In yesterday's blog post from the Law Office of Bryan Fagan, we spent some time discussing the ins and outs of conservatorship. For the most part, parents are awarded joint managing conservatorships over their children after a divorce. This allows both you and your spouse to have fairly equal rights when it comes to decision making as well as a great deal of time for each of you to be in possession of your child. The thought behind this is that it is in the best interests of your child that he or she be able to have contact and influence from both you and your ex-spouse.
Along with a joint managing conservatorship, one of you or your ex-spouse will be named as the parent with the right to determine the primary residence of your child. This means that your child will be living with you for the majority of the year. Your ex-spouse will have visitation rights on the weekends during the school year as well as an extended period of possession during the summertime. Along with being able to determine the primary residence of your child, this parent will likely be made to live within a certain geographic area. This is what is known in Texas as a geographic restriction.
With that already having been established, today’s blog post from the Law Office of Bryan Fagan will begin with a discussion on how you may be able to relocate outside of Texas if you are named as the parent with the right to determine the primary residence of your child. As just about anyone who has gone through a divorce can attest to, circumstances change once the ink is dried on the final orders of your case. What worked well for you in the time period immediately following your divorce may not work equally as well six months or six years down the road.
A geographic restriction likely hinders your ability to relocate with your child
Since most parents agree to include a geographic restriction in their final orders, it is unlikely that you would be able to move outside of the area specified in your final decree of divorce in the time period immediately following your case. The geographic restriction applies to the primary conservator of your child and bars him or her from moving with your child.
The main thing to remember is that while the court does not have jurisdiction over you as a parent, it does have jurisdiction over your child until he or she turns 18 or graduates from high school. Therefore, there is a geographic restriction on where you can live insofar as it exists because your child is living with you full time.
A typical geographic restriction is for a child who will be residing in Harris County to be restricted to living in Harris and any county that is contiguous to Harris County. In an area as diverse as ours, this offers families like yours a great deal of opportunity and diversity of housing situations to find a place suitable to live and begin post-divorce life. If that sort of restriction does not appeal to you then you are in luck- you and your ex-spouse can agree to any sort of restriction that you would like. I have seen parents who liked Katy ISD so much that they had the boundaries of that school district exist as their geographic restricted area.
What happens when you get an itch to move outside of the geographically restricted area?
This whole set up that I’ve just spent some time describing works well until it doesn’t. At that point in time families have a decision to make. Suppose, for example, that you are offered an opportunity to advance at your company into a higher paying, higher prestige position. The catch is that the promotion would necessitate a move to College Station and out of Houston. You wrapped up a divorce two years ago and you and your child are settling into a groove after a long transition period. You are the primary conservator of your child and have a geographic restriction in place that you can only reside with your son in Harris County or any county contiguous to Harris. You really want to move and take advantage of the job offer. You think College Station would be a great environment in which to raise your child. What are your options?
For starters, you must get a court order in place that allows you to make that move to College Station. Yes, there is no law on the books that states you cannot move where you want to. There is the pesky issue of that court order from the divorce court that orders you not to move outside of Harris County or any county that borders Harris. That is as good as a law for our purposes and carries with it pretty significant penalties for being in violation of the law.
What’s more, a new court order is necessary because you do not want to rely on the assurances of your ex-spouse that a move is ok even if he says that it is. A lot of times what happens in a post-divorce world is that you and your ex-spouse will be able to talk through a problem and arrive at a solution that involves modifying or tweaking your final orders just a tad to suit some new development in someone’s life- either your own or your child’s. There is usually not any need to go to court to get the modification permanently and legally changed within the court orders. This is much preferable than having to go to court and this is actually want the judge wants you to do. Involve the courts as little as possible and work out your problems together. Sounds like something two grown-ups would do.
The problem comes in when you have a situation that demands a more extreme alteration of the child custody orders than merely flip-flopping weekend visitation periods for a month. I would have no problem trusting your ex-spouse when he says that doing something like that is no problem. The thought I would have is that your ex-spouse is likely to ask you for a similar favor down the line which you are likely to return with no problem.
There is a significant difference, however, in asking your ex-spouse to do an exchange of weekends over a four week period and asking your ex-spouse if you can move a hundred miles away to take a new job. Oh, and by the way, your child will be coming with you. It is unlikely that your ex-spouse would allow you to do that. Even if he does give you verbal permission to ignore that portion of your final decree of divorce, there is nothing forcing him to keep that perspective.
