For Better, Worse, Or Divorce Podcast

In this episode, Brian Walters meets with Dallas-based partner Carson Steinbauer to discuss the complexities of relocation issues in family law cases. They break down relocation laws in Texas and explore the legal challenges parents often face when seeking to move with their children after a divorce. They also discuss the impact of custody arrangements and how courts determine what is in a child’s best interest. The two attorneys wrap up the episode by discussing their experience handling cases involving relocation issues and answering a few listener questions related to the topic.

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Your hosts have earned a reputation as fierce and effective advocates inside and outside of the courtroom. Both partners are experienced trial attorneys who have been board-certified in family law by the Texas Board of Legal Specialization.

Brian Walters: Thanks for tuning into the For Better, Worse, or Divorce Podcast where we provide you tips and insights on how to navigate divorce and child custody situations here in the great state of Texas. I’m Brian Walters. Today I’m joined by one of our Dallas-based partners, Carson Steinbauer, and we’re going to discuss relocation issues in family law and divorce cases. Welcome back, Carson.

Carson Steinbauer: Hi Brian.

Brian Walters: I know we’ve done a couple of these before. Since we’re lawyers, let’s define our terms. What is relocation? That means where one of the parents wants to move the children to a different geographical location. I’ve found that is one of the most difficult and heavily litigated matters that there is. For example, if folks get divorced in Dallas and the mom wants to move with the kids back to California. Let’s say they moved here from California two years ago. That’s really a hard issue to settle. You can’t split the difference, which would be basically Albuquerque, New Mexico. They’re both not going to move to Albuquerque and they don’t really do anybody any good. A lot of times those cases go to trial because those are serious issues. Is that your experience as well?

Carson Steinbauer: Absolutely. They’re very challenging cases and the courts take them really on a case-by-case basis. They’re very fact-specific.

Brian Walters: Okay, so let’s talk about the law in the state of Texas as it relates to this. So generally speaking, we need to break this down into new cases, which are the first time there’s a child custody situation going on. That could be a divorce or if two people aren’t married the first time they go to court. I think courts view that differently. If there’s someone going back three years after the divorce and trying to modify and change things. So let’s talk about new cases. What’s your understanding of what the law is in Texas about relocating a child in one of these new cases? 

Carson Steinbauer: Sure. So typically in say a divorce scenario, there’s no statute or bright-line test in the state of Texas. Several years ago there was a case that came out of the Texas Supreme Court called Lenz versus Lenz that really defined relocation cases and how they’re handled in the state. Typically the court is required to look at what’s in the best interest of the child. As I said, it’s very, very fact-specific based on the facts of each case. Why does the spouse want to move from one geographical location to the other? The court really looks at what are the best interests of the children and the reasons for the move, the reasons against the move. Basically, it’s a balancing test. What are the pros and the cons, and if the pros outweigh the cons. Then the court will allow the relocation typically.

Brian Walters: Yeah, and I think we should also break down a temporary versus the final order. So if a divorce has just been filed and a parent says I want to move to California now while the divorce is ongoing, which could take a year or longer. My experience has been as a practical matter that courts are very, very rarely if ever going to allow an immediate move of the children when a new custody or divorce case is filed. Has that been your experience as well?

Carson Steinbauer: Yes, absolutely.

Brian Walters: And in fact, there are called standing orders in a lot of counties. Which says just proactively as soon as something’s filed don’t move the kids without court permission or the agreement of the other party of course. That tells you that’s not going to happen immediately. There’s a lot of reasons for that. I think among other things, there’s concerns about jurisdiction and enforcement. There’s also just a desire not to upend the children’s lives immediately without a lot of thought going into it. Sometimes the desire to move, although understandable, can be an emotional reaction or kind of a defensive reaction. Sometimes as time passes a parent decides that’s not such a great idea.

I agree with you. There’s not anything that says no kid can leave the state of Texas once their parents get divorced or we want everybody to live within five miles of each other. There’s none of that. But there’s a couple of things I think that are out there. I mean there is a specific public policy that the preference is for basically two functioning parents. Not parents where there’s been violence necessarily, not parents that’s impaired by a substance abuse or psychiatric problem or some other behaviors, but two normal good old parents, which is a vast majority of people. The desire in the state is to have both parents involved in their children’s lives. One of the key things of that is that the parents live relatively near each other, relatively near where these kids are going to school so that they can be actively involved in their education, their extracurricular activities and have regular time with the kids. Whether unspoken or spoken, is that sort of what you’ve seen judges the way they initially think about these things?

