Texas Divorce Attorney Blog
The best interest of the child is the primary consideration in Texas custody matters, but the courts have identified factors to be considered in determining the child’s best interest in certain circumstances. A mother recently appealed a court’s denial of her request to remove a geographic restriction, arguing the court failed to properly balance the appropriate factors.
The divorce decree gave the mother the exclusive right to designate the child’s primary residence with a geographic restriction. It also required both parents to provide the other written notice before taking the child out of the country.
The mother married a man who lived in Oklahoma. She ultimately petitioned for modification and requested removal of the geographic restriction. The father believed she had already moved to Oklahoma and sought the right to designate the child’s primary residence.
The trial court gave the mother the right to designate the child’s primary residence as long as she lived within a specified geographic area, but the father would get that right if she moved outside that area. The order also required a written agreement for international travel.
The mother appealed. She argued the trial court abused its discretion by not lifting the geographic restriction, because it failed to properly balance the factors from Lenz v. Lenz.
Geographic Restriction
Courts are guided by the state policy of assuring frequent and continuing contact between children and parents who act in their best interest; providing a safe and stable environment; and encouraging parents to share the rights and duties of child-rearing. Tex. Fam. Code § 153.001.
In Lenz, the Texas Supreme Court identified factors for determining if relocation is in a child’s best interest, including: reasons for and against relocation; health, education, and leisure opportunities; accommodation of the child’s special needs or talents; the effect on relationships with extended family; the other parent’s ability to relocate; the child’s age; and the effect on the other parent’s visitation and communication with the child.
The mother argued the trial court imposed an elevated burden of proof on her. The trial court found she “failed to establish that relocation . . . would improve her financial situation . . .” The court made several other findings using language that the mother “failed to establish. . .”
The mother did not have to prove any particular factor but had the burden to prove lifting the restriction was in the child’s best interest by the preponderance of the evidence. The appeals court concluded the findings showed the court considered the factors and found they did not weigh in favor of relocation.
The mother also argued the court did not give consider or give weight to factors favoring, including the effect of her quality of life on the child, the positive effect on their financial, health, and leisure activities, and relationships in Oklahoma.
According to the appeals court, the mother claimed she lived in Dallas, but evidence showed they spent as much time as possible in Oklahoma. She testified the stepfather intended to move to Dallas, but he waited over a year after the marriage to request a transfer. His employer denied it and he did not think he could match his position and salary elsewhere.
The mother said the stepfather supported her emotionally and financially. She testified it would be difficult not to live as a family in Oklahoma, but the stepfather said he could commute from Dallas and would support her anywhere.
The father had an important Texas client, responsibilities in Dallas, and a need to live near DFW Airport.
The mother testified about activities in Oklahoma, but admitted Dallas offered similar opportunities.
The child had a good relationship with the stepfather and his extended family in Oklahoma, but was also close to relatives near Dallas, including both sets of grandparents.
There was evidence of poor communication. The mother was not forthcoming about the time the child spent in Oklahoma. The father had concerns about their ability to co-parent and work together if she moved away.
There was evidence the mother generally worked with the father when work conflicted with his scheduled possession. The father was concerned, however, that it would be difficult for his relationship with the child to continue if the mother and child relocated.
The parent facilitator testified the parents had difficulty communicating. She expressed concerns about the mother’s honesty and transparency regarding where they lived and her unilateral decision-making.
The child custody evaluator had concerns about the mother’s willingness and ability to co-parent and support the child’s relationship with his father, as well as her lack of communication and evasive responses. She thought the child’s relationship with the father would suffer if the mother and child relocated. She concluded it was in the child’s best interest for both parents to be in the Dallas area and that the costs of relocation outweighed the benefits.
The trial court’s findings showed it considered the factors but found evidence the benefits did not outweigh the negative effect on the relationship between the child and father. The appeals court acknowledged the mother’s desire to live with the stepfather favored relocation and her happiness could benefit the child. The stepfather testified, however, he could commute and would support the mother in Dallas. There were similar educational and leisure opportunities in both locations. The presence of family in Oklahoma did not weigh in favor of relocation when the child had family in both locations.
The evidence, including the parent’s issues with communicating and cooperating, supported the trial court’s findings that not relocating was in the child’s best interest. The custody evaluator had reached the same conclusion. The record showed the trial court and considered the Lenz factors and the policy in Tex. Fam. Code 153.001(a). The appeals court concluded the findings were supported by evidence of a substantial and probative nature and the trial court’s decision was not unreasonable or arbitrary.
International Travel
The mother also argued the trial court abused its discretion in imposing an international travel restriction when it was not requested by a party, tried by consent, or in the child’s best interest.
The decree required written notice of international travel. The mother proposed a parenting plan allowing her to designate a two-week period to travel internationally with the child. It also required the parents to provide information when they intended to fly domestically with the child. The appeals court could not conclude the mother did not have fair notice of trial on the issue when she had requested modifications related to domestic and international travel. It also concluded the issue was tried by consent because there was significant testimony from witnesses from both sides regarding conflict and communication issues related to travel. The mother’s attorney had elicited testimony from the father regarding a conflict involving a trip the mother and child took to Italy.
The appeals court also rejected the mother’s argument that the finding the travel restriction was in the child’s best interest was not supported by the record. The mother argued there was not case law supporting international travel restrictions based on “communication issues.” A court may impose restrictions that are necessary, not excessive, and protect the child’s best interest. The appeals court found no abuse of discretion in the travel restriction.
Contact McClure Law Group
This case shows that relocation may be denied if parents do not have good communication or a good co-parenting relationship. If you want to modify custody to remove a geographic restriction, you should seek the advice of a knowledgeable Texas custody attorney. Call McClure Law Group at 214.692.8200.