Fourth Court of Appeals
San Antonio, Texas
MEMORANDUM OPINION
No. 04-12-00395-CV
IN THE INTEREST OF C.M., a Child
From the 37th Judicial District Court, Bexar County, Texas
Trial Court No. 2004-CI-13517
Honorable Dick Alcala, Judge Presiding
Opinion by: Patricia O. Alvarez, Justice
Sitting: Catherine Stone, Chief Justice
Marialyn Barnard, Justice
Patricia O. Alvarez, Justice
Delivered and Filed: May 14, 2014
AFFIRMED
Appellant Henry Magallanes and Appellee Lori Rios-Altman are joint managing
conservators of their minor child, C.M. The case stems from Rios-Altman’s petition seeking to
have the geographic restriction lifted in order to allow her to move with C.M. to Georgia. The trial
court granted the petition and this appeal ensued. We affirm the trial court’s judgment.
FACTUAL BACKGROUND
A. The Divorce
On December 16, 2005, a final divorce decree was signed in this matter providing
Magallanes and Rios-Altman joint managing conservators of C.M. At the time, C.M. was almost
four-years old. Rios-Altman was named the parent having the exclusive right to establish the
primary residence of the child within Bexar County, Texas. The divorce decree contained a
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standard geographic restriction requiring the decree be modified prior to changing the primary
residence from Bexar County.
B. Motion to Modify the Parent-Child Relationship Filed
In 2011, Rios-Altman married Daniel Altman, an old high school friend from Georgia, and
began making arrangements to move C.M. to Georgia. On August 2, 2011, Magallanes filed a
petition to modify the parent-child relationship seeking to be appointed as the parent with the
exclusive right to designate the primary residence of C.M., or in the alternative, that the terms and
conditions for access of C.M. be modified to provide Magallanes with an expanded standard
possession order and Rios-Altman be enjoined from removing C.M. from Bexar County. In
response, Rios-Altman filed a counter-petition seeking to have the geographic restriction lifted in
order to allow her to move with C.M. to Georgia. On August 12, 2011, the trial court issued a
temporary restraining order preventing Rios-Altman from removing C.M. from Bexar County until
a final order could be issued. The court also ordered a social study be conducted.
Ann Matthews, a licensed therapist, conducted the social study. The study was submitted
to the court on November 28, 2011. In such, Matthews concluded that “the child’s best interest
[would be] served by [Rios-Altman] remaining the parent with the exclusive right to designate the
child’s residence and the geographic restriction being modified to include the Augusta, Georgia
area.” The report also provided that Magallanes “should [have] significant parenting time as
allowed over one hundred miles, and frequent phone calls and internet access to the child.”
C. The Hearing
The matter was called for a hearing on June 25, 2012. C.M., then ten-years old, did not
testify. The trial court heard testimony from Magallanes, Rios-Altman, the father of Rios-
Altman’s four-year-old child, and Matthews. Because much of Magallanes’s argument is based
on Matthew’s testimony, a more detailed description of her testimony and report is warranted.
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Matthews testified that she met with each parent twice and Mr. Altman once. She described
Magallanes as controlling and manipulative and expressed concern that he personally reported
being at Rios-Altman’s residence where he was looking in the windows to check on C.M.
Matthews also confirmed that Magallanes (1) requested several police escorts for visitation drop-
off and pick-up of C.M., (2) requested a police officer conduct a welfare check on C.M. late at
night, and (3) was in an altercation with a third-party at the Rios-Altman residence. These events
were magnified by Magallanes’s apparent lack of understanding of the emotional impact these
events were having on C.M.
With regard to visitation, Matthews also voiced concerns. Prior to filing the suit, Matthews
testified that Magallanes only saw C.M. when it was convenient for him. Magallanes explained
that “he used the mother as child care when he was unable. So if he needed to work, for example,
on a weekend that was supposed to be his parenting time, he either picked her up late or picked
her up and kept her for a while and then returned her.” Matthews reiterated that Magallanes was
not consistently exercising his parental visitation until the case was filed and she expressed concern
about his continued visitation in the future. Matthews also expressed concerns about the
communication between Magallanes and Rios-Altman, which even resulted in C.M. being left at
school when Magallanes did not pick her up for visitation.
