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The exclusive right to designate the residence of the child within Collin and contiguous counties.
They like to say the geographic restriction found in most divorce decrees is “automatic.” Indeed, before some court’s that is true regardless of what the case law says about geographic restrictions. In other courts, it is not automatic. The Judge will listen to the evidence and rule.
In the last year, I have won two geographic restriction cases where I represented the mother trying to move to another state. One is moving to Arkansas and the other has moved to Atlanta. In the child custody case, one parent will be awarded the exclusive right to designate the residence of the child subject to a geographic restriction.
It is the public policy of the State of Texas and as implemented by the Texas Family Code that the nonprimary parent shall have frequent and continuing contact with his or her child. For this reason, a geographic restriction is put in place – “the exclusive right to designate the residence of the child within Dallas and contiguous counties.” Almost all orders will contain this language.
The case law says straight up that the geographic restriction is not automatic in every case. There is no automatic geographic restriction. There must always be evidence that the geographic restriction is in the best interest of the child. That said, the reality is that it is pretty much almost automatic. If a party “wins” or “settles” on the right to designate the residence of the child that party will almost always be subject to a geographic restriction. I heard a Tarrant County judge say one day, “in Tarrant County, we always impose the geographic restriction.” Well, that is not the law, but that is very much the way it is.
But all is not lost . . . The geographic restriction is also subject to a 100 mile rule – usually 100 miles but your order could say different. If the nonprimary, the person without the right to receive child support and designate a residence, moves a distance greater than 100 miles from the primary then the geographic restriction is automatically lifted. We had a client that had this “measured.” The father moved to 103 miles distant, and the mother moved to Indiana just about the next day. This was in accordance with the order. If I had represented the father in that case, I would have immediately filed for a TRO to stop the mother’s move – at least get a hearing on it.
Implementation of the Geographic Restriction is also dependent upon your judge. Some judges are a little more easier than others. One Dallas County judge in particular will certainly consider this issue and has been known not to order the restriction. A Collin County judge in one of our cases lifted the geographic restriction as applied to Collin County but did implement a geographic restriction that encompassed all of Texas. In other words, the primary in that case could move with the children to any part of Texas.
The Relocation Case – lifting the geographic restriction. If your divorce decree or order contains a geographic restriction, it might be possible to lift it. There are a number of factors associated with this. It is evidentiary driven. Each case must rest on its own merits. You need an attorney who has handled these types of cases before, as we have, and understands the law on this issue. Although there are a number of factors associated with the geographic restriction, probably one of the strongest arguments to make is – the primary is not moving out of reach. The primary only wants to move from Dallas to Austin (for example) – a three hour drive – because he or she has a new opportunity for greater salary and promotion. In this scenario, the primary is able to move to another city outside of the restriction but still close enough that affords frequent contact between the nonprimary and children. In addition, there is good reason – better employment opportunity. One of the lead cases on this issue was about a primary who wanted to move from El Paso to San Antonio – clearly a greater distance than Dallas to Austin. In that same regard, lifting the geographic restriction to allow a move from Dallas to Oklahoma City, Sulphur Springs, Abilene, or Houston should be doable. It is important that there are methodologies that allow the frequent contact between the nonprimary and the child(ren). Note, the nonprimary may be entitled to a child support credit associated with the costs of travel. The following material was taken from one of our briefs that was submitted to the court in of our cases: Mother submits this her Relocation Brief. Mother resides with her parents in XXXXXX, XXXXX and has done so since XXXXXXXXXXXX. Mother requests that the Court grant her the exclusive right to establish the residency of the children without regard to geographic restriction and in support shows as follows: Father, petitioner and father, was employed by First Baptist XXXXXXX, Texas as an associate pastor – worship and arts. His employment was terminated with the church due to his addiction to pornography and an affair with a woman in San Francisco, California – a former fellow classmate. Ultimately culminating with a rendezvous in California. Father has admitted that he is a sexual addict. Mother is the primary caretaker of the children; was a stay at home mother prior to the separation. Mother moved to Washington in order to gain the support, both financially and emotionally, of her family. Further, as the wife of a pastor she has been held out to embarrassment and