1. Relevant Texas Family Code Sections & Leading Case Law
A. Texas Family Code
• §153.001(a)(1) - Public Policy of Frequent and Continuing Contact - The public policy of the Sate of Texas is to assure that children will have frequent and continuing contact with parents who have shown the ability to act in the best interest of the child.
• §153.137 - Standard Possession Order is Presumptive Minimum - The Standard Possession Order under the Texas Family Code constitutes a presumptive minimum amount of time for possession of a child by a parent named as a joint managing conservator who is not awarded the exclusive right to designate the primary residence of the child.
• §153.002 - Best Interest of the Child is Primary Consideration - The best interests 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.
• §105.002 - Jury Issues - Not all family law trial issues may be submitted to the jury. With regard to relocation, in a jury trial:
(1) a party is entitled to a verdict b the jury and the court may not contravene a jury verdict on the issues of:
(D) the determination of which joint managing conservator has the exclusive right to designate the primary residence of the child;
(E) the determination of whether to impose a restriction on the geographic area in which a joint managing conservator may designate the child’s primary residence; and
(F) if a restrict descried by Paragraph (E) is imposed, the determination of the geographic area in which a joint managing conservator must designate the child primary residence;
B. Significant Texas Family Law Cases
Lenz v. Lenz, 79 S.W 3d 10, German nationals; Jury verdict supported by legally sufficient evidence to meet statutory requirements for modification (positive improvement and in best interest) permitting the mother to have the sole right to determine the primary residence of the child; Courts have recently reassessed the standards for relocation, moving away from a relatively strict presumption against relocation toward a more fluid balancing test (due to increasing geographic mobility and the availability of easier, faster and cheaper communication; Used to be "real advantage" to the parent--now, "good-faith" reason plus child will not suffer from move; Reasons for and against the move, comparison of education, health and opportunities, special needs of children, effect on extended family, effect on visitation and communication with non-custodial parent, unrealistic to assume that divorced parents will permanently remain in same location/each case evaluated on its own unique facts, child's age/community ties, close link between the best interests of the custodial parent and the children/custodial parent's mental state directly impacts on quality of child's life, and possibility and feasibility of parallel move by committed, non-custodial parent
2. Who decides the primary residence of the child?
The parent appointed as the sole managing conservator or the primary joint managing conservator usually has the exclusive right to determine the primary residence of the child. However, Section 153.133 of the Texas Family Code requires parents who reach an agreement for joint managing conservatorship (or the court under Section 153.134(b) when there is no agreement between the parents) to establish the primary residence of the child and either
(1) establish a geographic area for the residence or
(2) specify that the managing conservator may determine the residence without regard to geographic location.
In other words, the managing conservator in many cases does not have free reign in determining the residence of the child without regard to a geographical restriction. For example, the primary residence of the child can be restricted to the county of suit and contiguous counties; or to the State of Texas; or to a specific city in some instances.
3. What is the Texas legislature’s general view on relocation?
In general, the Texas legislature encourages frequent contact between parent and child. Section 153.001(a) of the Texas Family Code states:
(a) The public policy of this state is to:
1.) assure that children will have frequent and continuing contact with parents who have shown the ability to act in the best interest of the child;
2.) provide a safe, stable, and nonviolent environment for the child; and
3.) encourage parents to share in the rights and duties of raising their child after the parents have separated or dissolved their marriage.
4. Who bears the cost of relocation?
Section 156.103 of the Texas Family Code expressly allows the court to allocate increased expenses resulting from relocation “on a fair and equitable basis, taking into account the cause of the increased expense and the best interest of the child.” The statute creates a rebuttable presumption that the increased expenses should be paid by the party who is relocating.
5. How do I change my final order or decree to remove the geographical residence restriction?
Many parents file a “motion to modify” requesting the court’s permission to move their children to a new location outside of the geographically restricted area. Since the Texas Family Code does not contain specific requirements, guidelines, or statutes applicable to geographic residence restrictions, the issue of relocation will be approached on a case-by case basis after considering the Texas public policy, relevant case law, and social science literature. For further information on the standard requirements to file a “motion to modify”, please click here (link to modification issue #5).
6. What factors will the court consider on a case-by-case basis when deciding the relocation issue?
The primary guidelines in determining all relocation cases are the best interest of the child and the existence of a positive improvement for the child taking into consideration the following factors:
* Reasons for and against the move, i.e. does the parent have a vindictive motive such as parental alienation from the other parent, or a good faith motive such as a career opportunity.
* The effect of relocation on the extended family relationships and community ties.
* The effect on visitation and communication with the other parent, i.e. can the other parent maintain a full and continuous relationship with the child.
* Comparison of economic, education, emotional and leisure opportunities for both child and the moving parent.
* The nature of the child’s existing contact with both parents.
* Whether the special needs or talents of the child can be accommodated.
* Whether the nonmoving parent has the ability to relocate.
7. What factors will the attorney concentrate on when representing the parent desiring to relocate?
* The other parent’s lack of interest in the child.
* Prior connections with the new location, including family, friends, previous residence.
* Alternative visitation schedule possibly increasing contact between the child and the nonmoving parent.
* The benefits to the child, including educational and emotional benefits.
* Your ability to pay the added travel expenses and accompany the child on flights. * Reasons for the move.
* Lastly, it is always important for the client to acknowledge the importance of the relationship between the child and the nonmoving parent as well as their intent to continue to foster that relationship.
8. What factors will the attorney concentrate on when representing the parent trying to prevent the relocation?
The quality of your relationship with the child, including involvement in school and extracurricular activities.
* The detrimental impact on the parent-child relationship.
* Lack of the moving parent’s and child’s contacts with the new location.
* The reason’s for the move, including any vindictive motive of the other parent or the other parent’s lack of efforts to find work in the area where the parents already reside since most moves are job-related.
* The stress of the move and fear of travel on the child.
* Lastly, one of the most effective strategies is to show that the other’s parent is placing his/her personal desires above that of the parent-child relationship.
9. What happens if I move in violation of the geographical restriction?
Several actions may result in the event a parent violates the geographic restriction. The nonmoving parent may file a “Petition for Writ of Habeas Corpus to Return Child” commanding you or a peace officer to present the child in court. Further, removing a child outside of the geographically restricted area without approval by the court or other parent may be grounds for modifying custody. Lastly, you may be found in contempt of court for violating the geographical restriction and subject to a variety of court-ordered punishment.