Wednesday, April 15, 2009

Geographical Restrictions and Relocation Issues in Austin and Travis County Texas

Geographical restrictions and relocation issues generally come up in three contexts: (1) at the time of a divorce or other Suit Affecting the Parent-Child Relationship (“SAP-CR”), (2) during a suit for modification when one parent seeks to move or “relocate” and there is a geographical restriction which does not permit this move, or (3) where there is no geographical restriction – or the restriction is insufficient – to prevent the proposed relocation, and the other parent wants to prevent the relocation – also usually with a suit for modification.

Because of our rapidly changing world regarding relatively inexpensive video-conferencing options, the constant connectivity of the internet, and relatively quick airline options, the attitudes of Judges and our law has been changing – although slowly. Here are some of the basics regarding Geographical Restrictions and Relocation Issues in Texas.

A. Texas Public Policy.

The Texas Family Code sets out that it is the public policy of the State of Texas to:

(1) assure that children will have frequent and continuing contact with parents who have shown the ability to act in the best interest of the child;
(2) provide a safe, stable, and nonviolent environment for the child; and
(3) encourage parents to share in the rights and duties of raising their child after the parents have separated or dissolved their marriage.

Tex. Fam. Code § 153.001(a)(1). As a result, obviously, “frequent and continuing contact” between parent and child is more likely when the child lives nearby. This is the primary reason that Geographical Restrictions are imposed.

Also, on the subject of “frequent and continuing contact,” it should be noted that the Texas Family Code, Section 153.137, makes clear that the Standard Possession Schedule only constitutes a presumptive minimum amount of time that a parent should have with his / her child.

B. Best Interests of Child.

For decades the Legislature has made clear that Texas Courts should be primarily concerned in conservatorship and possession and access issues with what is in the “best interests of the child.” Tex. Fam. Code § 153.002. As a result, and because of the fact that there is sometimes a big debate between parents as to what is “best” for their children – especially when the parents reside in two different homes or come from differing cultures – there is much room for disagreement as to whether the Court should impose geographical restrictions, and whether a proposed move (or relocation) due to family, job opportunities, or other issues, will be deemed to be in the child’s best interest. However, we should keep in mind that this will ultimately be what the Courts are concerned about.

C. Who has the Right to Choose?

If a parent is appointed as the “Sole Managing Conservator,” or SMC, then this parent usually has the exclusive right to determine the primary residence of the child. Also, the individual who is appointed as the “primary” Joint Managing Conservator, or JMC, will also likely have the exclusive right to determine the primary residence.

It should also be noted that under the “Parenting Plan” provisions of the Family Code, the Final Decree granting conservatorship must either:

(1) establish a geographic area for the residence, or
(2) specify that the managing conservator may determine the residence without regard to geographic location.

Tex. Fam. Code §§ 153.133; 153.134.

D. Types of Geographical Restrictions.

The primary custodian is oftentimes restricted to a specific geographical region. Some of the more common restrictions are:

(1) mile limitation – say 100 miles;
(2) The County of the Suit;
(3) The County of Suit and “contiguous” or “adjoining” counties;
(4) The entire State of Texas; or,
(5) A specific city.

For example, in the Austin, Texas area, a common geographical restriction that courts might impose upon the primary conservator might be “Travis County or any county adjoining Travis County.” If this provision were part of your divorce decree it would mean that you could relocate to any home (house, apartment, condominium, etc.) within Travis County, or any county that abuts Travis County – these counties are: Blanco County, Burnet County, Caldwell County, Hays County, Lee County, and Williamson County.

E. Modification Lawsuits.

In the typical modification lawsuit, the Court is concerned with whether there has been a “material and substantial change in circumstances” in order to justify the change in terms. In suits for modification, it has been specifically held that a parent’s (or conservator’s) desire to move (or relocate) can be a material and substantial change in circumstances. Bates v. Tesar, 81 S.W.3d411, 430 (Tex. App. – El Paso 2002, no pet.). However, no every desired move will bring about a material change. Id. In determining whether the move is justified, and in addition to the “best interests” of the child as addressed above, the Court will look to:

(1) The distance of the proposed move;
(2) The proximity, availability and safety of travel arrangements.
(3) The quality of the relationship between the non-primary parent and child;
(4) The nature and quantity of the child’s contact with the non-primary conservator;
(5) The possibility that the relation would deprive the non-primary conservator of regular and meaningful access to the child;
(6) The impact of the move on the quantity and quality of the child’s future contact with the non-primary conservator;
(7) The motive for the proposed move (or opposing the move); and,
(8) The feasibility of preserving the relationship between the non-primary conservator and the child through suitable visitation arrangements.

F. Allocation of Relocation Expenses.

The Family Code allows for the court to allocate any increased expenses resulting from one conservator’s relocation. Tex. Fam. Code § 156.103. The allocation is to be made “on a fair and equitable basis, taking into account the cause of the increased expense and the best interest of the child.” Id. The statute creates a rebuttable presumption that any increased expenses should be paid by the relocating party.

G. Jury Issues.

It should be noted that not all issues arising in the context of a family law matter may be submitted to the jury; however, under Texas Family Code § 105.002, with regard to relocation, a party is entitled to a verdict by the jury and the court may not contravene a jury verdict on the issues of:

(1) the determination of which joint managing conservator has the exclusive right to designate the primary residence of the child;
(2) the determination of whether to impose a restriction on the geographic area in which a joint managing conservator may designate the child’s primary residence; and
(3) if a restriction is imposed, the determination of the geographic area in which a joint managing conservator must designate the child primary residence.

H. Remedies for Violation of a Geographical Restriction.

The Court can take action with respect to any parent who violates a geographical restriction. If the move is without the parent’s consent, the non-relocating parent could file a Habeas Corpus action commanding a peace officer or the conservator to produce the child to the Court. The Court can also use the geographical restriction violation to modify the Court’s order, including up to modifying conservatorship, or perhaps other potential modifications of the Order. Finally, the Court can issue a Show Cause Order, and hold a contempt hearing to determine whether punitive contempt (i.e. – incarceration or fine) is appropriate.

If issues relating to geographical restrictions are likely to come up in your Divorce or SAP-CR case, or if you expect to have issues concerning relocation matters, or a modification suit, you should hire an experienced family law attorney to help you with your case.