Child Custody Evaluations ~ Rolling the Dice on your Child’s future?

Candice
Hello!

Candice

President at Schwager Firm
Welcome to Schwager Law Firm from our Founder and Principal, Candice Leonard Schwager. Candice is an experienced litigation attorney with a wide array of experience, including Family Law, Probate, Guardianship, Civil Rights, Contractual disputes, personal injury, products liability, & school law, representing children with disabilities. The Founder & President of two Non-profits for special needs, the elderly and disabled, Candice's practice is a diverse combination of people from al walks of life. Candice's public interest work has been recognized by the Texas State Bar Pro Bono College 7 years in a row, with thousands of hours donated to low income Texans who would not otherwise have access to justice. A 1997 Cum Laude Honors Graduate of South Texas College of Law, Law Review Editor, Brief Writer for STCL's award winning National Moot Court Team, and Research/Writing Assistant to W. David East, Associate Dean, Candice believes in excellence and has been blessed with the opportunity be mentored by the best lawyers in the State of Texas for 2 decades.

Since 1997, Candice Schwager has been serving Texas with the single purpose of making a difference. Candice is currently offering a complimentary 30 minute consultation to those in need of legal representation. Call (832) 315 - 8489 or e-mail cls@schwagerfirm.com
Candice
Hello!

I hate to say it, but there is no way in God’s green earth I would turn the decision of my child’s wellbeing over to a psychologist whose values do not remotely resemble mine, much less do I know if they have a clue. You could get a great conservator doctor or a liberal Einstein alien who believes nothing that you do and so, will you simply roll the dice on your child and your future? Utter stupidity. Work it out. What in the world does a scientist know about real life as opposed to theory? This isn’t a science experiment.

Child custody evaluations are the most frightening, harrowing things I have witnessed in family courts and they are also prohibitively expensive so I would avoid them like the plague. With the undergraduate work I have done in this area combined with family counseling exposure, I simply do not believe even the best family counselors can meet with a child a few times and the parents for what amounts to mere hours and make decisions that alter their lives forever.  I have seen this work tragically in cases where a parent is an undiagnosed psychopath or person with a manipulative personality disorder. Salespeople are excellent at putting on a mask and becoming someone their are not.

Many times in a custody proceeding, the case will hinge on statements the children have made to the mental health professional.  That is a landmine waiting to happen because depending on the day your child is having or events that just blew up between you and your child, your life could be ruined or drastically differ. Let’s say your client comes into your office and has a lengthy story about everything the kids  say upon return from Dad’s home.

The children allege the step mother is mean, Dad leaves them alone with her, she has a pad lock on the refrigerator, she forces them outside while her own children remain indoors drinking tea from gold plated cups and eating crumpets. You get the idea, and if you have not heard this story in your practice yet, you will. The bottom line is the children are being affected and there may or may not be enough evidence to prove the children would be better in the other parent’s home. Your client knows her children. She knows they are miserable.

You ask the question, “what counselor are they seeing?” And she says “no one.” You see your case go down the tubes. The statements of the children are likely not to come in under these circumstances. (although you should research exceptions to hearsay because you may be able to argue state of mind, or that the statements are not being used to prove truth of the matter asserted, just the unhappiness of the child. But good luck with that once the Judge hears “Little Suzy told me…” ).  So, many times, the lawyer will direct the client to a mental health professional.

So, why can a mental health professional testify to what Little Suzy said and your client cannot? Statements made to an LPC, if foundation is properly laid, can be admissible. Texas Rules of evidence bars the introduction of a statement made to prove of the truth of the matter asserted. Texas Rules of Evidence 801 and 802. (For instance, a child says the sky was blue that day. If the issue at hand was the color of the sky, that is hearsay. However, if the purpose of the use of the statement is to show the child was outside that day, the statement may not be hearsay.  At least that is what I would argue.) the nightmare is that eyewitness testimony is inherently unreliable so we are now going to try this twice removed? I have also seen lazy court appointees who don’t care about the families but the money. Their reports are half baked and disastrous outcomes result.

So if a case is heavily reliant on the testimony of the LPC, the first step is to overcome the hearsay. Pursuant to Texas Rules of Evidence 803(4), allows for testimony of a statement “Made for Medical Diagnosis or Treatment. The statement must be made for–and is reasonably pertinent to–medical diagnosis or treatment; and describes medical history; past or present symptoms or sensations; their inception; or their general cause.” Technically each and every statement is subject to this scrutiny and unless the statement was used to make the diagnosis and prescribe treatment, it is not admissible. For example, if a child says in passing, my dad is mean, the prudent practioner will establish that the LPC used the statement to make diagnosis and prescribe treatment.