the shame associated with Father’s sexual addictions. Her only friends are members of the First Baptist Church of XXXXXXX. With society becoming more and more mobile, the relocation issue among parents have become more and more of an issue with parents and courts. The lead case on relocation is Lenz v. Lenz, 79 S.W.3d 10 (Tex. 2002). The Court noted that although that the courts have historically disfavored removing a child from the jurisdiction in which they have historically resided, courts have reassessed the standards for relocation, moving away from a relatively strict presumption against relocation and toward a more fluid balancing test that permits the trial court to consider a greater number of factors. Such factors being: What is the parent’s good faith reason for the move? Permission: Mother moved to Washington with the blessing and permission of her husband. Mother and Father had discussed her move to Washington prior to her relocation. Father was present on February 20, 2011 when she with the children loaded up for the move and left for Washington. She left with Father’s blessing and said good bye. There was no “stealing away in the night” with the children. The move was planned and was open. Father gave her a bouquet of flowers at the time of Mother’s move. Reliance: Mother relied upon Father’s permission to move. Mother has been gone two months and has reestablished her connections with XXXXXXX, XXXXXXX. Her friends, family and support system is now, and has been so, established in XXXXXXXXX in reliance upon Father’s permissions to move. In addition, she is seeing a counselor in XXXXXXXX to assist her with the baggage associated with the emotional trauma of Father’s betrayals. She is also a member of a divorce support group in XXXXXXX, XXXXXXX. Embarrassment: Father is a sexual addict such that First Baptist Church of XXXXXXX had to install additional filter systems on their networks to prevent Father from accessing pornography. Compounding this, he engaged in a sexual relationship with a former classmate in California. Father as a pastor of the church was in the position of sheppard over his flock. He breached his fiduciary duty to his flock ultimately resulting in his termination. Mother, the wife of a pastor and mother of his children, was held out to ridicule and shame before the congregation. Her only friends in the Dallas area, were members of the church. Her support structure collapsed leaving no option but to move “back home.” Finances: Due to Father’s actions, Mother desired to separate from Father. the expenses associated with maintaining two households is well known to the Court. The parties, on Mother’s income, cannot afford to support two households. Mother’s parents are providing some measure of support for Mother and the children which allows the parties to maintain separate households. Children: The children have developed strong emotional connections with XXXXXXX, XXXXXXX over the last XXXXXXXX weeks. The older child is becoming involve in pre-K athletics – T-ball and is making new friends. XXXX is currently enrolled in a child development center where he has made new friends and connections. The younger child, age 22 months, has become close and attached to her maternal grandparents. Removing the children at this late date usurps them from the status quo and exposes them to inconsistent living arrangements and potential conflict. What is the financial and educational opportunity for the custodial parent? Mother is getting a divorce and will have to become financially independent. In the past, Father has been the primary financial supporter of the family. Mother has financial and educational support that is not otherwise available to her in the DFW area. Mother desires to attend dental hygiene school because (a) her brother is a Dentist and can provide a long term employment opportunity or connections to obtain employment and (b) dental hygienists earn income significantly above the national median. This, in turn, provides the financial support from which the children will benefit – a better standard of living, better extracurricular activities. Mother, at this juncture, is seeking employment from Starbucks because of its significant benefit program for part-time employees. Secondly, she is attempting to establish residency because XXXXXXXXX Community College provides a full scholarship for displaced homemakers – as long as they are residents of the state. What is the effect on extended family relationships? The parties have no extended family relationships in the Dallas, Fort Worth Metroplex. Mother’s parents reside in Sacramento, California. Father’s parents and brother reside in Anacortes, Washington. The family network is primarily located on the West Coast. There are no family support systems located in the DFW Metroplex for Mother. What involvement does the Father have with the children? Father has been a disengaged parent. The youngest child, child, has no significant relationship with her father. Father was involved in his church duties such that he was rarely home. Mother was at home taking care of his children while Father developed internet relationships and “tended his flock.” Furthermore, the older child has a diminished relationship with his father for the same reasons. Historically, while Father was in school – his focus was more upon developing relationships with female classmates than maintaining his relationship with Mother and his older child. Does the noncustodial parent have the ability to move? The family has historically been a transient