I don’t want the other parent to move, can I prevent him/her from moving? I want to move but I have a geographic restriction. Will I be permitted to move?
The court has the authority to restrict the residence of the children to a geographic area. If a possession order is in effect, the primary conservator should first consult the order to determine whether a geographic restriction has been imposed.
Whether a geographic restriction has been imposed dictates the parent responsible for filing the modification. If a geographic restriction has not imposed, the parent seeking the restriction must petition the court. If a geographic restriction has been imposed, the parent seeking permission to move should file a modification to lift the geographic restriction. In either case each parent has a duty to give notice of any change of residence at least 60 days in advance of the move, if known in advance, or as soon as the move is contemplated if less than 60 days, but no later than within 5 days after the move.
In no circumstance should a parent who is subject to a geographic restriction attempt to move without modifying the order. A parent who attempts to move in violation of the geographic restriction could be subject to contempt and/or forfeiture of the right to designate the residence of the children. A parent who opposes the move the custodial parent should file a motion for enforcement and/or a petition to modify conservatorship as soon as possible after learning that a parent has given notice of his or her intent to move in violation of the geographic restriction.
The parent must show that there has been a material change in circumstances and that the move is in the best interests of the child. Texas Courts have held that “a material and substantial change can occur when a conservator wishes to move.” Bates v. Tesar, 81 S.W.3d. 411,430 (Tex. App.—El Paso, 2002, no pet.). However, not every move will constitute a material and substantial change. This is a fact intensive question for the Court and the Court is charged with considering the following factors to determine whether the move is a material and substantial change.
- The distance between the parties after the relocation. Id.
- The Proximity availability and safety of travel arrangements. Id.
- The quality of the relationship between the nonprimary conservator and the child. Id.
- The nature and quantity of the child’s contacts with the nonprimary conservator. Id.
- The possibility that the relocation would deprive the nonprimary conservator of regular and meaningful access to the child. Id.
- The impact of the move on the quantity and quality of the child’s future contact with the nonprimary conservator. Id.
- The motive for move or opposing the move. Id.
- The feasibility of preserving the relationship between the non-primary conservator and the child through suitable visitation arrangements. Id.
The court is also charged with determining whether relocation is in the best interests of the child. The ability of the primary conservator to relocate is a fact intensive question for the judge or jury to decide. Courts in Texas have determined that the following factors are relevant in assessing the child’s best interests in a relocation case:
- The relationship with and presence of extended family. Lenz v. Lenz, 79 S.W. 3d 10 (Tex.2002)
- The effect of the move on the extended family relationships. Id.
- The presence of the child’s friends. Id.
- The presence of a stable and supportive environment for the child. Id.
- The primary conservator’s improved financial or job situation and ability to provide a better standard of living. Id.
- The positive impact on the primary conservator’s emotional and mental state and its effect on the child. Id.
- The effect on the nonprimary conservator’s right to have regular and meaningful contact with the child. see Tex. Fam. Code § 153.001 (a)(1) (Texas public policy is to ensure continuing contact with good parents)
- The nonprimary conservator’s ability to relocate to maintain the parental relationship. Lenz v. Lenz, 79 S.W. 3d 10, at 18 (Tex.2002)
- The nonprimary conservator’s ability to adapt to a work schedule to be with the child Id.
- The reasons for and against the move. . Id.
- Whether special needs or talents of the child can be accommodated. . Id.
- Whether the move will enhance the primary conservator’s and the child’s health, education, and economics. . Id.
- Comparison of education, health and leisure opportunities. . Id.
- The negative impact of any continuing hostility between the conservators. Bates v. Tesar, 81 S.W.3d 411, 430 (Tex.App.-El Paso 2002, no pet.)
- The child’s age, community ties, preferences and health and educational needs. Lenz v. Lenz, 79 S.W. 3d 10 (Tex.2002)
Obviously, the ability of the primary conservator to relocate is a fact intensive question for the judge or jury to decide. The party attempting to move should prepare thoroughly before attempting to move. The party attempting to relocate should develop concrete plans about where he or she will be living, and working, as well as plans for the daycare and schooling of the child. The parent attempting to move should also be ready to compare the benefits of the move and argue the relevant factors as articulated in Lenz v. Lenz, 79 S.W. 3d 10 (Tex.2002).