 

Further, a professional is the only person who can offer an opinion, make the diagnosis, or prescribe a treatment for the child. So, now you have the counselor secured, or any other mental health professional. How do you qualify the witness as an expert? I would ordinarily think a better practice would be using medical professionals who know the child. but that isn’t done.

To be admissible, the proponent must demonstrate: (1) that the expert is qualified; and (2) that the expert’s testimony is relevant and reliable. See Helena Chem. Co. v. Wilkins, 47 S.W.3d 486, 499 (Tex.2001); Robinson, 923 S.W.2d at 556; see also Kraft, 77 S.W.3d at 807. Tex. R. Evid. 702. If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education may testify thereto in the form of an opinion or otherwise.

The Supreme Court of Texas adopted the United States Daubert construction of the Federal Rules of evidence and the Texas Court of Criminal Appeals decision in Kelly in Gammil v. Jack Williams Chevrolet, Inc. Gammil v. Jack Williams Chevrolet, Inc., 972 S.W.2d 713, 720. The Court stated that “[i]n order to constitute scientific knowledge which will assist the trier of fact, the proposed testimony must be relevant and reliable.” Id.

“The requirement  that  the  proposed  testimony  be  relevant  incorporates  traditional  relevancy  analysis  under Rules 401 and 402 of the Texas Rules of Civil Evidence. Id. To be relevant, the proposed testimony must be “sufficiently tied to the facts of the case that it will aid the jury in resolving a factual dispute.” Id. Evidence that has no relationship to any of the issues in the case is irrelevant and does not satisfy Rule 702′s requirement that the testimony  be  of  assistance  to  the  jury.  Id.   It  is  thus  inadmissible  under Rule  702 as  well  as  under Rules   401 and 402.” Id.

In addition to being relevant, the underlying scientific technique or principle must be reliable.  Scientific evidence which is not grounded “in the methods and procedures of science” is no more than “subjective belief or unsupported speculation.” Id. Unreliable evidence is of no assistance to the trier of fact and is therefore inadmissible under Rule 702.” Id.

“There are many factors that a trial court may consider in making the threshold determination of admissibility under Rule 702. These factors include, but are not limited to:

  • the extent to which the theory has been or can be tested;
  • the extent to which the technique relies upon the subjective interpretation of the expert;
  • whether the theory has been subjected to peer review and/or publication;
  • the technique’s potential rate of error;
  • whether the underlying theory or technique has been generally accepted as valid by the relevant scientific community; and
  • the non-judicial uses which have been made of the theory or technique.” Id.

 

 

Trial courts may consider other factors which are helpful to determining the reliability of the scientific evidence. The factors a trial court will find helpful in determining whether the underlying theories and techniques of the proffered evidence are scientifically reliable will differ with each particular case. Id. However, a distinction has developed in civil cases. Nenno v. State, 970 S.W.2d 549, 561 (Court of Crim. App. 1998). There was a portion of Nenno that was overruled and when you pull the case up in Westlaw, it has a red flag. However, Courts have continued to use the factors the Court held in that case for the purposes  of  testing the reliability of a soft-science expert witness.

“[i]n  2010,  this  Court,   with   a   different   composition,   issued   a   unanimous   opinion   in   which   the Nenno factors were applied in testing the reliability of a soft-science expert witness in a termination case. See In re S.R., No. 10–10–00063–CV, 2010 WL 4983484, at *2, 2010 Tex. App. LEXIS 9681 at **4– 6 (Tex. App.—Waco Dec. 8, 2010, pet. denied) (mem. op.). However, the S.R. opinion did not reference this Court’s prior J.B. opinion. See generally id. Nevertheless, a fair reading of this Court’s more recent pronouncement in S.R. yields a finding that we apply the Nenno factors to evaluate soft-science testimony in civil cases. See id. 2010 WL 4983484, at *2, 2010 Tex. App. LEXIS 9681 at **4–6. As such, it would appear that S.R. effectively overruled J.B. with respect to the analysis used to evaluate soft-science testimony in civil cases.”

