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What do you Risk if the Custody Order is not Modified before you move?

Going through a divorce or child custody case means many things for your family. One of the changes that you are accepting is that a family court judge will weigh in on the decisions you make for yourself and your family in the future. Before your involvement in the world of family law, it would have been downright strange to imagine a scenario where a family court judge's opinion mattered in any area of your life; however, once that divorce or child custody case was filed, all of that changed. Now, you have a court order that tells you what you can and cannot do in many areas of your life.

This can be disconcerting for many families; two are accustomed to coming and going as they please. You may have even had plans to relocate your family due to the change seen in many of our lives since the beginning of the pandemic. The housing market is as hot as ever in the Houston area; many of our friends and neighbors are considering selling their homes to move to a new house in this area or somewhere else in the country. Before you pick up in move someplace new, you need to consider the consequences of those decisions regarding the current custody orders that you have through the family law court.

In today's blog post, I will share with you my thoughts on what risks are inherent in moving your family before the modification of a child custody order. As I alluded to at the beginning of this blog post, you may not be able to move your family immediately after a divorce or child custody case because of a condition or series of conditions in your final orders. That's not to say that you will never be able to move your family. However, it does mean that you need to be able to plan to anticipate any challenges or problems that may be associated with your decision to move.

Conservatorships rolls after a divorce or child custody case

After your divorce or child custody case, you need to be aware of your responsibilities and rights as a parent. There are 2 roles, but you could end up fulfilling after a family law case. The first is that of your child's primary Conservatory. The primary conservator of your child will have possession of your child on most days during the school year and can determine the primary residence of that child. All in all, the primary conservative will have a child more often than not and therefore has a definite time advantage when it comes to spending more time with your child throughout the year.

The other parenting role regarding raising your child after a divorce or child custody case is a possessory conservator. A possessory conservator can have the child as well but on a more infrequent basis than the primary conservator. A possessory conservator typically has weekend periods of possession on the 1st, 3rd, and 5th weekends of each month during the school year. During the summertime, the possessory conservator typically has more flexible periods of possession and longer stretches besides.

Depending upon what parenting role you fulfill after your family law case, you need to be aware of different aspects of relocating yourself or your family. First, if you are named as your child's primary conservator, you need to be aware that there will likely be a geographic restriction in terms of where you can relocate after your case comes to an end. Many families in the Houston area will choose to have Harris County and any contiguous County be the extent to which a family may move. If you live in Houston, you can currently move to Katie, Sugarland, Liberty, or The Woodlands without violating a geographic restriction like this.

The purpose of a geographic restriction is to ensure, on behalf of the possessory conservator, that they can have their agreed time with the children without having to worry about you moving with the kids at a moment's notice any place in the world. The geographic restriction is intended to ensure that travel and logistical issues surrounding Visitation do not overcome a court order that allows your ex-spouse to have the kids.

If there is a geographic restriction for your family, you are therefore limited in terms of where you can live with the kids. Your geographic limitation is maybe less strict than others. Or, I have seen parents but particular geographic restrictions in place where your family may be limited to living in a certain school district or even a certain part of the city. It all depends on the specific wants and needs of your family. Keep in mind that you hopefully should have spoken with your attorney about whether or not it is in your best interests to put in a geographic restriction. Once it is in there, there is no going back unless a modification is sought.

On the other hand, if you are the possessory Conservatory of your children, you need to know that if you choose to move beyond the geographic boundaries of a geographic restriction, the geographic restriction would be voided. The bottom line is that the geographic restriction is set to benefit you as the possessory conservator. If you choose to bypass those protections and move further away from your children, there is no requirement for your Co-parent to live within those geographic boundaries.

For example, if you, as the possessory conservator, choose to move to Louisiana for a new job, you would likely be living outside of the geographic region you are restricted to in your final decree of divorce or child custody orders. Once you do so, this would allow your Co-parent to make a similar move outside of that geographic region. This puts you in a position where seeing your children according to the terms of your Visitation and possession orders is much more difficult. On another level, it also sets you up to be put in a position where your parent could end up moving as much as they wanted to, thus make visitation even more difficult.

What should you do with a geographic restriction that does not suit you or your children?

The simple truth is that the orders contained in your final decree of divorce or child custody orders may not always work well for you and your family. Hopefully, what you negotiated upon in your family law case is thought of in advance and will work for years to come. However, changing circumstances make it so what you agreed to at the end of your family law case may not suit your family all that well, even a couple of years into the future.

We have already discussed how this past year has been a year of change as far as moving for many families. With many employers choosing to keep employees at home working remotely rather than in a physical office location, this is made moves out of Metropolitan areas even easier than before. In an area like ours where the oil and gas industry seems like it is a forever changing and evolving creature as far as the employment situation is concerned, you may be acutely impacted by decisions to either move careers to other places, keep folks at home rather than in an office or two eliminate or downsize positions.

