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.