Getting Geographic Restriction on the Children's Domicle Lifted

My question involves a child custody case from the State of: Texas

My background: I am originally from the East Coast. All of my family currently reside on the East Coast. I moved to Austin, TX in 2007, having never been here, for a change of scenery. I met my ex husband after I had been living here for less than a year and ended up pregnant when we had been together for just 7 months. I had lost my job and we had decided I would just be a stay at home mom. When I was 36 weeks pregnant, I found out I had cancer. My relationship had begun ending prior to my son being born, but we stayed together for several more months, then separated when my son was about 4 months old (while still living on the same property in separate structures), and I finally moved out when my son was 1. I lost my health insurance, going to the doctor (on the medical assistance program, which I do not have anymore) was a full time job, and I developed a chronic pain condition that made it virtually impossible for me to work. Regardless, I continued applying to jobs, but had to turn down some offers because I could not afford day care, and my sons father was unwilling to pay for anything other than child support. Since then my pain condition has gotten better, but my only job experience is in retail, which I still cannot do, and I have not had a job since 2007.

Because of the rising prices in Austin, TX, I cannot find an affordable two bedroom apartment and have had to live just outside of Austin for the past 9 months. It's continued to be an extreme hard ship for me. I finally said enough is enough and got my GED last month (at 29) and am enrolling in online classes at the community college this spring. I have a set goal in mind and will be pursuing my MA and then PhD. I need to go back to school in order to have a career and to have a stable living environment for both my son and I.

I currently live off of just over $7k per year, am on SNAP (which has been lowered $65 in the past 2 months with no financial change on my end), my son has CHIP, I have no health insurance, and am in an extreme amount of medical and utility debt.

What I am going to court for: I have tried for the past 3 years to make it on my own in Austin, but it's just not feasible. It's going to be even less feasible when I am in school. I will be able to do spring and summer semesters in Austin, but I will be transferring to a 4 year university that has my degree program soon. I have looked into UT, but $1075 being the average rent for a 2 bedroom, utilities, tuition, books, and essentials for my son, it will be financially impossible to do.

I have filed my petition to modify the geographic restriction of my divorce decree. My current restriction is to stay in Travis County. I am going to court to ask for permission to move to New Hampshire. In New Hampshire we will have a free place to live at my moms while we settle in (there are two extra bedrooms). I am hoping to attend UNH which is very close to where my mother lives. In New Hampshire I will have family support with my son (ie: my mom will help by picking my son up from school/the bus stop, spend time with him while I am in class or doing homework, and just generally help out in a supportive way that I have not had the privilege of.) My son has only met his maternal family when he was 1. He sees his paternal family fairly often since they live in fairly close proximity. I think it is extremely important to get to know my family also.

The cost of living in NH will be much more affordable (I am planning on living in a town just outside of the town UNH is in). A 2 bedroom is approximately $750/mo. and on the bus line for UNH, so I would save immensely on transportation costs. My son will be able to start school in one school district and stay in that school district because I will have a much more stable living environment and will not have to continue moving because of unaffordable rent. In Austin, I have already had to move 6 times because I cannot afford rent.

In NH, I will be able to get health insurance. This is very important for me since the chance of me getting a new cancer is very high, and I need to be checked regularly. Healthy moms are important for children.

I know the distance is great, but I want to facilitate a relationship between my son and his dad as best I can. I am proposing winter and spring vacations alternating years (so he could spend Christmas with his dad one year and me the next), and an extended summer vacation. I included that I would like the following provisions: Dad & son can arrange more visitation time when son is not in school, so long as dad gives sufficient notice and pays travel costs, dad is welcome to visit son as often as he pleases/can as long as I receive one weeks notice, and dad can have however many weekly video chat sessions and telephone calls that he would like.

So, to break it down, this move will be beneficial to my son for the following reasons:

Family support - free child care, free place to live
A chance for my son to foster a relationship with my family
The ability for me to complete my BA and then move on to a graduate program - This will create a stable income and I will be able to eventully help my son with college costs, activities that he wants to participate in, etc.
Stable living environment - no constant moving, will get to stay in one school district and foster relationships with other children without having to move to a new school because I have to move
Mom's happiness - I have been depressed because of the situation I have been stuck in for the past 3 years. I am unhappy, and pursuing my dreams and being around the support of my family will make me happy, which will in turn reflect positively on my son.

