v. Schuble, supra, Schoenfeld v. Onion, supra at 955.
The trial court must make a finding of the existence of a serious immediate question concerning the children’s welfare. Klein v. Cain, 676 S.W.2d 165, 172 (Tex. App.—Amarillo 1984, no writ). The court cannot consider the children’s best interests in a habeas corpus proceeding, Schoenfeld v. Onion, 647 S.W.2d at 955, nor go beyond the immediate welfare of the children. McElreath v. Stewart,
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ON RELATOR’S PETITION FOR WRIT OF MANDAMUS
CANTU, Justice.
Relator, Janeann Grimes, petitioned this court seeking a Writ of Mandamus to compel the Honorable Romeo Flores, Judge of the 79th District Court of Brooks County to vacate Temporary Orders he issued appointing Joe Grimes, the real party in inter[950]*950est, the managing conservator of the Grimes’ two minor daughters.
Relator was appointed managing conservator of the minor children by virtue of a decree of divorce dated August 26, 1983.1 Thereafter Relator moved to Illinois where she joined her younger daughter. The older child remained in Texas by permission of Relator. On July 4, 1984, the oldest child was reunited with her sister and Relator in Illinois. Following some problems, Relator obtained an Illinois order enjoining Joe from attempting to remove the children from the State of Illinois. Joe then returned to Texas and instituted a modification proceeding involving custody which resulted in the removal of Relator as managing conservator and the substitution of Joe and his new wife as managing conservators of the minor children. See Grimes v. Grimes, 706 S.W.2d 340 (Tex.App.—San Antonio 1986, writ dism’d w.o.j.).
Thereafter, Relator, on or about October 4, 1984, filed an Application for Writ of Habeas Corpus with the District Court in Brooks County seeking to recover possession of the children based upon the status of managing conservator granted Relator in the divorce decree dated August 26, 1983. No hearing was ever granted Relator on the application because of the modification order changing custody from Relator to Joe dated September 6, 1984. On appeal to this court, a panel of this court, on February 19, 1986, held that Texas courts had no jurisdiction over one child, and although having jurisdiction over the other child, should have deferred to the Illinois courts the question of custody of both children. Grimes v. Grimes, supra.
On February 24, 1986, Relator requested that the trial court set a hearing on the Application for Writ of Habeas Corpus filed back in October of 1984. A hearing on the application was set for February 26, 1986. At the hearing, Relator presented evidence on the issue of the present right to possession. Instead of making its ruling, the trial court ordered the preparation of a social study concerning the children.
On March 11, 1986, an Application for Writ of Mandamus was filed with this court by Relator seeking to compel the trial judge to rule on the Application for Habeas Corpus. This court accepted jurisdiction and conditionally granted the Writ of Mandamus. The trial court was instructed to conduct a full hearing on the Application for Writ of Habeas Corpus and into the existence of an alleged serious immediate question concerning the children’s welfare.
On April 23,1986, the trial court conducted the hearing ordered by this court. Instead of entering its ruling at the termination of the hearing, the trial court requested briefs of counsel. On May 5, 1986, by letter, the trial court advised the parties of its decision to deny the Writ of Habeas Corpus and to enter “Temporary Orders.” The temporary orders impliedly deny the Writ of Habeas Corpus and appoint Joe and his present wife temporary managing conservators of the children. While the “Temporary Orders” do not purport to remove Relator from acting as the managing conservator, they do effectively deprive her of immediate possession of the children, and place custody of the children with Joe and his wife “until it is demonstrated that (1) the Relator, who has pending criminal charges in the State of Illinois, will not be delivered to a penal institution; and (2) the children would not suffer physical or emotional harm if immediately delivered to Relator.” It is apparent that the trial court sought to enter its “Temporary Orders” based upon what it considered a serious immediate question concerning the welfare of the children. See TEX.FAM. CODE ANN. § 14.10(c).
On May 27, 1986, Relator filed her Petition for Writ of Mandamus seeking to compel the trial court to vacate its “Temporary [951]*951Orders” and to order the return of the children to Relator. Relator alleges that there is legally and factually insufficient evidence in support of the trial court’s temporary orders.
On June 9, 1986, this Court heard oral arguments and deferred its ruling pending consideration of controlling authority. While this court was considering the disposition to be made, the Texas Supreme Court, on June 11, 1986, dismissed Joe’s Application for Writ of Error in Grimes v. Grimes, supra for Want of Jurisdiction.
This court has jurisdiction under § 22.-221 of the Texas Government Code to issue writs of mandamus agreeable to the principles of law regulating such writs against a judge of a district or county court. TEX. GOV’T CODE ANN. § 22.221 (Vernon 1986).
Mandamus is an appropriate remedy to compel a trial court to grant an application for writ of habeas corpus to secure possession of minor children. Saucier v. Pena 559 S.W.2d 654 (Tex.1977); Lamphere v. Chrisman 554 S.W.2d 935 (Tex.1977).
Section 14.10 of the Family Code provides in a mandatory provision:
(a) If the right to possession of a child is presently governed by a court order, the court in a habeas corpus proceeding involving the right to possession of the child shall compel the return of the child to the relator if and only if it finds that the relator is presently entitled to possession by virtue of the court order.
* * * * * *
(c) The court may issue any appropriate temporary order if there is a serious immediate question concerning the welfare of the child.
TEX.FAM. CODE ANN. § 14.10(a) & (c) (Vernon Supp.1986).
