Texas Divorce Attorney Blog
Courts may modify a Texas custody order if doing so is in the best interest of the children and there has been a material and substantial change in circumstances of the child or a conservator since the order was rendered. Tex. Fam. Code § 156.101. In determining the children’s best interest, courts consider the factors set forth in Holley v. Adams, but the court is not limited to those factors and all of the Holley factors may not apply in each case.
Courts may also place geographic restrictions on the child’s primary residence to ensure children are able to have frequent and continuing contact with their parents. To determine the children’s best interest when one parent wants to relocate, court consider a number of factors set forth in Lenz v. Lenz. A father recently appealed the denial of his modification petition seeking a more limited geographic restriction.
Modification Proceeding
The father petitioned for modification of the parent-child relationship to reduce the statewide geographic restriction to Midland County. Alternatively, he asked the court to modify the relationship as it deemed in the children’s best interest. He also asked for increased travel expenses because the mother had relocated. In her counterpetition, the mother sought to be named the sole managing conservator with the father being named possessory conservator with supervised visitation. They both alleged a material and substantial change in circumstances since the divorce decree was signed and entered.
The mother testified she moved to Houston for a promotion. She said she had worked for the same company for her entire career. She said the parties talked about the move to Midland being temporary and anticipated moving to Houston. She informed the father of the planned relocation in July, and moved on August 4, 2023. With the promotion, she was able to work a hybrid schedule and generally worked from home on Mondays and Fridays. She said she “need[ed] to be connected to the leadership” and could not work remotely from Midland.
Since she moved to Houston, the father picked the children up on Saturdays and brought them back on Sundays. Before the relocation, he would have visitation on Thursday nights. The mother said they returned “aggressive and in not a great state” after being with their father.
She testified she requested the father be named possessory conservator with supervised visitation because he put the children in therapy right after receiving the notice. She also said his visitation had a negative effect on the children and their teachers told her that Fridays following the Thursday visitation were “always a rough day.”
The children’s counselor testified the four-year-old “expressed that he does not like his mother and he wants to stay with his father” and said he was “going to fight his mom.” The counselor said he told her the mother told him to go to bed instead of watching television and did not give him enough candy.
The father testified he enrolled the children in counseling because they showed signs of stress and anxiety after being told of the relocation. He thought a geographic restriction of Midland County would be in their best interest. He believed that would be possible because the mother had said she could work remotely and he could hire a nanny.
The father testified he met the mother in California and moved with her to Pennsylvania and then Midland. He was a stay-at-home-parent before the divorce. He currently worked full-time with optional overtime. He bought a home near children’s school, doctors, and friends. He said he had previously played music with them regularly, but was not able to do so since the relocation.
He said the mother did not respond when he tried to talk about the relocation. He said it would be up to two years before he could transfer to Houston with his current employer. He had a college degree and had worked in teaching music, law enforcement, and real estate previously. He was not able to spend as much time with the children since the relocation. He would drive to Houston on Friday evenings, pick them up Saturday morning, and bring them back on Sunday. He said he spent about $1,000 on each trip, but did not offer documentary evidence of the expenses. He would not be able to have lunch with the children or have visitation on Thursdays. He testified he took Thursdays off to spend with the children before the relocation.
The court denied modification.
The Father’s Appeal
The father appealed, raising several issues. He argued that the trial court abused its discretion in denying the modification of the geographic restrictions. The appeals court determined this issue was dispositive because the father could not overcome the finding that modification was not in the best interest of the children.
The father argued the trial court erred in reaching the merits of the case after concluding there had not been a material and substantial change in circumstances. The appeals court found no authority supporting the father’s argument, and instead addressed whether the trial court abused its discretion in determining modification was not in the children’s best interest.
There was no evidence in the record regarding several Holley and Lenz factors. There was no evidence as to any exceptional or physical needs of the children; physical danger; programs available to either parent to promote the children’s best interest; education, health, and leisure opportunities; accommodation of any special needs or talents; extended family relationships; or the children’s desires. The appeals court therefore could not determine the court had sufficient information to grant the modification.
The father argued that the Lenz factor regarding the effect on visitation and communication with the noncustodial parent weighed heavily in favor of the modification. The court found, however, that his relationship with the children did not support the modification.
The trial court found the visitation provisions “adequately preserve[d] the relationship. . . “ The father testified he traveled on Fridays. He said he previously took Thursdays off to spend with the children, but did not explain why he did not now take Fridays off. The father acknowledged he would get the children every spring break and have longer summer visitation because of the relocation. The appeals court could not conclude the evidence conclusively established the requested modification was in the best interest of the children.
The appeals court also addressed the Lenz factor regarding the reasons for and against the move. The trial court found the mother had a good faith motive to relocate and her reasons supported relocation. The father had not challenged the finding.
The father also did not challenge the finding that there was some evidence he could move to Houston, addressing another Lenz factor. The father testified he was bilingual, had a degree, and had worked in multiple industries. He also testified he could transfer with his current employer, but it could be up to two years. The appeals court noted it was bound by the court’s finding because there was evidence supporting it.
The father had not shown the evidence established, as a matter of law, vital facts supporting the modification or that the finding was against the great weight of the evidence. The appeals court found no abuse of discretion in the court’s denial of the father’s modification petition.
Travel Expenses
The appeals court also affirmed the denial of the father’s request for allocation of travel expenses. A court may allocate increased expenses resulting from a change in residence. Tex. Fam. Code § 156.103. The trial court found the father “produced no credible evidence” of the alleged increase in expenses and that his “testimony was not credible.” The appeals court found no abuse of discretion in the court’s finding it did not have sufficient information to determine an increase in the father’s expenses when there was not any documentary evidence supporting the his testimony.
The appeals court affirmed the trial court’s order.
Call a Texas Custody Lawyer
It is common for a parent to one to relocate after a divorce. Courts consider a number of factors with regard to both relocation and modifications. If you are experiencing a custody dispute regarding relocation, a skilled Texas family law attorney can advise you on the factors and work with you to identify evidence to support your case. Set up a consultation with McClure Law Group at 214.692.8200.