family. At the time of their marriage, Father was in the Navy in XXXXXXX, XXXXXXX (99-02); then XXXXXXX, XXXXXXX(4 jobs and two residences); then a move to XXXXXXX, XXXXXXX (10 months), then XXXXXXX, XXXXXXX (living with Father’s parents and three rentals over 4 years), then to a rental in XXXXXXXXXX, Texas in late 2009, and finally, they purchased a home in XXXXXXXXXX, Texas in June 2010. Father has significant connections with the Northwest. Furthermore, Father no longer has a “career” job with a church but is employed by XXXXXXXXXX and XXXXXXXXXXXX. This is new employment for Father. Ostensibly a move to Washington will bear no significant impact upon his employment with XXXXXXXXXX (they have plenty of offices there) or his health care job. Father states “the ability to transfer to other roles, divisions, and territories within the XXXXXXXXXX , XXXXXXXXXX and otherXXXXXXXXXX companies are unlimited . . . roles and positions can easily be changed, and opportunities are vast.” Father email March 29, 2011 at 7:47 pm. Therefore, Father can easily relocate to XXXXXXX, XXXXXXX . What is the effect on communication and visitation with the noncustodial parent? American, Airtrans (now Southwest), Continental, Frontier, Delta, Sun Country, United, Virgin America and Alaska Airlines all serve Seattle, Washington from DFW. The price for a flight (coach) is as low as $383.00 for a round trip. There are at least a dozen flights per day. If Father chooses not to relocate to XXXXXXX, XXXXXXX , there are a plethora of low cost opportunities for Father to visit with his children there under the Texas Long Distance Possession Schedule. In that regard, Father should receive a credit toward his child support obligation due to the cost of flights – approximately $400.00. Has the custodial parent attempted to alienate the children? Mother hopes that Father will be a good and devoted father. Although he in the past has been removed from the children’s life (mostly and notwithstanding a trip to the zoo from time to time), Mother hopes that Father will become an involved father. In that regard, Father has requested telephone access with the children. Father has called each day at a set time in order to speak with the children. Mother has not objected or prevented this. In fact, Mother and her family have scheduled around these telephone calls. she has not prevented any telephone communication. Does the relocation make the custodial parent happy? Judith Wallerstein, Ph.D., and Richard A. Warshak, Ph.D. believe that the courts should recognize a presumptive right of the custodial parent to move with the child and should require the noncustodial parent to demonstrate that the move will be harmful to the child. See Judith S. Wallerstein and Tony J. Tanke, To Move or Not to Move; Psychological and Legal Considerations in the Relocation of Children Following Divorce, 30 Fam. L.Q. 305, 314-15 (Summer 1996). She argues that support for the primary custodial parent-child relationship should take precedence over joint parental access because of the presence of a correlation between the well-being of the primary custodial parent and the child’s well-being, and the absence of a correlation between the nonprimary custodial parent’s visitation and the child’s well-being. See Amicaus Curiae Brief of Dr. Judith Wallerstein, Ph.D., Burgess v. Burgess, 913 P.2d 473 (Cal. 1996). This recognition of the importance of the well-being of the primary custodial parent has become more prevalent in courts across the country and has received support from the higher courts in Texas. Is the relocation in the best interests of the children? For the above enumerated reasons, Father’s request that Mother move back to XXXXXX, Texas with a geographic restriction is not in the best interest of the children. In sum, for economic reasons (employment opportunity, support of parents, housing, etc.) it is in the best interest of the children for Mother to remain in Washington. For educational opportunity – free tuition for displaced parents at XXXXXXXXXCommunity College. Family support – grandparents and uncles are available to help Mother in the care of her children. XXXXXX’s opportunity to visit with and communicate with his children are not impinged. Mother is not attempting to alienate the children but encourages Father’s participation in their lives. In that regard, Father’s ties to DFW are recent and noncommittal. Father has many relationships and ties with the Northwest. For the above reasons, Father’s request that Mother move back to Coppell, Texas should be denied. In Lenz v. Lenz, 79 S.W.3d 10 (Tex. 2002) 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. Echols v. Olivarez, 85 S.W.3d 475 (Tex. App.–Austin 2002, no pet.) The Court of Appeals determined that the following factors supported the trial court’s decision to lift the residence restriction, allowing the mother to take the child with her to Tennessee: The evidence did not demonstrate that the mother had a vindictive motive in moving her child from Texas (the Court of Appeals referred to a North Dakota case which had cited case law in fifteen other states which considered this factor important in making their determination). Rather, the move was the result of the birth of a second son, the loss of her position in Texas due to her extended maternity leave, the new position in Tennessee offering additional financial security, and the expectation of career advancement there. The Court of Appeals found that the evidence demonstrated that the child would be a direct beneficiary of his mother’s promotion, both in terms of the financial benefits and in her well- being as his primary caretaker. There was evidence that the mother would be better able to care for the child in her new position because it offered her additional flexibility and her employer accepted her work ethic regarding work and family life. In re: C.R.O. and D.J.O., 96 S.W.2d 442 (Tex. App.