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Right to Designate Residence of Texas Child

In a recent Texas child custody decision, the court considered a situation in which the mother was given the exclusive right to designate the daughter’s primary residence within Tarrant County, Collin County, or a contiguous county to the latter. In a modification order, the court gave the father the exclusive right to designate her primary residence within Dallas County or a contiguous county.

The child was born to a married couple in 2008, and they later divorced. The father asked the court to modify the parent-child relationship. The judge issued a memorandum on the same day as the trial but didn’t sign a written order for about a month. The order granted the father’s requested remedy by providing that the daughter’s residence could be established in Tarrant County, Collin County, or a contiguous county to the latter and setting an expanded standard possession order.

The mother appealed this order. Subsequently, the father tried to enforce the order. He claimed the mother hadn’t established their daughter’s home in the appropriate county and inappropriately kept him from the daughter on 17 occasions. At the enforcement hearing, the mother and father told the court they’d come to an agreement. They had agreed the parents would stay joint managing conservators, with the father having exclusive rights to designate the daughter’s primary residence within Dallas or a county contiguous to it. The mother was going to get standard visitation for parents whose own homes are 100 miles from their child’s.

The attorneys for the parents represented this would be a new final order. The judge made that the order of the court. Four days later, the father petitioned for a modification, asking that the father have the right to determine the daughter’s primary residence. The mother filed a denial and then filed a combined motion to withdraw consent to the agreement and to move to modify an order arising out of the agreement. She provided a declaration in which she claimed to have signed the earlier agreement as a result of the father’s duress.

The parents testified at a hearing on the father’s motion. The judge decided she hadn’t revoked the agreement. The court’s order named both parents as joint managing conservators and provided the father with the exclusive right to decide the daughter’s primary residence in specific counties. The mother was given possession for one weekend a month, which is standard for a parent living more than 100 miles from a residence. The judge’s factual findings and legal conclusions explained that the child’s circumstances as well as her parents’ had significantly changed since the date of the prior order, and the agreed-upon plan was in the child’s best interests.

The mother appealed the modification order, arguing that there was no jurisdiction, insufficient evidence of a material and substantial change in circumstances, and insufficient proof that the father should have the exclusive right to select the daughter’s primary residence.

The appellate court explained that the trial court did have jurisdiction to render a new order. The lower court found there was a material and substantial change in the parents’ and daughter’s circumstances, and the appellate court explained that the family code had at least four independent grounds for modifying child custody:  the parents’ agreement, the child’s preference, voluntary relinquishment, and a substantial, material change of circumstances. The appellate court found that the written agreement supported the lower court’s order. It also explained that the lower court had broad discretion to decide which conservator had the exclusive right to determine a child’s primary residence. To modify the order, the lower court had to find that a modification was in the child’s best interests.

The court identified factors that would go into a best-interest decision and noted that the state’s policy was to make sure that kids would have frequent, continuing contact with parents who show the capacity to act in the child’s best interests. In this case, the parents had testified about best interests, and the appellate court found that the evidence was enough to support the lower court’s finding. The mother had moved outside the geographic limits of the order, and the father testified he didn’t even know the location. Based on the evidence, the lower court could reasonably conclude that providing the father with the exclusive right to pick the child’s primary residence would promote her having contact with both parents often enough and was in the child’s best interest.

If your divorce involves matters related to child custody, call the Texas attorneys at the McClure Law Group at 214.692.8200.

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