I. INTRODUCTION
Jurisprudence both Nationally and in Texas has undergone substantial changes in the last several years as it has dealt with so-called relocation litigation. Although other states have had a long history of the development of relocation issues, the issue has been slow to develop in Texas, primarily because of two factors in this state, in this author’s opinion.
1) First, it was not until 1987 that Texas adopted any right or ability of a trial court to appoint both parents as joint managing conservators absent agreement of the parties, and more importantly in 1995 created the now ubiquitous presumption that joint management be the “norm.” It was only then that courts and practitioners began to examine exactly what the appellation “joint” means.
Up until 1995, the entire bundle of rights, including the absolute, unfettered right to live wherever one wanted to with the children, was normally reposed in the sole managing conservator. By statue, the court was without power to divest the sole managing conservator of any right that necessarily accrued to the “keeper of the keys.” Any historical observation of Texas relocation law would have to date from the implementation of the 1995 reform forward. Meanwhile, other states, which previously recognized that the rights and duties of parenthood could be separated and “divvied” up between parents (or other conservators), began to recognize that paramount among the rights and duties “divvied” up was the right to control whether children remained in a particular area. For an excellent analysis of the statutory and case law development nationwide, see our own Ted Terry’s exhaustive and compelling article “Relocation: Moving Forward, or Moving Backward?” available on line at www.aaml.org.
2) The second factor that has affected the issue of relocation in this state, in the author’s view, is our state’s unique right to a jury trial on (ever evolving) matters involving custodianship, residence determination, and other related matters in child related cases, the right to jury determination regarding such matters itself being of a chameleon-like nature.
Texas’ wild west approach that a jury should decide custodial issues, and the winner-take-all perspective that attitude fosters, has resulted in few Texas appellate decisions regarding relocation, since relocation so frequently results in a full-bore fight to the finish over controlling all custody issues. By the time the issues are framed at an appellate level, the case frequently has become merely a traditional “custody” battle.
As we shall see, the more things change, the more they become the same. First, let’s look at our present statutory scheme and the significant changes wrought by the 78th Texas Legislature (when it wasn’t on vacation in lovely and scenic Ardmore, Oklahoma hiding out from the Homeland Security Forces).
II. The Pertinent Provisions of the Texas Family Code
a. public Policy of the State
Paramount in the review of Texas Family Law as it relates to relocation litigation, and frequently cited in Texas opinions, is Texas Family Code §153.001(a) and §153.002. (All statutory references in this article are to the Texas Family Code unless otherwise delineated.)
§153.001(a) reads:
“Public Policy.
(a) The public policy of this state is to:
(1) assure that children will have frequent and continuing contact with parents who have shown the 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.”
§153.002 reads:
“Best Interest of Child.
The best interest of the child shall always be the primary consideration of the court in determining the issues of conservatorship and possession of and access to the child.”
These sections have remained completely intact as drafted since their original promulgation, and as such are required guiding principles of our law. Of particular note, as we shall later see, the paramount emphasis of these two sections is upon the needs and policy considerations of the child, rather than those of the parent. The Texas Supreme Court has recognized the importance and controlling nature of these sections in its only written opinion, (one “of first impression”) on relocation, Lenz v. Lenz, 79 S.W.3d 10 (Tex. 2002), at p. 14.
B. Duty of Trial Court Regarding Domicile Restriction
At the rendering of the initial custody determination in Texas, courts have been required to determine which party is designated the right to determine the primary residence of the child, whether there will exist a geographic domicile restriction imposed on that party and if so what county and its contiguous counties that restriction will be. §153.133(b). §153.133(a) has also permitted the parties to contract as to a geographic area. As amended this session, §153.133(b) no longer restricts the area for the court to impose to “a county and any contiguous county” as it previously had [although the “any contiguous county” designation had been judicially interpreted away, see Bates v. Tesar, 81 S.W.3d 411 (Ct.App.—El Paso, 2002, no writ)], but now permits restriction to any geographic area. As amended §155.133(a)(1) reads:
“(b) In rendering an order appointing joint managing conservators, the court shall:
(1) designate the conservator who has the exclusive right to determine the primary residence of the child and:
(A) establish, until modified by further order, a geographic area within which the conservator shall maintain the child’s primary residence; or
(B) specify that the conservator may determine the child’s primary residence without regard to geographic location;”
C. Texas Modification Statute
Modification of a previous order to permit, or prohibit relocation can arise in either of two scenarios. Either the previous order will have a residence restriction, and the motion will seek to remove the restriction, or there will be no restriction and the modification will seek to impose one. No restriction could arise in the situation of (1) a sole managing conservator having been previously appointed, (2) a joint managing conservator having been appointed with a statement that no restriction exists, or, in older orders, (3) a joint managing conservator without addressing a restriction either way. Keep these various scenarios in mind as we examine the Texas statute on modification of orders as it relates to a domicile restriction.
