August 2019
In Texas, it’s not uncommon for a court to order that the primary residence of a child must be restricted to a particular geographic area. In fact, it is vastly more common than not that a court will do so if either parent so requests. The reason is that it is the public policy of Texas to assure that children will have frequent and continuing contact with parents who have shown the ability to act in the best interest of the child, to provide a safe, stable, and nonviolent environment for the child, and to encourage parents to share in the rights and duties of raising their child after the parents have separated or dissolved their marriage. A child’s proximity to both of his or her parents fosters this objective.
The law does not, however, specify how large or how small the geographic area must be. This can be negotiated by the parties or ordered as the court deems best for the child, in the absence of agreement. In rare cases, restrictions can be as small as a single residence or as large as the continental United States. The most common type of geographic restriction, however, is the county where the case is pending, plus each of the counties contiguous thereto.
Although there are exceptions, most custody orders contemplate that children have a primary household with one parent and that the opposite parent will have a visitation schedule. For the parent in the non-primary role, it is always advisable to request that a restriction be ordered on the area where the child’s primary residence may be designated. Without this restriction, the parent with primary care may legally move the child(ren) to another city, another state or even another country.
Conversely, the parent awarded the right to designate the primary residence of a child typically wishes for the most permissive restriction, or no restriction at all. It should be noted, however, that the parent wishing to relocate will typically need to present very strong and good reasons for resisting a geographic restriction, since any move will typically impair the ability of the other parent to maintain regular contact with the child.
When a geographic restriction is ordered, the need or desire of a party to move outside the area may arise in subsequent years. In such cases, a party would need to petition the court for a modification of the order. These cases – commonly referred to by lawyers and judges as “move cases” – can be hotly contested comparisons between the child’s environment and relationships in the traditional hometown versus the place where the move is proposed. The courts do approve requested moves, but usually require significant reason for doing so. In addition, the moving parent may be required to make accommodations to the other parent designed to maintain the longer-distance relationship between parent and child following the move.
Most trials over conservatorship cases in Texas are decided completely by a judge. However, Texas is unique in that juries can decide the major issues in conservatorship cases, including whether to impose a geographic restriction at all, and if so, what that area shall be.
Whether to seek or resist a geographic restriction requires careful consideration, and some forethought about the future needs of both parties and children. The issue is frequently evaluated in the cases represented in the Law Office of David A. Kazen. For a careful analysis of the pros and cons of either seeking or resisting a geographic restriction in a final conservatorship order, schedule a private consultation with the Law Office of David A. Kazen.