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Texas Appeals Court Upholds Geographic Residency Restriction in Custody Order

When one parent wants to move away with the child, the court hearing the Texas custody case must determine whether the move is in the child’s best interest.  In making its determination, the court needs to consider the public policies set forth in the Texas Family Code.  The court may also consider reasons for and against the move, opportunities the move will provide, accommodation of the child’s needs and talents, relationships with extended family, visitation and communication with the noncustodial parent, the non-custodial parent’s ability to relocate, and the child’s age.  The court may also consider the same factors to be considered in determining the best interest of the child generally.

In a recent case, a mother challenged a geographic residency limitation the court placed on the child when she had planned to move.  The mother filed for divorce and asked the court to appoint her as joint managing conservator and give her the exclusive right to designate the child’s primary residence.  The father asked that the parties be appointed joint managing conservators, but also sought the exclusive right to designate the child’s primary residence.

During the marriage, the couple had lived in Cass County.  The child went to pre-K in Cass County, but both parents worked in Bowie County.  After the separation, both parents moved to different areas of Bowie County and the child went to school where his mother lived.

The mother testified during the hearing that she was moving to Red River County to be nearer to her family.  She also said she was taking a new job in Lamar County that would pay twenty thousand dollars more per year than she was currently making.  She stated her grandmother’s home in Bowie County, where she planned to live, was about 60 miles from the father’s home.  She asked the court to designate the child’s primary residence within either Red River or Bowie County.

The father testified that he thought it was within the child’s best interest to stay in Bowie County with his family.  He said he would no longer be able to continue weeknight visitation if his son moved to Red River County with his mother.  He asked the court for the right to establish the child’s residency within Bowie County.

The trial court ordered that the child’s primary residence would be in Bowie County and that the parties were not to remove the child from Bowie County.  However, it provided the restriction would be lifted if the father no longer lived in the county at the time the mother wanted to remove the child from the county.  The trial court also gave the father extended visitation.

The mother appealed, arguing the evidence was legally and factually insufficient to support the residence restriction.  She argued that the drive from her current home to her new job was about an hour and a half each way.  She also alleged she needed the higher paying job due to the father’s failure to pay child support.

The appeals court noted that the mother had asked to have the child’s residency designated in either Bowie or Red River County.  The appeals court reasoned that the mother found Bowie County an acceptable location.  The court also noted that the child had been going to school in Bowie County and was excelling and making friends there.  He had family in Bowie County, including his father’s other sons.  Additionally, the father had stated the distance would prevent him from exercising his weekday visitations if the child moved. The appeals court acknowledged that the mother’s commute would be shorter if she moved to Red River County with the child, but noted it was not a determinative of the child’s best interest.  The appeals court found legally and factually sufficient evidence for the trial court to determine the geographic restriction was in the child’s best interest.

The mother also argued that the trial court erred in imposing the geographical restriction sua sponte.  Generally, a judgment must conform to the pleadings, except for issues that are tried by consent.  The appeals court noted, however, that pleadings may be construed liberally to support the court’s judgment.  The pleading must state, with reasonable certainty, the relief sought with sufficient information to base a judgment upon.  However, the rules are not as strict when a case addresses the parent-child relationship.  Once a child is under a court’s jurisdiction, the best interest of the child is the primary consideration.  Here, the father’s counterpetition asked that he be designated as the conservator with the exclusive right to designate primary residence.  The appeals court found the counterpetition invoked the trial court’s jurisdiction over custody and control, and therefore the child’s geographic residence.  The appeals court therefore found the pleadings were sufficient to support the judgment and affirmed it.

If you are facing a custody issue involving a potential move, a Texas child custody attorney can help you protect your access to your child.  Call McClure Law Group at 214.692.8200 to discuss your case.

More Blog Posts:

Geographic Restriction in Designating Primary Residence in Texas Custody Cases

Right to Designate Residence of Texas Child

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