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Issues related to lifting a geographic restriction in Texas

With families moving more now than seemingly ever before, I think it is relevant for us to continue the discussion that we have been having the past few days related to the lifting of geographic restrictions. Geographic restrictions mandate that a child cannot have his or her primary residence outside of a certain, pre-set geographic boundary. That geographic boundary could be a neighborhood, a county or the State of Texas. Whatever it is, parents cannot move outside that area without consequences. 

The past few days we have been walking through various scenarios involving hypothetical families and their Texas court orders. Hopefully many of you have seen your situation described in one of these hypotheticals. Today, we will continue to provide you with some hypothetical situations that will illustrate how a court may end up approaching whatever issues related to geographic restrictions you have in front of you. 

When the family starts out living in another state

Let’s imagine a scenario where you and your family live in Virginia. You and your spouse have two kids and have been married there. Eventually you and your husband get a divorce in Virginia, as well. Both parents are appointed Joint Managing Conservators (or whatever the equivalent is in that state) of the kids. You are named as the parent with the right to determine the primary residence of the kids. Importantly, your divorce order contains no geographic restriction. 

Life happens and you meet a man and decide to get married to him. Your ex-spouse moves to Georgia from Virginia around the same time that you, your kids and your new husband move to Texas. After having lived in Texas for a couple of years your new husband lands a new job in California. You and your family are preparing for a move to the west coast. You send a simple email to your ex-husband notifying him of your intent to move the family, again. 

Your ex-husband wants no part of your kids moving again. He files a modification lawsuit to place a geographic restriction in Harris County (where you and the kids currently live) so he files a temporary restraining order asking a family court judge in Texas to prevent you all from moving until his modification lawsuit can be heard. As a result, your husband moves to California without you and the kids. You all stay behind in Texas. During the pendency of the modification case, your ex-husband moves to Texas. 

What do you think would end up happening in a situation like this? I think that a family court judge would more than likely grant your ex-husband’s request to modify the divorce orders and insert language that restricts your children from moving outside of Texas- perhaps even the Houston area. Let’s go through what I think a judge would look to when deciding a case like this one. 

If your ex-spouse makes an effort to continue their relationship with your children and even moves across the country to be closer to them that is a point in his favor. You can be a great parent who has done everything right for your kids. A move to a place like California may be good for them in a lot of ways. However, those are the primary considerations a judge will be concerned with in a case like this. 

Despite obstacles that were in place from the beginning of your post-divorce life, your ex-husband went to great lengths to continue to have a relationship with your kids. Not having a geographic restriction in place was a huge disadvantage for him. Basically, you could have chosen to move wherever you wanted with your kids and he would have had no say in where and when those moves occurred. 

Moving again (right after your ex-husband moved to Texas) is probably not a reasonable expectation. With the distance involved between travelling to California to see your children, that distance would effectively end the relationship that your ex-husband and your children share. Even considerations like providing him with extra time in the summer or longer holiday visits would not be able to fairly compensate your ex-husband for all the time that would be lost. 

What you need to show a judge if you are in the father’s position?

Let’s put the shoe on the other foot for a moment. If you are in the position of the ex-husband in the above scenario, what would you need to show a judge in order to insert a geographic restriction into the divorce orders? 

I would begin by telling the judge in a hearing that you made efforts and strongly considered making a move to the new location- even if you just moved to Texas to be closer to your children. Showing the court that you made efforts to contact people you know in the new state to see if jobs were available would be helpful as well. Showing that you went through efforts to find a job, rather than telling a judge that you were willing to do so, is the sort of testimony that could potentially win a case like this. 

The other thing that jumps out to me in this hypothetical situation is that your children seem to be moved a lot. Moving multiple times in a short period of time is not good for the stability of your children and should be avoided at all costs. Simply presenting clearly how a geographic restriction would be in the best interests of your child would be the best thing you can do. Pointing out to the judge that your ex-wife and her new husband have no family in California is another logical place for you to go when attempting to present evidence to a judge. 

Overall, the public policy of the State of Texas is to do what it takes to further the relationship between parents and children. Despite the fact that there may be some positives regarding a move to California for your children, your right to have a relationship with your kids would likely trump all of those positive aspects of the move. 

