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.