Carson Steinbauer: Yes, definitely. Judges want both parents and usually that’s what they see and hear in the temporary orders is many times that both parents are equally or almost equally involved. As you said in their healthcare, taking them to the doctor or the dentist, taking them to their school activities or after school activities. And if one spouse hasn’t been as involved, of course, when the divorce comes about then that parent wants to become equally involved and the courts encourage that.

Brian Walters: Yeah, it’s very true. I mean the average person and average couple in Texas is a married couple with kids for example. Probably both parents work more often than not and the kids are in school and so they’re both involved to some extent. Often one parent is sort of the default parent. If you’ve got a sick kid or whatever, then one parent may be more involved, but they’re both at least quite involved in my experience. I mean this is what I’ve seen and I’ve been in practice almost 30 years. When I started out, it was fairly common for a court to allow the other parent, typically the mom, the primary parent, in that time and era to move. Now maybe not to another state, maybe that was a harder ask, but if they wanted to move from Dallas to Houston or Austin to San Antonio or something like that.

But even out of state, when I started practice back in the ’90s that was allowed a lot of times and I’ve seen that things have narrowed and been tightened up over the years. I practiced a lot of my early career in Austin and they were actually kind of on the forefront of a lot of that, “No, we’re not going to have a parent take off with the kids because we want both parents to be involved”. It started out as the surrounding counties a lot of times. In that case, it was Travis and the surrounding counties, which could be two or two and a half hours to drive from one end of that area to the other. It was a pretty broad area, but at least everybody was in Greater Austin.

Then over time that got narrowed. Nowadays if you’re in a lot of these, especially a bigger county like Harris County, which is Houston, they won’t let you leave that county. Sometimes they’ll be even more restrictive than that and say just to the eastern part of Harris County or something along those lines. So it’s gotten progressively narrower and narrower. And of course, I think there’s a lot of factors with that, but that’s been my experience over my career. But I don’t know, maybe you’ve seen something different than me. But that’s what I’ve seen at least in the areas that I practice, which are pretty broad.

Carson Steinbauer: Yes. I’ve practiced a little bit in San Antonio, but I would say for the past 20 years in the Dallas area.  Judges routinely want to keep both parents close and involved in the kiddo’s lives.  For example, in Dallas and contiguous counties if a couple’s getting divorced, whoever’s designated as the primary parent, then restrictions will go into place where the judge says you are restricted to Dallas and contiguous. Meaning you can live in Dallas with the children or any surrounding or touching counties, but you can’t move beyond that. That’s pretty much the norm unless a parent provides a compelling reason otherwise.

Brian Walters: Yeah, I agree with you. I will say there’s a lot of components to this. 90 plus percent, probably 95% of all family law cases are settled. If this is a concern for a parent, let’s say a parent really wants to move. They’re in Dallas and they really, really want to move back to Houston where their family is. Let’s say the whole family was down in Houston until two years ago. I generally think the courts are not going to allow that. Most of these cases are settled and so you can negotiate with the other parent and if you two can come to an agreement, sometimes that’ll happen. That’s a good example where maybe there’s some additional time given. Maybe there’s an agreement that the move will take place in two years back to Houston or something like that so everybody has time to prepare and find a job and move down there and those kinds of things.

Just to be clear, you can agree on whatever you want to. I certainly have seen people in a divorce say, “Hey, I’ll give you a better financial settlement if you’ll let me live where I want to with the kids.” Or, “I’ll adjust your child support downward if you’ll let me move.” Some parents would say, “No way. I want to live near my kids, I don’t care.” And other parents would say, “Okay, yeah, I’ll do that if that’ll make my life financially easier.” So you can always keep that in mind, but in the back of your head. I think you need to be aware that the courts are going to be hesitant to allow a big move and I don’t think that’s going to change in this state anytime soon.

Carson, give me some reasons why a court would consider giving the other parent the right to move with the children. Let’s say in this case,  outside of the Greater Dallas-Fort Worth area. Let’s say move back to Austin. Let’s use that as an example. What are some common reasons why a court would consider that as a good idea for the kids? Because again, the focus is on the kids, not on the parents. The question is the best interest of the children, as you said.