The Texas law on modification, like most other significant legislation in custody litigation, has undergone major changes over the years.
Historically, Texas law has tried to ensure stability and continuity for children by imposing significant hurdles to modifications of managing conservatorship. Jenkins v. Jenkins, 16 S.W.3d at 478 (Tex.App.—El Paso, 2000). When the Family Code was enacted in 1973, modification of sole managing conservatorship was measured by the now familiar test of a material and substantial change in circumstances, coupled with a best interest test. In 1975, an additional prong was added, requiring a finding that retention of the existing managing conservator would be injurious to the welfare of the child. Twenty years later, the “injurious retention” element, as it had come to be known, was abandoned. Until recently, §156.101 provided that a court could replace one sole managing conservator with another if the circumstances of the child, sole managing conservator, or possessory conservator had materially and substantially changed, and the appointment of a new sole managing conservator would be a positive improvement for the child. A sole managing conservatorship could be replaced with a joint managing conservatorship upon a showing that the circumstances of the child or sole managing conservator had materially and substantially changed since the rendition of the order; retention of the sole managing conservatorship would be detrimental to the welfare of the child; and appointment of the parents as joint managing conservators would be a positive improvement for and in the best interest of the child. See TEX.FAM.CODE ANN. §156.104 (Vernon 1996). The terms of a joint managing conservatorship could be modified upon a showing of changed circumstances or a showing that the order had become unworkable or inappropriate provided the modification would be a positive improvement for and in the best interest of the child. TEX.FAM.CODE ANN. §156.202. Finally, a joint managing conservatorship could be replaced with a sole managing conservatorship if the child’s present living environment posed a danger to the child’s physical health or significantly impaired the child’s emotional development; there had been a substantial and unexcused violation of the existing order, or the circumstances of the child or one or both of the joint managing conservators had so materially and substantially changed that the order had become unworkable or inappropriate; and the appointment of a sole managing conservator would be a positive improvement for and in the best interest of the child. TEX.FAM.CODE ANN. §156.203.
Major revision occurred in the 2001 Legislative session. Effective September 1, 2001, Chapter 156 now provides a set of uniform standards for the modification of conservatorship and eliminates all the old scenarios. Under the new statute, §156.101, most modifications will be based upon a showing that (1) modification would be in the best interest of the child and (2) the circumstances of the child, a conservator, or any other party affected by the order have materially and substantially changed since the date of the rendition of the order. This two-prong test applies to modifications of sole managing conservatorship, joint managing conservatorship, and possessory conservatorship. Noteworthy is the fact that both the long-standing “positive improvement” prong and the “detrimental retention” prong necessary to replace a sole managing conservatorship with joint managing conservatorship have been deleted.
D. Right to Jury Determination
Like almost everything else that has changed since the 1987 revision making joint managing conservatorship available, the law concerning what a jury can determine has evolved with time. In 1995, the legislature crafted §153.131 of the Texas Family Code which created a rebuttable presumption that parents should be appointed as joint managing conservators absent a history of family violence or evidence that such an appointment would not be in a child’s best interest because it would somehow impair the child’s physical or emotional welfare.
Almost overnight a major question arose regarding whether a jury or the Court, would determine which joint managing conservator could have primary possession and domicile, a right mandated to be declared in the custody order by §153.133. Stated another way, a real question arose regarding whether the designation of the primary residence is to be left to the trial court as a term of joint managing conservatorship, or whether that issue was still decided by a jury when empanelled. In the opinion of many, including the Family Law Council, a statutory construction that left the decision to the Court would virtually eliminate the utility of a custody jury trial since the Texas Supreme Court had declared that terms and conditions of access was within the province of the trial judge in Martin v. Martin, 776 S.W.2d 572 (Tex., 1989).
A 1997 amendment to §105 attempted to settle this issue by declaring that the party having “primary residence” of the child was for the jury to decide, which decision if made by the jury could not be contravened by the trial court. Problems continued to crop up, however.
Several attempts to correct the situation by amendments to §105.002(c) have taken place, always refining the ultimate right in Texas to a jury submission of the designation of the primary custodial parent despite inroads by trial and appellate courts to limit or eliminate the right. Initially drawn to say that a court could not contravene a jury determination as to who should have “primary possession”, questions concerning interpretation arose as to the meaning of that term, and ultimately whether a judge could impose geographic residence restrictions on the “primary” parent once chosen by the jury so as to effectively destroy the effect of a jury determination regarding custody. The result is the newly passed revision of Texas Family Code §105.002(c) which reads in its present form:
“(c) In a jury trial:
(1) a party is entitled to a verdict by the jury and the court may not contravene a jury verdict on the issues of:
(A) the appointment of a sole managing conservator;
(B) the appointment of joint managing conservators;
(C) the appointment of a possessory conservatory;
(D) the determination of which joint managing conservator has the exclusive right to designate the primary residence of the child;
(E) the determination of whether to impose a restriction on the geographic area in which a joint managing conservator may designate the child’s primary residence; and
(F) if a restriction described by Paragraph (E) is imposed, the determination of the geographic area within which the joint managing conservator must designate the child’s primary residence; and
(2) the court may not submit to the jury questions on the issues of:
…
(C) any right or duty of a conservator, other than the determination of which joint managing conservator has the exclusive right to designate the primary residence of the child under Subdivision (1)(D).” (emphasis added).
