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Relocation has been a hot topic for family lawyers and for some of their clients for a few years. Courts have also published decisions in this area. With litigation involving the right to establish the child’s domicile becoming 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). 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 custodial parent; (4) the potential for the custodial parent’s improved emotional state; (5) the ability of the non-custodial parent to relocate or arrange a work schedule allowing for regular visitation; and (6) the custodial parent’s willingness to arrange flexible visitation.
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 nationals 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.
In Echols v. Olivarez, 85 S.,W. 3d 475 (Tex. App.-Austin 2002, no Pet.), the Austin court of appeals held 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. 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.,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. The significance of these Court decisions may indeed come down to how far the distance is, given that two of these cases were off the mainland. [wpResize]