While the Texas Supreme Court has not adopted the Nenno factors like they did Gammil, several Courts apply the Nenno factors in family law cases.   In the Interest of J.R. 2016 WL 6128159 (Tex. App. –Waco 2016).    There were three criteria set forth in Nenno to assist the courts in determining soft science testimony. Those factors were (1) whether the area of expertise is a legitimate one, (2) whether the subject matter of the expert’s testimony is within the scope of that field, and (3) whether the expert’s testimony properly relies upon or utilizes the principles involved in that field. Nenno v. State 970 S.W.2d 549, 561 (Court of Crim. App. 1998). The Court also noted that where the Daubert Robinson factors do not seem applicable, the analytical gap test should be applied in addition to the Nenno factors. That test is essentially evaluates the gap between the experts ultimate conclusion and the data and methodology utilized.”

My best advice is stay away from these evaluations. You are likely to regret it and it’s a 50/50 toss up unless you don’t interview well.

 

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FAQ in Texas Family Court from Parents

Candice
Hello!

Candice

President at Schwager Firm
Welcome to Schwager Law Firm from our Founder and Principal, Candice Leonard Schwager. Candice is an experienced litigation attorney with a wide array of experience, including Family Law, Probate, Guardianship, Civil Rights, Contractual disputes, personal injury, products liability, & school law, representing children with disabilities. The Founder & President of two Non-profits for special needs, the elderly and disabled, Candice's practice is a diverse combination of people from al walks of life. Candice's public interest work has been recognized by the Texas State Bar Pro Bono College 7 years in a row, with thousands of hours donated to low income Texans who would not otherwise have access to justice. A 1997 Cum Laude Honors Graduate of South Texas College of Law, Law Review Editor, Brief Writer for STCL's award winning National Moot Court Team, and Research/Writing Assistant to W. David East, Associate Dean, Candice believes in excellence and has been blessed with the opportunity be mentored by the best lawyers in the State of Texas for 2 decades.

Since 1997, Candice Schwager has been serving Texas with the single purpose of making a difference. Candice is currently offering a complimentary 30 minute consultation to those in need of legal representation. Call (832) 315 - 8489 or e-mail cls@schwagerfirm.com
Candice
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What is joint custody? What is sole custody?

In Texas, courts divide child custody issues into two different categories: conservatorship and possession and access.

Conservatorship is basically the rights and duties of the parents (i.e. to make decisions for the child regarding schooling, medical decisions, and psychiatric decisions, among many other things). Conservatorship can be done in different ways, including allowing one parent to make all the decisions (Sole Managing Conservatorship) or allowing both parents to jointly make the decisions (Joint Managing Conservatorship).

When determining the rights and duties of the parent(s), the court will decide what is in the “best interest” of the child, which takes into account a large number of factors.

Possession and access refers to when the parents have physical custody of the children or when they can visit with the children. Texas has two statutory possession and access schedules: standard and extended standard. These schedules dictate the time each parent spends with the child.

However, the parties can agree on different possession and access schedules based on their needs or the court can order a different possession and access schedule based on the best interest of the child.

 If both parents share custody does anyone pay child support?

Whether or not a parent has to pay child support depends on what the court determines to be in the best interests of the child.

In determining the best interests of the child, the court will consider evidence relating to a wide array of factors including: physical and emotional needs; physical and emotional danger; stability of home; plans for child; cooperation between parents; parenting skills; who was the child’s primary caregiver; the child’s preferences if the child is 12 or older; geographic proximity of the children; keeping siblings together; false reports of child abuse; and fitness of each parent (including abuse, physical force and family violence).

Typically the parent who is awarded the right to designate the primary residence and/or has possession and access to the child a majority of the time is the recipient of child support.

Can a parent refuse to allow visitation if child support is not paid?

No, child support and visitation do not go hand-in-hand. While the court can take into consideration how much possession and access to the child(ren) is being exercised when determining the amount of child support to be paid to an obligee, a parent nor a court can refuse to allow visitation solely on the issue of non-payment of child support.

When can my child decide which parent to live with?

In Texas, a child’s decision cannot be the sole factor in determining which parent the child lives with. However, once the child reaches the age of 12, and upon motion, the court can consider the child’s wishes as to whom he/she wishes to live with.

Do grandparents have custody and visitation rights?

No, grandparents do not typically have custody and visitation rights, unless they can meet the statutory requirements, including:

1.) at least one parent not having their parental rights terminated at the time relief is requested;

2.) overcoming the presumption that a fit parent acts in the best interest of their child in denying possession or it would significantly impair the child’s physical health or emotional well being; and

3.) the grandparent must be the parent of the child and that parent of the child must be either i.) declared incompetent by the court; ii.) is dead, or iii.) does not have actual or court-ordered possession to the child.

