Let’s pick up where we left off in yesterday’s blog post from the Law Office of Bryan Fagan. First, if you have not read yesterday’s blog post I would recommend that you do so. It contains a lot of important information for you and your family if someone is considering a move after divorcing. At the conclusion of the blog I introduced a fact pattern that I am going to pick up right now.
If you want to disregard my advice to go back and read yesterday’s blog post before reading today’s, here is a quick run-down of the situation I laid out. You and your spouse got divorced one month ago in Texas. You were named a joint managing conservator of your kids with the right to determine the primary residence of your kiddos. You are a native Argentinian and want to move to Argentina with your kids. However, there is a geographic restriction in place that says you can move anywhere within the state of Texas with your kids but cannot move outside the boundaries of the Lone Star State.
You have filed a modification petition in the family court that granted your divorce. You want the geographic restriction lifted so that you can move with your kids back home to Argentina. We started to go through some of the factors that the court in your case would likely consider when determining whether to allow you to make your desired move. Now that I have filled you in on all the necessary information we can continue with this discussion.
Factors that a family court would consider when determining whether to lift a geographic restriction
Are you making this modification request in good faith or are you doing it to spite your ex-spouse? Simply put, your motivation for filing the modification will be scrutinized by the judge. A move to a country thousands of miles away requires a fair bit of scrutiny, I think even you would admit. Why is this move necessary? How does it stand to benefit your kids? Do you have strong family ties in your home country? What about prospects for a new job? What are the schools like in Argentina where you plan to move?
Next, what chance does your ex-spouse have of visiting with your children on a consistent basis if you were able to make the move? Obviously, the chances of your ex-spouse being able to hop a flight to Argentina every weekend to see your kids is slim to none. That just isn’t practical even if your ex-spouse has the finances and work schedule to pull off such a feat. If the move were to say, Mexico, that may be more do-able. Even then it would be pushing the limits of time and energy even for the most devoted parent.
How would your child’s life be enhanced by moving to Argentina? If you are living a comfortable and happy life in Texas this would likely be a pretty high bar. Are your prospects for employment a great deal better in Argentina than in Texas? Do you have family relations in Argentina that would stand to enhance your child’s quality of life? Finally, what are the schools like in the area of Argentina where you plan to move? Many, if not most, public schools in Texas will provide your child with a quality education. Can the same be said of the schools in Argentina?
What sort of ties does your child have to your community? Obviously for a very young child the answer to that question is probably not very strong ties. However, if your child is a teenager who plays sports at the local high school, acts at the local community theater and teaches Sunday school at your local church it is much more likely that a move to a foreign country would have a significant impact on your child’s well-being.
Based on the considerations that a court would likely give when determining whether or not to allow the move, I think it is safe to say that the focus would be on what is in the best interests of your child. Simply put, all of these factors boil down to is your child going to be better off in Argentina or in Texas? This can be a complicated and fact specific determination to make. It is not always reasonable to expect parents to remain in the same area after a divorce that they were when the divorce began. However, any move that you would make needs to be predicated upon improving the lives of your children rather than any other factor- no matter how reasonable.
How your kids can help your modification be approved
If your goal is to have a geographic restriction lifted in order to move to a foreign country, then your kids can play a crucial role in ways you maybe haven’t considered. First, if your children have a strong relationship with the country in which you wish to move then that is a check mark in your favor. For instance, if your kids identify with the Argentine culture and have always taken part in cultural activities based on Argentina then that would be something going in your favor in the analysis of a court.
Do your kids speak Spanish? Do they watch Argentine movies and celebrate cultural and religious holidays native to Argentina? What about your family? Do you have family members living in Argentina that your children already have close relationships with? Would these family members be able to help ease any transition from moving to Argentina from the United States?
How you can help your modification be approved?
An improved mental state of yours would stand to benefit your kids and the chances of your being approved to move to Argentina. If you are depressed and lack close relationships to people in Texas then a move to Argentina would stand to benefit you a great deal. It could also benefit your children because you are their primary caretaker. Your mental well-being impacts how you parent your kids.
