In this podcast episode, Brian Walters and Jake Gilbreath cover geographical restrictions, a court order specifying where a child must reside. They discuss the type of restrictions most commonly used in divorce and custody cases and scenarios where modifications are filed to try to uplift these restrictions. Jake and Brian close out the episode by answering some of the more frequently asked questions on geographical restrictions.
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Jake Gilbreath: All right, welcome back to “For Better, Worse or Divorce” Podcast. I’m Jake Gilbreath and I’m here with Brian Walters. In this episode, we’re going to be talking about domicile restrictions or geographic restrictions. So Brian, before we delve into the details, can you tell us sort of generally when somebody says geographic restriction or when people refer to it as a domicile restriction, what are they talking about in a child custody order?
Brian Walters: It refers to where a child can live, so the way it works typically in Texas is that the court is going to appoint a parent who has custody, which as a practical matter means the right to establish their main home. But almost always, or in almost every case, the court also says, “Well, you can establish that home, but the child has to live within a particular area,” not always, but that’s usually the case. It’s important to note and I think worth noting that it doesn’t restrict where an adult can live, it just restricts where the child can live. And then from that, most other things flow like most kids go to public school, so that tells you what public school they’re probably going to go to, probably restricts the doctors that they might see, that type of thing just because of the geographic area. So that’s the basic concept behind it.
Jake Gilbreath: Yeah, so when you think practically about how that sort of sits in a child custody order, there’s conservatorship, there’s possession, access and support and that sort of falls under conservatorship deals. Not only does one parent have the right to establish the primary residence, but then it’s got to be in this. I think it’s typical for there to be, say for example, somebody lives in central Texas and there’s a geographic restriction on the child, the child’s primary residence is in Travis County, it’s typical to say that’s only so long as the non-custodial parent, the other parent, lives in that geographic restriction.
I always tell people it doesn’t make sense for, “why would I have a geographic restriction to Travis County if my ex lives in Dallas”, for example. So that’s kind of lifting clauses that we see a lot of times in geographic restrictions or something else to take into consideration that the idea is, it’s the public policy of Texas that we have frequent contact between… for safe and healthy parents, that they both have frequent contact with the child and so everybody’s staying in the same general area, but if one parent, the non-custodial parent, leaves then there’s really no reason for there to be a geographic restriction on the other parent.
I assume you see that in most of your cases, Brian, have you ever had a situation where court orders a parent to stay, or orders a child really in a certain geographic restriction when the other parent is not in that geographic restriction?
Brian Walters: I’ve seen it occasionally, but it’s rare. You’re right, I mean the public policy is, “Hey, you guys don’t like each other and don’t want to live together as parents, but ideally you’d live five miles from each other and close by the kids until they turn 18.” I have seen courts in special circumstances say maybe Travis County for the child, but as long as the non-custodial parent stays in maybe Travis and Williamson County, which is an adjacent county just north of it because of some unique thing with work or living arrangements, but the concept is if we’re going to keep this child in one area, then why would we restrict the child if the non-custodial parent moves to Los Angeles?
Jake Gilbreath: Yeah, I think that’s right. I guess I’ve seen it where if dad moves to California, that doesn’t necessarily mean that mom gets to move to Paris, France. It’s a case by case situation, but maybe they’ll have to stay within the continent or the United States or something like that. I mean these things change so sometimes we’re dealing with modifications, as far as geographic restriction, it’s something that can be modified and a lot of times those are the big modification fights or folks get divorced, you get divorced, you just plan on staying in, if you live in Dallas for example, or Houston, “I’m going to live in Houston the rest of my life,” well then six years later you lose your job or you get the job of a lifetime out of state or get remarried or something like that happens, or a child develops special needs. You could be living in Dallas and then the child needs to go down to Houston for treatment.
I’ve had those situations and then you’re going in and modifying or asking the court or a jury, we’ll talk about that in a second, to modify the geographic restriction. So I guess both in original orders and modifications on geographic restriction, Brian, what do you think our courts and our juries, but what are they really looking for if somebody says, “I don’t want the typical deal that I have to live in this county or this county and surrounding counties, I want to move. I live in Austin and I want to move to Dallas,” or, “I live in Houston, I want to move to Florida.” What are you seeing judges and juries look at?
