The issue of a party having increased expenses to exercise their visitation rights is a common occurrence in Texas. Usually the increased expense is the result of a party moving to a different location and causing a change of address and in turn an increased expense for the other parent to visit the children.
Under section 156.103 of the Texas Family Code, if a change of residence results in increased expenses for a party having possession of or access to a child, the Court may render appropriate orders to allocate those increased expenses on a fair and equitable basis, taking into account the cause of the increased expense and the best interest of the child. The payment of increased expense by the party whose residence is changed is rebuttably presumed to be in the best interest of the child. The Court may render an order without regard to whether another change in the terms and conditions for the possession of or access to the child is made.
In one Dallas County case, the Court ruled that the Texas Family Code does not require a party to file an affidavit with their petition to modify only three months after the trial court signed a final decree of divorce because the divorce decree did not grant either party the exclusive right to designate the primary residence of the child. The Texas Family Code section 156.102 requires the filing of an affidavit only when a party seeks modification when one party has the exclusive right to designate the primary residence of a child.
In any final order, a party must request and demand that his attorney always get a ruling from the court regarding the party having the exclusive right to designate the primary residence of a child. The geographic restriction does not always have to be a restriction to a certain county. The restriction may also provide that a child is restricted a certain school district; or, even provide that one of the party have the exclusive right to determine the school district that the child will be enrolled in.
In certain situations where modification is sought because of a conviction for family violence, under section 156.1045 of the Texas Family Code, the Court has the authority to modify the terms and conditions of a court order. The conviction or an order deferring adjudication of a person who is a possessory conservator or a sole or joint managing conservator for an offense involving family violence is a material and substantial change of circumstances sufficient to justify a temporary order and modification of an existing order or portion of a decree that provides for the appointment of a conservator or that set the terms and conditions of conservatorship or for the possession of or access to a child to conform the order to the requirements of Section 153.004(d) of the Texas Family Code.
Generally, a party commits an offense if the party files a suit to modify an order or portion of a decree based on the grounds permitted under Section (a) and the person knows that the person against whom the motion is filed has not been convicted of an offense, or received deferred adjudication for an offense, involving family violence. An offense under this subsection is a Class B misdemeanor in Texas.
An appellate court in Texas held that if the trial court had named [the father] as the parent with the exclusive right to determine [the child’s] primary residence, evidence that [the mother] was placed on deferred adjudication for [assaulting the father] would be sufficient to support the medication. But Section 156.1045 of the Texas Family Code does not compel the trial court to modify an existing order in such a circumstance. In a modification proceeding, the best interest of the child must always be the trial court’s primary concern.
In summary, a court under Texas law, in any modification of possession or access to a child will always have the primary objection of ruling in a manner that will be in the best interest of the child.