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Relocation Cases

Relocation has been a hot topic for family lawyers and for some of their clients for a few years. Now, we are beginning to see some decisions from our Appellate Courts. In 2002, the Supreme Court has handed down one decision and three Appellate Courts have also published decisions in this area. With litigation involving the right to establish the child’s domicile become prolific, the guidance offered by these decisions is generally well-received and considered long overdue.

The first decision from this group of cases was Lenz v. Lenz, 79 S.W. 3d 10 (Tex. 2002). Addressed for the first time in Lenz, the Supreme Court identified factors to be considered in deciding a relocation case, (1) the continued presence and maintenance of German culture in the children’s lives; (2) extended family and friends in Germany; (3) better employment opportunities and improved financial situation for the custodian parent; (4) the potential for the custodial parent’s improved emotional state; (5) the ability of the non-custodian parent to relocate or arrange a work schedule allowing for regular visitation; and (6) the custodian parent’s willingness to arrange flexible visitation. The Supreme Court also held that a plain language interpretation of Tex. Fam. Code §105.002 prevents a trial court from contravening a jury’s verdict on the domicile issue. 

The Lenz case also stands out because both parties and their children were German citizens. Left unsettled by the Supreme Court’s decision was the question regarding foreign nations living in Texas and the Court’s authority to prevent relocation of their children to their native countries through use of a domicile restriction. As the case was decided in favor of Romy Lenz without addressing this question, it will likely surface in the future as a legitimate issue for appellate review. 

Arriving almost simultaneously with the Lenz decision was Bates v. Tesar, 81 S.W. 3d 411 (Tex. App.-El Paso 2002, no pet.), a well-reasoned opinion from the El Paso court by Justice McClure, who is an authority on family law issues. 

In affirming a decision which required the mother to return the children to the location of their father’s domicile, the appellate court found that the mother’s relocation to a distant county was a material and substantial change in circumstances. The court noted that while relocation alone will not necessarily suffice to carry this burden, when the move is significant, a finding of changed circumstances may be appropriate. The appellate court also clarified a common misperception about the interpretation of Tex. Fam. Code §153.134(b)(1)(A), finding that this statute permits a court to restrict a child’s domicile to a single county or primary county and other contiguous counties, whether one or more. The court identified more generalized factors to be considered in relocation cases than those cited in Lenz, including: (1) the distance involved; (2) the quality of the relationship between the non-custodial parent and child; (3) the nature and quantity of the child’s contacts with the non-custodial parent; (4) whether relocation would deprive the non-custodial parent of meaningful access in the future; (5) the motive for making or resisting the move; (6) the feasibility of suitable visitation arrangements; and (7) the proximity, availability, and safety of travel arrangements. 

In the third case, Echols v. Olivarez, 85 S.,W. 3d 475 (Tex. App.-Austin 2002, no Pet.), the Austin court of appeals disregarded the Texas Supreme Court’s directive on use of public policy as stated in Lenz, noting that the best interest of a child cannot be determined in a vacuum and that “slavish adherence” to such policy ignores the reality of a divorce family. The Austin court instead suggested that the court must primarily concentrate on the general quality of life for both the child and the custodial parent in assessing whether the child’s best interest in served by a move. In affirming an order allowing relocation, the court recognized that the child’s best interest may be tied to the custodial parent’s happiness, determining that the child would be a direct beneficiary of the mother’s job promotion, in terms of the financial and emotional benefits realized by the move. 

The final relocation case in 2002, In Re C.R.O. and D.J.O., __ S.W. 3d __ (Tex. App.-Amarillo 2002, no Pet.) (2002 WL 31049839), affirmed a trial court’s decision refusing to permit relocation. The Amarillo court of appeals determined that the maintenance of a relationship between the children and their father outweighs the mother’s sound marital and financial considerations for a move to Hawaii. While the court found no violation of the mother’s constitutional right to travel, it did not address the merits of the mother’s equal protection argument since the issue had not been raised at the trial court level. The Amarillo decision provides a subtle reminder to those prosecuting a requested relocation: Should you plan on challenging the constitutionality of our domicile restriction statute on appeal, any such defense must be affirmatively pled and raised in the trial court. 

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