A question that many persons who are either going through a divorce or are facing the prospects of a future divorce ask me is whether or not they will be able to see their child as frequently after a divorce as compared to before. While this is always a difficult question to answer because I cannot always guess how possession and visitation will work out, I can at least tell them that there are protections in place that will allow them a certain amount of time with their child.
One of the protections that has been instituted in Texas for parents who do not have their children residing with them is a residency restriction for their child. To better explain this issue, let’s first examine the right to determine the primary residence of your child and what it means in the context of your divorce and post-divorce life.
Rights and duties to your child as determined in a divorce
Many, many parents who go through a divorce are concerned primarily with one issue as it pertains to their children. That concern centers around whether or not they will be able to see their child as much as they would like after the divorce has concluded. The reality of the situation is that pretty much in 100% of divorces neither parent is able to have orders that he or she are one hundred percent happy with as far as possession and/or visitation. The thought is that a parent could always have more time with their child than they are entitled to under a divorce decree.
Within that primary concern is whether or not you will have the right to determine the primary residence of your child. This basically means that you have the right to have your child live with you primarily throughout the year. If you do not have this right you would be awarded a visitation schedule of some sort- either the one that you and your spouse negotiate or the one that is handed down to you by a judge.
So here we have touched on two important concepts in your divorce: possession as determined by a parenting plan and the right to determine the primary residence of your child as determined by conservatorship rights and duties. Many parents will fight tooth and nail to be named “primary” while other families early on agree that one parent or the other is more suited to be “primary”. This could be due to a number of reasons which include things like work schedules, parenting experience, needs of the child, etc. Either way in most divorces one parent will need to be named the primary conservator.
If you are not the primary conservator of your child you will be named as the “possessory conservator” which means you have visitation rights to your child. Do not be discouraged if you have only visitation rights to your child. The actual breakdown of time spent with each parent in most divorced families is something like 55/45, i.e.- 55% of the time the child is with one parent and 45% of the time the child is with the other parent. You will not quite have split custody, but it is very close.
Primary residences required to be contained within a certain geographic area
If you get through your divorce and are not named as the parent with the right to determine the primary residence of your child, fear not. You will likely not be in a situation where your child will be able to move away from you due to your ex-spouse getting a new job or their simply wanting to take up residence in another town or even another state.
This is because there are geographic restrictions that are included in most every divorce decree that protect the possessory conservator. The reason for this is that the State of Texas wants every parent to be able to have the ability to provide for their child and to develop a relationship with that child. Before you start to wonder how a court can tell a grown adult where he or she can and cannot live, the restriction is actually on the child’s residence not the adult’s. The restriction can be agreed to in mediation (which is almost certainly will be) or a judge can require that it be included if it has not already been.
Example of residency restrictions that are included in divorce decrees
There are a couple of different types of residency restrictions that are often times included in divorce decrees. For those of us who reside in Harris County, a common restriction is to have the child’s residence be restricted to Harris and its contiguous counties. This means that your child could reside in Harris county or any county that borders Harris county.
An alternative is to allow your child to live in Harris County and within any location within a certain amount of miles from downtown Houston, your current residence, etc. This is typically a restriction that is agreed to by the parties based on specific circumstances that have been negotiated upon. For example, if you know that your ex-spouse will need to live close to an ailing relative which is only fifty miles away from your home but is two counties away you can agree to this restriction rather than the Harris County and contiguous counties restriction detailed above.
An even more restrictive restriction (say that three times quickly) is to restrict your child’s primary residence to a certain school district. For example, I have had multiple clients and their spouse agree that their child should remain in a school district that both parents like a great deal. As such, the parents will agree to restrict the child’s residence to Katy ISD, Conroe ISD or whatever district is relevant. Again, this one does not come up often but if it makes sense for your family and is agreeable to you and your spouse a court will enforce it.
A move towards settlements rather than litigation
As you probably noticed in the prior section to this blog post, parents like yourself and your spouse are able to come to a wide range of agreements regarding residency of your child. An added benefit of allowing parents greater say so in where the child will reside is a move towards encouraging settlements in mediation rather than having to attend a trial where a judge will hand down the rules from on high.
The law in Texas has changed to now enhance the authority of parenting plans negotiated outside of a trial, including issues related to rights and duties of both you and your spouse. This is a good thing, in my opinion. Both parents are able to feel like they have some degree of control over the situation even if everything does not go their way in negotiations.
The other obvious benefit is that mothers and fathers have a better opportunity to continue to build strong relationships with their child as a result of the geographic restriction. So long as you don’t move outside of the geographically restricted area, your child cannot. If your primary concern was being able to see your child as much as you can this is something that should make you feel much better about your divorce. There are certainly aspects to your case that you and your attorney will not be able to control as directly as you may like. However, in most circumstances you can work out arrangements where you get to see your child as frequently as possible and do so close to your home. This is a win-win situation.
Questions on geographic restrictions and divorce? Contact the Law Office of Bryan Fagan
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