Brian Walters: The statute says, “Look at the best interest of the child when making these decisions, not the best interest of the parent,” and I think that’s easy to confuse. I’ve got the job of a lifetime and I want to move to Dallas and maybe you’re in a rural county or further away from there, well it doesn’t really matter what you want to do with your life, you can pursue those things, and this is the thought process in most courts, you can pursue those things either after the children turn 18 or you can pursue it, but it’s going to impact your ability to parent.
Again, the overriding public policy is we want both parents nearby so they can easily co-parent and be very involved. But there are exceptions, I mean there’s situations where a great job might be a benefit to the child, for example, if there’s difficult financial circumstances for both parents and somebody can triple their income by taking a job in Dallas, the court might consider it in that case. They might also say, “Okay, well you’re going to put the kid on a plane once or twice a month back to the other parent, or you’re going to do the driving back and forth or something. If you really want to do it, there’s going to be a cost to you.”
And then I think a good example you gave is, and a better one usually is that there’s something related to the child. Well, they’ve got either medical care or a special need, maybe family members and extended family. Another one that’s a possibility is if they just moved, if the couple had been living with their kids in Dallas for 10 years and they moved six months ago to a small town in west Texas, I could see a court considering allowing a move back to Dallas under those circumstances. But they’re pretty rare, most of the time it’s like, “We’re going to keep you both here.”
Jake Gilbreath: Yeah, I think that’s right. We do see more and more particularly these days in a couple that moved from usually California, not always California, but moved from California to Texas, there’s a big influx for families coming from California, move here, that’s going to be somebody takes the job that’s going to fix all their problems. They go buy a big house, say out in West Lake in Austin or something like that, and it’s going to make all their dreams come true, because what they paid for in San Francisco, the same price that got them an 800 square foot house in San Francisco buys them a 5,000 square foot house in Texas and folks move here, it’s going to be great and it’s going to save their marriage and then they’re here for six months or eight months or a year and then it doesn’t work out, unfortunately.
And then the person that really maybe had been on the fence about moving to Texas in the first place is sitting there going, “Why am I restricted to Texas? I’ve spent my whole life in California and then now I’m restricted to Texas when I just moved.” And I think you’re right though, my experiences, most of the judges are like, “Y’all had this agreement where you decided to move and that’s the agreement, y’all are going to be here unless there’s a really compelling reason for a parent to go back.”
I have seen it work with judges and then let’s try and talk about juries. I have seen work with judges if it’s always been the plan to move back. It’s like we’ve talked, it was clearly the plan to move to Texas, we lived in Ohio for example. We had a plan to move to Texas for two years because his mom needed assistance before she passed, but the plan was always to move back once his mom passed and there’s really not much of a dispute about that. Then I see courts, it’s like, this is the deal that y’all made, talked about moving here, I’m going to sort of stick with the deal and let a parent move back. But there really are cases by case scenarios and every single case is different and they’re hotly contested because at the end of the day every single second with your child, I think makes a big impact on your life.
But it’s not just like we’re talking about 50/50 versus an expanded standard. One parent has 43% of the time or 44% of the time or whatever it is versus 50% of time. That’s very important, I mean, don’t get me wrong, that’s a very important dispute, it matters, but it’s a bigger impact if a parent’s saying, “I’m moving to New York.” I live in Texas and the mother of my child or father of my child is moving to New York, my child’s moving to New York, that’s going to have a serious, serious impact on your life and they’re really very contested and they’re hard to settle. When somebody says, “I’m going to move to New York,” well what’s the compromise there? Yes or no? Go move to Arkansas or somewhere in between? It doesn’t work that way and so they do go to court a lot and so strategically you’re having to make those decisions of does this go to a judge or go to a jury?
So talk about that, Brian, can a jury decide geographic restrictions in the state of Texas?