III. Texas Relocation Case Law
A. Recent Significant Cases
Some discussion of the most recent primary Texas cases that have delved into relocation is helpful. This paper will discuss the last three reported cases.
1. Bates v. Tesar, 81 S.W.3d 411 (Tx.App.—El Paso, 2002, no writ)
Original decree named mother (Bates) as sole managing conservator of children with all incumbent rights under the Texas Family Code. Father (Tesar) filed motion to modify pursuant to §105.105(a) (since repealed, now §105.201) seeking appointment as joint managing conservator with Mother and sought domicile restriction to the county of his and her recent residence (Dallas County) pursuant to §154.134(b)(1)(A). Both requests the trial court granted, even though Mother had moved (without the required notice to Father) to Port Lavaca. The El Paso Court of Appeals, Justice Ann McClure, held that the trial court had not abused its discretion in granting the requested modification and affirmed.
Facts: Bates was sole managing conservator and by statute had the exclusive right to establish the primary residence of the children. The decree required thirty (30) days advanced notice of a move. Bates gave the notice on May 23, 1999, and on June 8 provided “our new address” and “new phone number.” On June 11 she indicated she was moving on June 14. On June 14 Tesar obtained a temporary restraining order prohibiting Bates from changing the “residence or abode” of the children. When served Bates already had her van packed with “a few remaining items,” but the moving truck had already arrived in Port Lavaca, a town having a traveling distance of 362 miles, and the only flights available requiring time-consuming travel. Bates’ position at the August 27 temporary hearing was that the children had already moved, so the temporary restraining order was a nullity. Trial court ordered Bates to return children to Dallas County and enroll them in school there by October 4. She did not. After testimony at the final, the trial court ruled as indicated and filed findings of facts and conclusions of law that supported the decision. Among other findings, the Trial Court found that Bates failed to give the proper notice; that Tesar and the children had a close and loving relationship; that Tesar was involved in many of the children’s activities, that he exercised possession frequently, though not as frequently as the decree permitted; that the distance involved would detrimentally affect Tesar’s involvement and relationship with the children; and concluded that an order requiring the children to remain domiciled in Dallas County would be in the best interest of the children’s physical, psychological and emotional needs.
Analysis: Using a “hybrid approach” to the sufficiency of evidence/abuse of discretion test previously enunciated in Jenkins v. Jenkins, 16 S.W.3d at 473, 478 (Tex.App.—El Paso, 2000) the Court held that there was sufficient evidence to support the trial court’s decision and that the decision was arrived at in a “reasonable manner” based on the evidence both pro and con the decision. As to the burden of proof on relocation, the Court, relying inter alia, upon Ted Terry’s excellent treatise previously cited, first analyzed the approach of many of our sister states, and proclaimed that many states placed the burden on the moving party based on the public policy concept enunciated in our Family Code, i.e. that courts are required to foster frequent and meaningful contact between each parent and the children. The Court also noted that many states place the burden on the left behind parent acknowledging that a happy and financially sound primary parent fosters a better child-rearing atmosphere. One state, New Mexico, has a policy that neither parent has the burden but the decision is left entirely to the trial court without controlling principles. The Court noted that the trend was apparently radiating away from imposing the burden on the relocating party. The Court then noted that the burden in Texas is on the Movant by statute, and in the instant case the Movant was Bates, the left behind parent. After citing numerous “factors” for the trial court to consider, set forth later in this paper, the Court determined that it was no abuse of discretion for the trial court to order the children relocated to Dallas County.
In arriving at the decision, the Court considered and rejected two “constitutional” arguments advanced by Bates as prohibiting the trial court’s determination:
a. Infringement on Parental Rights
Bates advanced the argument that the domicile restriction violates the United States Constitutional parental protections recognized by the U.S. Supreme Court in Troxel v. Granville, 530 U.S. 57, 120 Sct. 2054, 147 L.Ed.2d 49 (2000).