Carson Steinbauer: Many times in this situation, a parent may come to me and say, “Well, the only reason we’ve lived in the Dallas area is because my husband or my wife took a job here, but I’m actually from San Antonio or Austin. All of my family support is there. For example, all the grandparents, aunts, uncles, cousins, and so forth.” Or one of the spouses may have been out of the job force during the marriage and say, “I’ve been applying all over the Dallas area, but I’m in the tech industry and I can only get a job that will allow me to live and pay my bills in the Austin area.” The court will look at that, and again it’s always going back to what’s in the best interest of the child. How is the child going to benefit if the party is allowed to move?

For example, will there be family support in the new place where the parent wants to move? Will there be an improvement in their standard of living if that parent has a better-paying job? The parent that is wanting to move, will they work to provide connections to allow the non-moving parent close and continuing contact with the children? Meaning will that parent facilitate electronic communications since they’re moving away? Will they help pay for costs back and forth to allow the kiddos to visit mom or dad in the other county? It’s how cooperative will that parent be. There’s a lot of factors. But again, the court’s not going to care whether mom really wants to move to Austin because she likes the restaurants there or has a new boyfriend there. It’s how the kids will benefit from the move.

Brian Walters: Yeah, that’s true. I mean age is probably an issue. If you have a sixteen-year-old who’s pretty independent and spends most of their time with their friends and is okay with the move or that kind of thing, then maybe a court’s going to say, “Sure. It’s a teenager.” They’re not going to probably want to spend that much time with either parent, they’re going to want to spend time with their friends or that might be a factor. I think the other extreme is very young children. It seems like that would be less likely to be the case.

There’s also bad facts. Again, a parent who’s just not a good parent. One who’s got problems. I think in those cases. Especially if there’s been family violence, I think that’s a really big one. Then I think a court’s more open to a move in that particular situation. Then let’s talk about modifications because that’s a different legal standard. Let’s say that you did get divorced. Everybody agreed you’re going to live in Collin County north of Dallas, and three years into it mom says, “Well, now I want to move to Houston.” For whatever reason, let’s say it’s seemingly valid reasons. How would that be different, either harder or easier? Or a different legal standard for the mom in that case versus raising that issue when the divorce first occurred?

Carson Steinbauer: I would say whether it’s a fresh divorce or a modification, they’re both pretty tough. You really have to help each client develop their facts in support of their argument. But on a modification, the court’s still going to always look at what’s in the best interest of the children. What’s different about a modification is you have the standard, which was the divorce where the court set that geographical restriction. Then the parent wanting to move on a modification will have to show that there’s been a significant change in circumstances. For example, let’s say mom had a great job in Dallas as a nurse or a cardiac surgeon. Then she lost her job or the hospital shut down and she just received this great job offer in Houston. That is a significant change in circumstances that she could bring forth to say, “Look, I am not earning any money in Dallas anymore. My job was taken away through no fault of my own and my only option right now is in Houston. Please let me move.”

Of course, again the court’s going to balance that with will the kids’ life improve. Are they going to suffer because they’re here and mom doesn’t have a job versus are they embedded in school here, are all their friends here, do they have special needs, are they in a special school here where they will benefit by staying. It all just is driven by the facts. But in a modification you have to show that there’s been a change in circumstances. Or another option would be maybe when they got divorced, the kids are 5 and 6, but now 10 years later the kids are 15, 16, and the kids say, “I want to move with mom.” At that point the kids have a voice and the judge would be receptive to interviewing the kiddos in chambers to see what their desires are.

Brian Walters: Yeah, I agree. Now another issue is who’s going to decide where folks live and the kids live. Texas is unique in the sense that it allows a jury to make that decision. My experience has been that juries are more likely to allow a move than a judge, even though they’re applying the same law. My theory about that is that judges have thousands of family law cases that come through their courts every year and they want to be predictable. If the lawyers know that in Texas, or in this court, the judge is very unlikely to allow a move then people realize that and they settle their cases.

Juries are one-time folks and they’re up at the courthouse once. They don’t take into consideration what kind of message that sends or whether it’s consistent or not. So, I think they’re more open to it than a judge would be in both an original case or a modification. It has been my experience with it. Any thoughts about that issue? I know that we try a bunch of judge cases and there are far fewer jury trials that are tried, so there’s less data to go on. But that’s been my experience in the cases we’ve handled or other cases I’m aware of.