Brian Walters: It can, it’s one of the kind of big picture items that it can decide and I think that gets tried as much as custody because it’s sort of has the same effect, and that’s the exact question that’ll be put to a jury, is this, what’s in the best interest of the child as it relates to a domicile restriction? And I think a little different thought process with a jury, besides its being 12 random people versus a judge that you might be familiar with, when they make that decision it doesn’t mean they’ll make a different decision necessarily, but it’s a little bit different thought process I think.
Jake Gilbreath: Yeah and you have to make that decision of why it is important to talk to a lawyer who’s tried these cases before, because I’ve tried cases before where the client comes in and describes the situation for the move, we tried one a few years ago, it was about a year before COVID, I guess, so it’d be ’19. But frankly, the client came in and I think she had consulted with us and several other lawyers and everybody said the same thing, which was correct, which is, “No way, no how is the judge going to let you move on these facts.”
I thought she had legitimate reasons for wanting to move, her ex-husband’s a modification, her ex-husband obviously had legitimate reasons for not wanting to move and that didn’t make him a bad dad and didn’t make her a bad mom for thinking she needed to move, but the reality was no judge was going to let her. I mean, we knew that because we knew who the judges were, we’ve tried cases in front of the judges that she would’ve had and it’s just not an option of going to a judge because you know that they’re not going to do that. But a jury may see this in a different light, just how… And if it’s tried correctly to a jury, then there may be a shot there.
And again, this one was one as an example that we tried, it was really an example of parents going through litigation and not letting it affect their co-parenting relationship or their kids. I think they both understood where the other one was coming from. Mom obviously understood why dad didn’t want the move, dad understood why mom wanted the move, they just didn’t agree, and a jury had to decide and we tried it for three days in front of a jury in Travis County, Texas. The lawyers got along, presented their case, the parents actually got along, presented their case, and at the end of the day the jury came back and 12-0 said she could move, it was to Michigan and she moved to Michigan and then the dad moved to Michigan, I mean he didn’t want to, but he was going to be near his child.
But that was just an example of you just knew based on the facts that a judge wasn’t going to allow it and that’s nothing wrong with that, but it’s just a strategic decision she had to make. And it was important knowing a lawyer who can say, “Don’t pay me money to go ask this of a judge. You’re going to be wasting your money. You’re going to lose,” and having that frank conversation with her and then also having the frank conversation of, “A jury may let you move. That’s more difficult litigation, it tends to be a little more expensive litigation, but you actually have a shot of doing it.” So we made that strategic decision and it actually worked out for her and it actually worked out well for the family. Like I said, it was interesting to watch how well they got along, even while having that kind of big dispute amongst the two of them but they both loved their children very much and both wanted what’s best, just saw the world differently on that.
Brian Walters: Yeah, to me, I think a lot of times what the judges, what I mean by their thought process is the judges are trying to be consistent on this issue, at least in their county. They want lawyers to know that if we go to trial on a domicile restriction, it is very unlikely to occur that someone’s going to be allowed to move because the judge, I think they talk amongst themselves and they try to be consistent and they discuss it. It’s not a conspiracy, it’s just, and that’s actually a good thing most of the time. If we lawyers can tell our clients, “Hey, this is likely or very likely or highly unlikely to occur,” then they can make good decisions, not waste their money and time and probably reach agreements most of the time, which is basically what our system’s based on.
Juries aren’t like that, they get one time, probably the only time in their lives they’re ever going to be on a jury and they don’t care about the policy or sending a message about consistency, they’re just going to look at what’s right in front of them and decide what’s best for them or what’s best for that child. And so you get a different look at it and I think that’s an example of where it’d be wise to probably take it to a jury in most of those cases if it’s affordable, that’s often the biggest restraint, honestly.
Jake Gilbreath: Yeah, I think the affordability and then frankly hiring a lawyer that understands jury trials. I mean ultimately they’re going to do what’s best for the kid but lawyering, right or wrong, can really make a difference in the outcome particularly in front of a judge, but particularly in front of a jury. I mean, just the process of picking the jury because you have a judge, that judge has an experience that she’s grown up with and she sees the world a particular way because of how she was raised and how she grew up, where she went to law school, what she did in her practice before becoming a judge, there’s nothing wrong with that, but it’s just one person’s experience who sees the world through one particular way and there’s no manipulating that.
