Thursday, August 09, 2018

Six Factors Texas Family Courts Should Consider When Relocating A Child

There is a popular bumper sticker seen in the Lone State State : "I wasn't born in Texas, but I got here as fast as I could!". 

But as unbelievable as it may seem, there are a fair number of people that want to move out of the State every year ( I know- crazy, right?)

Some of those "Tex-patriates" are primary conservators who have been granted the exclusive right to designate the primary residence of one or more children.  However in many cases, the courts have limited that right to designating the child's residence within a geographic restriction.  In the interest of giving both parents easy access to the children so they can have regular contact, Family Courts in Texas often place these geographic restrictions.  Essentially, they allow one parent to determine the residency of a child, but within a certain zone.   Depending on the case and the court, this could be a zone encompassing a city or town, a whole Texas county, a Texas county and the counties contiguous to it  (touching it's boarders), or to the whole State of Texas.

Many of these folks may have a very good reason to want to relocate,  such as a military reassignment for themselves or their new spouse, or better job opportunities.  If that is the case, the parent wishing to move must request the court modify the prior order to lift or reform the geographic restriction.  If that request is contested by the other parent who stays behind, then the courts must decide whether or not to grant the relocation of the child.

As we mentioned in this blog in the past, there are many emotional and practical factors that come into play when deciding to move a child.  But when a court is left to make the determination, then the factors must be based in law as well.

In the past, there has been little case law to assist trial judges in making a relocation determination.  But in recent years, the Texas Supreme Court and various Courts of Appeal, are slowly developing a consensus on specific factors for trial courts to consider.  Although ruling on relocation cases remains fact intensive, the developing body of case law offers certain factors that, if answered in the affirmative, favor the granting of requests to lift geographic restrictions.
 

Beginning in 2002, Texas case law has developed specific factors that courts may consider in ruling on a whether a party may establish a child’s residence without a geographic limitation.  The emerging body of case law does point to one theme:  Courts should apply a fluid balancing test that permits the consideration a number of factors. 

     The leading case in relocation is Lenz v. Lenz, 79 S.W.3d 10 (Tex. 2002).  In this case of first impression, the Texas Supreme Court considered the requests of conservator having the right to determine the child’s residence within the State of Texas to relocate the child to Germany.  In its discussion of Sec. 153.001 and 153.002, the Supreme Court recognized that the Family Code does not elaborate on specific requirements for modification in the residency-restriction context.  It also considered the section’s pronouncement that “(t)he public policy of this state is to (1) assure the children will have frequent and continuing contact with parents who have shown the ability to act in the best interest of the child.” (Sec. 153.001).  However, the Supreme Court stated that “no bright-line test can be formulated”.  The Court reviewed relocation jurisprudence in other states and noted that courts are “moving away from a relatively strict presumption against relocation and towards a fluid balancing test that permits the trial courts the consideration of a number of factors.

    For many years there have been in place a few very general guiding principal for ANY type of modification. Texas Legislature has made it the public policy that children will have frequent and continuing contact with parents who have shown the ability to act in the best interest of the child. (Tex. Fam. Code Sec. 153.001(a)).  The Legislature has also emphasized the best interest of the child shall be the primary consideration of the court in determining issues such as relocation. (Tex. Fam. Code Sec. 153.002).   With these principals in mind, the legislature then created law that said when a conservator has been granted the exclusive right to determine the child’s primary residence within a geographic area, and that conservator later wishes to relocate beyond that area, the court may modify the geographic restriction.  (Tex. Fam. Code Sec. 156.101-156.1045).  Section 156.101 provides that a court should grant that request if the movant can show that such modification is:

(1)  in the best interest of the child; and
(2)  the circumstances of the child, a conservator, or another party affected by the order have materially and substantially changed since the earlier of the date of the rendition of the order.

     HOWEVER, the help for trial level Courts ends there.  There has been no specific guidance in teh instances of relocation cases.  What exactly is the "best interest of a child" in the complex and often compelling facts of relocation cases?  Luckily, case law is helping refine that question.  A review of the case law starting with the Lenz case shows six emergent factors that the Courts should consider in granting a request to lift a geographic restriction and relocate a child:


      1.     Will the relocation result in an improved financial situation?  In Lenz, the Court noted that the improved financial situation in the new location may contribute to the primary conservator being able to provide a better standard of living for the children.  Also, In re: E.C.M., 2010 WL 2943091 (Tex.App. -Amarillo Jul 28, 2010) (NO. 07-09-00242-CV)  the Court elaborated on this factor when it upheld the relocation citing the primary conservator's improved financial or job situation and ability to provide a better standard of living- A neutral third party who conducted a social study recommended that Mother continue to provide the child's primary residence even after moving to Austin because Mother was able to be a "stay-at-home mom", and because Stepfather's higher paying job was a positive thing for the child.