As to C.M.’s education, Matthews indicated that Magallanes appeared to exaggerate his
influence on C.M.’s education. Matthews confirmed that C.M. was doing very well in school, but
could not attribute the same to Magallanes’s involvement prior to this matter being filed. In terms
of future communication, Matthews opined that a strong bond could be maintained between C.M.
and Magallanes. She based her opinion on C.M. being very verbal and Matthews’s belief that
C.M. could communicate well via Skype or other video-conferencing methods. Although
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Matthews did not believe Rios-Altman would hinder C.M.’s ability to communicate with
Magallanes, she did recommend that a “coparenting facilitator” would be beneficial for the parents.
As to emotional enhancement, Matthews confirmed that Rios-Altman is from the Georgia
area, her family is there, and her new spouse and his extended family live in the area. As such,
Matthews opined the move would be more stable for Rios-Altman and, thus, a better situation for
C.M. When questioned about the fact that Rios-Altman was no longer employed, Matthews
explained that even without current employment, there were legitimate reasons to lift the
geographic restriction. Specifically, Matthews highlighted Rios-Altman moving to join a spouse
or moving to join or rejoin extended family. Magallanes’s attorney posed numerous hypotheticals
and the factual changes to the information known to Matthews at the time of her report. On cross-
examination, Matthews conceded that, without further information, she could not testify as to
whether she would make any changes to her report.
D. The Trial Court’s Order
At the close of the testimony, the trial court ordered the geographic restriction be lifted.
The court continued:
The court has considered the emotional well-being of the custodial parent,
that it would—that the custodial parent that is emotionally well is good for the child,
that there’s strong family ties in Georgia that have been maintained, relationships
with grandparents and other extended family in that state.
The court finds that—from the evidence that there would be economic
stability for the child that would be enhanced. Educational stability, it would be
basically about the same.
The court finds that based on the evidence that there will be—the child will
be able to maintain frequent contact with the father.
The court further found that “lifting the restriction would positively affect [C.M.], [and] enhance
the child’s emotional and mental well-being.” The court expressed concerns about C.M. being
present when police were called and Magallanes’s lack of boundaries at the Rios-Altman
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residence. The court explained that Magallanes’s actions clearly affected C.M. and that “[i]f the
child were to move, that’s not likely to occur again.”
Magallanes’s emergency motion to stay the trial court’s order was denied on June 26, 2012,
and this appeal ensued.
BEST INTERESTS OF THE CHILD
Magallanes contends the trial court erred in determining that Rios-Altman demonstrated
that her move to Georgia was not only in the best interest of the child, but that the move would
positively impact C.M. educationally, emotionally, and economically. We address Magallanes’s
claim under the factors relevant to the determination of whether a geographic restriction is in the
best interest of the child and public policy.
A. Standard of Review
Once a trial court appoints joint managing conservators and designates the parent who has
the exclusive right to determine the primary residence of the child, it then has the discretion to
either establish a geographic area in which the child may reside or specify that there are no
geographic restrictions. See TEX. FAM. CODE ANN. § 153.134(b)(1) (West 2014) (providing the
court shall “establish, until modified by further order, a geographic area within which the
conservator shall maintain the child’s primary residence”).
Trial courts have wide discretion in determining the best interests of the child, and their
judgments will be reversed on appeal only for an abuse of discretion. Gillespie v. Gillespie, 644
S.W.2d 449, 451 (Tex. 1982); accord In re T.M.P., 417 S.W.3d 557, 562 (Tex. App.—El Paso
2013, no pet.). “We must be cognizant that the trial court is in a better position to decide custody
cases because ‘it faced the parties and their witnesses, observed their demeanor, and had the
opportunity to evaluate the claims made by each parent.’” In re M.M.M., 307 S.W.3d 846, 849
(Tex. App.—Fort Worth 2010, no pet.) (quoting In re J.R.D., 169 S.W.3d 740, 743 (Tex. App.—
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Austin 2005, pet. denied)); accord Maixner v. Maixner, 641 S.W.2d 374, 376 (Tex. App.—Dallas
1982, no writ). Appellate courts have long recognized that a trial court is in a much better position
to make such determinations. Maixner, 641 S.W.2d at 376.