If I get judge so-and-so I’m dealing with her life experiences and how she sees the world and I can’t change it, I can’t sit there and go, “Oh, I don’t like the way Judge Garcia sees the world,” for example, “I’m going to switch it up to Judge Smith.” No, I get the judge that I got assigned to, but with juries, you can sit there, I’m doing jury selection, during voir dire there’s 45 people there from different walks of life, some of them may have grown up living close to both parents, some may have grown up differently, some may have moved from their kids, some may not have and you have a bigger pool of people to bring different life choices. And there’s nothing wrong with either system, there’s nothing wrong with our system that a judge or one person decides certain disputes and there’s nothing wrong with our system that the people of your county, 12 citizens of the county with different life experiences and who see the world differently can that type of thing.
But everybody’s trying to do what’s best for the kids, I mean they’re not easy cases, they can be really emotionally driven and they have a huge impact on both a child’s life and a parent’s life. And I guess last thing, as far as trying these cases on both sides, I think it’s important to explain to a judge or a jury, logistically, how is this going to work? It doesn’t work to go tell a judge or a jury, “I want to move to a different county,” let’s say you’re mom and you say, “I want to move to Oklahoma. We live in Houston, I got a job in Oklahoma.” “Well how’s dad going to get to see the child?” “I don’t know, he’ll have to figure it out.” That is a loser way of trying to try a case, you have to figure out this is how it can work, this is how we’re going to make it work. It’s going to require sacrifices probably from both households, but you have to have that plan in place.
It can’t just be, like you were saying earlier, Brian, it can’t just be, “This is what’s in my best interest as the parent and the other parent can just figure it out whether or not he or she sees the child,” you’re going to have to, if you want to move, you have to show how it’s going to work out. Or if you’re opposed to the move, say somebody has a job offer that’s job of a lifetime or has a spouse, has remarried for a spouse that lives outside of the geographic restriction, if you’re opposed to the move, you have to sit there and it’s probably not the best strategy to just go in there and say, “Tough cookies for the other side, they can’t move.” They say they can make more money, here’s the reason why that doesn’t make sense, here’s the reason why they can. We have resources here available. They say they have to move for their spouse, this is the reason why their spouse can live in the geographic restriction here.
You almost have to be empathetic to both sides, so the other side, whenever you’re trying these, it’s not a good strategy to go in and just say, “I don’t care about the other side’s relationship with the child or how this affects them,” you need to be able to present it from both angles and explain why your position is what’s best ultimately for the child to maintain that relationship with both parents.
Brian Walters: Yeah, I agree. We had some questions from our last pro bono day that people had kind of related to this issue, so I figured we might try to answer some of those. One of them was, “Hey, how does the age of a child affect this decision?” Do you have any thoughts about that?
Jake Gilbreath: I mean, it cuts both ways, it’s probably easier with an older child because logistically you can put an older child on the plane, logistically they can FaceTime more, maybe go spend longer periods of time. I mean if you have a little baby for example, that’s real hard. How are you going to transport that baby back and forth? How are you going to maintain that bond with the baby? But older kids, they’re more established, they’ve grown up in a particular area, they’ve got their school and have a circle of friends. So I think generally older kids are easier, particularly if the child’s over the age of 12 and they’re okay, if not in support of the move. Kids at the age of 12 or older, they don’t get to choose, but they get a voice in it and so I do think that makes it a little bit easier. What are your thoughts on that, Brian?
Brian Walters: Yeah, no, I agree with you. I mean, if you got a 16-year-old who’s independent, good student, got their own car, wants to hang out with their friends, has got three extracurricular activities, I think that a judge or a jury’s going to view that as a lot less of a problem if they move than if a two-year-old, for example. I think that totally makes sense.
Another question, what’s interesting about it, we actually have a case with exactly this issue right now, what if you are wanting to move, found a great house or job or something like that in the same city, but it’s in a different county? As you know, that’s the case with Austin, it bleeds over into Williamson County a bit, maybe even Hays County these days, I don’t know and that’s the case with several other big cities that go into multiple counties. So how would a court react to that situation, do you think?