       2.     Will the relocation strengthen familial relationships?  The Court noted in Lenz that there were strong familial ties of extended family in the new location which favored allowing the move.  Also, Jenkins v. Jenkins, 2001 WL 507221 (Tex. App.–Dallas 2001, writ denied) (not designated for publication) where relocation would allow the mother to be closer to her own family and support system, from whom she needed economic and physical support.

       3.     Will the relocation increase the well-being of the Movant- which in turn will benefit the child?  In Lenz, the Court stated that “the custodial parent provides the child with a basic quality of life, a child’s best interest is closely intertwined with the well-being of the custodial parent.. to disavow the custodial parent’s influence on his or her children ignores the fundamental relationship between parent and child.” Id at 19.   See also:  Hoffman v. Hoffman, 2003 WL 22669032 (Tex. App.-Austin) (not designated for publication); and In re: E.C.M., 2010 WL 2943091 (Tex.App. -Amarillo Jul 28, 2010) (NO. 07-09-00242-CV); In re Cooper, 333 S.W.3d 656 (Tex.App.-Dallas 2009, no pet.) citing improved “quality of life” justifying the lifting of geographic restrictions.
           
      4.     Will the Possessory Conservator continue to have regular and meaningful contact with the child?  The Court pointed out in Lenz that the children can maintain frequent contact with their father and that the father could relocate in order to be near his sons.  (See also:  Hoffman v. Hoffman,2003 WL 22669032 (Tex.App.-Austin)
           
      5.     Does the Movant intend to foster and encourage the child’s relationship with the other parent?  Since Lenz, the Texas Court of Appeals has decided several relocation cases.  Out of Travis County comes Echols v. Olivarez, 85 S.W.3d 475 (Tex.App.-Austin 2002, no pet.).  In supporting the trial court’s decision to lift the geographic restriction allowing the mother to take the child with her to Tennessee, the Court of Appeals heavily cited Lenz including that concept that the new position in Tennessee offered additional financial security and the expectation of career advancement.  The Court of Appeals offered an additional factor in assessing whether a change is positive and, in the child’s, best interest.  In finding in favor of the movant, the Court noted that “(t)he mother’s intent was to continue to foster and encourage the child’s relationship with his father”. (See also: Cisneros v. Dingbaum, 224 S.W.3d 245, (Tex.App.-El Paso 2005, no pet.) where the mother and her husband offered to provide videoconferencing on their home computer and telephone contact.)

      6.     Does the Possessory Conservatory fail to exercise all periods of possession? In re: E.C.M., 2010 WL 2943091 (Tex.App. -Amarillo Jul 28, 2010) (NO. 07-09-00242-CV).  Noncustodial parent's involvement with the Child-Though Father presented evidence that he was a fully engaged father, Mother's testimony showed that Father did not consistently exercise all his periods of possession. Further, Mother testified that Father had limited involvement in the child's day-to-day care.

Other Possible Factors

      The following factors are mentioned in case law, although it is less clear how central they were to the Court’s ultimate decision:

      Holly Factors.  To the extent applicable, the Holley factors may also be considered in the analysis. (See:  In re C.R.O., Knopp v. Knopp) Those factors include: (1) the desires of the children, (2) the emotional and physical needs of the children now and in the future, (3) the emotional and physical danger to the children now and in the future, (4) the parental abilities of the individuals involved, (5) the programs available to those individuals to promote the best interest of the children, (6) the plans for the children by these individuals, (7) the stability of the home, (8) the acts or omissions of the parent which may indicate that the existing parent-child relationship is not proper, and (9) any excuse for the acts or omissions of the parent. Holley v. Adams, 544 S.W.2d 367, 371-72 (Tex. 1976)

        Relocation Is Due to a Spouses’ Military Assignment.  Cisneros v. Dingbaum, 224 S.W.3d 245, (Tex.App.-El Paso 2005, no pet.)

        Sole Managing Conservatorship.  Jenkins v. Jenkins, 2001 WL 507221 (Tex. App.–Dallas 2001, writ denied) (not designated for publication).  The Jenkins court suggested that this might be a factor to consider when it stated that one of the core rights of a sole managing conservator is the exclusive right to establish the child's residence and domicile and that “While keeping families close together geographically may facilitate visitation, as a practical matter, the best interests of the child will often parallel those of the primary caretaker. The primary caretaker parent should not be restricted from moving with the child when the proposed move would not impair the well-being of the child.” 

