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Second opinion] I have a question for a TEXAS FAMILY LAW…

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second opinion] I have a...
second opinion] I have a question for a TEXAS FAMILY LAW SPECIALIST regarding "Exclusive right to designate residence"...
Submitted: 11 months ago.Category: Family Law
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7/31/2017
Family Lawyer: Joycelaw, Attorney replied 11 months ago
Joycelaw
Joycelaw, Attorney
Category: Family Law
Satisfied Customers: 120
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Phone call session started
Customer reply replied 11 months ago
Do I wait for a call or call?
Family Lawyer: Richard, Attorney replied 11 months ago
Richard
Richard, Attorney
Category: Family Law
Satisfied Customers: 57,033
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Hi! My name is Richard & I will be helping you today! It will take me a few minutes to type a response to your question. Thanks for your patience!

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Family Lawyer: Richard, Attorney replied 11 months ago

Hi there. How can I help? Richard

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Customer reply replied 11 months ago
I have a question regarding an emergency motion for relief.
Customer reply replied 11 months ago
It says phone call offer accepted. Do I need to initiate the call?
Family Lawyer: Richard, Attorney replied 11 months ago

I'm sorry....that's outside my area. Therefore, I am going to opt out to open your question up to all experts so another expert can hopefully timely provide you the information you seek. Please do not respond to this post as it will only slow the process of such an expert picking up your question. Take care.

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Customer reply replied 11 months ago
Thanks
Customer reply replied 11 months ago
I have a time sensitive question
Family Lawyer: RayAnswers, Lawyer replied 11 months ago
RayAnswers
RayAnswers, Lawyer
Category: Family Law
Satisfied Customers: 48,194
Experience: 30 years as a family law lawyer .
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Are you wanting to modify custody here on emergency basis or what, be happy to help,thanks.

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Customer reply replied 11 months ago
May I send 3 photos of an appeal in another case, I annotated to fit my current situation exactly rather than type it?
Family Lawyer: RayAnswers, Lawyer replied 11 months ago

Yes no problem here will get back to you tonight.

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Customer reply replied 11 months ago
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Customer reply replied 11 months ago
My question is not whether or not to mandamus or file for relief.My question is given this situation, what legal factors have been deemed by trial/appellate/ Supreme Court decisions in Texas that outweigh Courts loathing removing a child from school to return to
Customer reply replied 11 months ago
Geographical restriction after continued hearing on October 5, 2017, vs end of school in Utah on July 2108.(We have met all criteria to return child, and have 90% chance of prevailing in return)The issue is, what are the factors used in prior court verdicts that allowed or ordered return of child/ relocation of child to Texas during school year (after hearing in October),as opposed to after child is dismissed from school at end of school year in Utah in July 2018?
Family Lawyer: RayAnswers, Lawyer replied 11 months ago

This is fine as you have it and it is filed in the District Court of Appeals.Hopefully you can get mandamus granted or emergency orders to stop this from happening.You certainly were denied justice in all of this and you have to try.Your form is fine here that sets out the facts.

I appreciate the chance to help you and wish you the best.Let me know if you have more.

If you can positive rate 5 stars it is much appreciated.

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Customer reply replied 11 months ago
I'm not filing for relief or mandamus. I want asking about form. The cited petition was denied, and would just upset the court.Please kindly read the question. Thanks
Family Lawyer: RayAnswers, Lawyer replied 11 months ago

n 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.

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Family Lawyer: RayAnswers, Lawyer replied 11 months ago

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:

  1. the desires of the child;
  2. the emotional and physical needs of the child now and in the future;
  3. the emotional and physical danger to the child now and in the future;
  4. the parental abilities of the individuals seeking custody;
  5. the programs available to assist these individuals to promote the best interest of the child;
  6. the plans for the child by these individuals or by the agency seeking custody;
  7. the stability of the home or proposed placement;
  8. the acts or omissions of the parent which may indicate that the existing parent-child relationship is not a roper one; and
  9. 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 “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:

  1. reasons for or against the move;
  2. comparison of health, education and liesure opportunities;
  3. whether special needs and talents of the children can be accommodated;
  4. the effect on extended family relationships;
  5. the effect on visitation and communication with the non-custodial parent to maintain a full and continuous relationship with the child; and
  6. whether the non-custodial parent has resources to relocate.
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Family Lawyer: RayAnswers, Lawyer replied 11 months ago

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.

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Customer reply replied 11 months ago
I'm "not" asking about form...Final hearing is continued and will conclude on Oct 5, 2017... AFTER my daughter has returned to mom 1,230 miles away and been in school for a month.Given fact of most all Judges predisposition to NOT take any child out of school to move back to domicile restriction after final hearing (ours oct 5), but rather relocate at end of school year (July 2018)... my question specifically is this:At final hearing on Oct 5 mother will either either be ordered to return child during school in other state or return after school ends (July 2018)What legal factors have been previously cited by trial/appellate and/or Supreme Courts in Texas to support relocation of child during school year vs delaying return of child to domicile restriction Until AFTER school year ends...
Family Lawyer: RayAnswers, Lawyer replied 11 months ago

I gave you the cases I have you would have to convince the judge that taking child out of school is in child's best interests.Judge would look to age of child and what child wants here too.If child wants to live with you that might be enough here to move during year.Texas judges have pretty much unlimited discretion here these factors and cases as you can see are so vague its hard to overcome what judge views as child's best interest.

I can tell you this based on my 30 plus years of these kinds of cases.Judges very much take a parental kind of interest and decide what they think is truly best here not necessarily what either parent wants.These are hard decisions you have been denied your rights vs. whether then to interrupt childs life to correct that.Focus on why i it is better for the child.

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Customer reply replied 11 months ago
I will review these cases and reply.
Family Lawyer: RayAnswers, Lawyer replied 11 months ago

No problem thanks again.

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Customer reply replied 11 months ago
Correct me if I'm wrong in your opinion, given your experience.It seems like the definite WRONG approach is to spend my time "TELLING THE COURT" only about my prejudiced "feelings and opinions" about the other parent and child...But instead;It seems like the definite RIGHT approach is to spend every second of my time SHOWING OBJECTIVE-BASED, SUPPORTING EVIDENCE, DOCUMENTATION, RECORDINGS, and EXPERT TESTIMONY that stick to supporting the "FACTORS" cited by Trial, Appellate, and The Supreme courts as factors THE COURTS "feel" constitute best interest.
Family Lawyer: RayAnswers, Lawyer replied 11 months ago

Yes focus on best interests of the child and why your argument is the best plan.You have some great facts to get the judge to rule in your favor.

Thanks again I wish you the best.

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