Family Law, Summer 2010
August 6, 2010
Restricting the Residence of Children in Texas
The Texas Legislature passed HB 1012, amending Texas Family Code § 153.133, which states that as of September 1, 2009 an agreed parenting plan may either designate the parent who has the exclusive right to designate the primary residence of the child or may provide that the child’s primary residence is required to be within a specified geographic region. This law has changed over the years as to whether the parents may agree to a restriction of a geographic region as opposed to awarding one party the exclusive right to control and/or establish the primary residence. Of course, this usually indicates a scenario in which there are two very involved parents who desire for their children to be in close proximity to each parent.
A residency restriction in Texas can also be imposed by the court, and is a limitation on where the child may live. The court cannot tell the adult parties where they may or may not live, but it is in the court’s power to limit the geographic region of the child’s residence. Therefore, if such a limit is put in place by the court, or through an agreement by both parties, the parties’ geographic region of residence has effectively been limited as well. In other words, a party has the option to either stay in a court-ordered geographic area of residence, or letting the child reside solely with the party choosing to remain in this geographic area.
Often, in a joint custody situation, the court-ordered residency restriction giving one parent sole authority to establish a child’s permanent residence is limited to establishing the residence within a geographic region constituting those counties contiguous to the county in which the noncustodial parent resides. If the noncustodial parent moves outside of this geographic area, the residency restriction is effectively void. Of course, these residency restrictions can vary from limiting residence to the state of Texas as a whole, or down to as small as a school district in a certain community. For example, the court may order that the child may not live outside of a certain radius of a particular school. Further, the court may order that the child must reside within city limits of a city easily accessible by plane, train, or automobile. These restrictions may take a variety of forms, but the intent is simply to promote the relationship between the parent who does not have custody of the child and the child. The residency restriction helps assure that there will be frequent contact.
Normally, in an uncontested case, the custodial right to designate the primary residence of the child is only important in situations when a decision arises concerning which public school or school district the child will partake in. The remainder of the agreement typically sets out each parent’s periods of possession and designates other decision-making authority to the parties. In the past, the parties could reach an amicable agreement prior to trial that would be negotiated and settled upon by each party, with no Texas law explicitly permitting the agreement. Now, Texas Family Code § 153.133 codifies these agreements, enhancing the authoring of same, and requiring court approval when agreement has been reached. In the event that this type of agreement is not reached before trial, the court may only order that a party has the exclusive right to determine the primary residence of the child and the geographic region where that residence will be maintained. Therefore, this effectively shuts out one of the parents from having a voice in designating the geographic region for the primary residence of the child. Thus, this new law actually encourages settlement between the two parents as the parents can reach a resolution which the court could not reach in the event of a contested trial. Effectively, by reaching an agreement prior to trial, the parties are assured that their children will not move out of the agreed-upon geographic area (unless of course either party later moves for a modification of the agreement and that request is subsequently granted).
There are examples of cases in which the court has upheld these types of agreements. Earlier this year, a Dallas jury found that a geographic restriction to the Dallas area would be enforced, even in light of a party’s request to move out of the country. This party had requested that the divorce decree be modified from joint to sole custody, and that the Dallas area restriction for the child’s residence be eliminated. Obviously, the other party was opposed to this idea, and countersued to enforce the agreement. Ultimately, the jury ruled in favor of the party wishing to move out of the country, granting sole custody, but chose to uphold the geographic restriction requiring that the children reside in the Dallas area. As you would hope, jurors are apparently taking seriously the concept that both parents should have the opportunity to be actively involved in their children’s lives.
Of course, the noncustodial parent must have remained active in the child’s life for a residency restriction to be ordered or maintained by the court. A noncustodial parent that requests a residency restriction and who has not been active in their child’s life will probably find this request unfulfilled by the court. Therefore, if the noncustodial parent exercises all visitation as previously awarded, attends extracurricular activities, partakes in parent-teacher conferences, or simply takes the child to appointments on a consistent basis, this parent will stand a much better chance of receiving a residency restriction. Once in place, the noncustodial parent should continue to participate in the aforementioned activities to help ensure that the residency restriction will not be lifted at a later date. As shown herein, the state of Texas will act in the best interests of the child, and if a noncustodial parent is active in a child’s life, a court will most likely either place a residency restriction on a child, or enforce any residency restrictions previously placed on the child.
Holidays and Visitation
As we are in the months of summer vacation, it is important to keep some tips in mind for dealing with visitation. These are of course also applicable during the winter holidays, and year round in general.
1) Communicate. Do not assume anything about the other parent, and be open to discussions to work out any potential conflicts. A brief email message or telephone call is often all it takes. Ten to fifteen minutes now can save weeks or months of conflict.
2) Be courteous and respectful. Place yourself in the other parent’s position when holding a discussion about a potential scheduling issue or other conflict. Do not talk down or be abrasive to the other parent. Remember the timeless idiom, you can catch more flies with honey than with vinegar.
3) Prepare. Discuss schedules and vacations well in advance. While it is fairly feasible to put things off for the last minute in an individual’s life, there are numerous other factors to consider when there are children and another parent involved. Take into consideration that the other parent has their own schedule and vacation plans laid out as well. Work out exactly where your children will be during what times, and when, where, and how exchanges will take place.
4) Children first. While the adage is certainly true that they grow up too quickly, holidays and the like do come around on an annual basis. Compromising this year should pay dividends in the next. Children should not be placed at the center of a conflict, and it is often the case that family events can take place before or after a holiday if the other parent has the children for that holiday.
5) Keep your thoughts to yourself. If the other parent does something that upsets you (i.e. – returns the children late, or fails to follow a pre-arranged schedule), be sure to always wear the white hat. Children do not need to hear their parents speak ill of one another. Remember, children learn by watching their parents.
If followed by both parties, these suggestions should help facilitate a nurturing and caring environment for children. It cannot be reiterated enough, remember that it is all about the children. Petty squabbles and conflicts between the parents concerning schedules and the like add nothing to the upbringing of a child. While the situation may not be ideal, and while it may be difficult to bite your tongue or turn the other cheek, always remember that your children will be better off for it.