      Over time, as cases are decided, appealed and ruled on by the higher courts, the trial level courts will have greater clarity and guiding principals upon which to decide what its in the best interest of children in relocation cases.  One thing is certain,  as our economy shifts and with our increasingly mobile society, these types of case will arise more and more often in Texas Courts.

Wednesday, April 25, 2018

A (NOT SO) Simple Equation To Calculate What Your Case Is Worth.


A while ago, Jimmy Buffet wrote a song called "Math Sucks", a sentiment shared by many mathphobes.  But math probably never sucked harder than when it is being used to deconstruct your life and reduce years of memories and hard work down to such a feeble thing as a raw number.  But when you are involved in a divorce, getting the right number is critical in determining whether you will come out ok, or getting financially destroyed.  Now that REALLY would suck.

If your attorney is a good one, he is getting your case ready for the worst possible scenario and will be busily preparing your case for trial- that is the ultimate goal of his efforts.  However, the client’s calculations should be geared towards settlement, as that is often the most favorable result.  So how can you decide if a settlement offer is a good one or not?  Once again we have to turn to our old "frien-emy": math.

Knowing the total value of your property is the first and hardest step but unfortunately, it is not the only part of the equation.  You should also add in the costs of litigation to your calculation. So when you are considering whether to accept a settlement offer, you can use the following formula.

Total value of assets you think the judge will award you  -  the total amount of debt you think the judge will award you -litigation fees (Legal fees + Expert fees + other costs + time missed from work + mental health costs + time value of money)  < settlement offer.

In other words, if the value of the settlement offer is more than what you think the judge would award you LESS all the costs of litigation, you should take the offer.  

Obviously there are lots of variables in this equation and the values for each of these may be constantly changing.  But that is why the help of a good attorney team is essential to helping you decide if a settlement offer is even in the ballpark and even worth considering.

Sunday, April 22, 2018

Snoring, Fishing or Too Much Sex: Top 10 Excuses for Getting a Divorce


Unless you are VERY far behind the times, it should be no news that you do not need to prove that your spouse caused the breakup of a marriage to get a divorce- pretty much if you want a divorce, you can have it.  California was the first in 1970 and today all states in the union provide for some kind of "no- fault" divorce.  Seventeen states are "true" no-fault in that they don't provide any option for a claim of fault.  Thirty-three other states, including here in Texas, have an optional scheme: you can either plead no- fault, or plead one of the traditional fault based claims such as adultery, abandonment, or cruelty.

With great regularilty, bills are introduced into our state legislature that would make Texas return to the "fault-only" basis for granting a divorce.  Each time the bills are defeated, but it makes one wonder what would happen if such a bill did pass in the modern era.  The motivation behind such bills are clear- the proposal is an attempt to reduce the number of divorces by making it more difficult to obtain one- in the hope that parties will reconsider their action.  But would the amount of divorces really go down?

I certainly don't think so.  I think that most people will lie or at least exaggerate their circumstance to get what they want- a permanent, legal divorce.

Take the case of Great Britain.  They do not have "no fault" divorce.  There, divorces are granted only if the moving party can show that the spouse has engaged in some "unreasonable behavior"- although there is no legal definition for that term.  Basically, Brits must come up with a reason- any reason- for divorcing, and our usually conservative cousins across the pond can prove to be quite imaginative in their reasons.   A recent study has shown some of the most popular grounds for divorce in Great Britain.  They include every kind of annoyance-even if the behavior is seen by others as healthy or positive.  This includes seek divorce because the partner has become a fanatical cyclist or has started going to the gym every day, or has suddenly given up dairy and gluten. 

Here then are the top ten reasons given for divorcing in Great Britain:

1.  A partner's illness
2.  Snoring
3.  Going to the gym too much
4.  Being ungrateful for all the work their partner does
5.  Being hopeless with money
6.  Disagreement over respective politics
7.  Food fanaticism
8.  Fishing
9.  Sex- either not enough, being offered too much, or loss of interest
10.  Suspicion the other party is messing around

If Texas ever returned to a fault based divorce system, I wonder how creative our "top ten list" would be?

Tuesday, March 27, 2018

Liens and Forclosures: An Underutilized Child Support Enforcement Tool?

Texas attorneys may be missing out on a great opportunity to enforce child support orders through the use of liens and foreclosures.