What is a parenting plan, and do I need one?

Yes, every case involving children needs a parenting plan. A parenting plan sets the rights and duties of a parent regarding the child. Some rights and duties include: right to designate primary residence; right to make decisions regarding the child’s health; rights to make decisions regarding the child’s education; duty to provide health insurance; duty to provide child support and many others.

If my separation agreement includes custody/support can it be included in the divorce decree? Texas does not have separation agreements. Instead the state has temporary orders. Upon agreement of the parties or upon order of the court, the possession and access/support terms from the temporary orders can be included in the final decree of divorce.

Upon filing of a divorce or other family matter, a party may request the court enter a temporary order governing the matter. Temporary orders allow the parties to get agreed upon or court-ordered “rules” governing various aspects of the domestic arena, including child conservatorship, possession and access, child support, property division, spousal support and various other items.

Possession and access will be decided on a temporary basis in the temporary orders either by agreement or by order of the court. Possession and access will be decided on a permanent basis in either the final decree of divorce or in the order on Suit Affecting Parent-Child Relationship (SAPCR).

When can I modify custody?

You can modify custody if it is in the best interests of the child and:

1.) the parents agree;

2.) if the child is 12 years old or older and tells the court he wants to change his primary caretaker;

3.) the person with the right to determine the primary residence relinquishes care and possession of the child for at least 6 months; or there has been a material and substantial change in the circumstances of either the child, the parent, the conservator or another significant party.

The most common way people modify custody is by showing that there has been a significant change in a party’s circumstances, which is a very broad category and can be proven in a variety of ways.

Who will get custody of our child(ren) and how is custody decided?

The court will determine possession and access to the child/children based on the best interest of the child.

In determining the best interest of the child, the court will consider evidence relating to a wide array of factors including: physical and emotional needs; physical and emotional danger; stability of home; plans for child; cooperation between parents; parenting skills; who was the child’s primary caregiver; the child’s preferences if the child is 12 or older; geographic proximity of the children; keeping siblings together; false reports of child abuse; and fitness of each parent (including: abuse; physical force; family violence).

How can I increase my chances at getting a larger custody agreement?

You can increase their changes at getting a larger custody agreement by proving to the court that you are an integral part of the children’s lives. This includes showing the court that you exercise regular visitation; that you take the kids to their extra-curricular activities; that you care for them on a daily basis; and that you are stable and competent to take the children for longer periods of time.

It is always helpful to keep a journal and calendar of everything that you do for and with the children leading up to the temporary orders or final determination of custody so you can show the court, mediator or opposing party that you are capable and deserving of a larger possession and access period.

What is visitation?

Texas does not use the term “visitation.” However, as stated above Texas uses the terms “possession and access.” Possession and access refers to when the parents have physical custody of the children or when they can visit with the children. Texas has two statutory possession and access schedules: standard and extended standard.

These schedules dictate the time each parent spends with the child. However, the parties can agree on different possession and access schedules based on their needs or the court can order a different possession and access schedule based on the best interest of the child.

Can a judge order supervised visitation or no visitation?

If the other party can prove that the children’s emotional or physical well-being is at risk of being harmed, the court can order supervised visitation.

 

You should know extensive and detailed information about your child. For example, you should know:

Child’s birthdate;
Child’s allergies;
Child’s special needs;
Child’s medical background;
Child’s schedule;
Child’s extracurricular activities and the names of all sponsors/coaches;
Your children’s school, teachers and grade.

Do I need to use a Custody Evaluator?

In Texas, we typically don’t use Guardian ad Litems, we more typically use amicus attorneys. A Guardian ad Litem and/or amicus attorney is often used when the children are under the influence of the strength of one party or the children are experiencing a great amount of change. It allows the child to have an advocate for their rights who is not persuaded by other factors.

Because the parties sometimes become wrapped up in “side issues,” it may be most helpful to the judge to have a third party neutral or advocate for the children come in and evaluate the case. Typically Guardian ad Litems and amicus attorneys are used when there is to be a termination of the parental rights, an adoption, or if there is physical/mental abuse.

Will my child need to appear in court?

Typically your child will not need to appear in court unless one of the parties has filed a Motion to Confer with Child. This type of motion is usually filed when one of the children is 12 or older and wants to express with the court whom they would like to reside with.

Please note that it is never a good idea to bring your child to the court for any family matters.

What if my wife tries to move the kids out state?

