Child Custody: Restricting a Child’s Residence
by Charla Bradshaw
The public policy of the State of Texas is to assure that a child will have frequent and continuing contact with parents who have shown the ability to act in the best interest of their child; to provide a safe, stable, and nonviolent environment for their child; and to encourage parents to share in the rights and duties of raising their child after the parents have separated or divorced. The Texas Legislature has emphasized that the best interest of the child shall always be the primary consideration of the court in determining issues relating to children. The problem, however, is that parents may differ on what is in the best interest of their child and this may lead to litigation.
In Texas, a court must designate which parent will have the exclusive right to establish the primary residence of the child. The court must then either order a geographic restriction for the child’s residence, or order that the child’s residence will not be restricted. Interestingly, a parent may demand a jury trial in family law cases involving children with regard to certain issues. The restriction on a child’s residence (or not) is one of those issues. If a jury decides that a child’s residence will be restricted, then the jury will also decide the geographic area for the child’s residence. Only a child’s residence may be restricted, not a parent’s residence. A parent can move wherever they please, but the child cannot move with them if there is a geographic restriction.
A number of constitutional arguments have been made by parents against the imposition of a residence restriction on their child claiming that the restriction violates the United States Constitution. The first of these constitutional arguments pertains to the right to travel. Texas courts have rejected claims that the courts’ imposition of residency restrictions on a child infringed on the restricted parent’s right to travel under the United States Constitution. The courts have stated that this right encompasses three different components: (1) the right to enter and leave another State; (2) the right to be treated as a welcome visitor while temporarily present in another State; and (3) for those travelers who elect to become permanent residents, the right to be treated like other citizens of that State. The courts have stated that because the residency restriction applies only to the child, the courts’ restrictions do not interfere with the parent’s ability to exercise any of these three rights.
Further, courts have recognized that a parent would more than likely not move without their child and do not find it acceptable to give a parent the alternative of relinquishing custody of their children if they want to move. However, the courts have pointed out that no right is absolute, not even the right of a parent to travel, and that the parent’s right to relocate must be weighed against (1) the State’s interest in having both parents share the duty of raising their child, (2) the left behind parent’s interest in interacting with their child, and (3) the child’s interest in interacting with both parents. The State’s interest in assuring that children have meaningful interaction with both parents (assuming the parents have not somehow abused or legally lost that opportunity) is often sufficient to restrict a child’s residence. Courts have also stated that preserving the parent-child relationship and the goal of establishing a stable, permanent home for a child, are compelling interests of the government. Interestingly, a parent may demand a jury trial in family law cases involving children with regard to certain issues. The restriction on a child’s residence (or not) is one of those issues. If a jury decides that a child’s residence will be restricted, then the jury will also decide the geographic area for the child’s residence.
Another constitutional argument made by parents is their right to raise their children as they wish. Although Texas courts recognize a parent’s constitutional right to generally raise their child as they see fit, the courts have declined to fashion a rule that would prevent the other parent from exercising the same equal right. When parents cannot agree as to the residence of their child, it is certainly within the power of the State to break the deadlock.
At least two constitutional equal protection challenges can be raised even though they have not been completely successful. First, our courts have noted that when there is a restriction on a child’s residence a primary parent must obtain the court’s consent in order to relocate with their child. However, there is no similar restriction on the non-primary parent in spite of the fact that the relocation of either parent would have the same impact on contact between the child and the non-primary parent. Second, by allowing the courts to apply residence restrictions on a child, a divorced family is subject to restrictions not equally applied to intact families, and a divorced family is therefore not given the same protections.
There is no one factor except for maybe abuse or neglect that will ensure a parent their child’s residence will not be restricted. The following are just some of the factors a court may consider when deciding residency restrictions for a child:
• The distance involved of the move
• The transportation methods available to facilitate the non-moving parent’s access to the child; and, the feasibility, conditions and cost surrounding the transportation
• The moving parent’s willingness to facilitate transportation and share the expense
• How the move would impact the non-moving parent’s ability to have time with their child and the accessibility of the non-moving parent to the child
• How involved the non-moving parent is with regard to parent-teacher conferences, school events, sports and extracurricular activities, religious activities, homework, peer interaction, general or other activities
• The child’s friends that will be left behind and the child’s relationship and accessibility to those friends, etc.
• Whether the non-moving parent exercises time with the child and attends activities and participates in the child’s life
• The relationship between the non-moving parent and the child, and between the child and their extended family members
• The relationship between the child and the parents’ spouses/significant others
• The reasons the moving parent wants to move and the reasons the non-moving parent is against the move
• The age of the child and in certain circumstances a court may consider a child’s desires regarding the move
• Violations of court orders regarding either parent
• The stress of moving on the child (new friends, new schools, etc.)
In a society that is mobile and with so many electronic means of communication, relocation is a big issue for the courts. If a parent desires to move with their child, and the child’s residence is restricted by a court order, the parent should see a family law attorney to obtain advice and should never change the child’s residence in violation of the court order.