Geographic Restrictions in Child Custody Cases

Summer Break means time to move.

Summer Break means time to move.

Summer is almost here and school is out.  That means moving time for many couples, and it also means changes in schools.  Accordingly, I felt the time is right to address a very common question I get asked which relates to restrictions on the residence of the child.  To put this into context, anytime there is a lawsuit involving child custody, the Court will consider a geographic restriction on the residence of the child(ren).  In fact, the geographic restriction is free for the asking which means the parent who wants it gets it by merely asking.  The parent who does not want the restriction, or who wants to get rid of a restriction via a modification has the burden to show it is in the child’s best interest.

Simply put, when your spouse request a geographic restriction on the residence of the children, he or she will get it unless you (the parent that wants to defeat it) can show the Judge that  lifting the restriction will not affect the relationship between the parent asking and the kids.  The purpose of a geographic restriction on the residence of a child helps explain:  the restriction is designed to ensure the parent with whom the children do not live has a continual relationship with the kids and the kids have access to that parent.

It is perhaps easier to understand this way – at divorce or separation the children cannot live with both parents since the parents do not live together.  Accordingly, one parent has to be the parent with whom the children live most of the time.  We will refer to this parent as the “Custodial Parent” or parent with primary custody although the proper term in Texas is Primary Conservator.  The other parent, commonly called the Non-Custodial Parent or Possessory Conservator has the children at designated times – usually on alternating weekends, alternating holidays, and some time in the summer.  However most custody orders in Texas contain a provision that if the two Conservators do not live within 100 miles of one another, the Possessory Conservator/NCP gets more time in the summer and every Spring Break but only one weekend a month and reality dictates that the further the parents live from one another, the more it cost to travel between the homes and therefore there is a point on a map where visitation on the weekends tend to cease and the non-custodial parent only sees the kids a few times a year.

To keep the Primary or Custodial parent from having the unfettered discretion to just change visitation schedules by moving there is a geographic restriction.  This restriction really has two purposes. The second (collateral) purpose is to  keep the Primary or Custodial parent from having the unfettered discretion to just change visitation schedules by moving.  The main purpose for a geographic restriction is to facilitate a strong continual parent-child relationship and the subsequent parent-child bond between the children and the non-custodial parent.

The concept is simple enough, the children supposedly eat dinner, are kissed goodnight, woken up, and eat breakfast with the Primary Conservator on a regular basis.  This parent with whom the children reside has ample opportunity to build trust, bond, and participate in the children’s day to day lives.  The other parent however, does not have the same opportunity.  So, the law provides that if the parent wants to enjoy a relationship with his/her kids, the Court must put a geographic restriction in place to help.  This restriction keeps the kids close enough that the second parent (NCP) can have an opportunity to participate in the children’s lives, bond with the children, and develop a relationship with the children.  This relationship is presumed to be in the children’s best interest.

The fact the law presumes a close continual parent-child bond is in the child’s best interest is vital because the Judge has the duty to issue orders that are determined to be in the child’s best interest.  See Texas Family Code ¶153.002.  Simply put, I am often asked “How do I win custody?”  The short answer is always – show the Judge that making you the Custodial or Primary Parent is in the child’s best interest.  Of course, how to do that is a little more complicated and the subject of multiple articles and web pages in it’s own right.  Feel free to use the search bar to the right to read more on the topic.

When it comes to geographic restrictions on the residence of a child the restriction is automatic at the temporary stage.  As soon as either party files a petition seeking a divorce, a petition to establish paternity, or a Petition in a Suit Affecting the Parent-Child Relationship the Court issues a restriction that prohibits either parent from removing he children from the jurisdictional limits of the court during the pendency of the proceedings.  In other words, once the lawsuit is started, no one can move the kids out of the area to keep the court from issuing orders or to gain an unfair advantage in the lawsuit – the kids stay put until the case is finished.  Then, at the final hearing on the matter, the Judge will make the geographic restriction permanent unless (1) the parties agree; (2) no one asks; or (3) the parent who wants to defeat the geographic restriction can prove the so-called “Adams Factors”  Holley v. Adams, 544 S.W.2d 367 (Tex. 1976).

To make matters even worse, or better, depending on your point of view – the Adams factors are not the only standard in a motion to modify.  Your best chance of defeating a geographic restriction is at the first trial.  If the Judge grants the restriction, with or without your agreement and you later want to change the restriction, you have to deal with both the Adams factors and the holdings in the Lenz case.  Lenz v. Lenz, 79 S.W.3d 10 (Tex. 2002).  While Adams focuses on the facts as they exist at the time of the first trial the Lenz case requires a “comparative” analysis of the two proposed residences.  In other words, you not only have to prove best interest under Adams, you have to address (1) reasons for or against the move; (2) compare the health, education and leisure opportunities available to the child at both locations; (3) demonstrate/minimize the effect on visitation and communication with the non-custodial parent to maintain a full and continuous relationship with the child; and (4) whether the non-custodial parent has resources to relocate.

Getting a geographic restriction is easy – breaking a geographic restriction is VERY difficult but it can be done.  The central question that applies to both is the nature and strength of the relationship between the non-custodial parent and the child.  Simply put, if you are the parent who does not have primary possession of the children, stand up and be a parent, visit with your kids often and make the most of that time.  If you do this, the Court will make the other parent own up and keep the kids close so you can continue to build and enjoy that relationship.  If you don’t, then the other parent may have a few hoops to jump through, but the fastest way to break a geographic restriction is to show the parent it benefits does not take advantage of the benefit it gives.