I have a court date set and I am doing it pro se. I am extremely nervous because I know that relocation cases are very difficult. Does anyone have any input on my case? Can anyone tell me what to expect during court, specifically for someone who is representing themselves?

I can compile evidence, but what kind of evidence would be important? Would a written statement from me outlining everything be good evidence? Should I include cost of living comparisons?

Any guidance, suggestions, constructive criticism, or general help would be most appreciated. I want more than anything to provide a good, stable life for my son, and the only way I can do that is by getting an education so I can get the well-paying career that I want.

In all honesty, you generally need a whole lot more.

Family bonding isn't as important as parent/child bonding.

Your happiness isn't the relevant part.

You're not moving to a guaranteed job.

Healthy Moms might be important - but they by no means trump Dad's happiness, either.

You've moved 6 times already? Dad can try to make that look like instability.

I'm sorry, Mom - but I don't see this relocation being allowed.

Is there a reason why Dad shouldn't have primary custody?

Again, I want to facilitate as much parent bonding time with son and dad as I can.

I have been a "stay at home mom" since my son was born. The entire first year of his life he did not sleep overnight with his dad. Since then we have had standard visitation order, but he primarily spends most of his time with me. I think that switching custody would be more traumatic to my son than moving.

So dad's happiness matters, but moms isn't relevant? Those are two contradictory statements.

I did speak with a family law lawyer at a free workshop. It was a shor period of time but she told me I have a strong case for moving and that things have materially and substancially changed.

I'm not moving to a guaranteed job, of course not. Because my work history is RETAIL and I can no longer do that job. I need to go to school for education and degrees so I can get a stable job. I will be unable to do that here because I have absolutely no family support and no financial resources for child care and a dad who is unwilling to help.

I'm not going to bring it up in court, but I don't feel dads house is any more stable than mine. He's had many girlfriends, and recently just married someone he had only known for 2 months, 20 years his junior. That's clearly not a reason to relocate, and I am not trying to say it is, or use it, but (seemingly) judging me having to move 6 times since the divorce because I cannot afford rent that continues to rise to unaffordable costs is hardly less stable than bringing your son to stay overnight at your newest girlfriends house, then introducing a new wife who both dad and son have not known for very long.

So in your plan, he gets every other year? Are you willing to see your child every other year? I generally recommend that people suggest a parenting plan that they themselves could live with if THEY are on the other end.

Also, since you are creating a significant distance between the child and his father, you are likely going to be responsible for sending him back and forth to Texas for visitation a few times a year (don't count on getting spring and summer, he'll be spending a significant amount of time with dad since you see him every day). How do you plan on affording that since you're going to be going to school (and I assume) not working?

Let me address one other thing you said. A family court judge isn't going to care one iota about your happiness. The focus and the importance is on the child and is significantly better off if they have access to both parents. The time to worry about your happiness is before you became a parent, after that, you should be focusing on your child's happiness. Your primary argument is that your child is going to be living with people who are virtual strangers regardless of their biological relationship to him. He already knows his father.

Quote:

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Quoting jessicalynd

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Again, I want to facilitate as much parent bonding time with son and dad as I can.

I have been a "stay at home mom" since my son was born. The entire first year of his life he did not sleep overnight with his dad. Since then we have had standard visitation order, but he primarily spends most of his time with me. I think that switching custody would be more traumatic to my son than moving.

So dad's happiness matters, but moms isn't relevant? Those are two contradictory statements.

I did speak with a family law lawyer at a free workshop. It was a shor period of time but she told me I have a strong case for moving and that things have materially and substancially changed.

I'm not moving to a guaranteed job, of course not. Because my work history is RETAIL and I can no longer do that job. I need to go to school for education and degrees so I can get a stable job. I will be unable to do that here because I have absolutely no family support and no financial resources for child care and a dad who is unwilling to help.

I'm not going to bring it up in court, but I don't feel dads house is any more stable than mine. He's had many girlfriends, and recently just married someone he had only known for 2 months, 20 years his junior. That's clearly not a reason to relocate, and I am not trying to say it is, or use it, but (seemingly) judging me having to move 6 times since the divorce because I cannot afford rent that continues to rise to unaffordable costs is hardly less stable than bringing your son to stay overnight at your newest girlfriends house, then introducing a new wife who both dad and son have not known for very long.