Generally, once a Relator has proven she is entitled to possession of the children under a prior valid order, the grant of a writ of habeas corpus is automatic, immediate and ministerial, based upon the bare legal right to possession. See Greene v. Schuble, 654 S.W.2d 436 (Tex.1983); Schoenfeld v. Onion, 647 S.W.2d 954 (Tex.1983); Marshall v. Wilson, 616 S.W.2d 932 (Tex.1981).
However, if an exception under section 14.10 is established, the trial court may make appropriate temporary orders. Greene v. Schuble, supra at 438. But the writ may not be used to relitigate the question of custody, Greene v. Schuble, supra, Schoenfeld v. Onion, supra at 955.
The trial court must make a finding of the existence of a serious immediate question concerning the children’s welfare. Klein v. Cain, 676 S.W.2d 165, 172 (Tex. App.—Amarillo 1984, no writ). The court cannot consider the children’s best interests in a habeas corpus proceeding, Schoenfeld v. Onion, 647 S.W.2d at 955, nor go beyond the immediate welfare of the children. McElreath v. Stewart, 545 S.W.2d 955, 957 (Tex.1977).
In its temporary orders, the trial court found that:
[Tjhere is a serious immediate question concerning the welfare of the children if immediately delivered to the Relator Jan-eann Grimes. The children, Jennifer Grimes and Julie Grimes, would suffer physical and emotional harm if immediately delivered to the Relator. And, in addition, the Relator has pending criminal charges both misdemeanor and felony against her in the State of Illinois which may or may not result in her confinement in a penal institution.
Thus it is clear that what the trial court has done is to permit a relitigation of custody under the guise of finding an exception to § 14.10 of the Family Code. This is apparent from the court’s findings inasmuch as the serious immediate question concerning the children’s welfare focuses upon what the court feels is in the best interest of the children.
If immediate delivery of the children to Relator creates such a serious question concerning the welfare of the children, surely delivery of the children to Relator [952]*952for purposes of visitation can have no different effect.
Moreover, the concerns exhibited by the trial court are no more than the usual concerns associated with any change of custody involving children of tender age. That is not, however, to say that such concerns rise to the level of immediacy and seriousness contemplated by § 14.10. If such were the case every habeas corpus proceeding would be stifled to the point of rendering Section 14.10 inoperative.
Whether Joe, as Respondent in the Habe-as Corpus proceeding, established a dire emergency is questionable as evident from the proof adduced and by the court’s order. Unless it was shown, and the trial court found, that the children were in imminent danger of physical or emotional harm and that immediate action was necessary to protect the children, the trial court was without authority to deny the writ. McElreath v. Stewart 545 S.W.2d 955 (Tex.1977). In the absence of such showing, the trial court has clearly abused its discretion. The evidence and the trial court’s order fall far short of that required before discretion to deny the writ may be exercised.
Clearly the court’s order recognizes that a serious immediate question concerning the welfare of the children will arise if something is done in futuro. Nothing in the order suggests that a danger involving immediacy presently exists. So too, the trial court’s concern about pending criminal charges which may or may not ever be pursued. Both reasons given are so speculative that only distortion can convert them into the present danger contemplated by the statute.
The evidence developed in support of Joe’s serious and immediacy question clearly addresses, not a present and imminent danger, but rather a concern that Relator would not be able to provide the children with the stable surroundings Joe is presently providing. The focus' of the hearing was, therefore, erroneously concentrated on the best interests of the children. Cowan v. Lindsey 683 S.W.2d 55 (Tex.App.—Tyler 1984, no writ); Klein v. Cain, 676 S.W.2d 165 (Tex.App.—Amarillo 1984, no writ).
Thus the trial court’s order, although labelled “Temporary Orders” amounts to an order modifying the custody of the children; an order clearly prohibited by McElreath v. Stewart, supra, and Schoenfeld v. Onion, supra. See especially Young v. Martinez 685 S.W.2d 361 (Tex.App.—San Antonio 1984, no writ).
As evidence of this one needs only to examine the language which changes custody for an indefinite period, that is, until such time and only if Relator is able to demonstrate that she will not be delivered to a penal institution, and, worse yet, until the Relator is able to convince the trial court that the children will not suffer physical or emotional harm if they are delivered to Relator.
Inasmuch as the trial court has not found a present danger to exist, one has to wonder how Relator is supposed to convince the trial court that it no longer exists. Such an order is not temporary. Furthermore, it places the burden of proof upon Relator to show a change of conditions, much as in a modification proceeding, before she may exercise her right to possession of the children. Clearly the burden was upon Joe to show a present imminent danger and not upon Relator to show that she has minimized or removed the effects of a present serious danger to the children.
The record before this court simply does not support the findings of the trial court nor its “Temporary Orders.”
Therefore, the trial court abused its discretion in refusing to grant the Writ of Habeas Corpus and in entering the so-called “Temporary Orders” in the absence of some showing that a serious immediate question concerning the welfare of the children presently exists.
Relator’s Petition for Writ of Mandamus is granted; and the trial court is ordered to return the children to their managing e<. i-servator, the Relator, Janeann Grimes, and to vacate the “Temporary Orders” previously entered. Any further aclions involv[953]*953ing conservatorship of the children should be deferred to the Courts of the State of Illinois, or the state of residence of Relator. All costs are to be taxed against Joe Grimes.
ESQUIVEL, J., not participating.