Many people want to relocate to a new place following their divorce. Sometimes people want to move to another city nearby, a different state, or even a new country. However, relocating is not always possible after a divorce if the parties have children together because of something called a geographic restriction.
Conservatorship
When a divorce involves children, the Final Decree of Divorce will include conservatorship language. Conservatorship awards certain rights and duties to each parent in the divorce. One of the rights is to designate the primary residence of the children. Typically, a court will award the right to designate the primary residence of the children to one parent in a divorce decree. The parent who has the right to designate the child’s primary residence is called the custodial parent. The noncustodial parent is typically the parent with either an Expanded Standard Possession Order (ESPO) or a Standard Possession Order (SPO) and who pays child support.
However, it is possible for parties to agree that neither parent will have the exclusive right to designate the child’s primary residence. Parties would need to agree to this either through informal settlement discussion or during mediation. Parties oftentimes want to agree that neither parent can designate the primary residence of the child in situations when each parent has the child fifty percent of the time. Since courts most commonly give one parent an ESPO or SPO and do not favor 50-50 possession schedules, courts will most likely give one parent the right to establish the child’s primary residence.
Geographic Restriction
Most Final Decrees of Divorce also have a provision called a geographic restriction. If the decree has a geographic restriction, the child’s residence is required to stay within the geographic area specified in the decree. Oftentimes the geographic restriction is the county where the divorce was finalized and any contiguous counties. A county is contiguous if it touches the other county. For example, if the parties divorce occurred in Fort Bend County, Texas and the geographic restriction is Fort Bend County, Texas and counties contiguous to Fort Bend County, Texas then the child’s residence must be in either Fort Bend County, Texas or a county that touches Fort Bend County, Texas. Final Decree of Divorces oftentimes have a geographic restriction for the reasons outlined below.
Texas Public Policy
The reason why most Final Decrees of Divorce have a geographic restriction is because under section 153.001 of the Texas Family Code, Texas public policy assumes that it is in the child’s best interest to have a frequent and continuing relationship with both parents barring any evidence that shows that the parents do not act in the child’s best interest. Texas law wants to encourage parents to share in the rights and duties that come along with raising their child together even though they have divorced.
If the parents live far away from each other geographically, it might make it hard for parents to have frequent and continuing interactions with their children and difficult for parents to co-parent the children as necessary. For example, parents might struggle to exercise an expanded possession schedule if they live too far from the child. Under an expanded possession schedule, the parent has possession of the child under the order at the time the child is dismissed from school on Thursday afternoons during the school year and ends at the time school resumes on Friday mornings. On the first, third, and fifth weekend, the parent’s possession begins at the time the child is dismissed from school on Friday and ends at the time school begins on Monday. If a parent lives far away from the child’s primary residence and, therefore, school, then the parent will have a difficult time meeting these pick up and drop off times.
Lifting Language
Even if a final order has a geographic restriction, the order might also have lifting language that may permit the custodial parent to move out of the geographic restriction if certain requirements are meet.
Lifting language means that if the noncustodial parent, at the time the custodial parent wishes to move out of the geographic restriction, is no longer living within the geographic restriction then the geographic restriction is lifted, and the custodial parent can move outside the geographic restriction.
To understand how lifting language works, let’s use the following example: Mother is the custodial parent and the father is the noncustodial parent. The parties have an Agreed Final Decree of Divorce that has a geographic restriction of Harris County, Texas and counties contiguous to Harris County, Texas. Five years following the divorce, the father moves to Dallas, Texas. The following year, the mother gets a job offer in Austin, Texas and wants to move to Austin to take the job. Since the father lives in Dallas, which is not in the geographic restriction, at the time the mother wants to move to Austin then the geographic restriction is lifted and the mother can move to Austin.
Once a geographic restriction is lifted, the noncustodial parent would need to file a new court case to reestablish the geographic restriction. Using the same example, if the mother moved to Austin and afterwards the father decided to move back to Harris County, Texas or a county contiguous to Harris County, Texas, the geographic restriction would not automatically reapply.
In the above example, if the father moved back to Harris County, Texas or a county contiguous to Harris County, Texas by the time mother wished to move to Austin then the mother could not move to Austin. The mother could not move to Austin because the father was living in the geographic restriction at the time mother wished to move outside Harris County, Texas or a county contiguous to Harris County, Texas.
Modification
A person would need to file a new case, called a modification, if they have an order establishing a geographic restriction and they want to remove the geographic restriction so they can move. If the order was signed over a year ago, the party would need to show that there has been a material and substantial change since the order was signed that would warrant the court removing the geographic restriction. For example, a court may find that there has been a material and substantial change if a party’s circumstances, such as a job, living expenses, and ability to afford rent, has significantly changed since the last order. A judge may remove the geographic restriction language from a decree if the party can prove there was a material and substantial change since the prior order that would warrant them, for example, moving to their parents’ house outside the geographic restriction because they lost their job and are struggling financially to provide for their children. However, a judge is not likely to modify the prior order to remove a geographic restriction just because a parent lost their job last month, has the ability to find another well-paying job within the geographic restriction, and just has not attempted to find a new job. Modification cases are very fact specific, so if you believe you have a modification case, we recommend reaching out to an attorney who can analyze your case to determine if you are likely to prevail on a modification.
While you may feel frustrated that you cannot relocate following a divorce, it is important to remember that living relatively close to your former spouse is in your children’s best interest. Your children can continue to build their relationship with their other parent. Remember, your romantic relationship with your ex-spouse may have ended, but they are still your child’s parent. At the end of the day, Texas courts use geographic restrictions because the law prioritizes children fostering their relationship with their noncustodial mom or dad over allowing parents to relocate in most instances.