Carson Steinbauer: Yes, I agree. I think judges hear so much on a daily basis. And like you said, they want to be predictable. They have seen the studies where most kids in a normal family situation where a couple’s just unhappy and wants to get divorced, there’s no family violence, for example. The studies show that kids benefit from having frequent contact with both parents in their lives. I think judges are more reluctant on a whole to allow the move. With the jury, I think who’s coming in and who’s interested in the facts of the case. They may spend a little bit more time focusing truly on the facts as opposed to, “Wow, I’ve got a thousand more cases on my docket today. I need to keep everything moving.” They may be more willing to listen and really follow the law, which is what’s truly in the best interest of these kids.

Brian Walters: I agree. I think that the move out of town is not as catastrophic as a lot of folks think it might be. If someone’s moving from Dallas to Houston, I think if the other parent is being kind of left behind in a lot of cases. They probably could make adjustments to their life to get down to Houston in many cases, but in some cases not. Maybe they have other children from a prior marriage that are in Dallas. Maybe their job opportunities are better in Dallas. It’s hard to say, but I will say that moving away from the other parent, the statistics show that most of the time that the parent is left behind tends to fade out of the kids’ lives or be a lot less involved than if they lived close by. Which is what I think is on the judge’s mind a lot of times. Not always, but a lot of times.

We have a couple of listener questions that are related to this topic that I thought we’d answer real quick. The first one is: How far can you move if you have joint custody in Texas? I think that’s a question about what’s the typical domicile restriction in a typical case here in Texas. You and I have talked about this. It looks like it varies a little bit. In Houston, Harris County, it tends to be just Harris County. Again, Harris County is the largest county in Texas by population by far. It’s also physically very big, so that’s a very broad area that you could live in. I think most judges figure that’s far enough.

That’s been my experience in Austin too. Travis County, which is Greater Austin, even though that’s a smaller county in both population and geographically. The courts there for whatever reason tend to limit you more narrowly there. But it sounds like in the Dallas-Fort Worth area it’s more common to be in the contiguous counties. The four big ones plus maybe some of the other smaller ones around that area. Have those been your observations? I don’t know if you have observations about any of the other areas in Texas.

Carson Steinbauer: Yes, 99% of the time it’s Dallas and contiguous or Collin and contiguous in this area. I always tell my clients, that’s still a big area. We have a lot of traffic with people back in the office after COVID. If I’m the non-primary parent, I don’t want to have to do a lot of driving or get stuck in traffic. So I always tell my clients, “If you can’t reach an agreement, this will likely be what happens in court. So if you want a smaller geographical area, let’s really try and work hard to negotiate that.” Because it’s a lot of driving, which is not good for the parents, but most importantly not good for the kids. In Austin, I would say it’s 50-50 for me. I’ve had some judges do Travis and contiguous, others that say just Travis.

Brian Walters: I think it may depend a little bit on what part of Austin they’re living in. The traffic is horrible in Austin. I can attest from when I lived there. So if you’re already in the northern part of Travis County, it’s probably not a big deal to say you can also live in Williamson County, which is the northern border. I would think that’s the case. I would think that the rural areas probably do allow a broader area to live in for some of the same reasons, just job opportunities, et cetera. But it is very fact-specific, and as we’ve said, there’s not anything in writing that compels the court to restrict it to just that county or just the contiguous counties. It’s nothing like that.

All right. One last question and then we will wrap up here. It says; after our divorce is filed I want my child and I to be able to move out of state to be closer to my extended family. How will this impact the divorce proceedings? We sort of touched on that, which is basically that you’re headed to a big conflict probably over that if that’s what you want to do. Your spouse is probably going to say, “No way, I’m not going to move to Massachusetts, or whatever. I can’t move to Massachusetts.” So you’re probably headed to a big fight. Or as we’ve said, if there’s going to be an agreement that sometimes involves either additional time or additional money or things like that. Be prepared to make a very generous settlement offer on the other issues if you want to be able to move and maybe the other person will accept it. That’s been my experience.

Well, that’s all we have for today. Thanks for joining us, Carson. If there’s any topic you listeners would like to discuss with them on the podcast or if you’re interested in speaking to our legal team directly, please email us at podcast@waltersgilbreath.com. I’m Brian Walters and thank you for listening.

Carson Steinbauer: Thanks, Brian.

For information about the topics covered in today’s episode and more, you can visit our website at waltersgilbreath.com. Thanks for tuning into today’s episode of For Better, Worse, or Divorce, where we post new episodes every first and third Wednesday. Do you have a topic you want discussed or a question for our hosts? Email us at podcast@waltersgilbreath.com. Thanks for listening. Until next time.