Imagine that you and your partner are splitting up, and you have agreed that you will have custody of the kids. You’re glad there’s not going to be a “custody fight” – all you really want to do is get out of this town, get a new job and move as far away as you can to start fresh. Unfortunately, you may have to rethink that plan.
Social scientists and psychologists uniformly agree that, unless there is abuse, it is best for children if their parents stay together. If that is not possible, then the issue is up for debate – what is the next best option? Is it that you and your “ex” live happily ever after with you living on Oak Street and your “ex” living two streets over on Elm Street? In that case, the kids can get off the bus and walk to either parent’s house. Does that happen often? Of course not, but the concept of “shared parenting” and equal access to the children requires parents to live in close proximity to each other.
I often sympathize with clients who say, “But I can’t get a job here! I want to MOVE!!!” or “My family support is out of state and I need help with the kids!” Do these issues matter in family law courts?
Theories of Parenting
The attitudes toward parents moving away from each other vary greatly among the courts, among practicing attorneys, and even among social scientists. Well-known positions by social science researchers in this area include those of Judith Wallerstein, Ph.D., and Richard A. Warshak, Ph.D.
Dr. Wallerstein believes that the courts should recognize a right of the custodial parent to move with the child and should require the noncustodial parent to demonstrate that the move will be harmful to the child. She argues that support for the primary custodial parent-child relationship should take precedence over joint parental access. Dr. Wallerstein notes the correlation between the well-being of the primary custodial parent and the child’s well-being, and the absence of a correlation between the nonprimary custodial parent’s visitation and the child’s well-being. In other words, the welfare of the parent with custody has more impact on the child.
A different position is taken by Dr. Warshak, who supports encouraging both parents to remain in close proximity to their children. This has been a popular approach taken by many courts across the country based on a policy of encouraging contact between a child and both parents.
Courts and juries have the option of imposing a geographic restriction on the custodial parent to limit the distance that parent can move with the child. Sometimes that distance is unlimited, but frequently it may be limited to the county where the parents lived together or that county and all the adjacent counties.
Litigation over geographic restrictions is very common in the initial custody proceedings and in modifications of custody orders. Our society is more mobile than ever, and the factors courts consider in making these determinations are broad. These factors include:
- motives of the parent seeking to move;
- motives of the parent opposing the move;
- the quality of relationship and frequency of contact between the child and each parent;
- history or threats of domestic violence;
- likelihood of improving quality of life for the child;
- likelihood of improving the quality of life for the custodial parent and the degree to which that improvement will benefit the child; and
- the feasibility of restructuring parenting time if the move is allowed in order to preserve the relationship between the child and the noncustodial parent.
Put the Children First
You may be thinking, “That is so much to consider!” After you write down all the facts that support your plans to move based on the above factors, and you testify about those to the judge or the jury, and the other parent does the same, what will be the verdict? You could probably imagine the court going either way, given the many considerations.
In Texas courts, two main principles guide judges and juries in making decisions regarding geographic restrictions. First, it is the public policy of this state 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;
- provide a safe, stable, and nonviolent environment for the child; and
- encourage parents to share in the rights and duties of raising their child after the parents have separated or dissolved their marriage.
Lastly, the single most important principle that is likely on the judge’s mind is the child’s best interest. The best interest of the child shall always be the primary consideration of the court in determining conservatorship, possession of, and access to the child.