If you're gonna divorce in Dallas, you better plan to stay here!

A Dallas jury last week upheld a restriction on the children's residence to the Dallas area in the face of the Mother's request to move out of the country.  The mother sought to modify the divorce decree to change from joint custody to sole custody and lift the Dallas-area restriction on the children's residence so she could move the children out of the country.  The father countersued for primary custody and opposed the mother's plan to move.  The attorney for the children advocated sole custody for the mother for one of the children and joint custody for the other child.

I am told by one of the lawyers involved that the judge indicated she would follow the request of the attorney for the children.  The mother disagreed and requested a trial by a Dallas County jury.

After a week long trial, the jury ruled in favor of the mother on her request for sole custody, disregarding the children's attorney's recommendation.  However, the jury refused to lift the restriction on the children's residence, keeping the children in the Dallas area.

There are two lessons to learn from this trial.  First, from the mother's perspective, if you disagree with the direction a judge may be leaning in your case, a jury might actually see things differently from the judge.

Second, Dallas County takes seriously the policy that both parents should have the opportunity to be actively involved in their children's lives.

The Dallas County family court judges were the first to develop the idea of restrictions on the child's domicile in a joint custody situation.  This idea furthers the state policy of frequent and ongoing contact between both parents and the children.  This policy has now been approved statewide and many judges have adopted it.

Here's how it works...  when one parent is given the exclusive right to establish a child's residence in a joint custody situation, such right will be restricted to establishing the residence within Dallas County and counties contiguous thereto for so long as the noncustodial parent lives within that area.  When the noncustodial parent moves outside of that area, the restriction is lifted.  The geographic restriction can be as broad or narrow as the parties agree or the judge finds reasonable.  For example, I've had cases with a restriction to within 5 miles of a particular school, or within the geographic limits of a city or school district.  I also had one case that limited the geographic residence to the city limits of any city in Texas serviced by Southwest Airlines (for ease of travel for the child).

You might ask, isn't that an infringement on my constitutional right to travel and live where I want to.  Well, the answer is no!  The restriction isn't on the parent -- it's on the child's residence.  So the custodial parent may move, but unless the restriction is limited, that parent would have to relinquish custody to be able to move.

Geographic Restriction of Child's Residence New Law

Effective September 1, 2009, an agreed parenting plan may either designate the conservator who has the exclusive right to designate the primary residence of the child  or provide that the child's primary residence is required to be within a specified geographic area.  The Texas Legislature passes HB 1012 amending Texas Family Code section 153.133. 

See the text of HB 1012 by clicking here.

Comment:  The law has shifted back and forth over the years as to wehther the parties may agree to a geographic restriction instead of awarding one party or another the right to establish the primary residence.  This has usually arisen as an issue between two very involved parents who want to share custody of their children and who want to live in a small defined area.  Although many divorce lawyer in Dallas and other parts of Texas entered into these agreements when settling cases, the law did not specifically authorize such.  This new law expands the authorized possibilities in fashioning an agreement between parties to raise their children and requires a court to approve such an agreement when reached.  Usually this right is important only when there is a question as to which public school the child must attend within a school district.  Otherwise, the remainder of a typical family law court order sets out each parent's respective periods of possession of a child (aka parenting time) and otherwise delegates decision-making authority.

Note, however, that the new law only makes this provision for no geographic restriction when dealing with agreements between parties.  In a contested trial, a court may only render an order that designates the conservator who has the exclusive right to determine the primary residence of the child and the geographic area in which the residence shall be maintained.  The law does not change this.  A judge cannot, after a contested trial, only designate a geographic restriction on the children's residence without designating a primary parent. 

This will encourage settlement of disputes because the parties will be able to fashion a remedy that the court cannot award at a contested trial.