The Dallas Court of Appeals reversed a district court that imposed a residence restriction on the parties' child when the mother decided to move the child from Grayson County to Houston. In the Interest of H.N.T., No. 05-11-00518-CV (Tex. App. - Dallas May 10, 2012, n.p.h.).
The parties had a daughter in 1998 but divorced in 2000. At the time of the divorce, mother had moved to Houston. While in Houston, mother remarried, then moved back to Grayson County, all in 2000. During this time, father remained in Grayson County.
From 2000 until 2010, mother continued to live in Grayson County with the parties' daughter. She and her new husband also had another daughter. Father remained in Grayson County.
In 2010, mother told father that the family was experiencing financial difficulties. She wanted to move back to Houston. Father opposed this move and filed suit to stop it. The trial court held that there had been a material and substantial change in circumstances since the 2000 divorce decree. The trial court granted father's request.
Mother appealed, arguing that because (1) she had been living in Houston on the date of divorce, and (2) she had moved back to Houston, then (3) there could not have been any material or substantial change in circumstances.
The Dallas Court of Appeals bought mother's simplistic argument: If you live in the same place you did ten years ago, there could be no material or substantial change of circumstances no matter where else you lived, or what else happened, in the meantime.
The Dallas court cited to, but did not follow, the analysis in, Bates v. Tesar, 81 S.W.3d 411, 430 (Tex. App. - El Paso 2002, no pet.). The Bates Court wrote:
But if the custodial parent moves a significant distance, a finding of changed circumstances may be appropriate. Such a decision is necessarily fact intensive but we can glean from the case law certain factors which the court should consider:
- the distance involved;
- the quality of the relationship between the non-custodial parent and the child;
- the nature and quantity of the child's contacts with the non-custodial parent, both de jure and de facto;
- whether the relocation would deprive the non-custodial parent of regular and meaningful access to the children;
- the impact of the move on the quantity and quality of the child's future contact with the non-custodial parent;
- the motive for the move;
- the motive for opposing the move;
- the feasibility of preserving the relationship between the non-custodial parent and the child through suitable visitation arrangements; and
- the proximity, availability, and safety of travel arrangements.
We think that father's attorney was right when he said that he was "hard pressed to discern how attempting to move H.N.T. five hours away" from father was not a material and substantive change in circumstances.