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.

 

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Photo of Michelle O'Neil Michelle O'Neil

Michelle May O’Neil has 27 years’ experience representing small business owners, professionals, and individuals in litigation related to family law matters such as divorce, child custody, and complex property division. Described by one lawyer as “a lethal combination of sweet-and-salty”, Ms. O’Neil exudes…

Michelle May O’Neil has 27 years’ experience representing small business owners, professionals, and individuals in litigation related to family law matters such as divorce, child custody, and complex property division. Described by one lawyer as “a lethal combination of sweet-and-salty”, Ms. O’Neil exudes genuine compassion for her client’s difficulties, yet she can be relentless when in pursuit of a client’s goals. One judge said of Ms. O’Neil, “She cannot be out-gunned, out-briefed, or out-lawyered!”

Family Law Specialist

Ms. O’Neil became a board-certified family law specialist by the Texas Board of Legal Specialization in 1997 and has maintained her certification since that time. While representing clients in litigation before the trial court is an important part of her practice, Ms. O’Neil also handles appellate matters in the trial court, courts of appeals and Texas Supreme Court. Lawyers frequently consult with Ms. O’Neil on their litigation cases about specialized legal issues requiring particularized attention both at the trial court and appellate levels. This gives her a unique perspective and depth of perception that benefits both her litigation and appellate clients.

Top Lawyers in Texas and America

Ms. O’Neil has been named to the list of Texas SuperLawyers for many years, 2011-2018, a peer-voted honor given to only about 5% of the lawyers in the state of Texas. In 2014-2018, Ms. O’Neil received the special honor of being named by Texas SuperLawyers as one of the Top 50 Women Lawyers in Texas, Top 100 Lawyers in Texas, and Top 100 Lawyers in DFW. She was named one of the Best Lawyers in America for 2016 and received an “A-V” peer review rating by Martindale-Hubbell Legal Directories for the highest quality legal ability and ethical standards.

Author and Speaker

A noted author, Ms. O’Neil released her second book Basics of Texas Divorce Law in November 2010, with a second edition released in 2013, and a third edition expected in 2015.  Her first book, All About Texas Law and Kids, was published in September 2009 by Texas Lawyer Press. In 2012, Ms. O’Neil co-authored the booklets What You Need To Know About Common Law Marriage In Texas and Social Study Evaluations.  The State Bar of Texas and other providers of continuing education for attorneys frequently enlist Ms. O’Neil to provide instruction to attorneys on topics of her expertise in the family law arena.