A geographic restriction in a Texas custody order helps ensure the parent without physical custody has access to the child, but it can also impose severe limitations on the mobility of the parent with physical custody of the child. In a recent case, a mother challenged the imposition of a geographic restriction on the child’s primary residence by the trial court after a jury found she should be the child’s sole managing conservator.
Modification Suit Filed After Prior Order
The final divorce decree named the parents joint managing conservators and gave the mother the exclusive right to designate the child’s primary residence within a specific county. The father later petitioned for modification, seeking the right to designate the child’s primary residence. The mother asked the court to remove the father as a joint managing conservator and name her sole managing conservator with the exclusive rights set forth in Tex. Fam. Code § 153.132, including the right to designate the primary residence. She also asked for an additional $100 per month in child support.
The jury found the mother should be appointed the sole managing conservator. No other issues were presented to the jury. The judge’s letter ruling indicated she wanted to place a geographical restriction on the mother’s right to designate the child’s primary residence, but was uncertain of the court’s authority to do so under the circumstances. The letter ruling stated the court imposed the geographic restriction if both parties’ counsel agreed it could, but not if counsel agreed it could not. If counsel disagreed as to whether the court could impose the restriction, the court requested they provide authorities on the issue. The trial court denied the modification of the child-support obligation.
The Parties Disagreed Regarding Whether the Trial Court Could Impose a Geographic Restriction
The father filed a memorandum, arguing that the trial court could impose the geographic restriction based on Tex. Fam. Code § 153.132 and case law. The father also filed a motion with a proposed order and asked the court to include language related to the exchange of the child’s medication.
In her memorandum, the mother argued the court could not contravene the jury verdict on appointment of a sole managing conservator or the imposition of a geographic restriction, citing Tex. Fam. Code § 105.002. She argued that neither the court or a jury could impose a geographic restriction once the jury awards sole managing conservatorship.
Trial Court Signs a Final Order
The trial judge signed an order, naming the mother sole managing conservator with the exclusive right to designate the child’s primary residence. The order also required the mother to deliver the child’s prescribed medications to the father’s home once a month. The order specified that the delivery must occur between 6 and 7 p.m. and that the mother must provide the father at least 24-hours’ notice of when she would deliver the medication.
The father moved to modify, correct, or reform the judgment, arguing the imposition of a geographic restriction would not contravene the jury’s verdict because that issue was never before the jury. The trial judge granted the motion and signed a reformed order imposing a geographic restriction of a single county.
The Mother Appeals Trial Court’s Final Order
The mother appealed.
The appeals court noted that the statutory language provides, “[u]nless limited by court order,” a parent named sole managing conservator has the exclusive right to designate the child’s primary residence. Tex. Fam. Code § 153.132. The appeals court found the order imposing the geographic restriction did not contravene the jury’s verdict that the mother should be appointed sole managing conservator. The issue of a geographic restriction was not before the jury. The appeals court found the trial court had not abused its discretion in imposing the restriction.
The appeals court also rejected the mother’s argument the trial court modified her rights without a sufficient written finding of fact that the restriction was in the child’s best interest. The reformed order stated that the modification was in the child’s best interest. Pursuant to Texas case law, a finding within the modification order that the orders are in the child’s best interest is generally sufficient under Tex. Fam. Code 153.072.
The mother also argued the court abused its discretion with regard to the required medication delivery. The father provided a supporting affidavit, stating the child’s school did not allow medication to be given to the school nurse for exchange. He further stated that the mother did not allow him to visit her home. His affidavit further stated he requested the mother drop off the medication “at her convenience once a month” because he thought that was “the least disruptive way” to exchange the medication. The appeals court found the mother had not preserved the issue, but also found that the order would not have been an abuse of discretion.
The appeals court affirmed the trial court’s order.
Custody Disputes Leave Little Room for Error – Call McClure Law Group Today
As this case shows, custody cases go beyond determining when each parent has possession of the child. If you are facing a custody dispute, you need a skilled Texas custody attorney on your side. Set up a consultation with McClure Law Group by calling 214.692.8200.
from Texas Bar Today https://ift.tt/3CrAQAV
via Abogado Aly Website
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