This issue of relocation is something that comes up quite often in family law matters. The question of whether there should be a geographic restriction of a child seems to be more prevalent in the context of a modification of a prior decree rather than formulation or rendering of an initial final decree or order. For the most part, parties seem to be generally stable with their residence locations at the time of divorce. However, this is not always the case and courts are required to make this determination at trial if circumstances warrant a consideration of one party relocating or changing their child's residence. Many times, the same circumstances will arise after the parties divorce, necessitating a determination of such an issue at a trial on modification of a prior decree or order.
Sometimes, the circumstances are such that the custodial parent needs help from extended family to care for the child. This may be because the other parent is not available or refuses to be available to help the other parent. The parent may be unemployed or it may be difficult to be employed because of an existing health or psychological problem with a child. The custodial parent may have remarried and the new spouse works in a different county or state. The court can consider the non-custodial parent's history of exercising visitation rights. In fact, there are many relevant factors the court will consider when faced with a relocation case.
Unfortunately, the Texas Family Code is silent on statutory factors or guidelines that could provide public policy consideration on relocation issues other than the requirement that the best interest of the child is paramount. As such, the Texas Supreme Court had to make very important rulings in two primary past cases. One was the Holley case in 1976 and the more recent
Lenz case in 2002. It is these two cases that provide the various factors and guidelines that courts in our state will consider when deciding whether there will be a geographic restriction of a child or whether such a restriction will be lifted.
Below is an excerpt from a memorandum opinion rendered in 2009 by the Fifth District Dallas Court of Appeals. The case is named, In the Interest of D.M.D. There are even more recent cases out of Austin, Texas that discuss this relocation issue. The memorandum opinions rendered in the
Deinhart (2010) and
Yasin (2011) cases by the Austin Court of Appeals are very informative. I have entitled the excerpt as "Factors for Relocation Cases".
FACTORS FOR RELOCATION CASES
'Many factors can bear on the determination of a child's best interest. In the context of residency restrictions and relocation, the supreme court has instructed us to consider the public policies outlined in section 153.001(a). Lenz v. Lenz, 79 S.W.3d 10, 14 (Tex. 2002). Section 153.001 states that the public policy of Texas is to:
(1) assure that children will have frequent and continuing contact with parents who have shown an ability to act in the best interest of the child;
(2) provide a safe, stable, and nonviolent environment for the child; and
(3) encourage parents to share in the rights and duties of raising their child after the parents have separated or dissolved their marriage.
TEX. FAM. CODE ANN. § 153.001(a)(1)-(3). The Lenz court also noted that a wide array of other factors can be relevant to the determination of a child's best interest after parental relocation. These include the reasons for and against the move; the education, health, and leisure opportunities afforded by the move; the accommodation of the child's special needs or talents; the effect on extended family relationships; the effect on visitation and communication with the noncustodial parent; the noncustodial parent's ability to relocate; and the child's age.
Lenz, 79 S.W.3d at 15-16. We may also consider the general factors relevant to the best interest of a child, such as (1) the child's desires; (2) the child's current and future physical and emotional needs; (3) any physical or emotional danger to the child in the present or future; (4) the parental abilities of the individuals involved; (5) the programs available to those individuals to promote the child's best interest; (6) the plans for the child by these individuals; (7) the stability of the home; (8) acts or omissions by a parent tending to show that the existing parent-child relationship is not a proper one; and (9) any excuse for the acts or omissions of the parent.
Holley v. Adams, 544 S.W.2d 367, 371-72 (Tex. 1976).
We further agree with the Austin Court of Appeals that a child's best interest "cannot be determined in a vacuum." Echols v. Olivarez, 85 S.W.3d 475, 482 (Tex. App.--Austin 2002, no pet.). "Although consideration of the visitation rights of the noncustodial parent is important, we must primarily concentrate on the general quality of life for both the child and the custodial parent in assessing whether a change is positive and in the child's best interest."
Id. "Because the custodial parent provides the child with a basic quality of life, a child's best interest is closely intertwined with the well-being of the custodial parent."
Lenz, 79 S.W.3d at 18.'
In conclusion, the factors considered in establishing or lifting geographic restrictions are many. Every case will be different. A party requesting such a restriction or lifting one is entitled to a jury trial. These cases will always be driven by fact intensive issues. After hearing the evidence and considering all the Texas Supreme Court factors, a judge or jury will have to make a very important decision in a child's life. The credibility of the witnesses and other evidence is crucial. If you have a relocation issue, contact the Law Office of Dan Kirby to discuss your case. Such a case will require important planning and development of key evidence in order to succeed.