Texas Divorce Attorney Blog
A court can modify a Texas custody or visitation order if the modification would be in the child’s best interest and there has been a material and substantial change in circumstances since the prior order was rendered. Tex. Fam. Code § 156.101(a)(1)(A). Whether a material and substantial change in circumstances has occurred is a fact-specific question.
In a recent case, a father challenged the modification of his child’s custody.
The parties divorced when their child was seven years old. According to the appeals court, the divorce decree named both parents joint managing conservators with a “Week-On/ Week-Off” schedule. It imposed a geographic restriction limiting the child’s primary residence within a particular school district.
After the mother remarried she petitioned for modification to the possession schedule. The stepfather had a standard possession order that gave him possession of his son on the first, third, and fifth weekends. The mother petitioned for modification to align her child’s schedule with that of her stepson.
She alleged the father had allowed the child’s health coverage to lapse and sought child support according to the guidelines. She also sought the exclusive right to determine the child’s residence within Rusk County and contiguous counties because she was considering moving to a larger home outside the child’s school district.
The father testified the child thrived with the week-on/ week-off schedule. He said it took about fifteen minutes or less to get to the mother’s home.
The mother testified she could provide health insurance through her own employment. The parties testified the father experienced chronic pain and the medication he took affected his ability to drive. The mother said he sometimes missed counseling and the child’s medical appointments because he could not drive.
The mother testified she thought the child would have less stress if she did not have to go back and forth every week. She also testified the child had a strong relationship with her stepbrother and that it was in her best interest to spend time with him. The mother wanted to move to a place where the child could have her own room. She also wanted the child to attend a different school with more extracurricular activities than her current school, although it had a lower statewide rating.
The licensed clinical social worker (“LCSW”) who provided counseling services to the child expressed concerns the child may have autism. She said the child was doing well in school, but recommended extracurricular activities to help improve her social skills. The mother testified the school where she wanted to enroll the child had more activities. She also testified she could make sure the child attended her activities if she did not have to depend on the father to driver her. The mother therefore requested the exclusive right to designate the child’s primary residence.
The trial court awarded the mother the exclusive right to designate the child’s primary residence with a geographic restriction of Rusk County and the contiguous counties. The court also changed the weekends so the mother’s possession of the child would let her spend more time with the stepbrother. The court also ordered the mother to maintain the child’s health insurance and the father to pay her $71.06 for its costs, along with monthly child support.
The Father’s Appeal
The father appealed, arguing there had not been a material and substantial change in circumstances. He also argued that expanding the geographic restrictions was not in the child’s best interest.
Since the divorce decree, the mother had gotten married and now lived with her husband, her stepson, and the child. Texas case law has held that a parent’s remarriage can be a material change of circumstances.
The appeals court also pointed out that the father had violated the decree when he allowed the child’s insurance to lapse. The mother had to obtain health insurance for the child and did so with her new employment. The appeals court found there was sufficient evidence supporting the court’s determination there was a material and substantial change in circumstances since the divorce decree was entered.
Geographic Restriction
The father argued it was not in the child’s best interest for the mother to be allowed to move her to contiguous counties.
Courts consider the Lenz factors to determine if relocation is in the child’s best interest. These factors include reasons in favor of and against the relocation, as well as health, educational, and recreational opportunities the child may experience as a result of the relocation. Another factor is accommodation of any special talents or needs of the child. Courts consider how the relocation will affect the child’s relationship with extended family as well as communication and visitation with the other parent. Courts may also consider whether the other parent is able to relocate. Additionally, the child’s age is another factor to be considered.
The mother’s testimony supported the findings that aligning the child’s schedule with her stepbrother’s was in the child’s best interest. The mother was considering moving to a larger home to allow the child to have her own room and the trial court had impliedly found that was in her best interest.
The LCSW had also recommended more extracurricular activities. The mother testified her current school did not have sufficient activities for her, supporting the finding the child should not be limited to her current school district. The appeals court noted the court had not heard evidence related to the possible move’s effect on the child’s relationships with extended family. It also had not heard any evidence the father would not be able to continue his relationship with her.
The appeals court concluded there was probative evidence supporting the court’s decision, so it had not abused its discretion in modifying the order.
The appeals court affirmed the judgment.
Call a Dallas Family Law Attorney
Remarriage is a common reason a parent may want to modify an order providing for the possession of or access to a child, and, as this case illustrates, it may constitute the change in circumstances required to support a modification. If you are considering pursuing modification of your child’s custody arrangement, an experienced Texas child custody lawyer can advise you and advocate on your behalf. Call McClure Law Group at 214.692.8200 to set up a meeting.