in the Interest of C.M., a Child

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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