Texas Divorce Attorney Blog
Generally, a parent seeking modification of a Texas custody order must show that there has been a material and substantial change in circumstances and that the modification is in the child’s best interest. The determination of whether there has been a material and substantial change of circumstances is fact specific. By way of example, a material and substantial change in circumstances may include a parent’s remarriage or, when there is a request for a change in child support, a change in income. A father recently appealed a modification order that permitted the mother to relocate with the children.
The parties’ agreed divorce decree named the parties joint managing conservators and granted the mother the right to designate the children’s primary residence. Subsequently, the mother petitioned for modification in 2022 because she wanted to move to Maine with the children. Following trial, the trial court granted the modification. Specifically the trial court ordered modified the children’s geographic restriction to include Maine, modified the father’s possession and access, and awarded the mother child support.
The father appealed, arguing that the trial court abused its discretion because there had been no substantial or material change in the parties’ or children’s circumstances, and that the move was not in the best interest of the children.
Material and Substantial Change in Circumstances
At trial, the mother testified that she remarried and had a new baby with her husband following the signing of the agreed divorce decree. Additionally, both parties testified about substantial changes in income. Moreover, the mother testified that her husband had a job offer, which included a promotion in Maine. The mother was a teacher earning $48,000 in Texas, but informed the trial court that she had obtained a contract in Maine for $77,200. The father also testified his wages had increased.
The appeals court found there was sufficient evidence in the record to support the trial court’s determination that there had been a material and substantial change in the parties’ circumstances.
Best Interests of the Children
Generally, courts employ a balancing test instead of imposing a strict presumption against relocation. The Texas Supreme Court has identified a non-exhaustive list of factors that may aid courts in determining a child’s best interest when a parent wishes to relocate them: reasons for and against location; the opportunities available upon the move; accommodation of any special needs or talents of the child; the effect on the noncustodial parent’s visitation and communication; the effect on the child’s relationships with extended family; the child’s age; and the other parent’s ability to move. Lenz v. Lenz. Additionally, courts may consider the factors set forth in Holley v. Adams, including: the child’s desires, the child’s current and future physical and emotional needs; current and future emotional and physical danger; the parties’ parental abilities; available programs; the parents’ plans for the child; the homes’ stability; indication the relationship between parent and child is not proper based on the parent’s behavior; and any excuse for the parent’s behavior. Pursuant to the Texas Family Code, courts are to ensure that there is frequent and continuing contact between the child and a parent acting in the child’s best interest; to provide a safe and stable environment; and to encourage the parents to share the rights and duties of parenting after their divorce. Tex. Fam. Code § 153.001(a).
The mother testified she wanted to move with the children to better support them financially. She testified that the schools in Maine had a better student-to-teacher ratio, were better rated, and had more extra-curricular activities for the children. Moreover, the mother testified regarding a number of leisure activities that would be available to the children. She informed the trial court that the boys shared a room in Texarkana, but would each have there own room in Maine.
The mother testified that she and the father discussed him moving to Maine as well. In response, the father testified he had “seriously” considered moving, but decided against doing so.
The mother testified she had a good relationship with the father and did not want to take the boys away from him, but wanted “a better life for [them].” She testified that they could spend the holidays and summers with him. Further, the mother offered to pay for the children’s transportation to see their father and also agreed to fly him out for a long weekend in March or October. She said the father would actually have more visitation than he had under the agreed decree. She also said the boys could Facetime with the father.
Moreover, mother testified that the children’s insurance would cost less in Maine. A “highly recommended” specialist for one of the children would only be about 20 minutes away in Maine, but in Texas, they were required to travel to Dallas or Little Rock. Finally, the mother informed the trial court that one of the children received therapy for being bullied in Texas.
Conversely, the father testified that both of the parties’ families were in Texas, and that he believed it was in the children’s best interest for them to regularly see him.
Ultimately, the appellate court gave deference to the trial court’s findings and determined the following: (1) the trial court could have found that the mother would assure the children’s frequent and continuing contact with the father, and that both parents would provide a safe and stable environment and also share in the rights and duties of parenting; (2) the trial court could have reasonably believed that the father would have more access to the children, that the children could video chat with family in Texas, and that the children would spend holidays and summers with the father and their family members n Texas; and (3) the trial court could have found that the father had the ability to relocate, that there were better schools and health care in Maine, and that the children would have a better life as a result of the mother’s change in financial circumstances if permitted to go to Maine.
After considering the relevant factors, the appeals court concluded that there was sufficient evidence for the trial court to exercise its discretion and that it did not err in rendering its modification.
The appeals court therefore affirmed the trial court’s judgment.
Call McClure Law Group for a Consultation
Whether you are seeking or objecting to a custody modification, an experienced Dallas child custody lawyer can help. The court will consider the specific facts and circumstances involved in your case to determine if modification is appropriate. Call our offices to schedule a consultation to discuss your case.