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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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.