–Amarillo 2002, no pet.) – The difficulty in maintaining that relationship if the children lived in Hawaii – The father testified that if the mother was allowed to move the children to Hawaii, he would return to Florida because he would have no reason to stay in Texas. In re A.C.S., 157 S.W.3d 9 (Tex. App.–Waco 2004, no pet.) The Court of Appeals mentioned the following factors in support of the trial court’s finding that the mother’s move to South Carolina was a material and substantial change of circumstances: The distance of the move. The fewer contacts between the father and the children after the move. The parties’ respective motivations for and against the move – The mother testified that she moved to South Carolina to leave an embarrassing work environment and to be closer to her family; however, the record also contained evidence that she interfered with the father’s access to the children, which the Court of Appeals believed tended to support an inference that she moved to restrict the father’s visits with the children. In contrast, the father’s opposition to the move appeared to be based solely on his desire to have more contact with his children. The proximity, availability, and safety of travel arrangements, as evidenced by the success of the visits made under the temporary orders which were agreed to by the parties. In Hoffman v. Hoffman, 2003 WL 22669032 (Tex. App.–Austin) (not designated for publication) The parties met and married in Pennsylvania before they moved to Texas, and both of their families still lived in Pennsylvania. The agreement for the three-year geographic restriction was made with the knowledge that the mother intended to return to Pennsylvania at some point after its expiration. The court-appointed psychologist reported that the move would not be traumatic for the children. The poor level of communication between the parents – Both parents acknowledged this as a problem and the court appointed psychologist’s report noted that the children had been adversely affected by their parents’ inability to communicate with each other. The mother’s evidence that she would benefit tremendously from the move – She planned to move in with her mother, who would help her in raising the children, and she would reduce her monthly expenses by not paying rent or the expenses of childcare. She could also continue to provide daily care for the children while she finished her education. She believed her employment opportunities would be better in Pennsylvania, and she would have a wider support network in Pennsylvania. In the three years since the parties’ divorce, the mother had not worked outside of her home, had provided daily care for the children, had been studying to receive a college decree, and had spent most of her divorce settlement. Although the move would reduce the father’s time with his children, he would be able to maintain his relationship with them through visits, telephone calls, and email. The mother identified available airline flights between the two locations. The children would receive a comparable education in either location. The children would be able to build a relationship with their maternal grandmother. The Texas Standard Possession Order “For both parents and children, visitation is critical to maintaining a sense of connectedness both during and after a divorce. But in the early stages of family restructuring and co-parenting, it is frequently a source of conflict. If former spouses want revenge, finding ways to spoil a visitation is easy. If they want to help their children through a difficult transition, they will find ways to make visitation successful. For visitation to work, both parents need to accept and acknowledge that their children have two homes – one with their father and one with their mother. Parents need to make sure that their children are safe and comfortable in both places, even if they don’t spend equal time there. They need to help make the transition from one home to the other smooth and calm. They also need to make sure they are being consistent in rules and discipline. Constructive Parenting Goals The following guidelines are examples of parenting goals that can help children grow into healthy, happy, whole people. Both parents should encourage visitation to help their children grow in positive ways. Children need to know it is OK to love both parents. In general, parents should treat each other with respect for their children’s benefit. Each parent should respect the other’s child-raising views by trying, when possible, to be consistent. For example, if one parent strongly opposes toy guns for small children, the other should take this into account when buying gifts Each parent is entitled to know where the children are during visitations. They should also know if the children are left with other people such as babysitters or friends when the other parent is not there. Parents should try to agree on their children’s religious education, as well as who is responsible for overseeing it. Parents should tell each other their current addresses and home and work phone numbers. Both parents should realize that visita-tion schedules may change as children age and