In order to modify an order based on relocation, the party attempting to modify the prior order must show that there has been (1) a material and substantial change in circumstances and (2) it is in the best interests of the child to modify the order.
Factor Showing a Material and Substantial Change in Circumstances
A material and substantial change in circumstances can occur when a conservator wishes to move. However, not every move is considered a material and substantial change in circumstances.
To determine whether a move is material and substantial, courts consider the following factors:
- The distance between the parties after the relocation
A move of significant distance, may, by itself, constitute a material and substantial change of circumstances.
- The proximity, availability, and safety of travel arrangements.
“If air travel is involved, the court can take into account whether the child can fly without adult accompaniment, as well as how far the parties must travel to reach an airport.” Bates v. Tesar
- The quality of the relationship between the nonprimary conservator and the child.
- The nature and quantity of the child’s contacts with the nonprimary conservator.
- The possibility that the relocation will deprive the nonprimary conservator of regular and meaningful access to the child
- The impact of the move on the quantity and quality of the child’s future contact with the nonprimary conservator.
- The motive for the move and for opposing the move.
- The feasibility of preserving the relationship between the nonprimary conservator and the child through suitable visitation arrangements.
The court considered whether the relocating parent was willing to compromise on summer visitation so the child could spend more time with the nonprimary conservator. Franco v. Franco
Factors the Court Will Consider When Determining Whether it is in the Best Interests of the Child to Allow the Primary Conservator to Relocate
1. The relationship with and presence of extended family.
2. The presence of the child’s friends.
“After move to Austin, child made friends and participated in social activities with other children.” In Re D.M.D.
3. The presence of a stable and supportive environment for the child.
4. The primary conservator’s improved financial or job situation and ability to provide a better standard of living.
a. “Court erred when it ordered mother to make “extreme efforts” to find employment locally and denied mother’s request to relocate to South Carolina.” In re Cooper
b. “Move to Austin allowed child’s stepfather to take better-paying job, which allowed mother to stay at home with the child.” In re D.M.D.
5. The positive impact on the primary conservator’s emotional and mental state and its effect on the child.
6. The effect on the nonprimary conservator’s right to have regular and meaningful contact with the child.
a. “Texas public policy is to ensure continuing contact with good parents.” See Tex.Fam.Code 153.001(a)(1)
b. “Relocation away from a parent who visited infrequently would have far less impact on a child than relocation away from a parent who had possession every other week for several years.” Franco v. Franco
7. The nonprimary conservator’s ability to relocate to maintain the parental relationship.
8. The nonprimary conservator’s ability to adapt work schedule to be with the child.
9. The reasons for and against the move.
10. Whether the special needs or talents of the child can be accommodated.
11. Whether the move will enhance the primary conservator’s and the child’s health, education, and economics.
“After move to Austin, mother attended college and child attended exemplary-rated school and excelled academically.” In re D.M.D.
12. Comparison of education, health, and leisure opportunities.
“Compared homes, neighborhoods, and schools. Lenz v. Lenz
“Mother testified that children’s health and education in new location were better and daughter’s gymnastic facility was better.”
13. The negative impact of continuing hostility between the conservators.
14. The effect of the move on extended family relationships.
15. The child’s age, community ties, preferences and health and educational needs.