If you have one, want one, or wish you had one, you know how important a geographic restriction is. For the uninitiated, a geographic restriction can be your saving grace or a real thorn in your side.
So, what is a geographic restriction?
Quite simply, a geographic restriction is a provision in many custody orders (divorce decrees, orders in suits affecting the parent-child relationship) that prevents the “custodial” parent from moving the child’s primary residence outside of a certain geographic area.
For instance, a geographic restriction could say that the father has the “exclusive right to designate the primary residence within Smith County and contiguous counties” or any geographic area for that matter.
Further provisions in the order typically explain what this means:
The Court finds that, in accordance with section 153.001 of the Texas Family Code, it is the public policy of Texas to assure that children will have frequent and continuing contact with parents who have shown the ability to act in the best interest of the child, to provide a safe, stable, and nonviolent environment for the child, and to encourage parents to share in the rights and duties of raising their child after the parents have separated or dissolved their marriage. IT IS ORDERED that the primary residence of the child shall be within Smith County and contiguous counties, and the parties shall not remove the child from Smith County and contiguous counties for the purpose of changing the primary residence of the child until this geographic restriction is modified by further order of the court of continuing jurisdiction or by a written agreement that is signed by the parties and filed with that court.
http://www.statutes.legis.state.tx.us/Docs/FA/htm/FA.153.htm#153.001
So, a geographic restriction keeps the custodial parent from moving the child’s primary residence. Why? Because Texas finds that fit parents should be able to exercise “frequent and continuing contact” with their child, and the frequent and continuing part becomes logistically difficult if the custodial parent moves far away.
Does this mean a custodial parent can never move outside the geographic area?
No. There are typically three ways a geographic restriction can be lifted (go away):
- The parties can agree in writing to lift it (and must file it with the court): This sounds great, but rarely happens, probably because attorneys are consulted on this issue and our advice is pretty simple: you don’t have to agree, but if you do agree you should only agree if the order is modified in other ways (like making the custodial parent pay or do all the transportation, lower child support, provide more time in the summer, etc.)
- The non-custodial parent moves outside of the geographic area: Many orders state that if the non-custodial parent moves outside of the geographic area himself/herself, the restriction is lifted. This is only fair; if the non-custodial parent moves far away, the custodial parent should be able to as well.
- A modification lawsuit is filed and a judge lifts the restriction: A judge can lift the restriction if a parent files to have it lifted and the judge agrees. Getting a judge to lift a geographic restriction is often hotly contested and not so simple as it may seem, as I’ll explain below.
Will the Judge Grant One or Keep the Restriction in My Case?
In most cases, yes. Geographic restrictions are common, because they are generally best for children…even if parents might not like the idea. Many clients hate the idea that the other parent can “force” them to stay within a certain area.
To that, my reply is usually something like: No, Suzie won’t force you to, the Judge will force you to, and this is because judges like children to see both parents. How would Suzie feel if you moved to California, or even San Antonio with Jimmy and Suzie couldn’t see Jimmy but for holidays and Summer?
There are certainly scenarios where geo restrictions don’t make as much sense or should be relatively unrestrictive. A judge or the parties may agree to no restriction If a parent is granted very limited or supervised possession.
If parents live far away already, a restriction could be very broad (as broad as Texas or even the U.S.). If a parent isn’t exercising visitation, or if a parent can convince the judge the child will be much better off in another locale, a geo restriction might not be granted.
Why Geographic Restrictions are Worth Fighting for….Or Against
Fighting for or against a geo restriction is a fact-intensive, potentially costly affair. The repercussions are huge. For the custodial, restricted parent, you are not just restricted to a geographic area, you could be restricted from your family in the Northeast, your dad dying of cancer, a unique job opportunity that you don’t want to pass up…a potentially better environment for you and your children.
For the non-custodial parent, you want your children close, so you can go to your kids’ football games, their school plays, help them with homework…be a present parent.
Texans have a love/hate relationship with geographic restrictions. We love them when they help keep our kids close to us. We hate them when we can’t move and pursue opportunities farther from the other parent. But either way, judges put them in place for the children and not the parents. If you can convince the judge a restriction, or the lack of one, is best for your children you can win your case.
You should get a qualified family law attorney, whichever side you are on. I practice in several east Texas counties, including Smith, Gregg, Rusk, Henderson, Cherokee, Anderson, Upshur, Wood and others.