Bates argued that the state is prohibited from infringing on the fundamental right of a parent to act in her children’s best interests, which acts are presumed to coincide with the children’s best interest unless she is shown to be an “unfit parent.” She argued that to retroactively place this restriction on her violated the res judicata affect of the prior order in violation of the due process clause of the 14th Amendment. The Court analyzed the federal cases involving such contention and noted that previous Federal cases had involved a circumstance pitting a non-parent against a parent, not, as here, a dispute between parents. In rejecting Bates’ argument, the Court held that the unique continuing jurisdiction of family courts in Suits Affecting the Parent-Child under Texas law provides a clear ability of the court to continue acting in the best interests of children even after a prior order, therefore minimizing the res judicata effect of a prior order.
b. Infringement on Right to Travel
Bates also argued that the restriction infringed on her constitutional right to travel. The Court analyzed several Texas cases, including, dubiously as we shall see, Lenz v. Lenz, 40 S.W.3d 111 (Tex.App.—San Antonio, 2000) [overruled by the Supreme Court June 6, 2002], and Jaramillo v. Jaramillo, 823 P.2d 299 (N.M. 1991), and set forth a “balancing test” for determination of the issue. Citing Jaramillo, the Court recognized that although one could say that Bates’ right to relocate is unaffected, only the children’s, by requiring the children to remain behind, such a construction would operate to chill Bates’ exercise of her right to travel by seriously eroding her own psychological and physical relationship with her children. The Court went on to cite and apply the following rationale enunciated by Washington and Wyoming Appellate Courts:
“Primary residential care may be conditioned upon a parent remaining in a particular locale only if the detriment to the child outweighs the advantages of the move and only if the best interests of the child would be better served by remaining in the geographical locale in the primary residential care of the other parent, than by relocating with the parent who would otherwise be designated the primary residential parent.
“In re Marriage of Sheley, 78 Wash.App. 494, 495, 895 P.2d 850, 852 (Wash.App.1995). Wyoming has followed suit:
“The right to travel freely throughout the state is a necessary and fundamental aspect of our emancipated society, and it is retained by the citizens. It indeed would be incongruent to identify a fundamental right to travel protected by the Constitution of the United States with respect to interstate travel, and yet to conclude that the right to travel intrastate is inhibited…. The right to travel enjoyed by a citizen carries with it the right of a custodial parent to have the children move with the parent. This right is not to be denied, impaired, or disparaged unless clear evidence before the court demonstrates another substantial and material change of circumstances and establishes the detrimental effect of the move upon the children.
“Watt v. Watt, 971 P.2d 608, 615-16 (Wyo.1999).
The El Paso Court then went on to say:
“Here, the trial court conducted such a balancing test and determined that the economic facts recited by Shannon in asking that the children be allowed to remain in Port Lavaca were outweighed by the importance of the children having frequent and continuing contact with Richard.”
Bates, clearly, is must reading in any relocation case.
2. Lenz v. Lenz, 79 S.W.3d 10 (Tex. 2002), at 15-19
On the same day that Bates was decided the Supreme Court decided its only case on relocation since presumptive joint managing conservatorship became law. Lenz delineated by the court as a “case of first impression,” reached the Supremes after a curious set of circumstances following a jury verdict and a judgment NOV which had been sustained on appeal by the Dallas Court.
Facts: Romy Lenz and Rudi Lenz, both German citizens, married in Germany, had one son in Germany, moved to Arizona, had a second son, then entered a stipulated joint custody agreement, with Romy having the equivalent of primary possession, and a stipulation that neither parent would relocate from Texas, their contemplated home state. They both moved to Texas and divorced, incorporating the custody agreement. Romy later became homesick for Germany and filed a motion to modify to be granted the exclusive right to decide domicile (her only choice under Texas law) and sought a jury determination. Both boys held dual American and German citizenship as did their parents.
Upon trial, a jury determined Romy had proven grounds for modification and granted her the exclusive right to determine residence. All evidence established that if she were granted such right Romy intended to exercise it by returning to Germany. The trial court, however, by its “Judgment NOV,” imposed on Romy a more stringent domicile restriction than had previously been agreed to, that of Bexar County, Texas. On appeal, the Dallas Court found that the imposition of a domicile restriction pursuant to Texas Family Code §153.133(1)(A) was a term and condition of possession pursuant to Texas Family Code §105.133(2)(B) and therefore not an issue upon which the law allowed a binding jury determination pursuant to Texas Family Code §105.002. Absent abuse of discretion, which the Court failed to find, the Dallas Court found that the trial court could lawfully impose the restriction and affirmed.
Analysis: The Supreme Court accepted the case, and in the opinion, authored by Justice Hankinson, determined that the jury’s decision must be upheld if (1) Romy produced more than a scintilla of evidence in support of the modification, and (2) the jury’s determination that Ronny would have the “right to determine residency” implicitly included the right to do so wherever she chose [i.e. without regard to geographic restriction, under Texas Family Code §153. 133(1)(A)], or whether such right could be subject to further residency restriction by the trial court [Texas Family Code §153.133(1)(B)].