Jake Gilbreath: I don’t think they look as closely. I mean, you’d have to modify because a lot of times we have these court orders that say this county, because it’s the best parameters that we can come up with. And then if you have the modification, let’s say I live in Pflugerville in Travis County on the Travis County side of the border, but then I get a house two miles that way, that’s technically in Williamson County. Yeah, technically I do need to go in and modify it, but that’s one of the ones that I think our judges do a good job of… They look at just more of the logistics than the actual county lines because why can’t I move two miles this way into a new county when I really could move 15 miles this way and make it within technically the geographic restriction which is much more difficult?
So I think judges look less on bright lines on modifications. We do our best we can in original orders, but then after that, if it’s a modification, they look less at sort of bright lines of which county, where the line is and more just logistically, how does this work?
Brian Walters: Two more quick ones and then probably wrap up. You made a comment earlier about the public policy was for cooperative, non-violent, functioning parents to be in the same general area with each other, so what is the situation where we have a parent who is addicted, badly addicted to something, violent, has serious psychiatric problems that affect parenting, can’t co-parent, just won’t get along with the other parent and these are obviously the ones that end up in our offices and in the courtroom more than the average case. So what is the court going to look at in a situation like that? Are they still going to restrict a parent who’s having to deal with the other side who’s got one of those problems?
Jake Gilbreath: I mean, I hate to say it but it’s a case by case scenario because it really does kind of cut both ways ironically and not fairly. Let’s say I want to move or I have somebody on the other side that’s alcoholic, uses drugs, violent and is going to have supervised visits, you would think they would tend to say, “Well why would we restrict the other parent?” If this person’s a disaster, why would you be restricted to be close to this disaster of a parent? But then ironically, it almost makes it more difficult to move because how do you do any visitations unless y’all live in close proximity? If somebody has a really restricted supervised possession with a child, then it almost makes the move more difficult. So it cuts both ways and a lot of times that’s not fair for the protective parent that to give the other restrictive parent access everybody has to be sort of in close proximity. But that’s just another example of how addiction issues hit everybody in the family unit, not just the addicted parent.
Brian Walters: Yeah, exactly. And last question that’s come up a couple times is that there’s a belief amongst a lot of folks that you need to wait at least a year or more than a year before filing a modification specifically to this or for anything. Is that accurate and if it is or isn’t, can you give some details on it?
Jake Gilbreath: I think judges are very suspect of modifications filed within a year and in fact, if you’re trying to flip custody, there’s a heightened burden. So within a year, no, it’s not a bright line rule like you just absolutely can’t, it’s just the closer in time that you are to the prior order, the harder a modification is, in all scenarios. But there’s situations that warrant it because ultimately you have to prove a material and substantial change in circumstance, and the closer you are in time to the last order, the harder it is going to be to prove that material and substantial change. I mean, I think judges are suspect of modifications generally as is, rightfully so. The public policy of the state of Texas is also to prevent re-litigation over and over again over kids, that’s clear in the case law. So they’re going to be more suspect, but it’s not an impossibility is the kind short and sweet answer of it.
Brian Walters: Yeah, I agree and regretting agreement is not a basis for a modification. A foreseeable or common recurrence of something is not a reason like, “I got remarried,” well of course you did, that’s why you got divorced. Or, “I had another kid,” well, that’s why you got divorced, you want to have another kid with another person, so those things aren’t going to fly. But I mean, if it’s a good enough reason, sure, you can do it. I’ve had people file modifications a couple weeks after something was finalized because something really dramatic came up. Well, I think we’ve wrapped up mostly, but go ahead.
Jake Gilbreath: Yeah, so I think that’s a good place to end. We recently did a webinar which has information about this topic and other topics on it. If you like what you heard today, as always, do us a favor and leave us a review. We appreciate any feedback, especially when it helps us pick topics for this podcast. You can email us at email@example.com and we will talk to everybody next time.
For information about the topics covered in today’s episode and more, you can visit our website at waltersgilbreath.com. Thanks for tuning in to today’s episode of For Better, Worse, or Divorce, where we post new episodes every first and third Wednesday. Do you have a topic you want discussed or a question for our hosts? Email us at firstname.lastname@example.org. Thanks for listening. Until next time.