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When it comes to geographic restrictions on the residence of a child the restriction is automatic at the temporary stage. While Adams focuses on the facts as they exist at the time of the first trial the Lenz case requires a “comparative” analysis of the two proposed residences.As soon as either party files a petition seeking a divorce, a petition to establish paternity, or a Petition in a Suit Affecting the Parent-Child Relationship the Court issues a restriction that prohibits either parent from removing he children from the jurisdictional limits of the court during the pendency of the proceedings. To make matters even worse, or better, depending on your point of view – the Adams factors are not the only standard in a motion to modify. In other words, you not only have to prove best interest under Adams, you have to address (1) reasons for or against the move; (2) compare the health, education and leisure opportunities available to the child at both locations; (3) demonstrate/minimize the effect on visitation and communication with the non-custodial parent to maintain a full and continuous relationship with the child; and (4) whether the non-custodial parent has resources to relocate.
If you do this, the Court will make the other parent own up and keep the kids close so you can continue to build and enjoy that relationship.Of course, how to do that is a little more complicated and the subject of multiple articles and web pages in it’s own right.Feel free to use the search bar to the right to read more on the topic.The other parent, commonly called the Non-Custodial Parent or Possessory Conservator has the children at designated times – usually on alternating weekends, alternating holidays, and some time in the summer.However most custody orders in Texas contain a provision that if the two Conservators do not live within 100 miles of one another, the Possessory Conservator/NCP gets more time in the summer and every Spring Break but only one weekend a month and reality dictates that the further the parents live from one another, the more it cost to travel between the homes and therefore there is a point on a map where visitation on the weekends tend to cease and the non-custodial parent only sees the kids a few times a year.The purpose of a geographic restriction on the residence of a child helps explain: the restriction is designed to ensure the parent with whom the children do not live has a continual relationship with the kids and the kids have access to that parent.
It is perhaps easier to understand this way – at divorce or separation the children cannot live with both parents since the parents do not live together.
In other words, once the lawsuit is started, no one can move the kids out of the area to keep the court from issuing orders or to gain an unfair advantage in the lawsuit – the kids stay put until the case is finished. Your best chance of defeating a geographic restriction is at the first trial. Getting a geographic restriction is easy – breaking a geographic restriction is VERY difficult but it can be done.
Then, at the final hearing on the matter, the Judge will make the geographic restriction permanent unless (1) the parties agree; (2) no one asks; or (3) the parent who wants to defeat the geographic restriction can prove the so-called “Adams Factors” Holley v. If the Judge grants the restriction, with or without your agreement and you later want to change the restriction, you have to deal with both the Adams factors and the holdings in the Lenz case. The central question that applies to both is the nature and strength of the relationship between the non-custodial parent and the child.
To keep the Primary or Custodial parent from having the unfettered discretion to just change visitation schedules by moving there is a geographic restriction. The second (collateral) purpose is to keep the Primary or Custodial parent from having the unfettered discretion to just change visitation schedules by moving.
The main purpose for a geographic restriction is to facilitate a strong continual parent-child relationship and the subsequent parent-child bond between the children and the non-custodial parent.
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