At the time of your divorce, you may have thought that you were in a stable career field along with your spouse. As a result, a geographic restriction may have made sense, given that you were happy with your circumstances and did not anticipate many changes coming. However, the reality is that nobody could have seen a pandemic coming and the changes that we saw to our job market as a result. As such, the need for you to have a geographic restriction may have changed completely over the past few years.

Now you are left wondering whether or not that geographic restriction would prevent you from taking advantage of opportunities that have been presented to you as far as changing a career or even moving along in a certain career that you have been engaged in for many years. You may have been given a new opportunity for work in another city or want to move to an area that is better for you and your family, given the lack of a need to travel into the city of Houston or any other city in Texas for that matter for work.

When it decides this, you need to be able to consider your options as far as what to do in the face of any geographic restriction contained in your final orders; sometimes, when it comes to subjects like this, I will recommend folks that they speak to their Co-parent to determine whether or not an informal modification to the orders can be made. This would be a handshake type agreement between you and your Co-parent where you would be allowed to violate the geographic restriction and not be brought to court in an enforcement action.

However, in a circumstance with so many moving pieces, such as a geographic restriction, I would not recommend making any move based on a handshake agreement. Making a change over a temporary basis for Visitation is one thing based on a handshake agreement. It is quite another thing to accept a new job or decide to move your family based on a handshake agreement with your ex-spouse. I do not recommend you make these far-reaching and critical decisions unless you have gotten a formal modification through the court.

Ultimately, that is what you need. When you talk about moving after a divorce or child custody case, you will ultimately need to seek a modification from the court. This means that you must be able to allege a substantial and material change in your circumstances, that of your children, or that of your Co-parent. A family court judge will be hesitant to change your child's circumstances a dramatic amount based on anything less than this standard. It is unlikely that your case would even be put up for a hearing unless you can allege substantial changes in your circumstances.

How to proceed with the modification case

When it comes to many of the kinds of modifications you may be seeking regarding a geographic restriction, there is little opportunity for a settlement, in my opinion. Much of the time on this blog, I recommend that you do everything you can to determine whether or not a settlement will be possible with your Co-parent. In situations involving possession, child support, or even Visitation, there are oftentimes middle grounds that can be met where you can achieve many of your goals well, not completely changing the lives of your children.

Unfortunately, in most circumstances, when it comes to moving, there really is no middle ground. For example, if you have a job offer to move from San Antonio to Houston, then the decision to move halfway between the cities rather than to Houston from San Antonio doesn't make much sense. Either you will be able to lift the geographic restriction in place, thus allowing your family to move to Houston, or an agreement like this will not be reached.

This should give you an idea that you will likely need to present evidence to a judge to justify your modification attempt. Since lifting a geographic restriction would almost certainly mean less possession or Visitation time with your kids for your Co-parent, you should not anticipate being able to work out this issue in mediation or through negotiation. You need to show that the new job or new opportunity is so dramatic and so much in the best interest of your children that the judge will be making a big mistake by not allowing you to lift that geographic restriction.

Because of the complexity of a modification case, I certainly recommend that you work with an experienced family law attorney. An attorney who is worked in modification cases previously would be able to assist you in not only advising you about the case itself but advising you about the feasibility of what you are asking. For example, if you have no specific reason for moving from Houston to The Woodlands, accept that you saw a house online that you want to buy, that may not justify the lifting of a geographic restriction that is supposed to keep your family in Harris County.

An experienced family law attorney will be able to tell you whether or not you are walking into a case that cannot be one period; this will save you time and money because there certainly are attorneys who would file the case for you and accept your retainer fee regardless of whether or not you have a chance to win based on your circumstances. Attorneys with the Law Office of Bryan Fagan would sit down with you and help you analyze your circumstances to determine the likelihood of you coming out as a winner.

Next, you should begin to think through your reasons why the geographic restriction needs to be lifted. A sworn statement under oath, otherwise known as an affidavit, will need to accompany your petition to modify your court orders. In that affidavit, you will be asked to relate the specific circumstances that have materially or substantially changed that require a modification of your court order. Unless you can concisely and accurately present a case to the judge, they may decline even to allow your case to proceed with the hearing.

Questions about the material contained 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; please do not hesitate to contact the Law Office of Bryan Fagan. Our licensed family law attorneys are available six days a week for free of charge consultations by phone, video, or in person. These consultations are a great way for you to learn more about the world of Texas family law and how your family circumstances may be impacted by the filing of a divorce or child custody case.

Thank you for your interest in our law office and our blog. We post unique and informative content daily about the world of Texas family law and estate planning matters in Texas. We hope that you will join us again tomorrow.

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