In reviewing the first issue, the Supreme Court, similarly and largely with the same precedents cited in Bates v. Tasar, supra, examined the state of U.S. law and concluded that Romy’s evidence, including evidence that the children had dual citizenship; that they had extended family in Germany; that Romy’s motives for the move were an impeding marriage to a German citizen where she intended to locate and excessive isolation and loneliness in Texas; that the children would have similar schools, extracurricular activities and friends; that Romy volunteered additional visitation; and that Rudi was also from Germany and could possibly relocate without substantial effect on his occupation presented sufficient evidence of “best interest” to be more than a scintilla of proof justifying modification.
With regard to the second issue, the court analyzed the legislative history of §105.002 and determined that the legislature intended that allowing a jury to determine which parent could “establish” the primary residence carried with it the right to do so without restriction, and reversed the Dallas Court concluding that the trial court abused its discretion by imposing the restriction in view of the jury’s answer. (Note: as discussed previously, §105.002 has now been amended to confirm such jury right.)
3. Knopp v. Knopp, ___S.W.3d ___; 2003WL2102557 (Tx.App.—Houston[14th Dist] 2003
Jayne and Chuck divorced in 1995, Jayne was appointed sole managing conservator. In November, 2000 Jayne moved to California, and in December filed a motion to modify to restrict Chuck to supervised possession only in California. Chuck countered for joint managing conservator with primary, both on temporary and on final. The trial court denied Chuck’s relief on temporary. Chuck then amended to be named sole managing conservator. At bench trial in January, 2001 the trial court appointed Chuck sole managing conservator and Jayne possessory. On appeal, the Houston court affirmed, using the hybrid sufficiency of evidence/abuse of discretion standard enunciated in Jenkins, supra. Without belaboring the facts, and noting, as did the Houston court, that each case is necessarily a “fact intensive inquiry,” the trial court utilized the criterion factors set forth in Bates, supra, to determine whether a material and substantial change had occurred by virtue of the move, relying to a great deal upon the fact that where “the custodial parent <had> move<d> a significant distance, a finding of changed circumstances may be appropriate,” though not as a matter of law, citing Jaramillo, supra, and determined that a substantial and material change had occurred.
The court then analyzed the second requirement in modern Texas custody modification relocation cases, the “best interests” issue set forth in Texas Family Code §156.101. The Houston Court quoted the Lenz factors and those set forth in Holley v. Adams, 544 S.W.2d 367, 371-72 (Tex.1976) in determining that so long as there is legally and factually sufficient evidence to support the court’s determination, the appellate court is without authority to disturb the trial court’s judgment and affirmed the trial court judgment.
Practitioners should observe that glaring in the opinion is the observation by the Court that Jayne left and moved to California with the children without a word to Chuck of her intent to do so, and with no real motive articulated other than her self- serving declaration that she thought there might be more work in Santa Barbara.
B. Applying the Lessons From Recent Texas Cases
Several points can be taken from these cases which shall be explored.
1. What must be proven
Clearly the issue that must be addressed in relocation cases in Texas is whether the statutory requisites of our present §156.101 have been met, i.e. have the circumstances of the child or counservator materially and substantially changed, and is a modification to either permit, or prohibit, a move in the best interest of the child? The easier of the two issues for the courts to address has been the material and substantial change issue.
a. Material and substantial change of circumstances
Texas courts have consistently articulated that the fact that a move is contemplated or even has occurred does not in and of itself define a change of circumstances, see for example, Bates v. Tesar, 81 S.W.3d 411,430 (Tex.App.—El Paso 2002, no pet.) “while relocation, regardless of distance, is not sufficient to establish a material and substantial change in circumstances,” it further observed that “if the custodial parent moves a significant distance, a finding of changed circumstances may be appropriate.” Id.; see also Jaramillo v. Jaramillo, 113 N.M. 57, 823 P.2d 299, 209 n. 9(1991)(“We do not hold that a proposed relocation constitutes a substantial and material change in circumstances as a matter of law, but it is difficult to imagine an instance in which a proposed relocation will not render an existing parenting plan or custody-and-visitation arrangement un-workable.”) See also Knopp v. Knopp, ___S.W.3d ___; 2003WL2102557 (Tx.App.—Houston[14th Dist] 2003) (involving a move from Houston to Santa Barbara, California). However, the distance of the move must be taken into account, and no reported case has failed to determine that a significant move constitutes a substantial change in circumstances. In Bates, supra, quoted with approval by the Knopp court, Ann McClure listed the following factors to be examined in determining whether a material and substantial change had occurred or would occur:
1. the distance involved;
2. the quality of the relationship between the non-custodial parent and the child;
3. the nature and quantity of the child’s contacts with the non-custodial parent, both de jure and de facto;
4. whether the relocation would deprive the non-custodial parent of regular and meaningful access to the children;
5. the impact of the move on the quantity and quality of the child’s future contact with the non-custodial parent;
6. the motive for the move;
7. the motive for opposing the move;
8. the feasibility of preserving the relationship between the non-custodial parent and the child through suitable visitation arrangements; and
9. the proximity, availability, and safety of travel arrangements.