You would need to think long and hard about how likely it is that your ex-spouse could maintain a close relationship with your kids despite the move. If your ex-spouse does not speak Spanish, has no ties to Argentina, has no chance of finding comparable employment and otherwise would be unable to make the move, then your request to lift that geographic restriction would likely be unsuccessful. Overall, the ability to have a geographic restriction lifted is so fact specific that you would need to meet with an experienced family law attorney to determine whether or not you have a strong case to do so.
Again, there is no specific rule that I can provide to you today that will help you to prepare for an actually win a modification case in Texas where your goal is to have a geographic restriction lifted. These sort of cases are very fact dependent. This means that the specific circumstances and factors that are in play for your family are what will matter most to a family court judge when it comes to arriving at a decision
With that said, I am going to spend some time running through some hypothetical situations that will hopefully relate to you and your own family’s specific situation. Some of the concepts in family law are pretty simple. Others are more complicated and an explanation via example can offer the most help for someone like you who is out there seeking answers that can help you and your family.
Parents of a child who were never married
Let’s assume that you are the mother to a child who is two years old. You were never married to your daughter’s father. However, the father has legally been recognized as the father to your child and you have gone to court and had an Order entered where you and the father are named as Joint Managing Conservators. You hold the right to establish the primary residence of your child, however. There is a geographic restriction along with that right that holds that the residence must be within the state of Texas.
A few years pass since the time that you all went to family court in order to have that court order created. You have moved on with your life and have had a second child with another man. You took time off from work in order to take care of your new-born child. While you were away from your job, your employer stepped in and filled the position with another person taking your spot at work. Your employer let you know that you are still a valued member of the team and offered you a new position within the company at a substantially higher rate of pay. However, the new position would be in Alabama- outside of the geographic restriction’s acceptable bounds of residence.
You can’t move to Alabama with your child and accept this great, new position within your company without violating the court order. As a result, you decide to file a modification petition wherein you ask the court to lift the geographic restriction that is in place. You note that you very much want to accept this new position being offered to you in Alabama and believe that doing so would be in your child’s best interests.
You have a legitimate reason to seek to move to Alabama. It’s not as if you have chosen to move there out of the blue. You have given birth to a second child since you were last in family court and the increased income and job security being offered in Alabama is a huge plus in your favor. Your choice is, take the job in Alabama and move there or look for a completely new job in Texas. There is no fallback option for you at your current employer.
How would the move impact your child? Well, your child would likely benefit in many ways from making the move out of Texas. First, your new position would offer you flexibility to care for your child who is the subject of the family court order. The company understands that you are a mother and is willing to afford you certain accommodations to allow you to parent your child and be a contributing member of their team.
The general quality of life for your child is the most important consideration for the court to make. Yes, the rights of your daughter’s father are important and will be considered as well, but the ability for your child to grow up in an environment that is best suited for her growth and development physically and emotionally is the most important thing that the court would consider in a situation like this.
Another important issue would be what steps would you take to encourage a strong relationship between your daughter and her father. If you told the court that you would reduce your own summer visitation time with your child, pay for all transportation costs associated with the father seeing your daughter and would offer as much additional visitation to the father as is possible that would likely tip the scales in your favor.
Getting a geographic restriction lifted in a Texas family law case is a big deal and can be difficult to achieve. You need to be willing to give as much, if not more, than you are getting in a case like this.
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Bryan Fagan, a native of Atascocita, Texas, is a dedicated family law attorney inspired by John Grisham’s “The Pelican Brief.” He is the first lawyer in his family, which includes two adopted brothers. Bryan’s commitment to family is personal and professional; he cared for his grandmother with Alzheimer’s while completing his degree and attended the South Texas College of Law at night.
Married with three children, Bryan’s personal experiences enrich his understanding of family dynamics, which is central to his legal practice. He specializes in family law, offering innovative and efficient legal services. A certified member of the College of the State Bar of Texas, Bryan is part of an elite group of legal professionals committed to ongoing education and high-level expertise.
His legal practice covers divorce, custody disputes, property disputes, adoption, paternity, and mediation. Bryan is also experienced in drafting marital property agreements. He leads a team dedicated to complex family law cases and protecting families from false CPS allegations.
Based in Houston, Bryan is active in the Houston Family Law Sector of the Houston Bar Association and various family law groups in Texas. His deep understanding of family values and his professional dedication make him a compassionate advocate for families navigating Texas family law.
