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In the Interest of Z.N.H. - 280 S.W.3d 481 (Tex. App. 2009)

Rule:

The best interest of the child is the primary consideration of the court in determining conservatorship and possession issues. Tex. Fam. Code Ann. § 153.002 (2008). The following factors are considered when addressing the best interest of the child in the context of a relocation case: (1) the relationship with and presence of extended family; (2) the presence of friends; (3) the presence of a stable and supportive environment; (4) the custodial parent's improved financial situation and ability to provide a better standard of living for the children; (5) positive impact on the custodial parent's emotional and mental state, with beneficial results to the children; (6) the noncustodial parent's right to have regular and meaningful contact; (7) the ability of the noncustodial parent to relocate; and (8) the ability of the noncustodial parent to adapt his work schedule to his children.

Facts:

Brenda and Matthew are the parents of Z.N.H. Brenda and Matthew divorced on November 30, 1998. At that time, Z.N.H. was three years old. In the divorce decree, the trial court appointed Brenda as the sole managing conservator of Z.N.H. and Matthew as the possessory conservator of Z.N.H. The decree provided that Brenda had the exclusive right to establish Z.N.H.'s primary residence. On June 7, 2001, the trial court entered an agreed order modifying the parent-child relationship. The agreed order contained a geographical limitation provision that required Brenda to establish Z.N.H.'s primary residence in Taylor County, Texas. When Brenda remarried, she told Matthew that the family planned to move to Coppell, Texas in 2006. Brenda filed a petition to modify the parent-child relationship requesting that the trial court lift the Taylor County geographical restriction so that she could establish Z.N.H.'s primary residence outside Taylor County. Matthew opposed Brenda's request to modify the geographical limitation. He also requested the trial court to appoint Brenda and him as joint managing conservators.  Brenda filed a motion for substitution of counsel. Matthew filed a motion to disqualify Myers from representing Brenda alledging that he and his wife had consulted with Myers  regarding the same case and that his consultation with Myers gave rise to a conflict of interest that disqualified Myers. The trial court denied Matthew's motion to disqualify Myers and entered an order granting the modification requested by Brenda and denying the modification requested by Matthew. On appeal, Matthew argued that the trial court abused its discretion in denying his motion to disqualify Brenda's attorney.

Issue:

Did the court abuse its discretion?

Answer:

Yes

Conclusion:

The court of appeals agreed with father Matthew, who stated that he had consulted with the mother's attorney "regarding the facts of the case." He also stated that he had spent about 35-40 minutes with the mother's attorney and that he had shared "very personal information" with him. The father also stated that he had come very close to hiring the mother's attorney. Following a hearing, the trial court denied the father's motion to disqualify the mother's attorney. The evidence established that the father consulted the mother's attorney with a view to obtaining professional legal services from the mother's attorney. Therefore, the father was the mother's attorney's former client under the definition set forth in Tex. R. Evid. 503(a)(1). The mother's attorney's representation of the mother involved the same matter. In making its ruling, the trial court should not have considered the mother's attorney's lack of recollection of the meeting and a lack of evidence of the disclosure of any specific matters that could not be found in the court's file. The judgment was reversed and the case was remanded for a new trial.

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