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Geographic Restriction in Designating Primary Residence in Texas Custody Cases

A custodial parent sometimes wishes to move away following a Texas child custody case.  Although some parents may want to get the child away from the other parent, there are often legitimate reasons for a parent to want to move.  The primary consideration in the litigation of relocation issues is the child’s best interest.  Although the Texas family law statutes do not set forth how a court should determine the child’s best interests, the Texas Supreme Court has stated courts should consider the public policies listed in Tex. Fam. Code Ann. § 153.001.  Texas has a public policy of assuring frequent and continuing contact with parents who act in the child’s best interest.  There is also a public policy to provide a safe and stable environment for the child.  Finally, Texas has a policy to encourage parents to share the rights and duties of raising the child after separation or divorce.

A father recently challenged a divorce decree that allowed the mother to designate the child’s primary residence without regard to location.  The couple’s child was born in June 2011 and they stopped living together as husband and wife in August of the same year.  The mother filed for divorce in 2015, alleging the child’s father had committed adultery.  She also alleged he left her with the intention of abandonment and had stayed away for at least a year.  The trial court named the mother joint managing conservator with the right to designate the child’s primary residence without any geographic limitations.  The court also ordered the father to pay child support.

The father appealed, arguing in part that the trial court abused its discretion by not placing a geographic limitation on the child’s primary residence because the mother planned to move to Colorado.

The mother testified the father had moved out when the child was a baby.  Not long after her son’s birth, she learned the father was having an affair and had fathered a child with someone else.  He had been living with the other woman and child.  She testified the father did not take any interest in their son until the child was three, and never took him during summer, spring break or holidays.  She testified she wanted to move to Colorado because she expected her boyfriend to be stationed there.  She also testified that her family still lived in Texas and would come back to visit at least twice per year.  She also said she would pay for the child’s transportation to Texas at Thanksgiving and during summer.  The decree required her to pay for the child to travel for spring vacation.

The father testified he picked the child up three days a week and drove him about five minutes to  the mother’s house.  He had the child on alternating weekends.  He was also the assistant coach for the boy’s baseball team and saw him during practice and games.  The father said he had not realized he was entitled to a 30-day visit during the summers.  He also said moving the child to Colorado would be detrimental to their relationship.

The appeals court found no evidence of bad-faith or ill motive in the mother wanting to go to Colorado.  In fact, she had testified she would regularly come back to visit her family.  She also testified that she would support the relationship between the child and his father, including through electronic communication. The appeals court found that both parents loved and cared for the child.  The appeals court further found that the trial court made a reasonable decision based on the evidence before it and had not erred in application of its discretion.  The mother had testified she would help facilitate the ongoing relationship between the father and the child, so the court’s decision did not contravene public policy of ensuring ongoing and frequent contact.

The appeals court overruled all of the issues raised by the father and affirmed the trial court’s decision.

In this case, the court decided not to place a geographic limitation on the mother’s right to designate the child’s residence.  In other some cases, however, courts do include a geographic restriction.  If you are facing a custody case and are concerned the other parent will try to move away with the child, an experienced Texas child custody attorney can help protect your rights and access to your child.  Please call 214.692.8200 to set up an appointment with McClure Law Group.

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