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Your happiness and health are completely irrelevant - and they (once again) certainly don't trump Dad's circumstances. YOU were the one who brought up these issues...we did not.

And yes, the court considers moving several times because you can't pay your rent to be far more unstable than Dad having girlfriends.

You're the custodial parent - this gives you more obligations, not just more rights.

Frankly, any attorney who you pop in to see on the offchance is more likely to give you lipservice in the hopes that you'll get out your wallet.

I'm also not entirely sure why you think a change in custody would be more traumatic to the child than him having to move away from EVERYTHING he's ever known including his other parent.

By all means, hire that attorney and leave it up to a judge. But don't raise your hopes; there are cases where the relocating parent has an excellent chance at the move being approved, but your situation doesn't even come close to 50/50.

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Afterthought:

Don't shoot the messenger for this one, okay?

But given the totality of your circumstances, if you try this without an attorney I can actually see Dad not only preventing the move but having a better-than-decent shot at becoming the CP whether or not you move. You've really got to sit down and decide whether this is a risk you want to take.

[QUOTE=Dogmatique;754207]

Frankly, any attorney who you pop in to see on the offchance is more likely to give you lipservice in the hopes that you'll get out your wallet.


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The attorney that I "popped in to see" was an attorney who works for the Texas Rio Grande Legal Aide, meaning they are attorneys that do not charge people, get paid by the organization, and have no reason to be motivated by money. So that statement is wrong.

I posted here for some advice, and I seem to be getting snark. From the research I have done of actual cases, things like happiness and family support DO matter. I'll give you some examples since you don't seem to believe me:

First case:

Leading Texas Case - Lenz v. Lenz
In Lenz v. Lenz, (Tex. 2002), after a lengthy jury trial, the jury returned a verdict
permitting MOM to have the sole right to determine primary residence of the child.

The Lenz case involved two German citizens – Divorce decree appointed them JMC’s of
their two sons, with MOM having the exclusive right to determine the children’s primary
residence within the State of Texas.
A month after decree was entered, MOM filed a Pet/modify, seeking to lift the
domicile restriction so that she could return to Germany with kids and remarry.

This was an issue of first impression for our Supreme Court, so relocation cases from
other states were reviewed.

The Court listed the following factors considered by the New Jersey courts:
- reasons for and against the move;
- comparison of education, health and leisure opportunities;
- whether special needs or talents of the child can be accommodated;
- the effect on extended family relationships;
- the effect on visitation and communication with the noncustodial parent to
maintain and full and continuous relationship with the child; and
- whether the noncustodial parent has the ability to relocate.
The Court listed the following factors considered by the New York courts:
- the parents’ good faith in requesting or opposing the move,
- the possibility of a visitation schedule allowing the continuation of a meaningful
relationship between the noncustodial parent and the child;
- the degree of economic, emotional, and education enhancement for the custodial
parent and the child; and
- the effect on extended family relationships.

The Court listed the following factors considered by the California courts:
- the nature of the child’s existing contact with both parents,
- the child’s age;
- community ties; and
- health and educational needs.

The Texas Supreme Court stated that of the many cases they cited, most of the courts rely
on a best-interest standard as the ultimate guide for determining whether a request to
relocate should be granted

Factors Which Court Found Supported Jury’s Verdict Allowing Move

Supreme Court determined the following factors supported jury’s verdict that MOM
should be allowed to establish KID’S residence w/o a geographical restriction:

1. Kids’ strong association with German heritage and culture – MOM and DAD
German citizens – married in Germany. Oldest son born in Germany. Both
boys spoke German in MOM’s home. They watched German movies, listened to
taped stories in German, and celebrated German holidays. A psychiatrist testified
that maintaining the boys’ German culture was important because their cultural
identity acted as a mechanism by which to deal with life events.