What if on Monday your ex-spouse gives you the go-ahead and you start to make plans to accept the new job, hire movers, find a place to live, register your child in school, etc.? Then your ex-spouse gives it some more thought and on Friday decides to phone you to say that he does not approve of the move and is requesting that you remain in Houston? This isn’t exactly a fair thing to do on his part but he has the backing of the orders behind him. He doesn’t have to allow you to anything, after all.
Filing a modification in order to have the geographic restriction in your decree lifted
The alternative to going through all of this mess is to file a motion with the court to modify the prior order. Modification cases can be some of the most difficult family law cases to win. The reason for this is that judges are by nature very conservative when it comes to changing orders that a child has been living under. This is exemplified in the requirement that you be able to show a significant change in circumstances for you, your child and/or your ex-spouse as to why the modification is justified.
What a significant change in circumstances means is really up to the judge in your case. It is a highly subjective standard that requires your judge to utilize their experience, knowledge, and expertise to determine whether or not it is in the best interests of your child to have that geographic restriction lifted.
In the hypothetical scenario that we laid out in the previous section, I can tell you that if your significant change in circumstances is that you were offered a promotion I wouldn’t think that your request for the modification will be granted. If your child’s needs are being met in Houston, your living conditions are safe and your income at your old position is significant to provide for your child’s needs then there is little justification to lake your child further away from his father.
The biggest question that I could muster in response to the statement I just made about the difficulty of pulling a move off based on job-related issues would be that you could counter with an assertion that a comparable job could not be found in Houston. Again, in a city that is as economically diverse as Houston, this would seem to be a difficult argument to muster.
Relocating to be closer to a family is a stronger justification than doing so for a job
A more compelling reason to attempt to move out of state would be that you are trying to do so for the purpose of moving closer to the family who will be able to assist you with childcare responsibilities. Providing the court a sense that you would not be alone and would have a built-in support system in the new location would go a long ways towards helping justify that move. Keep in mind that the best interests of the child standard are what applies to any family law case.
Parental alienation is something to be aware of for a court
Parental alienation and the lifting of a geographic restriction are not concepts that I think normally go together. Parental alienation occurs when one parent goes out of their way to sabotage or harm the relationship between their child and their child’s other parent. This can be done in a variety of ways, though talking poorly about your spouse in front of your child to potentially, removing your child from the area and relocating elsewhere.
If a court gets the impression that your request to move outside of the geographically restricted area is due to a desire to alienate your child from their other parent, your request will be denied quickly. The overarching goal of the court when it comes to your child is to allow him to have a relationship with both of his parents. By attempting to emotionally sever the bond between your ex-spouse and your child you are interfering with that bond. Your best bet is to speak to your ex-spouse about your desire to move and to see if you can come to an agreement on language for a modified order. If you are able to do so, pay the costs to go to court and get an updated order signed off on by all the parties as well as the judge in your case.
Questions regarding geographic restrictions and modifying prior court orders? Contact the Law Office of Bryan Fagan
The attorneys and staff with the Law Office of Bryan Fagan take a great deal of pride in representing our clients. From Dickinson to Conroe we advocate for people in our community just like you. To learn more about us please do not hesitate to contact our office today. We would be honored to set up a free of charge consultation for you with one of our licensed family law attorneys. In a consultation, we can answer your questions and address any concerns that you may have about any subject related to Texas family law.
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Law Office of Bryan Fagan, PLLC | Spring Divorce Lawyers
The Law Office of Bryan Fagan, PLLC routinely handles matters that affect children and families. If you have questions regarding divorce, it's important to speak with one of our Spring, TX Divorce Lawyers right away to protect your rights.
Our divorce lawyers in Spring TX are skilled at listening to your goals during this trying process and developing a strategy to meet those goals. Contact Law Office of Bryan Fagan, PLLC by calling (281) 810-9760 or submit your contact information in our online form. The Law Office of Bryan Fagan, PLLC handles Divorce cases in Spring, Texas, Cypress, Spring, Klein, Humble, Kingwood, Tomball, The Woodlands, the FM 1960 area, or surrounding areas, including Harris County, Montgomery County, Liberty County, Chambers County, Galveston County, Brazoria County, Fort Bend County and Waller County.