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Texas Wesleyan Law Review

Kelly Gibbons

Publication Date

3-1-2006

Document Type

Comment

Abstract

This Comment addresses whether Texas's relocation framework should include a presumption that relocation is not in the best interests of the child. After considering the policy in favor of "frequent and continuing contact," the pre-Lenz and post-Lenz holdings of the Texas courts of appeals, and the social science addressing the effects upon the child of a custodial parent's relocation, this Comment argues that the legislature should adopt such a presumption. Specifically, the legislature should adopt a presumption that requires the relocating party to prove that the relocation would be in the child's best interests, regardless of whether that party is the party seeking to be awarded the right to determine the child's primary residence in an original custody proceeding or a party seeking modification of an existing custody order. This Comment contends that such a presumption harmonizes the public policy in favor of "frequent and continuing contact" with a balancing test that allows a trial court to consider a number of factors when deciding a relocation case. Part II sets forth the current pertinent Texas public policies and statutes bearing upon the issue of custodial parent relocation. Part III of this Comment addresses the historical background of relocation litigation. Part IV analyzes both the pre-Lenz and post-Lenz hold ings of the Supreme Court of Texas and the Texas courts of appeals. Part V of this Comment presents the two competing views in social science that address the issue of relocation of the custodial parent and identifies certain elements of both in Texas public policies and statutes and in the relocation holdings of the Supreme Court of Texas and the Texas courts of appeals. Finally, Part VI of this Comment suggests that the Texas Legislature should adopt a rebuttable presumption that relocation is not in the best interests of the child and place the burden on the parent seeking to relocate to prove that the move would be in the child's best interests.

DOI

10.37419/TWLR.V12.I2.5

First Page

555

Last Page

584

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