b. Best Interests
The second prong in determining whether to permit a move, or prohibit one, is the traditional “best interest” one. Although we all know this is an undefined and difficult term to identify quantitatively, some help has been provided. The Knopp, supra, borrowed from three Texas cases:
(1) “In addressing the best interest of the child standard in the context of a relocation case, the Texas Supreme Court in Lenz considered the following facts:
1. the relationship with and presence of extended family;
2. the presence of friends;
3. the presence of a stable and supportive environment;
4. the custodial parent’s improved financial situation and ability to provide a better standard of living for the children;
5. positive impact on the custodial parent’s emotional and mental state, with beneficial results to the children;
6. the non-custodial parent’s right to have regular and meaningful contact;
7. the ability of the non-custodial parent to relocate;
8. the ability of the non-custodial parent to adapt his work schedule to be with the children.” 79 S.W.3d at 15-19.
(2) “The Court in Bates similarly considered the following factors:
1. the degree to which the custodial parent’s and the child’s life may be enhanced economically, emotionally, and educationally by the move;
2. a comparison of the quality of lifestyle;
3. the negative impact of any continued hostility between the parents;
4. the effect on the move on extended family relationships; and
5. the child’s age, community ties, health and educational needs, and preferences.” 81 S.W.3d at 434 [citing Tropea v. Tropea, 87 N.Y.2d 717, 642 N.Y.S.2d 575, 665 N.E.2d 145, 151 (1996); In re Marriage of Smith, 172 Ill.2d 312, 216 Ill.Dec. 652, 665 N.E.2d 1209, 1213 (1996)].
(3) And from Holley v. Adams, 544 S.W.2d 371-2 (Tex. 1976), the Knopp court pulled these factors near and dear to Family Law Practitioners:
“1. the desires of the child;
2. the emotional and physical needs of the child now and in the future;
3. the emotional and physical danger to the child now and in the future;
4. the parental abilities of the individuals seeking custody;
5. the programs available to assist these individuals to promote the best interest of the child;
6. the plans for the child by these individuals or by the agency seeking custody;
7. the stability of the home or proposed placement;
8. the acts or omissions of the parent which may indicate that the existing parent-child relationship is not a proper one;
9. any excuse for the acts or omissions by one parent.”
The trend in most jurisdictions is away from “bright line” standards, and set rules, (see Terry, “Relocation: Moving Forward or Moving Backward?” supra). It is further noted by the author that Texas has been identified as a state with no clear standards. Comment: Relocation Standards and Constitutional Consideration 1998 “Journal of the American Academy of Matrimonial Lawyers” Vol. 15, 1998, p. 243.
C. Burden of Proof
An excellent discussion as to the burden of proof in nationwide relocation cases has been clearly enunciated by Justice McClure in Bates, supra. It is here quoted in its entirety:
“Our sister states have adopted differing schemes with regard to relocation litigation, some by statutory presumption, some by judicial construction. A few have concluded that “it serves neither the interests of the children nor the ends of justice to view relocation cases through the prisms of presumptions and threshold tests that artificially skew the analysis in favor of one outcome or another.” Tropea v. Tropea, 87 N.Y.2d 727, 740, 665 N.E. 2d 145, 151, 642 N.Y.S.2d 575, 581(1996); see also Jaramillo v. Jaramillo, 113 N.M. 57, 59, 67, 823 P.2d 299, 301, 309 (N.M. 1991) (refusing to create a presumption in favor of either the relocating parent or the resisting parent; party seeking modification has burden to demonstrate existing arrangement is no longer workable).
For an excellent discussion and analysis of relocation litigation, see Edwin J. (Ted) Terry, Jr., James A. Vaught, Karl E. Hays, and Jennifer L. Tull, Dealing with Mobile Parents: Domicile Restrictions and Relocation, 3 STATE BAR OF TEXAS ADVANCED FAMILY LAW COURSE 69 (2001).