2. Extended Family – Almost all of extended family and close friends live in
Germany.

3. MOM’s improved financial situation in Germany - would contribute to MOM
providing better standard of living for KIDS.

4. MOM’s increased well-being in Germany - Testimony that relocation would
positively affect MOM’s mental state and boys would benefit from MOM’s
increased well-being in Germany. Court-appointed psychologist testified that
MOM felt lonely in San Antonio and that if she is happier in Germany, natural
benefits would flow to KIDS because custodial parent’s mental state directly
impacts quality of a child’s life.
5. KIDS can still maintain frequent contact with DAD while in Germany – DAD
could easily relocate to Germany. Besides being a native German, DAD has an
advanced German business degree and many employment options in Germany.
Factors that were of less influence – Evidence that both boys wanted to remain in
San Antonio, boys had a close, loving relationship with DAD, and
court-appointed psychologist’s testimony that a move away from DAD would be
detrimental to KIDS.

Next case:

Hoffman v. Hoffman (Austin – Nov. 2003).
Parents divorced in Williamson County in 1999 and were granted JMC of 2 KIDS.
MOM – exclusive right to determine primary residence, but restricted to Wmson, Travis,
and contig counties until July of 2002, unless parties agreed otherwise in writing or DAD
moved away from Wmson County.
MOM notified DAD in Jan 2002 she planned to move to PA with KIDS. MOM
and DAD met & married in PA, and families of each still in PA.
DAD filed a M/Modify requesting a domicile restriction.
T/Ct ruled best interest of kids to move to PA with MOM and such relocation was
not a mat/subst change/circ because MOM had told DAD for a long time that
such was her intention, and move was contemplated at time of agreement.

Factors Which the Court Found Supported Findings:
Ct/Appeals held following factors supported T/Ct’s decision best interest of KIDS
to move to PA with MOM and no mat/subst change in circumstances to warrant
modification:
1. Happiness of custodial parent - Court stated best interest of KIDS
determined by quality of life for both KIDS and parent, considering
custodial parent’s happiness as factor of KIDS’ best interest. In PA,
grandmother could provide daily care for KIDS while MOM finished
college, which would ultimately give MOM more job opportunities.
2. Education and employment opportunities for MOM.
3. KIDS could strengthen rela’p w/ maternal grandmother. (Starting to sound familiar. Seems me and this person have a lot in common.)
In determining KIDS best interests, these opportunities outweighed fact that move
would reduce DAD’s time from 153 days/yr to only 53 days/yr, that KIDS would
be forced to travel, and MOM had not worked since divorce and had nearly
depleted all money she received from large divorce settlement.

Next case:

Jenkins v. Jenkins (Dallas 2001) (not designated for publication)
Jenkins is an unpublished opinion in a case originating in Dallas County. Jury
returned a verdict that MOM be named SMC of the couple’s 5 year old triplet
daughters, and that she should have right to establish KIDS’ residence w/o regard
to geographic restriction. In spite of jury’s verdict, T/ct entered a Decree
restricting residence of KIDS to Dallas and contiguous counties. MOM
appealed, claiming t/ct abused discretion by imposing domicile restriction
contrary to jury’s verdict. As in Lenz, the Jenkins case was decided prior to the
amendment of Section 105.002 of TFC, which now states that court may not
contravene a jury verdict on issue of determination of whether to impose a
domicile restriction.

Factors Which the Court Found Supported the Findings
Court of Appeals determined following factors supported verdict that no residence
restriction should be imposed:
1. Relocation would allow MOM to be closer to her own family and support
system, from whom she needed economic and physical support;
2. MOM had better employment prospects at a university;
3. MOM could live in grandmother’s house for free;
4. MOM expressed desire to continue to foster KIDS’s relationship with
DAD, and she testified that there was an airport near her grandmother’s
home


So what it comes down to is the fact that it's a case by case basis. Travis County, TX is going to be more likely to lift a geographic restriction than any other county in Texas.

I posted here mostly looking for any advice on what kind of evidence I should bring to court with me and what I should expect out of a pro se trial.

I am already pretty confident in my reasons for wanting to relocate, and I am going this in December because I would like to relocate before school starts for my son so I can get him enrolled in school in the chance that I DO get my geographic restriction lifted.

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Quote:

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Quoting CourtClerk

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So in your plan, he gets every other year? Are you willing to see your child every other year? I generally recommend that people suggest a parenting plan that they themselves could live with if THEY are on the other end.

