"I shall be telling this with a sigh somewhere ages and ages hence: Two roads diverged in a wood, and I - I took the one less traveled by, and that has made all the difference."

~Robert Frost

WHAT IS RELOCATION LITIGATION?

At the rendering of an initial custody determination in Texas, courts have been required to determine which party is designated the right to determine the primary residence of the child, whether there will exist a geographic domicile restriction imposed on that party and if so what county and its contiguous counties that restriction will be.  The Texas Family Code has also permitted the parties to contract as to a geographic area.  

Modification of a previous order to permit, or prohibit relocation can arise in either of two scenarios.  Either the previous order will have a residence restriction, and the motion will seek to remove the restriction, or there will be no restriction and the modification will seek to impose one.  Most modifications will be based upon a showing that (1) modification would be in the best interest of the child and (2) the circumstances of the child, a conservator, or any other party affected by the order have materially and substantially changed since the date of the rendition of the order.  This two-prong test applies to modifications of sole managing conservatorship, joint managing conservatorship, and possessory conservatorship.  

CAN A JURY DECIDE ISSUES REGARDING RELOCATION?

Yes.  A party is entitled to a verdict by a jury and a court may not contravene a jury verdict on the issues of: (1)  the determination of which joint managing conservator has the exclusive right to designate the primary residence of the child; (2) 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 (3) if a restriction described by [2] is imposed, the determination of the geographic area within which the joint managing conservator must designate the child’s primary residence.

WHAT ARE SOME FACTORS USED IN RELOCATION LITIGATION CASES?

Clearly the issue that must be addressed in relocation cases in Texas is whether the circumstances of the child or conservator materially and substantially changed, and is a modification to either permit, or prohibit, a move in the best interest of the child?

Material and Substantial Change

Texas courts have consistently articulated that the fact that a move is contemplated or even has occurred does not in and of itself define a change of circumstances, however Court's have held that if the custodial parent moves a significant distance, a finding of changed circumstances may be appropriate.”  Notwithstanding, the distance of the move must be taken into account, and no reported case, that I have read so-far, has failed to determine that a significant move constitutes a substantial change in circumstances.  However, some Court's have listed the following factors to be examined in determining whether a material and substantial change had occurred or would occur: (1) the distance involved; (2) the quality of the relationship between the non-custodial parent and the child; (3) the nature and quantity of the child’s contacts with the non-custodial parent, both de jure and de facto; (4) whether the relocation would deprive the non-custodial parent of regular and meaningful access to the children; (5) the impact of the move on the quantity and quality of the child’s future contact with the non-custodial parent; (6) the motive for the move; (7) the motive for opposing the move; (8) the feasibility of preserving the relationship between the non-custodial parent and the child through suitable visitation arrangements; and (9) the proximity, availability, and safety of travel arrangements.

Best Interests

The second prong in determining whether to permit a move, or prohibit one, is the traditional “best interest” one.  Although we all know this is an undefined and difficult term to identify quantitatively, some factors have been provided by Texas Courts for guidance: (1) the relationship with and presence of extended family; (2) the presence of friends; (3) the presence of a stable and supportive environment; (4) the custodial parent’s improved financial situation and ability to provide a better standard of living for the children; (5) positive impact on the custodial parent’s emotional and mental state, with beneficial results to the children; (6)  the non-custodial parent’s right to have regular and meaningful contact; (7) the ability of the non-custodial parent to relocate; (8) the ability of the non-custodial parent to adapt his work schedule to be with the children; (9) the degree to which the custodial parent’s and the child’s life may be enhanced economically, emotionally, and educationally by the move; (10) a comparison of the quality of lifestyle; (11) the negative impact of any continued hostility between the parents; (12) the effect on the move on extended family relationships; (13) the child’s age, community ties, health and educational needs, and preferences; (14) the desires of the child; (15) the emotional and physical needs of the child now and in the future; (16) the emotional and physical danger to the child now and in the future; (17) the parental abilities of the individuals seeking custody; (18) the programs available to assist these individuals to promote the best interest of the child; (19) the plans for the child by these individuals or by the agency seeking custody; (20) the stability of the home or proposed placement; (21) the acts or omissions of the parent which may indicate that the existing parent-child relationship is not a proper one; and (22) any excuse for the acts or omissions by one parent.

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Anthony Veader is an attorney, mediator and counselor servicing Denton, Dallas and Collin counties which cities include: Allen, Celina, Fairview, Farmersville, Frisco, Lavon, Lucas, McKinney, Melissa, Murphy, Plano, Princeton, Prosper, Richardson, Aubrey, Carrollton, Corinth, Denton, Flower Mound, Highland Village, Justin, Krum, Lake Dallas, Lewisville, Little Elm, Pilot Point, Ponder, Sanger, The Colony, Addison, Cedar Hill, Coppell, Dallas, DeSoto, Duncanville, Farmers Branch, Garland, Grand Prairie, Irving, Mesquite, Rowlett,  Seagoville, Wylie.  The Law Office of Anthony Veader, P.C. handles matters including, but not limited to divorce, modifications, child support, child custody, visitation, access, domestic abuse, military divorces, annulments, restraining orders, protective orders, paternity, Divorce Decree Enforcement and Divorce Decree Violations, Relocation and Travel Issues, Name Changes, Common Law Marriages, CPS Cases, AG Cases and IV-D Court Cases.

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