Other states require the custodial parent to obtain judicial approval prior to relocation, thus placing the burden of proof on the custodial parent to prove that the move is in the best interest of the child. Stout v. Stout, 560 N.W.2d 903, 913 (N.D. 1997); In re Marriage of Smith, 172 Ill.2d 312, 320, 216 Ill.Dec. 652, 655-56, 665 N.E.2d 1209, 1212-13 (1996); Effinger v. Effinger, 913 S.W.2d 909, 912 (Mo.App.E.D.1996); Carter v. Schilb, 877 S.W.2d 665,667 (Mo.App.W.D. 1994). Still others have adopted a presumptive right of the custodial parent to change the residence of a child so long as removal would not be detrimental to the child and thus have placed the burden of persuasion on the non-custodial parent in a modification proceeding. In re Marriage of Burgess, 13 Cal.4th 25, 35, 37, 913 P.2d 473, 480, 482, 51 Cal.Rptr.2d 444, 451, 453 (1996). Colorado has established a presumption in the custodial parent’s favor which is triggered once the custodial parent presents a prima facie case demonstrating a sensible reason for the move; the burden then shifts to the non-custodial parent to establish that the move is not in the best interest of the child. In re Marriage of Francis, 919 P.2d 776, 784-85 (Colo.1996). The Minnesota Supreme Court has found an implicit statutory presumption that removal is permitted and requires the party opposing removal to present a prima facie case that relocation is not in the best interest of the child and would endanger the child’s health and well-being. Silbaugh v. Silbaugh, 543 N.W.2d 639, 641 (Minn.1996); Auge v. Auge, 334 N.W.2d 393, 396-97 (Minn.1983). Washington places the burden on a non-residential parent who seeks a domicile restriction. In re Marriage of Sheley, 78 Wash.App. 494, 503, 895 P.2d 850, 856 (Wash.App.1995). Tennessee permits the custodial parent to remove the child from the jurisdiction unless the non-custodial parent can show that the motive for the relocation is intended to defeat visitation rights or the move evidences such bad judgment and is so potentially harmful to the child that custody should be changed. Aaby v. Strange, 924 S.W.2d 623, 629 (Tenn.1996).
As the Jaramillo court noted, there are two schools of thought on the relocation issue. One commentator has suggested that it is rarely in the child’s best interest to change geographical locations following divorce, regardless of the fact that the primary conservator feels “more self-satisfied after the move.” P. Raines, Joint Custody and the Right to Travel: Legal and Psychological Implications, 24, J.FAM.L. 625, 656 (1985-86). In her view, there should be a presumption that relocation will be contrary to the child’s best interest and the relocating parent should bear the burden of proving that the move will be in the child’s best interest. On the other end of the spectrum is Professor Judith S. Wallerstein, PhD, who believes that the courts should recognize a presumptive right of the custodial parent to move with the child and require the non-custodial parent to demonstrate that the move will be harmful to the child. See Judith S. Wallerstein and Tony J. Tanke, To Move or Not to Move: Psychological and Legal Considerations in the Relocation of Children Following Divorce, FAM.L.Q., Vol. 30 No. 2, Pg. 305, 314015 (Summer 1996). Although Wallerstein appeared in Burgess as amici curiae on appeal rather than as a testifying expert at trial, the majority opinion adopted her viewpoint. See In re Burgess, 51 Cal.Rptr.2d 444, 913 P.2d at 482. In any event, the divergent views of these commentators permeate many of the relocation decisions.
The Texas Family Code is silent on the subject. In the absence of legislatively imposed statutory presumptions in relocation cases, we conclude that Richard, as the moving party, was required to prove the modification.”
The issue, as previously discussed, can arise in one of two circumstances: one in a situation where the Movant is attempting to void a court imposed restriction on docmicle, and the other in a situation where no restriction exists and the Movant is attempting to impose one. The first will be because of a joint managing conservatorship decree with a geographic restriction pursuant to §153.134(b)(1)(A) or its predecessor; the other presumably because the Movant has either received the notice required by §105.006 (60 days or as soon as knows) or learns that the respondent will move or has already moved with the children, a really bad idea considering Texas cases on relocation as hereinafter discussed.
D. Appeal
The following is a chart of the cases that have been decided and reported since 1999 on relocation. Only Seidel was reversed on an abuse of discretion (because the trial court erroneously conditioned mother’s unlimited right to remove the children in the future on father’s payment of quasi-child support in violation of Texas Family Code §154.011). It is intended to help the practitioner compare the ultimate outcomes of the cases for aid in addressing the relocation issue:
| Date |
Case |
Primary
Parent |
Prior Order Have Domicile Restriction? |
Did Primary Parent Violate Restriction or Fail to Give Notice |
Trial Court or Jury Grant or Deny Relocation |
Affirmed or Reversed on Appeal? |
Court also Change Primary Custodianship? |
|
7/15/99 |
Seidel[1] |
JMC |
Yes (Dallas or Collin) |
No |
Deny |
R |
No |
|
4/6/00 |
Jenkins[2] |
JMC |
Yes (House address) |
Yes |
Deny |
A |
Yes |
|
2/14/02 |
Franco[3] |
Neither |
Yes (El Paso) |
No |
Grant |
A |
No |
|
6/6/02 |
Lenz[4] |
JMC |
Yes (Texas) |
No |
Grant |
A |
No |
|
6/6/02 |
Bates[5] |
SMC |
No |
Yes |
Deny |
A |
No |
|
8/30/02 |
Echols[6] |
JMC |
Yes (Texas) |
No |
Grant |
A |
No |
|
9/13/02 |
CRO[7] |
JMC |
No |
No |
Deny |
A |
No |
|
6/22/03 |
Knopp[8] |
SMC |
No |
Yes |
Deny |
A |
Yes |
What can be deciphered from these cases is that the abuse of discretion/sufficiency test is virtually impossible to overturn on appeal so you had better win at trial. Also apparently near fatal at the trial level is a decision by the party with the duty to notify or with the restriction to move to do so without the required permission or notice. Courts have routinely held that decision against the mover, and the trial court has been consistently upheld on appeal.