Also, since you are creating a significant distance between the child and his father, you are likely going to be responsible for sending him back and forth to Texas for visitation a few times a year (don't count on getting spring and summer, he'll be spending a significant amount of time with dad since you see him every day). How do you plan on affording that since you're going to be going to school (and I assume) not working?

Let me address one other thing you said. A family court judge isn't going to care one iota about your happiness. The focus and the importance is on the child and is significantly better off if they have access to both parents. The time to worry about your happiness is before you became a parent, after that, you should be focusing on your child's happiness. Your primary argument is that your child is going to be living with people who are virtual strangers regardless of their biological relationship to him. He already knows his father.

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I think I covered the happiness part. And no, in my pan he does not get every other year. I would propose he would get every summer (even extended summer if dad would like), and spring and winter vacations alternating (meaning every other year he would have him for Christmas, and on the years he doesn't have him for Christmas, he would have him for spring vacation.) Since I DO want to continue to facilitate a relationship between dad and son, I wrote that I would like to add the following provisions: dad & son could agree on other visitation times during the year as long as I have some kind of notice, and dad pays the transportation costs, that dad is welcome to visit son whenever he wants, as long as I get a weeks notice, and I am willing to facilitate any video chat or phone call times during the week that dad requests.

I am willing to pay for transportation costs. Living in NH would mean that I would have extra money from school. I would either send son on a plane (round trip tickets are approximately $240 give or take, depending on what time of year), or we would be willing to drive son to TX from NH for spring or winter vacations. My family has stated that they would also help with transportation costs if it was needed.

And lastly, I would like to say that I AM focusing on my child's happiness. My son has always come first, and always will. I want and NEED to go back to school so I can provide for my family. Just last month I didn't even have a GED, and now I get to enroll in college classes on Nov. 4th. I am determined and have come a long way in a short period of time. I need an education for my son (and me) so we can have a good life.

So..let's try this another way.

If your son's welfare is your absolute priority - please explain again why Dad shouldn't be primary while you go back to school to get yourself an education?

Not that it really matters - you've already made up your mind. C'est la vie!

(And seriously - getting this done before December? Not likely)

Quote:

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Quoting Dogmatique

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So..let's try this another way.

If your son's welfare is your absolute priority - please explain again why Dad shouldn't be primary while you go back to school to get yourself an education?

Not that it really matters - you've already made up your mind. C'est la vie!

(And seriously - getting this done before December? Not likely)

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I don't feel that it's in my sons bester interest for dad to have primary for many reasons, mostly because I have been his home base for his entire life. His dad drinks a lot, I see the empty beer bottles all over the house. I don't drink alcohol at all. His dad has made decisions that have NOT been in his sons best interest (such as: when he has had son for visitation, he has brought son to sleep at a girlfriends house who son didn't know well. Son slept on couch. That is not continuity. Son should be spending time with dad in his house and sleep in a familiar place.) Dad has been physically and emotionally abusive to me in the past (even gone so fas as to say that he hoped I die of cancer in front of son and my partner). When we were together I had to call the cops on him, but nothing came of that. I don't even want to bring family violence into this, but I do not feel as if his house is the best place for primary residence, especially since he has a new wife and I can see the same exact things happening that happened between me and him when we were together. I don't really want to get into much more detail than that, but I have good reason for not just handing over custody while I go to school.

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Also: the court date is already set for December, so I don't see why this would not get done unless the trial takes longer than the time designated for it.

Alcohol is legal.

Dad having a sleepover is not illegal.

Here's the thing. You trust Dad enough (or rather, the court does) to have overnights. This is generally an indication that he's just as fit a parent as you.

Whether alcohol is legal or not, and sleepovers not being illegal, it's just freaking common sense that when you have visitation you should probably spend time with your child and not make him sleep in an unfamiliar place, and getting drunk often while a child is in your care is also irresponsible.

Rapists can get visitation rights of their children. Rape is illegal. Just because they get visitation does that make them just as fit of a parent as the person they raped. Your "arguments" are flawed and it seems like you just "don't like" my case or reasons to move, so you have everything to say against them.

Did I mistakingly post in an MRA (mens rights activist) forum?

But really, if anyone has any advice regarding pro se and what to expect, or evidence, that would be great. It was in my initial questions, but everyone seems to be focusing on every other detail.