A trial court generally has broad discretion in deciding whether to impose a geographic restriction on the child’s primary residence in a Texas custody case. A geographic restriction limits where the children’s primary residence may be. As with other aspects of a custody case, the primary consideration is whether the restriction is in the best interest of the child. A geographic restriction can help ensure the child maintains relationships with the non-custodial parent, extended family, and the community. In some cases, however, a parent may have good reasons to want to move with the child. The Texas Supreme Court has identified a number of factors in determining whether a move is in a child’s best interest: how it would affect relationships with extended family, how it would affect the non-custodial parent’s visitation and communication with the child, whether a meaningful relationship between the child and non-custodial parent could be maintained with a visitation schedule, the child’s current contact with both parents, the reasons for and against the move, the child’s age, the child’s ties to the community, and the child’s health and educational needs. Lenz v. Lenz.
A father recently appealed an order granting the mother the exclusive right to designate the primary residence without a geographic restriction when the mother intended to move out-of-state with the children.
Mother Offered Opportunity in Arizona
The trial court made several findings of fact. The trial court found the parents moved to Austin so the mother could attend graduate school and intended to stay there until she received her PhD. They had agreed to live there temporarily until the mother got a faculty position at a university. She earned her PhD in 2012. The parties’ twin children were born prematurely in 2013, and the mother took time to care for them instead of advancing her career. During the marriage, she only applied for positions in cities where the father would also have potential job opportunities. They agreed she should apply for a position in Arizona in 2018, but the job was not filled at that time. The parties separated in February 2019 and the mother continued to be primary caregiver.
The position the mother applied for in Arizona reopened and the mother reapplied and was offered the job. She notified the father she intended to accept. The mother was scheduled to start teaching and the university had allocated funds for her lab at the time of the trial. The department chair testified about the difficulty for an applicant to get a tenure-track position.
Trial Court Approves Mother’s Move
The trial court found the mother had greater professional opportunities in Arizona and her new job paid more than she was earning in Texas. The father, a police officer, could transfer to a department near the university. His pension was vested and he could cash out his accrued time. The trial court found that his romantic relationship with another officer factored into his opposition of the move. The mother had researched schools and activities and intended to buy a house in a good school district. The mother had a good relationship with the father’s family and the paternal grandfather testified he planned to visit the children after the move. Even if the father decided not to move, he could visit the children in Arizona monthly and have them in Texas during school breaks.
After considering the factors, the trial court found relocating for the mother’s job was in the children’s best interests. The court found it was in their best interest for the father to have a standard possession order if he lived more than 100 miles away from them. If he lived within 100 miles of them, the court found a 5-2-2-5 schedule was in their best interests.
Trial Court’s Decision Upheld on Appeal
The appeals court found the trial court’s findings of fact showed it considered the factors in Tex. Fam. Code 153.001(a) and in the applicable case law. The record supported the trial court’s findings. Furthermore, the appeals court found the findings of fact supported the court’s conclusion that it was in the best interest of the children for the mother to have the exclusive right to designate their primary residence without geographic restriction.
The father argued he should have the exclusive right to determine the children’s primary residence. He alleged his home was safer and more stable than the mother’s. He testified the mother had a history of self-harm and “toxic behaviors.”
The father’s father, however, testified the mother was a good parent. The mother testified both parents had a history of mental health problems, but she did not think they affected their parenting abilities. She said she took medication for anxiety and depression and went to a therapist weekly.
The appeals court noted the evidence showed the mother had been the children’s primary caregiver and that the father did not object to equal possession. The trial court has broad discretion to determine which parent has the exclusive right to establish the children’s primary residence. The appeals court found there was sufficient evidence for the trial court to exercise that discretion and it had not abused that discretion in finding it was in the best interest of the children for the mother to have the exclusive right to determine their primary residence without geographic restriction.
The appeals court affirmed the portion of the order that named the mother joint managing conservator with the exclusive right to determine the children’s primary residence without geographic restriction, though it remanded the property division to the trial court.
Every Custody Case is Fact-Specific – Hire Attorneys with an Attention to Detail
This case shows the fact-based nature of custody cases. If you are facing a custody dispute, a skilled Texas custody attorney can work with you to identify the facts that support your case. Call McClure Law Group at 214.692.8200 to set up a consultation.
from Texas Bar Today https://ift.tt/2Yl37dT
via Abogado Aly Website
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