No two divorces are exactly alike. Each is unique, and there are countless scenarios that result in appointment of conservatorship and possession and access. The right to determine the primary residence of the child is most often awarded to one parent. This right is typically accompanied by a geographic restriction as it applies to the child’s primary residence. The question often becomes what that geographic restriction will be.
In rendering an order appointing joint managing conservators, the court shall:
(1) Designate the conservator who has the exclusive right to determine the primary residence of the child and:
- (A) Establish, until modified by further order, a geographic area within which the conservator shall maintain the child?s primary residence;
- or (B) Specify that the conservator may determine the child?s primary residence without regard to geographic location.
In a temporary order, the Court almost always restricts the child’s primary residence to the county in which the divorce in pending. Upon final trial, that restriction is often extended to contiguous counties and may be extended at Temporary Orders as well. As in all child custody matters, the standard will always be what is in the best interest of the child. This applies to geographic restrictions as well.
What happens if you are the parent with the right to designate the primary residence of the child with a geographic restriction and you need to relocate?
Maybe you or your current spouse have received job offers outside of the established geographic restrictions that will require you to move.
Given the increasing mobility of our population and the rapidly, ever-increasing percentage of the country that is now telecommuting for employment, these types of cases show no sign of decreasing. Unfortunately, neither the Texas Family Code nor the Texas Legislature has given clear and concise guidance in this area. The Texas Family Code does not contain specifically delineated requirements for modification in the residency-restriction arena and there are no specific statutes that provide guidance concerning restriction of residency or the removal of residency restrictions for the purpose of relocation.
There are many considerations to make in this decision. What is quality of education in the proposed locale?? How active are your children socially?? Is proper heath care readily available in specifically unique circumstances?? And, most importantly, how active is the other parent with the children. This names but a few factors for the Court to consider. You will need an experienced child custody attorney to properly represent and guide you every step of the way.
Let’s explore this in a little more detail. First and foremost, the best interest of the child shall always be the primary consideration of the court in determining child custody issues. Texas Public Policy is 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;
- Provide a safe, stable, and nonviolent environment for the child ; and
- Encourage parents to share in the rights and duties of raising their child after the parents have separated or dissolved their marriage.
The Texas Supreme Court has identified a non-exhaustive list of factors that a court can consider in determining what is in a child?s best interest. These factors include the following:
- the desires of the child,
- the emotional and physical needs of the child now and in the future,
- the emotional and physical danger to the child now and in the future,
- the parental abilities of the individuals seeking custody,
- the programs available to assist those individuals to promote the best interest of the child,
- the plans for the child by these individuals,
- the stability of the home,
- acts or omissions of the parent which may indicate that the existing parent-child relationship is not a proper one, and
- any excuse for a parent?s acts or omissions.
So, what does all of this mean? It means that there are a lot of moving parts and that the Court will entertain almost any geographic restriction which proves to be in the child?s best interest. The reasoning behind these restrictions are to allow both parents to remain active in the children’s lives. Courts know the benefit to the children of having both parents heavily involved in their lives. The research bears this out. That is why parents who no longer wish to be married are forced to work together for the benefit of their children. However, when the parents cannot and will not effectively co-parent, litigation often ensues.
We want what is best for our children and family. If you are contemplating relocation and need to re-examine or request a change in the existing geographic restrictions established in your family law case, contact a board certified family law attorney North Texas trusts.
Mark L. Scroggins is a board-certified family law expert with over 25 years of legal expertise and has been named Super Lawyer by Thompson Reuter five consecutive years. Contact Scroggins Law Group today for a consultation at 214-469-3100, or find us online www.slgstagingdev.wpengine.com.