It is always important to try and maintain a stable and safe environment for the kids and the judge will try and maintain that stable and safe environment. Typically counties will have a standing order that will prohibit the parties from taking the children out of state, or your attorney can help you get a Temporary Restraining Order that will prevent your wife from moving out of state.

If you already have orders in your case regarding possession and access to your children, you can still file a Temporary Restraining Order to keep your wife from moving the children from the state. It is possible to limit the children’s residence to the state of Texas, the current county and/or contiguous counties.

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Sexism in the Courts? Small Children, probably with infants

Candice
Hello!

Candice

President at Schwager Firm
Welcome to Schwager Law Firm from our Founder and Principal, Candice Leonard Schwager. Candice is an experienced litigation attorney with a wide array of experience, including Family Law, Probate, Guardianship, Civil Rights, Contractual disputes, personal injury, products liability, & school law, representing children with disabilities. The Founder & President of two Non-profits for special needs, the elderly and disabled, Candice's practice is a diverse combination of people from al walks of life. Candice's public interest work has been recognized by the Texas State Bar Pro Bono College 7 years in a row, with thousands of hours donated to low income Texans who would not otherwise have access to justice. A 1997 Cum Laude Honors Graduate of South Texas College of Law, Law Review Editor, Brief Writer for STCL's award winning National Moot Court Team, and Research/Writing Assistant to W. David East, Associate Dean, Candice believes in excellence and has been blessed with the opportunity be mentored by the best lawyers in the State of Texas for 2 decades.

Since 1997, Candice Schwager has been serving Texas with the single purpose of making a difference. Candice is currently offering a complimentary 30 minute consultation to those in need of legal representation. Call (832) 315 - 8489 or e-mail cls@schwagerfirm.com
Candice
Hello!

In the United States, state laws involving custody do not automatically favor the mother over the father, but courts apply the best interests doctrine to determine what is in the best interests of the child. While a father’s legal rights with a newborn are usually the same as with an older child, cases involving newborn babies have unique circumstances. The well-being of the baby should be the paramount consideration, and courts consider the best interests of the child, over the desires or requests of either parent.
Legal Definition of “Father”

In the United States, if a mother and father are married and the father is named on the baby’s birth certificate, he is granted parental rights of custody and visitation, provided he is a fit parent. The situation is less clear when there is a question of paternity or if the parents are unmarried. If paternity is questioned and the mother will not let the father visit the newborn child, the man should file for a paternity test in family court in the jurisdiction where the mother and child live. The court will grant parental rights if a DNA test proves paternity.
Legal Custody

Custody is divided into physical custody and legal custody. Physical custody is where the child lives. Legal custody is the right of biological parents to be involved in important legal decisions relating to the child’s upbringing, what school he goes to, what religious preference or church (if any) the child will attend, and what health care he receives. Custody, including legal and physical custody, may be sole, joint or shared. Courts will usually award joint legal custody, unless doing so is not in the child’s best interests. This could include an unfit, incarcerated, abusive or neglectful parent. Joint custody means both parents have equal rights to be involved in the important decisions affecting the child, from birth until the child is old enough to make his own decisions, usually age 18 in most states.
Physical custody refers to the child’s primary residence. In the case of unmarried parents, the court tends to award physical custody to the mother. Physical custody may be awarded to the father, if the mother is deemed to be unfit. In the case of a newborn, physical custody is often awarded to the mother, if she is breastfeeding the child throughout the night, says attorney Lina Guillan for DivorceNet.com. The father is likely to have few or no overnight stays with the baby until she no longer requires night feeding. This comes down to what is in the best interests of the baby, rather than giving preference to either parent over the other.
Parenting Time

A father who is not granted physical custody (sole or joint) of his newborn baby is usually granted visitation rights, often called parenting time, according to what the court determines is in the best interests of the infant. If the parents are unable to reach an agreement, the court will set up a schedule of visitation in a parenting plan, taking into account the baby’s feeding schedule and sleep patterns. “Creating a Parenting Plan: Children Under Three” by the Los Angeles Superior Court suggests a two-hour visit on three non-consecutive days per week for babies from birth up to 6 months.

If the baby is drinking formula from a bottle, overnight stays with the father may be a possibility. If the father suspects the mother is using breastfeeding as a reason to deny him overnight stays, the court would have to decide whether breastfeeding was more important than the development of the bond between father and baby. Each decision is made by the court, after careful and thorough analysis of the facts of the case. Years ago, an idea developed in the courts that children under 5 simply needed the nurturance of their mothers and the law has remained that way. The problem is that once a status quo is obtained, it tends not to change, creating an uphill battle later unless the mother seriously goes off the deep end. Couples would do well to plan these issues together. Or else, it’s a no win situation.

