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

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.

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In a recent opinion by the Dallas Court of Appeals, the Court held the trial judge did not err when he did not apply a domestic violence presumption in assessing child custody and did not record an interview with a child in the office outside the court room.  In the Interest of S.E.K. & H.A.K., No. 05-08-00858-CV, --- S.W.3d --- (Tex. App. - Dallas, Aug. 28, 2009). 

In S.E.K. mother and father were divorced and were initially appointed as joint managing conservators for the children.  Several years after his divorce, father filed a law suit with the aid of his lawyer seeking to modify the custody determinations provided in his divorce decree.  In response, mother filed a counter-suit also seeking to modify the custody schedule.  Mother complained to the trial judge that father shouldn't have primary custody of the children because of prior allegations that he sexually abused the kids.  The trial judge (from Dallas) was presented with testimony from both sides and their expert witnesses and ordered: (1) father has sole custody of one child; (2) mother has sole custody of the other child; and (3) visitation of the children has to be supervised.  Mother was unhappy with the trial judge's ruling and appealed.

On appeal, mother argued the trial judge committed error by not noting on the record the allegations that father sexually abused his children.  Additionally, mother complained that the trial judge erred when he did not make a record of his interview with the couple's child in his office just outside the court room.  Both of mother's complaints arose under Chapter 153 of the Texas Family Code (which deals with the initial determination of custody and visitation).  

The appellate court noted that this case was not an initial determination of custody, but rather it was a modification case.  Because the case sought to modify a prior custody determination, the Court said that Chapter 153 of the Family Code did not apply but rather Chapter 156 controlled.  The appellate court went on to state that the Texas Legislature placed different standards in Chapters 153 and 156 and because of this, the law mother relied on did not apply.  In a modification suit, the main issues are whether there have been material and substantial changes which warrant a modification in custody and whether the proposed changes would be in the best interest of the child.    The main issues to be determined in an initial custody determination are different than this and are reflected by the language of the laws found in Chapter 153.

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Dallas Divorce Lawyer Michelle May O'Neil was quoted in the July 2nd, 2009 edition of Dallas Morning News in Emily Ramshaw's article Child Support Suffers As Economy Suffers.  The story lead Thursday's edition with Ms. O'Neil's picture appearing on page 14A.  

Here's the excerpt from the article pertaining to Ms. O'Neil:

Michelle May O'Neil, a family law attorney with clients in Dallas and Collin counties, said Crouse's case is common. She's seen a steady uptick in child support-paying parents who have either lost their jobs or had their hours reduced.

O'Neil said family court judges, who traditionally have issued permanent rulings, are giving these financially strapped parents temporary relief instead.

If someone is unemployed, she said, a judge generally will temporarily reduce child support, and then call a review hearing a few months later.

"A kiddo's expenses don't go away just because the economy is tight," O'Neil said. "Judges are giving people a Band-Aid so they can find another job."

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