B. Best Interests of the Child Under Texas Family Code Section 153.002
“The best interest of the child shall always be the primary consideration of the court in
determining the issues of conservatorship and possession of and access to the child.” TEX. FAM.
CODE ANN. § 153.002 (West 2014); accord Lenz v. Lenz, 79 S.W.3d 10, 14 (Tex. 2002). In Lenz
v. Lenz, the Texas Supreme Court provided a variety of factors relevant to the determination of
whether a geographic restriction is in the best interest of the child, including: (1) the reasons for
and against the move, including the parents’ good faith motives in requesting or opposing it; (2)
health, education, and leisure opportunities; (3) the degree of economic, emotional, and
educational enhancement for the custodial parent and child; (4) the effect on extended family
relationships; (5) accommodation of the child’s special needs or talents; (6) the effect on visitation
and communication with the non-custodial parent to maintain a full and continuous relationship
with the child; (7) the possibility of a visitation schedule allowing the continuation of a meaningful
relationship between the non-custodial parent and child; and (8) the ability of the non-custodial
parent to relocate. Lenz, 79 S.W.3d at 14–16; see also In re W.C.B., 337 S.W.3d 510, 514 (Tex.
App.—Dallas 2011, no pet.). The decision to determine if relocation is permitted is fact-driven.
Lenz, 79 S.W.3d at 18–19.
1. Requirement to Show Positive Impact
The basis of Magallanes’s argument is Rios-Altman’s failure to prove that lifting the
geographic restriction would have a positive impact on C.M. educationally, emotionally, or
financially. Specifically, Magallanes contends that (1) C.M.’s educational needs are being well
met at the school she is attending, (2) Bexar County is the only place C.M. has ever known with
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C.M.’s friends, school, and Magallanes’s extended family, and (3) Rios-Altman plans to move into
a single-income household supporting four children and two adults.
In support of his argument, Magallanes relies on In re C.R.O., 96 S.W.3d 442, 447–48
(Tex. App.—Amarillo 2002, pet. denied), for the proposition that Rios-Altman must make an
affirmative showing of a “positive improvement” before the geographic restriction can be lifted.
The court in In re C.R.O. relied on Family Code section 156.202’s requirement that the movant on
a motion to modify show the modification would be a positive improvement for the child. Id.
We note, however, the 2001 Legislature repealed section 156.202 and amended the
provisions relating to modification. Act of May 22, 2001, 77th Leg., R.S., ch. 1289, §§ 5, 12, 2001
Tex. Gen. Laws 3108, 3111. The grounds for modification are now found in section 156.101, and
no longer include the requirement of a “positive improvement.” TEX. FAM. CODE ANN.
§ 156.101(a) (“The court may modify an order . . . that provides for the possession of or access to
a child if modification would be in the best interest of the child”); see also Lenz, 79 S.W.3d at 12
n. 1; In re V.L.K., 24 S.W.3d 338, 342 (Tex. 2000). We, therefore, conduct our analysis under the
current version of section 156.101.
2. Best Interest of the Child
Among other witnesses, the trial court heard testimony from both parents and the
psychologist assigned to perform the social study. The testimony supported a conclusion that C.M.
was a bright child and her school opportunities in Georgia should not affect her educational well-
being. As to the financial stability of the Rios-Altman residence, the evidence substantiated that,
although Rios-Altman did not currently have a job in Georgia, the move would increase the
economic stability for C.M. Mr. Altman had a steady job and there was nothing to suggest that
once Rios-Altman was in Georgia, she would not be gainfully employed.
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As to C.M.’s emotional improvement, the court recognized that a happy environment for
Rios-Altman would likely result in a happy environment for C.M. Although Magallanes’s
extended family is located in Bexar County, moving to Georgia would open new and stronger ties
with Rios-Altman’s extended family. The court also opined that the distance would hopefully
limit some of Magallanes’s behaviors, including calling the police and peering into the windows
at Rios-Altman’s residence.