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Family Law: Relocation challenging absent compelling evidence

Candice
Hello!

Candice

President at Schwager Firm
Welcome to Schwager Law Firm from our Founder and Principal, Candice Leonard Schwager. Candice is an experienced litigation attorney with a wide array of experience, including Family Law, Probate, Guardianship, Civil Rights, Contractual disputes, personal injury, products liability, & school law, representing children with disabilities. The Founder & President of two Non-profits for special needs, the elderly and disabled, Candice's practice is a diverse combination of people from al walks of life. Candice's public interest work has been recognized by the Texas State Bar Pro Bono College 7 years in a row, with thousands of hours donated to low income Texans who would not otherwise have access to justice. A 1997 Cum Laude Honors Graduate of South Texas College of Law, Law Review Editor, Brief Writer for STCL's award winning National Moot Court Team, and Research/Writing Assistant to W. David East, Associate Dean, Candice believes in excellence and has been blessed with the opportunity be mentored by the best lawyers in the State of Texas for 2 decades.

Since 1997, Candice Schwager has been serving Texas with the single purpose of making a difference. Candice is currently offering a complimentary 30 minute consultation to those in need of legal representation. Call (832) 315 - 8489 or e-mail cls@schwagerfirm.com
Candice
Hello!

Unless there is a history of parental misconduct, such as domestic violence or abuse, Texas courts typically award divorcing parents “joint managing conservatorship” (referred to as “joint legal custody” in some states) over their child. This means the parents will share the right to make important decisions about their child’s life, including where the child will live. Although there may be many great reasons for a parent to relocate for a better job, more often than not the Judge will deny relocation because of the prejudice to the parent not moving. That’s not to say it’s impossible, but my experience has shown an uphill battle. 

Divorcing parents can come up with a joint managing conservatorship arrangement on their own, and turn their agreement into a document called a “parenting plan.” However, if no parenting plan is filed with the court, a judge may decide custody issues.
In Texas, there is a legal presumption that both parents should be joint managing conservators of their child. However, this presumption may be rebutted (overcome) if the court finds there is a history of family violence involving either parent. If there is a history of domestic violence, or if one parent has otherwise demonstrated an inability to act in the child’s best interests, the court may order “sole managing conservatorship,” which means only one parent will make decisions regarding the child’s welfare.

  • When making custody decisions, courts consider several factors, including:
    whether the child’s physical, psychological, and emotional needs and development will benefit from the proposed arrangement
    the parents’ abilities to make the child’s welfare their first priority and reach shared decisions that are in the child’s best interests
    whether each parent can encourage a positive relationship between the child and the other parent
    whether both parents participated in child rearing before the divorce or custody action
    the geographical proximity of the parents’ residences
    the child’s preference (if the child is at least 12 years old), and
    any other factor the court deems relevant to the decision.

In an agreed-upon joint managing conservatorship arrangement, parents may state that neither parent is the “primary” parent, and simply agree that the child’s residence will remain within a particular geographic area. The parents can then create a “shared possession schedule” designating exactly when and where the child will spend time with each parent. When parents can’t reach an agreement, a judge will have to decide for them.

When the court makes an order awarding joint managing conservatorship, the court must also designate one parent as the “primary parent” (the parent that has the exclusive right to determine the child’s primary residence). The court must also establish a geographic area within with the primary parent can maintain the child’s primary residence. The other parent then visits the child in accordance with a detailed visitation schedule.

In most cases, the judge’s initial custody orders prohibit the primary parent from moving outside of a specific area (usually the child’s current county of residence plus any contiguous counties). Therefore, when parents want to move out of state with their children, they need to get a court order allowing them to do so; they can’t just pick up and leave.

Even if you have an older order (or agreement) that doesn’t restrict your child’s residence to a particular area, you still need to give the other parent notice if you intend to move with the child. If your child’s other parent wants to try to stop you from moving, he or she may file an application for a temporary restraining order (legal paperwork), which prevents you from moving until a court can hold a relocation hearing.
At the hearing, you’ll have to show compelling reasons for the proposed move, which may include a job relocation (if you can’t find comparable work locally), or a relocation to be closer to family, who will help support and care for the child. If the court suspects that you’re moving to interfere with the child’s relationship with the other parent, you will not be allowed to go. Food for thought before your final orders are signed. 

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