Moving back home- without the ex-spouse

A lot of people that currently reside in Texas are not native Texans. Consider the following hypothetical situation that could affect you and your family if you fall into this category. 

Suppose that you and your husband met one another in Nebraska. Each of you grew up there, have families there and got married there. About seven years ago you moved to Texas and had two children. Those kids have been raised in Texas. However, about four years ago your spouse and you got divorced. Since that time, you have had the right to determine the primary residence of your children. You have a geographic restriction in place that allows you to make the primary residence of the kids in Harris County only, however. 

Eventually, you determined that it would be good for you and the kids to move back to Nebraska. You made the kids’ father aware of your desire to move back to Nebraska very early on in your decision-making process. There was no hiding the ball or waiting until the last minute to tell him. You were very upfront with him about your wishes. There was still the issue, however, of that geographic restriction that was in place. 

You then would attempt to modify the divorce decree by lifting the geographic restriction that allows you and your child to live only in Harris County. Your ex-husband opposes based on the premise that moving your kids’ away from the only home that they have ever known, as well as from their father, would not be in the kids’ best interests. How would a court likely come down in a situation like this?

Remember that a material and substantial change has to be found by the judge to have developed since the time that your last court order was created. That material and substantial change could have developed in relation to you, your ex-spouse or any of your children. In these circumstances that we have been discussing here, I think that the court would likely grant your request to lift the geographic restriction- thereby allowing you to move the kids and yourself to Nebraska. 

Why a court would likely allow you to move yourself and your kids back to your home state

This is a circumstance that involves both the happiness of your kids and of yourself. Moving to a neutral location for a job opportunity is one thing, but it will be treated differently if your desire was to move back home with your kids. Having a support system in place in the location that you desire to move is a huge factor. Having both extended families in that location (such as would be the case here) is an even bigger factor. Having family available to care for your children while you look for a new job would be a huge point in your favor. 

Do not think that just because the amount of visitation time with a parent would decrease is reason enough that a court would not grant the request to lift the geographic restriction. Yes, we did just go through a scenario in the prior section of today’s blog where I noted that this a huge factor to consider as well. However, there are other circumstances that can trump that reduction in time with the non-custodial parent. Do not underestimate the importance of being honest and upfront with the other parent about your plans. Giving him or her time to make changes in their life, or even make plans to move with your kids, is more feasible the more time that is given. 

A hypothetical situation involving a sole managing conservatorship

So far we have been discussing hypothetical situations that involve parents that are joint managing conservators. Now I would like to go through a situation that involves you as the hypothetical sole managing conservator of your children. 

A sole managing conservator is a parent who holds almost all of the rights and duties associated with a child. If you are the sole managing conservator of your child then you would have almost complete say so in where your child lives, where your child goes to school, the type of medical care he receives and would have almost all of your child’s time to yourself. Typically, sole managing conservatorships are created if one parent has displayed violent tendencies or has other “black marks” against him or her. 

Let’s introduce a scenario here and then continue with it at the beginning of tomorrow’s blog post. Suppose that after your divorce you move with your kids to Arizona. At this stage you share a joint managing conservatorship of your kids with your ex-spouse. Once you move to Arizona you file a lawsuit in which you seek to modify the conservatorship arrangement and allow your ex-spouse to only have supervised visitation with your kids. 

To be clear- you have not allowed your ex-spouse any notice before moving. He has no “black marks” against him, the type of which we discussed a few paragraphs earlier. What is a court likely to do in a situation like this? Stay tuned tomorrow to our blog and we will pick up right here. 

Questions about the material in today’s blog post? Contact the Law Office of Bryan Fagan

If you have any questions about the material contained in today’s blog post, I recommend that you contact the Law Office of Bryan Fagan. Our licensed family law attorneys offer free of charge consultations six days a week where we can answer your questions and address your specific circumstances. 

Our attorneys and staff take a great deal of pride in being able to represent our neighbors here in southeast Texas. We are inside of every family courtroom in our area on a consistent basis advocating for our clients and their families. We hope that you have learned some things by reading today’s blog post and hope that you will return tomorrow. 

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