V. CONCLUSION
A. Philosophy
These cases raise one very fundamental philosophical question: Is a child better off with a happy primary parent and limited access to the non-primary parent? or with an unhappy parent and frequent access to the non-primary parent?
In reviewing every case in which denial of a move was the result at trial, each involved a situation where the primary parent moved without adequate notice to the non-primary or in direct contravention of an existing restriction.
Only one case has been reversed for abuse of discretion (Seidel v. Seidel, 10 S.W.3d 365 (Tex.App.—Dallas, 1999)).
B. Practical tips
Procedurally, what do you do if you are representing the non-primary parent and you learn that the primary is planning on moving? It will depend on the status of your order.
1. If you represent the non-primary who gets notice that a move is imminent or the other side has already moved:
a. Get your filings in order
(1) File a Motion to Modify seeking sole managing conservatorship or alternatively, joint managing con-servatorship with primary; seek a temporary restraining order, followed by a temporary injunction after hearing, prohibiting a move until custody is determined; alternatively, request a residency restriction be imposed pursuant to Texas Family Code §153.133 on final;
(2) File a Motion for Contempt if proper notice hasn’t been given; and
(3) Pay a jury fee
b. Gather and present all evidence you can muster regarding the quality of the relationship between your client and the children, his or her involvement with them, their ties to the community, their friends and family ties in the locale, the uniqueness of the area to the children, the ulterior motives, or lack of appropriate motives for the move; how much notice, if any, you have been given; whether the move violates a geographic restriction; the time and inconvenience of travel and its effect (psychological testimony can help here); what the children will be deprived of by removal; the danger of the new setting or influences there; and any other factors affecting the children;
2. If you are primary and desire to move:
a. Give all notices required under the order;
b. If there is a geographic restriction, file your motion before you move and attempt to get the court to lift the restriction temporarily and permanently;
c. Gather evidence to support your desire: motive is a key – establish a financial, professional, or marital imperative; establish the job lined up, marriage planned, or the velocity of the professional move; downplay the relationship between the children and the non-primary, area, school, and friends; be prepared to establish the support base, school, activities, and relationships available at the new location; emphasize inappropriate behavior, parental abilities and modeling of non-primary; know the distance, travel plans, available transportation; and be prepared to establish your commitment to participate in travel, make telephone access available, and fashion additional possession alternatives to a standard possession order.
C. Heading Off at the Pass:
Perhaps at the time of the original order is the time to consider a possible move.
Start by trying to convince the court to impose a geographic restriction in the original order.
The once predominate imposition of a geographic limitation initiated in Dallas to Dallas and contiguous counties has been declared unlawful in an unpublished opinion cited in Bates, supra; Jenkins v. Jenkins, No. 05-98-01849CV (Tx.App.—Dallas, May 15, 2001) (not designated for publication) 2001 WL 507221. Some courts generally restrict, however, and some do not. Some courts will still listen when you ask for a restriction.
Perhaps you can convince a trial court reluctant to do so to impose a restriction. Times are changing and this is clearly the next battleground. Offer evidence to the court concerning how a substantial move would affect your client’s relationship with the children. Cite some of the cases from this and other jurisdictions if it is really important to your client. Encourage him or her to exercise all the access he has available and to get involved with their lives.
Lastly, the author has prepared a checklist for you to give a client faced with this situation to aid your preparation. The checklists are available on disk, or you may e-mail your request to woody@dwoodlaw.com. Use them. And good luck!
[1] Seidel v. Seidel, 10 S.W.3d 365 (Tex.App.—Dallas, 1999)
[2] Jenkins v. Jenkins, 16 S.W.3d at 473, 478 (Tex.App.—El Paso, 2000)
[3] Franco v. Franco, 81 S.W.3d 319 (Tex.App.—El Paso, 2002)
[4] Lenz v. Lenz, 79 S.W.3d 10 (Tex. 2002), at 15-19 [overruling Lenz v. Lenz, 40 S.W.3d 111 (Tex.App.—San Antonio, 2000, pet. granted]
[5] Bates v. Tesar, S.W.3d 411 (Ct.App.—El Paso, 2002) no writ
[6] Echols v. Olivarez, 85 S.W.3d 475 (Tex.App.—Austin, 2002)
[7] In re CRO and DJO, 96 S.W.3d 442 (Tex.App.—Amarillo, 2002)
[8] Knopp v. Knopp, ___S.W.3d ___; 2003WL2102557 (Tx.App.—Houston[14th Dist] 2003)