In almost every custody case, sooner or later, it will come up. Your lawyer will come to you and say “They want a geographic restriction.” Or maybe you’ll be the one to bring it up: “My ex is threatening to take the kids back to California. What do I do?” Your lawyer may respond with “Oh, we’ll just ask for a geographic restriction,” and then move on, leaving the phrase hanging in the air. What is a geographic restriction? And why would you want one?
What Is a Geographic Restriction in a Custody Case?
A geographic restriction puts limits on where you can live—it restricts your geography. While it has nothing to do with where you can go on vacation, it does control where you—or, more importantly, your children—reside. It controls your primary residence, usually determined by where you spend the majority of your time. It’s where you call “home,” and usually where your kids go to school.
Custody and the “Typical” Geographic Restrictions
In a custody case, usually one person is given the right to determine the residence of the children, and that is the residence that is limited by the restriction. It’s entirely possible to have a parent who has no geographic restriction, but that is becoming more and more unusual. Having no geographic restriction means that the parent with custody of the children can move anywhere, no matter what it does to the other parent’s visitation. That parent could pack up and move to California, New York, or Japan, and if that means the parent left behind sees the children once a year, or once every five years, that’s just too bad. Because of this concern, if one party asks for a geographic restriction in a custody case, most courts will grant it.
One of the most common restrictions is the county you currently live in, plus the “contiguous counties.” That means counties that touch your current county on any side. For McLennan County, that would be Bell, Falls, Limestone, Hill, Coryell or Bosque Counties. Another common restriction is the county both parents currently live in, but it can become even more specific, down to the school district the children will attend. The restriction can also become broader, for example, “100 miles from the McLennan County Courthouse,” “150 miles from the Respondent’s residence,” all the way out to “the State of Texas.” As with most parts of custody law, anything the parties can agree to the court will usually grant, as long as it’s in the best interest of the children. Without an agreement, however, the court will typically default to either the current home county, or the current home county and its contiguous counties
What If I Need to Move?
Despite your best intentions to stay close to the home ground, sometimes you have to move. The effect of a restriction on your need to relocate depends on whether you are the parent with the right to designate the residence of the children or not. For the rest of this article, these will be referred to as the “CP” (custodial parent) and “NCP” (noncustodial parent) for clarity.
If you’re the NCP, the parent who typically is the one exercising visitation, there probably isn’t a geographic restriction on you. The restriction was for your benefit, to prevent the CP from moving so far away with your kids that you can’t ever see them. If you choose to, or have to, give up this benefit, you’ll typically be allowed to. However, this comes with a catch: if you move out of the area designated for the CP, then the parent with custody can also move if he or she desires. For example, if you both live in McLennan County and you have a job that requires you to move the San Antonio, then the CP can in turn pack up and move to Dallas—or to Washington, or to Australia.
If you are the CP, life is a little more complicated. As mentioned above, if the NCP has already moved, then you’re free and clear. If not, you have only two choices.
If you get along with the NCP, you can see if he or she will sign an agreement allowing you to move to wherever you’re looking at. The geographic restriction can be voided if both parties agree in writing to the move. Sometimes an offer to increase holiday visitation, bear the transportation costs, or lower child support will sweeten the deal. But maybe the NCP won’t agree, either because you never agree on anything, or because the NCP is not willing to give up regular visitation. Then your only option is to file a motion to modify to lift the geographic restriction, before you move. If you wait until after you move or don’t file, you risk being held in contempt. If asked, a judge can also choose to take the children from you and give them to the NCP if you move without modifying the order.
But just filing the modification isn’t enough. “I want to move” is not necessarily going to be enough to convince a judge to lift the restriction. The reasons a restriction was put in place to begin with will continue to be the reasons not to lift it now. “I hate this town” won’t be a reason. “The grass is greener on other side” also is not a reason. For some judges, joining the military or marrying someone in the military won’t be a reason, on the theory that you knew you’d have to move around when you started the situation, and that was the choice you made. It will be the “what did you think would happen?” standard, and the judge will think you’re wanting to be bailed out of the consequences of your decisions. For others, military service will be enough—that will depend on your judge, and likely also where you’re being stationed. Other factors at play could include education, new jobs, or family emergencies, but for each judge the magic level will be different. Ask your attorney about the judge you’re in front to see what your chances are.
ABOUT THE AUTHOR
Attorney and Counsellor at Law
Rebecca primarily practices in the family law area. She focuses her practice on defending the rights, property, and interests of those who are involved in divorce, custody problems, child support and domestic violence issues.
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