It is quite galling to someone struggling to meet the basic needs of their child because ordered child support is not being paid, to see the obligor enjoying the use of his lavishly furnished lakeside vacation home complete with jet skis.  The Texas Family Code provides for liens and seizures of certain property but many Texas attorneys do not attempt this. The reluctance of many attorneys to consider the seizure of personal assets of the obligor may be from them incorrectly thinking that the exemptions provided in the Texas Constitution would make finding non-exempt property all but impossible.

However, child support is an expressed exception to the property exemptions of Property Code Sections 42.001 and 42.002.

In the case of Dryden v. Dryden, 97 S.W.3d 869 (Tex.App--Corpus Christi 2003, pet. denied), a Sherrif's sale was ordered for failure to pay child support and the Court of Appeals approved the sale of items including a second vehicle, jewelry, athletic equipment, sporting goods, and furniture.

If a seizure is sought, it is important for the attorney enforcing a Texas child support order to first file either an abstract of judgment or a child support lien notice.  Only then should a Writ of Execution be filed.

Texas Family Code 157.311-331 details the procedures of filing a lien.

Monday, March 26, 2018

Can Parents Agree to Reduce/Settle Child Support Arrearages On Their Own?



YES, but only after the arrears has been reduced to a final written judgment of the court.

This relieves the pressure on the Custodial Parent/Obligee from having to agree to a reduced judgment on past due support out of desperation to receive some financial relief immediately. It offers the full weight of Enforcement mechanism of the Family Code to the Custodial Parent/Obligee.

“ Due to the financial hardships so frequently encountered by the custodial parent following divorce, the failure of the former spouse to pay court-ordered child support puts the custodial parent in a very difficult position. If the non-custodial parent offers to pay a portion of child support arrearages in settlement of the entire amount due, the custodial parent may be persuaded to accept the offer due to present financial difficulties and the possibility of further delay and expense in collecting the unpaid amount.” Williams v Patton

When drafting a contempt order, the judgment must first be addressed THEN a release of a set dollar amount and THEN a new judgment for the reduced amount (if any) with order to pay.

See Williams v. Patton, 821 S.W.2d 141 (1991)
https://www.leagle.com/decision/1991962821sw2d1411960

Thursday, March 15, 2018

Can a Court Use A Parent's Immigration Status to Deny Joint Custody?

Probably not.

Parents are generally always named Joint Managing Conservators (JMC) unless one parent can provide evidence that proves that a parent's immigration status has a material, adverse effect on their ability to parent.

In the recent case of Turrubiartes v. Olvera, 2018 Tex. App. LEXIS 1017 (Tex. App.--Houston [1st Dist.] Februrary 6, 2018)(opinion on rhr'g)(Cause No. 01-16-00322-CV). A father argued that the main reason he should be name sole managing conservator of his three children was that he was a U.S. Citizen and the mother was not. Father said he feared that the mother would be stopped while driving the kids in Texas and be deported.

The lower court granted Sole Managing Conservatorship to the father. In it's findings of fact on the ruling, nine out of the thirteen factors the court said it considered had to with the mother's immigration status.

The Court of Appeal for the 1st District overturned the ruling. They pointed out that "immigration status" is not expressly listed in TFC 153.134(a) as one of the factors that a court may use in overcoming the presumption that parents should be named Joint Managing Conservators. The COA said the father's fear of the mother being deported while driving the children was resolve by her being ordered by the lower court to find a licensed driver for the children. The Court of Appeals concluded that father's other points for him being named sole managing conservator were not sufficient to overcome the joint managing presumption.

Comment:
This is not the last we will hear of immigration status being used as a weapon in a custody case. With the recent Federal Court ruling upholding punitive measures used against so called "sanctuary cities", the political winds still seem to be blowing hard against illegal immigrants in Texas. It should be noted that in this case the COA seemed to ignore the catch all statutory factor under 153.134(a) of "any relevant factor"- which may be used in the future. Future cases, with the right fact pattern in may find success in using immigration status as a reason factor in custody cases. I would not be surprised if a conservative legislator will jump on this and seek to add immigration status to 153.134(a).

Friday, March 09, 2018

Is there a Statute of Limitations Concerning Money Judgment for Child Support?

Yes.
The court of continuing, exclusive jurisdiction retains jurisdiction to confirm the total amount of child support arrearages and enter judgment for past-due child support. The statute of limitations concerning a money judgment is ten years. The suit must be filed within ten years from the date the child becomes an adult, or the child support obligation terminates. (157.005(b)).