Texas Appeals Court Affirms Custody Modification Despite Mother’s Decision Not to Relocate

Texas custody orders commonly include geographic restrictions limiting a parent’s ability to relocate the children outside a specified area.  Regardless of whether there is a geographic restriction, a parent may seek to prevent the other parent from relocating with the children, often through modification of the custody order to either modify or add a geographic restriction or to change the parent with the exclusive right to designate the children’s primary residence.  A mother recently challenged a modification giving the father the right to establish the children’s primary residence after she provided him notice of her intent to move to another county.

According to the appeals court’s opinion, the parties were appointed joint managing conservators with equal possession in the agreed final divorce decree.  The mother was awarded the exclusive right to establish the primary residence for their two children, with a geographic restriction.

Pursuant to the decree, the mother could move the children to Harris or Dallas County if she provided the father six months’ notice of her intent to relocate and if the father successfully “secure[d] a transfer in employment” to that county.  She notified him in 2020 that she intended to move to Harris County.

Modification Proceeding

The father petitioned for modification to limit the restriction to Travis and contiguous counties.  At the time of the hearing, the parties lived about fifteen minutes apart in Travis County.  The father and children visited his family for holidays and birthdays.  He testified the mother often attended his family gatherings.  There was undisputed evidence the children had loving relationships with both parents and the parties agreed they had a good co-parenting relationship.

The mother testified she wanted to move primarily for the job.  The mother emailed the father of her intent to relocate in late 2020.  She testified she lost her job because of the pandemic in March 2020 and was unemployed for about a year.  She got a job with a Houston-based company in early 2021.  Her supervisors testified they let her work in Austin while the suit was pending. Although they said she had substantial sales commissions and was one of their best employees, they testified it would be hard to keep her if she did not move to Houston and she may not receive her commissions.

In 2016 when the decree was finalized, the father worked for a company with offices in Harris and Dallas Counties, but he started another job in Austin six months later.  He testified his employer did not do business in Harris County so he would not be able to work for the same company if he moved.  He did not want to apply for jobs in Harris County and did not want the children to move away from him.  He was concerned they “would be sad” if they could not spend time with both parents.  He also expressed concerns about them changing schools and leaving their friends and activities.  The mother testified the children did not want to move.

The children’s therapist testified she was concerned the children were stressed about the litigation and said one of the children was “crankier” in the last few sessions.

The trial court awarded the father the exclusive right to designate the children’s primary residence subject to the geographic restriction in the divorce decree.  The appeals court noted the trial court had not modified the restriction, so, practically, the mother could move but not establish the children’s primary residence in Harris County.

The Mother’s Appeal

The mother appealed, arguing the trial court abused its discretion in modifying the custody arrangement in a way that was not pled or tried by consent.  She argued the trial court erred in giving the father the exclusive right to designate the children’s primary residence despite her decision not to move when he had only sought the right on a conditional basis.  She argued the court did not have the authority to give him the exclusive right to designate the children’s residence because she decided not to move.

The father asked the trial court to order that he had the exclusive right to establish the children’s primary residence “[i]n the event that [the mother. . .] elects to relocate to Harris County, Texas, or a location outside of Travis County, Texas.”  The appeals court agreed the father’s pleading used conditional language and did not seek the exclusive right to designate the primary residence if the mother decided not to move.  The appeals court pointed out, however, that the mother intended to move during the suit.  She notified the father and children she intended to move, she testified she was planning to move, her supervisors testified they expected her to move, and she put her house up for sale.  She changed her mind after the trial court made its decision.  According to the appeals court’s opinion, the court did not learn she had decided not to move until she submitted a motion for reconsideration over a month after the order was issued.  The trial court had pointed out in its denial of the reconsideration motion that the father’s pleading had used the word “elects” and, at the time of the hearing, the undisputed evidence was that the mother had expressed a desire and therefore an election to relocate.

The appeals court concluded the father’s pleadings gave the mother reasonable notice of his intent and the claims asserted, so the trial court’s order conformed to the pleadings.  There was no abuse of discretion in the court granting the relief the father had requested. The appeals court affirmed the trial court’s judgment.

Contact an Experienced Dallas Custody Attorney

If you or your child’s other parent are considering moving with your child, a skilled Texas child custody lawyer can review your custody order and advise you on your rights and an appropriate course of action.  Call 214.692.8200 to schedule a consultation with McClure Law Group.

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