Once there is an existing court order regarding conservatorship or child custody, it cannot be changed without a modification of the order.  If both parties agree to the modification, they still need to get the order approved by the Court.  While the process is much less dubious than a contested modification it is important to have the new agreed order, usually titled “Agreed Order in Suit to Modify the Parent Child Relationship” signed and filed with the Court.  The Court will still need to determine that the new modified order is in the child’s best interest.  A child custody order can only be modified when there has been a material and substantial change in circumstances of the child or one or both of the parties. Either party may seek a modification of the child custody order, but the burden will fall on the party requesting the modification to not only prove there has been a material and substantial change but also to prove that the requested modification is in the best interest of the child.

Conservators (i.e. parents or legal guardians) often pursue a modification of an existing child custody order when the conservator with primary possession of the child is seeking to move outside the geographical restrictions of the child’s residence.  Most child custody orders define the geographical restrictions of the child’s residence to certain counties or to a certain number of miles from the child’s home at the time of the order, other times school districts define the geographic restriction.  If your child custody order does not have a defined geographical restriction for the child’s residence, the parent with exclusive right to designate the child’s primary residence is not required to obtain the Court’s approval or approval of the child’s other parent. In Texas, there is a legal presumption that it is in the child’s best interest to have continuous and frequent contact with both parents.  If the parent who is restricted by geographic limitations desires to permanently move the child beyond the geographic restriction, thereby creating significant distance between the child and the other parent, they must overcome the presumption that it is in the child’s best interest to see and interact with both parents on a regular basis.  In other words, the moving parent must prove that permanently relocating the child provides benefits which outweigh the detriment to the other parent and the relationship they have with the child.

For example, the parents have a Texas child custody order in place and Mom eventually remarries. Later Mom finds out that her new husband has a job opportunity that requires the family to pick up and move to Michigan.  If Dad still lives within the geographic restriction area, Mom cannot simply pick up and move the child to Michigan, even if she has primary custody.  She must either reach an agreement with Dad or file a motion with the Court and request permission to permanently relocate the child.  The Court will impose a very high burden on Mom because she must overcome the legal presumption that it is in the child’s best interest to have continuous and frequent contact with Dad.

Mom would need to show the Court that the move is in the best interest of the child.  An opportunity for a parent to make more money, alone, is not enough.  The parent would need to show that they are unable to sustain a minimum standard of living and only by relocating can they provide the child with the higher standard of living, resulting in an improved quality of life.  If the moving parent is already able to provide the child with a comfortable life style, a raise in income alone, will not be sufficient to justify the separation from the other parent.  Other factors that may be considered by the court is whether there is support by the extended family available to the child at the new location.  If Mom’s entire family lives in Michigan and will be an active part of the child’s life, that may weigh into the court’s decision; similarly, the court would consider if the move would cause the child to leave behind their extended family.

Other important factors that must be considered include how travel logistics will work for Dad to have visitation with his child.  Is there a viable travel schedule that will allow the child and Dad to maintain a strong relationship?  Who is going to be responsible for covering the additional travel expenses? It is more reasonable to expect a 14-year old to take a direct flight from Detroit to Austin alone to visit Dad on a regular basis, than to expect a 3-year old to be able to travel such a distance with any frequency.

Ultimately, the moving parent must prove that the permanent relocation is in the best interest of the child.  The more likely the relationship can be preserved between the child and the non-moving parent, the more likely the court will be to grant permission for the move.