Dog in cardboard box in empty house

Dog in cardboard box in empty house

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16 Responses to “Geographic Restrictions in Child Custody Cases”

  1. janet says:

    can the child move to another country while under a geo restriction? What are the visa laws?

    • royreeves says:

      No, a geographic restriction is exactly that. Your choice is to get the other parent to agree or go to court and get the restriction lifted by a judge.

  2. Pam says:

    I am the Primary Conservator, and what if the Possession Conservator Moves out the geographical area can the primary conservator move also

    • royreeves says:

      Always look at your decree or custody orders first – your orders may not be standard and if there is a question set an appointment to let us look.

      Generally speaking, the most common language used will state “for so long as the other conservator resides within this same geographical area” or some similar words. Assuming that your decree/orders use the standard language, the answer is a qualified “yes”. I say qualified because you must move while the other parent is absent and if the other parent only moved a few miles and just happened to cross a county line in the process, beware the Court will not be amused and will likely order you to return after you move if the other parent ask.

  3. Audrey says:

    Does county restrictions include boarding school in another county?

    • royreeves says:

      It really depends. If your children are potentially going to attend a boarding school it is likely that issue is addressed in the educational section of the conservators rights and duties. Your decree/orders control your case so without seeing the language used, it is impossible to say for certain.

  4. Raquel says:

    If you want to move due to a better job opportunity. Is there a way to get the restriction off? the Non-custodial parent has had CPS call twice in the past 5 years, but nothing was done.

    • royreeves says:

      Geographic restrictions are there to protect the relationship between the child and the non-custodial parent and that is the important concept to remember if you want a geographic restriction lifted. The restriction may lift by operation of law (you have to read your decree/order to determine if this is the case). If the restriction does not lift by operation of law (a loophole) then you either need the other parent’s agreement or the Judge’s permission. To get the Judge’s permission you have to file a request and show the Judge the benefit to the child by allowing the move outweighs the damage the move will cause to the relationship with the non-custodial parent.

  5. Krystal Smith says:

    What about full-time RV living? Is there a minimum requirement for days per year that we must spend within the county limit to still meet the residency restrictions if all other obligation are upheld? (I am the CP and I plan to homeschool. I feel that this flexible lifestyle will add to my son’s learning experiences, providing more hands-on, ‘real world’ knowledge and skills. We are currently “house poor” and stuck financially. It’s stressful and overwhelming and not providing the most nurturing environment at the moment.)

    • royreeves says:

      This is a unique and difficult to answer question. The answer will likely be very fact dependent and there is no simple answer. Your judge and your travel plans will be determinative. Technically speaking, full-time RV living could be interpreted as “no residence” or as a “indefinite residence” neither of which is a residence in the county. If you are in the County at a specific location that ensures the other party always has a place to find and pick-up the child for visitation that will also be a factor.

  6. Kat says:

    My orders say, (not verbatim) ‘at the time Kat wishes to move outside of tattant or contiguous counties, M doesn’t not live in tarrant or contiguous counties. ‘
    And he doesn’t. There is about 2 counties separating us from each other geographically. Is this my loop hole?
    I’m asking because my family moved out of state and my husband and I are wanting to move to an area inbetween them and my daughters father. My husband has found police jobs hiring in the areas we want to live. We would have a better quality if life, financially and socially. And I would be willing to meet him half way on his weekends so he chooses to keep agreement already in place. I’m not trying to deprive him of rights. Just trying to make a better life for my children.

    • royreeves says:

      Based on the question and facts you present, yes you are inside the loop hole as you call it. Beware, father can and may file a Motion to modify the geographic restriction though. As stated on this website multiple times, a geographic restriction is there to protect the child’s relationship with the other parent.

  7. Leslie says:

    What if the CP marries an active duty military member? There has never been a restriction until the judge imposed one at temp orders. Can the judge impose a permanent restriction and break up an established family? CPS has also been involved.

    • royreeves says:

      A geographic restriction is there to protect the child’s relationship with the other parent. Look at it from the Judge’s perspective, he or she is required by law to protect the relationship between a child and the child’s parents (both of them). The affect the restriction will have on your new relationships is not relevant. It sounds cruel, but the law cannot foresee every circumstance and that is why the Judge gets involved. To move, you have to show that the benefit the child will receive from the move outweighs the injury the child will suffer from a degraded relationship with the other parent. Distance, cost of travel, etc. are taken into account, as well as schools, opportunities, resources, extended family, purpose of the move, and most importantly, the quality of the relationship that will be injured.

  8. Lisa says:

    Divorced in 2012, JMC – I have primary to determine domicile without geographical restriction. I am getting married and plan on moving. Can my ex now request a restriction?

    • royreeves says:

      Yes, he can ask. That does not mean it will be granted, but he can always ask. The thing to remember on either side of this issue is that the geographic restriction is there to protect the child’s relationship with the other parent, so if he has a good relationship with the child and exercises visitation regularly it is easier for him to get a Judge to grant a requested restriction or on the opposite side, it is hard to get a restriction lifted. However, if the non-primary parent has little or no communication with the child, does not regularly visit and the relationship is tenuous, then there is nothing to protect and the restriction is harder to get or easier to lift – depending on your position.

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