Texas Appeals Court Affirms Order with No Geographic Restriction on Children’s Residence

iStock-1139699594-300x200A trial court in a Texas custody case that appoints both parents joint managing conservators must determine which parent will have the exclusive right to determine the child’s primary residence.  The court must also either establish a geographic restriction or specify that there is not a geographic restriction on the child’s residence.  The court’s primary consideration is the child’s best interest.  The Texas supreme court has identified a number of factors to be considered in determining if relocation is in a child’s best interest: reasons in favor of and against relocation; the effect on the child’s relationships with extended family; the effect on the other parent’s visitation and communication with the child; whether a visitation schedule could allow the child and other parent to maintain a full and continuous relationship; and the nature of the child’s age, ties to the community, and educational and health needs.  Lenz v. Lenz.

A mother recently appealed a trial court order naming the father as the conservator with the exclusive right to determine the children’s primary residence with no geographic restriction.  The parties got married in 2014 and had two children.  The husband was an Army officer, stationed at times in Georgia and Louisiana. He was stationed at Fort Hood in 2018 and the parties bought a home in Belton.  The wife started school for nursing in Austin in 2019.  They decided the husband would leave the Army in the fall of 2020.  The wife told the husband she wanted to separate in January 2020.  The husband petitioned for divorce the next month.

The trial court granted the divorce and appointed both parents joint managing conservators, with the husband having the exclusive right to designate the children’s primary residence.  The mother appealed.

The mother argued she should have been granted the exclusive right to establish the primary residence because the children were “more connected” to her and “most adjusted” to living with her.  She also argued the court should have placed a geographic restriction on the husband because it was not in the children’s best interest to move from Austin.

The trial court made a number of findings of fact regarding the parents and the children.  The appeals court determined the “extensive findings of fact” showed that the trial court had considered the relevant factors from case law and Tex. Fam. Code 153.001(a).  The appeals court further noted that the findings were supported by the record and supported the court’s conclusions that it was in the children’s best interest for the father to be given the exclusive right to designate their primary residence without any geographic restriction.  There was evidence that the children had the support of extended family in Ohio, that both parents and the children were familiar with the area where the father planned to relocate, that the father had employment opportunities in Ohio, that the father and children had a lack of ties to Austin or Texas generally, that the mother could work or travel to Ohio where she had family to spend time with the children.  The alternative was for the children to stay in Austin with the mother and her boyfriend in the boyfriend’s home far away from their father and grandparents.  One of the children had significant behavioral difficulties at the school he would continue to attend if he stayed in Austin.  The appeals court concluded the trial court could have reasonably determined that remaining in Austin was not in the best interest of the children despite the evidence that they were bonded with the mother and her boyfriend.

The mother did not challenge any findings of fact, but based her argument that she should have been given the exclusive right to establish the children’s primary residence on the evidence that she had been the children’s primary caregiver and that the husband had been “largely absent” and that she had more experience parenting the children on her own.  She also argued that the children were not harmed by being exposed to her boyfriend, that they had bonded with him, and that together they provided the children a safe, stable, and healthy home.

The trial court had made a number of findings about the parents’ parenting skills.  The court had found the father actively participated in rearing the children and became their primary caregiver when the mother started nursing school. The trial court also made findings regarding the family support the father would have in Ohio.  The evidence relied upon by the mother did not show that the evidence did not support the trial court’s findings or that the court abused its discretion in determining it would be in the children’s best interest that the father by name the conservator with the right to establish the children’s primary residence.

The trial court has broad discretion in determining which conservator gets the exclusive right to establish the children’s primary residence.  Additionally, the trial court found one of the children had significant behavioral problems at the Austin school, that the father had obtained an executive position in Ohio, that the grandparents lived in Ohio and had been involved in the lives of the children, and that the mother could move to Ohio to be near the children, but instead planned to stay in Austin.  The trial court also found the father was more likely to include the mother in significant decisions and foster a co-parenting relationship with her.

The appeals court concluded there was sufficient evidence for the trial court to exercise its discretion and that it had not abused its discretion in designating the father the conservator with the exclusive right to establish the children’s primary residence with no geographic restriction.  The appeals court therefore affirmed the order of the trial court.

This case shows the potential effects of no geographic restriction on the children’s primary residence.  Without a restriction, the father can move the children to Ohio.  If you are facing a custody dispute and you or the other parent have significant ties to another area and want to move with the children, an experienced Texas custody attorney can help you.  Call McClure Law Group at 214.692.8200 for a consultation.

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