Texas Divorce Attorney Blog
To modify a Texas custody order, the parent must show that the modification would be in the child’s best interest and that there has been a material and substantial change in circumstances. Tex. Fam. Code § 156.101(a). The Texas Supreme Court set forth factors to be considered in relocation cases in Lenz v. Lenz. In a recent case, a mother appealed a court’s decision not to remove a geographic restriction to allow her to move with the child to live with her new husband in England.
Under the divorce decree, the mother had the exclusive right to designate the child’s primary residence within El Paso County.
The mother started dating a goalkeeper coach for an English Premier League soccer team. She told the father she planned to move to England and he petitioned for modification to be named primary managing conservator with the exclusive right to designate the child’s primary residence. The mother filed a counter-petition seeking removal of the geographic restriction.
The mother testified she quit her job and her fiancé would support her and the child. She said she intended to move regardless of the court’s decision. She testified the child would have opportunities in Manchester, including private school, after-school programs, and exposure to other cultures. She acknowledged the child asked her father not to “sign off” on the papers for relocation because she did not want to move.
She married before the final hearing. She testified her husband netted about $1.7 million annually, with possible bonuses. The child would have insurance and access to the team’s doctors. Her brother would visit them to maintain his relationship with the child. She also said the child could visit the father four times each year based on her school schedule and the father could visit the child.
The father testified he had a close bond with the child and went to many events and medical appointments. He testified the child saw his family every month and had a close relationship with her grandparents.
Both parents testified about co-parenting difficulties. The father described times when the mother threatened him and one incident in which she physically assaulted him. The mother also testified about that incident, but claimed she had injured him accidently.
The trial court made a number of findings, including that there had been material and substantial changes in circumstances. The court named the father as managing primary conservator and maintained the geographic restriction.
The mother appealed.
Lenz Factors
The appeals court applied the Lenz factors to determine if the trial court abused its discretion in leaving the geographic restriction in place.
It first considered the good-faith reason for relocation, noting the trial court had found there was “a good-faith reason for the proposed move.”
The appeals court considered together the positive impact relocation would have on the mother and the mother’s financial improvement.
The mother argued the court failed to consider the detrimental effects of denying her request on her and the resulting impact on the child. She argued the child had a stronger bond with her. She also argued the court failed to consider the financial benefits of relocation.
The appeals court noted the positive emotional and financial effects on the mother must be considered in light of the best interest of the child. The father argued the court should weigh the benefits against the risks. The mother would be financially dependent on a new husband in another country. He also argued the court could infer the husband would be absent from the home frequently based on the mother’s testimony about his travel and renegotiation of his contract every two years. The appeals court concluded these factors were neutral.
The appeals court then considered the opportunities relocation would afford the mother and the child. The child would attend a private school with students from across the world and classes in multiple languages, but the father argued she already received trilingual education.
The father argued the record did not reflect any unique medical needs. The appeals court agreed the court could have inferred her medical needs were sufficiently met in El Paso.
The only leisure opportunity the mother identified was a karate school, but the child participated in several extracurricular activities in El Paso. The appeals court also found this factor was neutral because many opportunities were available to the child in El Paso or would be available when she visited her mother in Manchester.
The appeals court looked at the potential effects on the child’s relationships. The mother’s brother testified he would visit and FaceTime with the child. The father testified she was close with his parents and saw other family members monthly. He argued the mother had not testified about any social support in England other than her husband. The appeals court weighed this factor in favor of maintaining the geographic restriction.
The appeals court then considered several factors together, including the effect on the father’s communication and visitation with the child, the effect on his ability to maintain a full and continuous relationship with her, whether he had the ability to move, and whether an alternative visitation schedule would let him maintain a meaningful relationship with her. The mother argued the court was required to apply “a more fluid balancing test.” The father argued evidence showed he would suffer a greater hardship if the child moved to England than the mother would suffer coming back to El Paso.
There was evidence the move would result in significant travel costs for the father, although the mother said she would offset them against child support. The father argued the proposed four visits per year would give him less time than he currently had and negatively affect his relationship with the child. Although the mother suggested he could visit during the school year, she had not shown how that would be feasible. She also argued communication could be maintained electronically.
The appeals court concluded there was sufficient evidence supporting the court’s determination that relocation would affect the father’s ability to maintain a full, continuous and meaningful relationship with the child. Therefore, there was no abuse of discretion in the court’s finding the restriction was in the child’s best interest. Based on its review of the Lenz factors, the appeals court also determined substantive and probative evidence supported continuation of the geographic restriction.
Holley Factors
The mother also challenged the court’s modification naming the father managing primary conservator. Neither party disputed a material and substantial change in circumstances, so the court focused on whether the modification was in the child’s best interest.
In Holley v. Adams, the Texas Supreme Court identified a non-exhaustive set of factors to be considered in determining the child’s best interest, which the appeals court applied in this case.
The factor on the child’s desires was neutral because she had not testified and there was conflicting evidence as to her expressed feelings.
The appeals court then considered the child’s current and future emotional needs and current and future emotional and physical danger. There was evidence the parents had challenges in co-parenting. Although the trial court found that both parents “struggle communicating effectively and respectfully…,” there was evidence the mother included the child in messages to the father and of a physical altercation, though the mother claimed it was an accident. The trial court could have reasonably inferred increased distance could make the exchanges worse and cause further emotional disturbance to the child. The testimony about the physical altercation supported a conclusion there was risk of emotional harm to the child. These factors heavily favored finding the geographic restriction was in the child’s best interest.
The appeals court then considered together the factors related to parenting abilities, the parents’ acts or omissions, and excuses for those acts and omissions. The father argued he was a good father who engaged in many activities with the child and paid for her extracurricular activities. The mother testified he become more involved after he learned of the move but also said he was a “good father.” The appeals court found these factors supported the court’s finding.
The appeals court then considered the factors regarding plans for the child and the stability of the home. The trial court could have inferred, based on the evidence, that the father would maintain a known and stable environment for the child and that the mother planned to relocate whether she could take the child or not.
The appeals court concluded that the court’s finding that it was in the child’s best interest to name the father managing primary conservator was supported by sufficient evidence.
The appeals court affirmed the trial court’s order.
Contact a Texas Family Law Attorney
In this case, the court determined it was not in the child’s best interest to remove the geographic restriction despite the new stepfather’s wealth. If you are seeking or opposing a custody modification to allow international relocation, a knowledgeable Texas custody attorney can advise you. Call McClure Law Group at 214.692.8200.