January 6, 2012 Leave a comment
How does a Court determine if a geographic restriction for the child’s primary residence should be put in place, and if so, the area of that geographic restriction?
In Texas, the Court’s power to determine geographic restrictions comes from Texas Family Code sections 153.134(b)(1)(A) and (B). The first section allows the Court to establish a geographic area for the child’s primary residence while the second, (B), allows the Court to specify that the conservator with the right to determine the primary residence of the child has no geographic restrictions in making that decision.
The Court, in making this decision, then looks to the public policy of the State of Texas and the best interest of the child as laid out in Texas Family Code sections 153.001(a) and 153.002.
153.001: Public Policy
(a) The public policy of this state is 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.
153.002: Best Interest of Child
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.
As you can see, there is not a lot of guidance. Fortunately, two cases lay out the factors to consider.
For the best interest of the child, we look to Holley v. Adams, 544 S.W.2d 367 (Tex. 1976). While an older case, it is still continuously cited and is still considered good case law. In fact, when searched on LexisNexis on January 6, 2012, Holley was cited 963 times.
Those factors are:
- the desires of the child;
- the emotional and physical needs of the child now and in the future;
- the emotional and physical danger to the child now and in the future;
- the parental abilities of the individuals seeking custody;
- the programs available to assist these individuals to promote the best interest of the child;
- the plans for the child by these individuals or by the agency seeking custody;
- the stability of the home or proposed placement;
- the acts or omissions of the parent which may indicate that the existing parent-child relationship is not a roper one; and
- any excuse for the acts or omissions of the parent.
This listing is by no means exhaustive, but does indicate a number of considerations which either have been or would appear to be pertinent. Holley v. Adams, 544 S.W.2d 367, 372 (Tex. 1976).
For factors to consider in the relocation context, we look to Lenz v. Lenz, 79 S.W.3d 10 (Tex. 2002). In Lenz, the Texas Supreme Court dealt with two German citizens and their children. One parent wanted to move back to Germany. The Texas Supreme Court stressed that old standards of relocation which place a burden on the parent choosing to move may not be feasible or appropriate in our society today, since there is “[i]ncreasing geographic mobility and the availability of easier, faster and cheaper communication.” The Court then looked at other states to discuss factors now deemed more relevant in today’s society. Those factors are:
- reasons for or against the move;
- comparison of health, education and liesure opportunities;
- whether special needs and talents of the children can be accommodated;
- the effect on extended family relationships;
- the effect on visitation and communication with the non-custodial parent to maintain a full and continuous relationship with the child; and
- whether the non-custodial parent has resources to relocate.
Echols v. Olivarez:
Another case sometimes referenced is Echols v. Olivarez, 85 S.W.3d 475 (Tex. App.– Austin, 2002). Echols takes some of the language of Lenz and expands on it so that the “context of the custodial parent’s happiness” should be a factor as well. The idea is the custodial parent’s happiness can influence the child’s happiness. Since the Texas Supreme Court in Lenz left the list of factors open, this seems a legitimate factor to consider in the relocation context, though the weight that should be assigned this factor is certainly not determinative of the relocation issue. Later cases cite this factor and the current attitudes on this in the scientific community as evidenced by expert testimony at the trial court level. However, that will need to be another post.