Although Magallanes points this court to the inconsistencies in the testimony, the trial court
listened to the testimony, observed the witnesses, and evaluated their demeanor. See In re M.M.M.,
307 S.W.3d at 849. Based on the record before us, we cannot say they trial court abused its
discretion in determining the Lenz factors weighed in favor of lifting the geographic restriction.
See Lenz, 79 S.W.3d at 14–16.
C. Public Policy Concerns Under Texas Family Code Section 153.001(1)
Magallanes next contends that public policy dictates against allowing Rios-Altman to move
C.M. one-thousand miles away from her father, to a location where Magallanes cannot continue
to share the rights and duties of raising C.M. in the same manner as if he was in the same city,
much less the same state.
In reviewing determinations regarding modification of residency restrictions to permit a
custodial parent’s relocation, we look to the public policy set forth in the Family Code and the
guidelines developed based upon that policy. See In re Cooper, 333 S.W.3d 656, 660 (Tex. App.—
Dallas 2009, orig. proceeding); accord Lenz, 79 S.W.3d at 14 (“The Legislature has provided a
basic framework upon which we may build guidelines for reviewing a modification that removes
a residency restriction for purposes of relocation.”). Public policy highly recommends
encouraging separated and divorced parents to share in both the rights and duties of raising a child.
In re Cooper, 333 S.W.3d at 660.
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1. Public Policy Concerns
Section 153.001 of the Texas Family Code provides factors for the court to use in
evaluating whether lifting the geographic restriction violates Texas public policy. Specifically,
section 153.001(a) requires to the court to
(1) assure that children will have frequent and continuing contact with parents who
have shown the ability to act in the best interest of the child;
(2) provide a safe, stable, and nonviolent environment for the child; and
(3) encourage parents to share in the rights and duties of raising their child after
the parents have separated or dissolved their marriage.
TEX. FAM. CODE ANN. § 153.001(a). “Such policy concerns weigh heavily in assessing whether
to modify geographic restrictions placed on the child’s residence.” In re C.M.G., 339 S.W.3d 317,
320 (Tex. App.—Amarillo 2001, no pet.).
2. Application to C.M.
a) Frequent and Continuing Contact
Here, the trial court concluded that C.M. would be able to maintain frequent contact with
Magallanes. The testimony supported that Rios-Altman would not interfere in their
communication, that Magallanes calls C.M. regularly and Rios-Altman had never intervened in
the past, that travel was readily available from Georgia to Bexar County, and that C.M. was very
articulate and capable of using Skype or another form of video-conferencing to communicate with
her father.
b) Safe, Stable, and Nonviolent Environment
The testimony also supported the trial court’s conclusion that Rios-Altman would be able
to provide C.M. a stable environment in Georgia. Rios-Altman had a long work history before
losing her current job in San Antonio and her husband has stable employment. Rios-Altman’s
extended family and support system are in Georgia. Additionally, Matthews explained that in
addition to her own family, Rios-Altman would have Altman’s extended family for support.
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Although C.M.’s life experiences had been limited to her friends at her elementary school and the
family she had known in Bexar County, Matthews opined that Georgia would only provide
additional and deeper support for both Rios-Altman and C.M.
Additionally, the trial court considered Magallanes’s own actions as weighing against
Bexar County as a safe and stable environment. By his own account, he called the police on several
occasions without any recognition as to the effect such actions would have on C.M. Matthews
also testified that she believed Magallanes was manipulative. Prior to bringing this action,
Magallanes had little regular contact with C.M., and when he did, it was only on his terms.
c) Encourage Parents to Share Rights and Duties
During her testimony, Matthews explained that she recommended using a “coparenting
facilitator” to assist the parents in working together. Matthews further opined that Magallanes
exaggerated his influence over C.M. and his involvement in previous parental rights and duties.
In fact, Matthews even proffered that Magallanes’s interest in C.M. was directly tied to this suit
and could easily wane when the matter was resolved.
3. Best Interests
We cannot say the trial court abused its discretion in determining that public policy
supported lifting the geographic restriction and allowing Rios-Altman to move with C.M. to
Georgia. See Lenz, 79 S.W.3d at 14–16.
CONCLUSION
For the reasons stated above, we affirm the trial court’s judgment.
Patricia O. Alvarez, Justice
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