After a divorce, Texas public policy encourages frequent and continuing contact between the children and parent (or parents) who demonstrate the desire and ability to act in the children’s best interest. Ongoing parent-child contact may be achieved in any number of ways, including inserting a provision in the divorce decree restricting the geographic area in which the children may live.
Whether a geographic restriction is imposed and, if so, its scope are within the discretion of the court and will vary depending on the county and the court in which the divorce was granted. The size of a geographic restriction may be as large as the State of Texas or as small as a neighborhood or school district. That said, Texas courts generally will honor an agreement between the parents regarding whether to impose a geographic restriction and, if one is imposed, its scope.
Geographic restrictions typically arise in divorces where the parents are appointed joint managing conservators. In this situation, the divorce decree either will grant one parent the exclusive right to designate the primary residence of the children within a designated area (the “Designating Parent”) or simply contain a geographic restriction if neither parent is granted this exclusive right. Either way, certain procedures must be followed by the parent who desires to move the children out of the geographically restricted area.
Divorce Decree Appointing a Designating Parent
The Designating Parent (also known as the managing conservator) is the parent with whom the children live. The non-Designating Parent is the parent with visitation rights. The court may appoint the Designating Parent with or without regard to a geographic restriction.
If the Designating Parent is appointed with regard to a geographic restriction and he or she desires to move the children out of the geographically restricted area, the Designating Parent must file a motion with the court to lift or modify the geographic restriction, which the non-Designating Parent may oppose.
If, on the other hand, the non-Designating Parent (the parent with whom the children do not live) desires to move, he or she may do so without going to court. Once the non-Designating Parent leaves the geographically restricted area, the geographic restriction no longer applies. And, if the non-Designating Parent moves more than 100 miles away, the visitation schedule will change.
If the Designating Parent is appointed without regard to a geographic restriction and he or she desires to move the children out of the geographically restricted area, the Designating Parent must give the non-Designating Parent 60-days written notice. If the non-Designating Parent opposes the move, the burden shifts to the non-Designating Parent to file a motion with the court to modify the court’s order to impose a geographic restriction.
If, on the other hand, the non-Designating Parent (the parent with whom the children do not live) desires to move, he or she may do so without going to court. Again, if the non-Designating Parent moves more than 100 miles away, the visitation schedule will require modification.
Factors Considered by the Court When Determining Whether to Lift or Modify a Geographic Restriction
In today’s society, families, whether the parents are together or divorced, often do not remain in one geographic location for an extended period of time. Although parents may seek to lift or modify a geographic restriction for any number of reasons, they typically do so because of a new job requiring relocation or a new spouse whose job requires relocation.
Geographic restriction issues are fact specific and decided on a case by case basis. As such, it is difficult to formulate a “general rule.” That said, if the Designating Parent desires to move outside the geographically restricted area for the primary purpose of moving a child away from the non-custodial parent, the geographic restriction will not be lifted or modified.
The principal factors a court will consider when evaluating a request to lift or modify a geographic restriction are (1) whether the move is in the best interest of the children, and (2) the involvement in the lives of the children by the parent opposing the move, including involvement in school and extracurricular activities. The court also will consider the following factors-depending on the situation:
- Whether the parent seeking to move the children has a vindictive motive-such as alienation of the parent opposing the move-or a good faith motive, such as an improved career opportunity.
- The effect of relocation on extended family relationships and community ties.
- The effect of relocation on visitation by and communication with the other parent.
- Whether the special needs or talents of the children will be accommodated.
- The benefits to the children, including educational and emotional benefits.
- The detrimental impact, if any, of the move on the parent-child relationship.
- The stress of the move on the children, including the fear of travel.
Moving in Violation of a Geographic Restriction
If a parent moves the children outside of a geographically restricted area without asking the court to lift or modify the restriction, there will be consequences. For example, the parent opposing the move may file a petition for writ of habeas corpus to return the child, which could result in the court commanding the offending parent to present the child in court.
Moving a child outside of the geographically restricted area without approval by the court or agreement by the other parent also may be grounds for modifying custody. The offending parent also could be held in contempt of court and subjected to a variety of court-ordered punishments, including incarceration or monetary penalties.
Navigating the treacherous waters of geographic restrictions requires a thorough knowledge of Texas law and the tendencies of the family court judges in the counties of Southeast Texas. Sonya Coffman has successfully imposed, modified and lifted geographic restrictions. If you need assistance dealing with a geographic restriction issue, call Sonya Coffman. Because . . . family matters.