One of the most common issues that our office is dealing with in divorce
and custody cases in Denton and Collin County, Texas, is the issue of
either establishing, enforcing or lifting a geographic restriction on
the residence of the child in the case.
First, it is important to explain what a geographic restriction is and
what it isn’t. Normally, but not always, when a Court in Texas enters
an order related to a child, whether a divorce decree, paternity decree,
or an order in a suit affecting the parent-child relationship, the Court
gives one parent the exclusive right to establish the residence of the
child. Even though, in most cases, the parents are appointed as Joint
Managing Conservators, this right is usually given to one parent and that
parent is the one with whom the child will primarily reside. The other
parent is given some type of possession schedule.
In Texas, and in most states nowadays, it is common for the Court to establish
a geographic area in which the parent with the right to establish residence
can establish the residence. Our most common restriction in Denton County
reads that the parent can establish the primary residence of the child
within Denton County, Texas, or a county contiguous to Denton County,
Texas. However, it is not uncommon to see bigger or smaller areas set
out in orders.
Now, this doesn’t mean that the Court is telling that parent where
they can live. What it does mean, though, is that the Court is ordering
that the parent can only establish the child’s residence within
that area. If the parent chooses to move off to another state, for example,
they don’t have the right to take the child with them and, without
further Court order, the child would have to remain within that area with
the other parent (assuming that the other parent remains in that area).
Because of our increasingly mobile society, it is not uncommon for a parent
to want to have the right to establish the residence of the child
and to have the right to move to another part of the state or country. My experience
has been that, while the Court might empathize with the parent’s
desires, if the other parent plans to remain in the area, and is involved
in the child’s life, then the Court will usually put a geographic
restriction in place. This is so that both parents remain involved in
the child’s life.
There are a number of factors the Court considers in deciding whether to
establish a geographic restriction or, if one is already in place from
a prior order, whether to lift that restriction. In most cases, the parent
wanting to move wants to do so for job purposes or to be closer to a family
support group. These are good reasons and, in some cases, may be good
enough to convince the Court to allow the move. However, we’re finding
more and more often that the Court will go to great lengths to keep the
child close to both parents.
Often, if the Court considers allowing a move (either by not establishing
or lifting an existing geographic restriction), the Court will try to
even things out by giving the remaining parent more time with the child,
ordering the moving parent to pay some or all of the transportation costs,
decreasing or eliminating the remaining parent’s child support obligation
to offset transportation costs, and so on. Many times, the moving parent
will get the right to move and establish the child’s residence in
another area, but then elect not to because the considerations given to
the remaining parent offset the perceived benefits in the move.
Further, in most orders, the geographic restriction also includes provisions
that, if the parent without the right to establish residence (the parent
with the possession schedule), moves outside the area of the restriction,
then the restriction is lifted. For example, if the Court says that a
parent may establish the child’s residence within Collin County,
Texas, and the other parent then moves to Nebraska, the restriction is
lifted so that the parent with the right to establish residence does not
have to stay in Collin County. This is because the original reason for
the restriction is gone.
The bottom line is that every case in which establishing or lifting a geographic
restriction is an issue is different and involves a number of factors
that may or may not be important to present to the Court. There are far
too many factors to discuss here, but most of these factors are time sensitive.
Further, if you are seeking to lift a restriction for a new job opportunity
or other reason, these cases can take time (often months) so it is important
to see a good family lawyer who has experience in the jurisdiction in
which the case is pending to discuss your options and evaluate your chances