Dallas Divorce Law Blog : Dallas Texas Divorce Lawyer & Attorney : O'Neil Attorneys Law Firm : TX Child Support & Custody Issues

 The Amarillo Court of Appeals recently issued an opinion, styled In re A.S., upholding the trial court’s imposition of a geographical restriction on the child’s primary residence in a case where the mother was appointed sole managing conservator.

When parents are appointed joint managing conservators, geographical restrictions on a child’s primary residence (for example Dallas and contiguous counties) by courts are more common than not in Dallas divorce and custody cases, as well as divorce and custody cases throughout Texas. In fact, the Texas Family Code specifically provides that the court may impose a geographical restriction on a child’s residence when the parents are appointed joint managing conservators. Tex. Fam. Code §153.134(b)(1)(A). In contrast, the provision of the section Texas Family Code that provides for a sole managing conservator’s right to designate the primary residence of their child does not even reference geographical restrictions, stating instead that a sole managing conservator’s right is subject to limitation by the court. Tex. Fam. Code §151.132(1).

The Amarillo Court in In re A.S. cited the public policy of Texas, in assuring that children will have frequent and continuing contact with parents who have shown the ability to act in the best interest of their children, in support of its decision. Further, the Court noted that nothing in the Family Code prevents imposition of a geographical restriction in cases where one parent is appointed sole managing conservator.

This is an important case to keep in mind if you are a parent who may be appointed possessory conservator, or if you are an attorney representing the party who may be appointed a possessory conservator. Cite to the argument provided in In re A.S., and ask the court to impose a geographical restriction on the child’s residence. If you are the sole managing conservator, or the Texas custody attorney representing them, be prepared to address this issue if you wish to have the freedom to move wherever you choose with your child.

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Last Friday, November 12, 2009, its opinion styled In re Cooper, No. 05-09-00995-CV, the Dallas Court of Appeals conditionally granted wife's petition for mandamus relief, holding the trial judge abused her discretion by imposing a residency residency restriction pending final trial in a divorce case that  required wife, temporary primary conservator of the parties two children, to relocate from North Carolina, where she had secured employment and owned a house, to Dallas and contiguous counties, where she had neither.

In Cooper, wife testified at the hearing on her motion to modify agreed temporary orders, that she had applied for jobs in Dallas with schedules that would allow for her to spend time with her children, but was unsuccessful. Wife ultimately accepted the only position she was offered, which was in North Carolina. The trial judge did not consider wife's efforts at procuring employment in Dallas successful, denying wife's request to modify agreed temporary orders, which interestingly allowed wife to reside in South Carolina with the children pending completion of her residency program, because she failed to establish that she made "extreme efforts' to find employment in the Dallas area. The trial court stated in her ruling that wife should have made Dallas a priority in her job search by "leaps and bounds" since that is where husband resided and where wife and the children had resided prior to initiation of the divorce case. Since wife failed to establish that she made sufficient efforts according to this standard, the trial judge ruled in husband's favor. Wife then filed her Petition for Writ of Mandamus, seeking relief .

The opinion from the Dallas Court of Appeals, authored by Justice Bridges, concludes that the trial judge abused her discretion by imposing a greater burden on wife than the law allows. The Court notes that no authority supports the trial court's requirement that wife make "extreme efforts" to find employment within Dallas and contiguous counties. Instead, the Court cited Lenz v. Lenz, as the correct standard, allowing for the modification of residency restrictions to allow the custodial parent to relocate when the proposed relocation will significantly improve the custodial parent's economic circumstances to the child's benefit. Lenz v. Lenz, 79 S.W.3d 10, 17 (Tex. 2002). The Court further found wife had no adequate remedy at law since compliance with the trial court's temporary orders required her to choose between custody of her children and financial ruin. Therefore, wife's petition for writ of mandamus was granted.

This case is relevant to lawyers that practice in Dallas county, and other areas of Texas as well. With the current state of the economy, at Dallas Divorce Law, either our clients or the opposing party is often in a position where they are forced to search for other employment in Dallas county and beyond. People frequently relocate to other counties or states for their current job or to find a new one. When modifying a residency restriction, either before the final trial in temporary orders or in a modification proceeding, focus on the Lenz factors in making your case for relocation and keep the Cooper opinion in mind.

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