Geographic Restrictions in Divorce and Child Custody Cases
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 of success.