their needs change. Tips for Smooth Visitations Be as flexible as possible with schedules. Treat your former spouse with respect. Help children feel safe and comfortable in both homes. Develop routines to give children a sense of security. Maintain open communication lines with your former spouse. Don’t question your children’s loyalty. Help make the transition from one home to the other smooth and calm. Discuss rules and discipline with your former spouse so you are consistent. Visitation dos The following suggestions represent strategies parents can use to achieve parenting goals. Be flexible about visitation schedules Give the other parent advance notice of changes in your schedule. Remember to give the other parent your vacation schedule in advance. Remember that your children may have plans that could affect your visitation schedule. Make visitation a normal part of life Find activities that give you and your children an opportunity to build your relationship. Allow time together without planned activities just to “hang out.” Provide a balance between fun and responsibility for your children. Encourage visitation that includes grandparents and extended family. Make sure your children have their own places in your home even if it is just part of a room so they feel it is also their home. Help your children meet other kids in your neighborhood so they have friends at both homes. Try to keep a routine schedule to help prepare your children for visitation. Have a checklist of items such as clothing and toys that your children need to take on visitations. If the children are old enough, they can help pack. If it’s appropriate, allow your children to bring friends along occasionally. Spend individual time with each of your children. Show respect for your former spouse and concern for your children. Be on time. Inform your former spouse if a new person such as a babysitter or romantic partner will be part of the visitation. Share changes in your address, home and work phone numbers, and in your job with your former spouse. Visitation don’ts Some parents use visitation to achieve destructive goals. These are goals based on revenge, such as one parent hurting the other or disrupting his or her life. To achieve those goals, parents may use destructive behaviors that can create a more hostile environment and seriously damage relationships. Destructive strategies can be deeply hurtful to children caught in the middle. Following are tips for avoiding destructive behavior. Don’t refuse to communicate with your former spouse. Don’t use your children to relay divorce-related messages on issues such as child support. Those issues should be discussed by adults only. Don’t make your children responsible for making, canceling, or changing visitation plans. Those are adult responsibilities. Don’t use your children to spy on your former spouse. Don’t fight with the other parent during drop-off and pickup times. Deal with important issues when your children cannot overhear. Don’t disrupt your children’s relationship with their other parent. Don’t make your children feel guilty about spending time with their other parent. Don’t use visitation as a reward for good behavior, and don’t withhold it as punishment for poor behavior. Don’t tell your children you will feel lonely and sad if they visit their other parent. Don’t withhold visitation to punish your former spouse for problems such as missed child support payments. Withholding visitation punishes your children, who are not guilty. Don’t withhold visitation because you feel your former spouse doesn’t deserve to see the children. Unless a parent is a genuine threat, adults and children need to see each other. Don’t use false abuse accusations to justify withholding visitation. Don’t let activities such as sports and hobbies interfere with the time your children spend with their other parent. Your former spouse can transport the children to those activities if needed and can sometimes participate. Don’t pressure your children about leaving clothes or toys at their other parent’s home. The children need to feel they belong in both places. Don’t falsely claim that your children are sick to justify withholding visitation. Don’t withhold phone calls to your children from their other parent. Don’t put down the other parent’s new romantic partner. Don’t allow your anger to affect your relationship with your children. Don’t hurt your children by failing to show up for visitation or by being late. Don’t spoil your children to buy their loyalty and love. Don’t let your children blackmail you by refusing to visit unless you buy them something. Don’t try to bribe your children. Don’t feel you need to be your children’s buddy for visitations to be successful. Your children need you to be a parent. Don’t try to fill every minute of a visit. Allow some down time for routine activities such as cooking or laundry, or quiet time just to be together. All of these visitation don’ts undercut children’s ability to develop an open and supportive relationship with both parents. One of the best ways to support children involved in a separation or divorce is to do what you can to make visitations go smoothly. Focusing on visitation dos is a first step in helping children adjust.” References Wallerstein, Judith S. and Joan Berlin Kelly. 1980. Surviving the Breakup: How Children and Parents Cope With Divorce. Basic Books. Wallerstein, Judith S. and Sandra Blakeslee. 1990. Second Chances: Men, Women and Children A Decade After Divorce – Who Wins, Who Loses – and Why. Ticknor & Fields, N.Y.