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MODIFYING CHILD CUSTODY AGREEMENTS

Family Law
Earlier this week I read about a court in New York that denied a mother the right to move with a child seventeen miles based on an agreement incident to divorce the former couple had signed. Yes, the court denied the mother’s request to move with the child seventeen miles. One might think “Yeah but that is New York. That would never happen here.” One would think that to their detriment.

The couple had an agreement that included a geographic restriction. Almost all divorces with children or suits affecting the parent-child relationship include a geographic restriction. The courts generally don’t worry about the adults so much, but the courts take the child’s best interests VERY SERIOUSLY. In fact by statute, the courts are to act in the child’s best interest. Often parents will say “but my moving is in the best interest of the child” for a variety of reasons (Job, new marriage, etc.) But the flip side of that is the very same action is making it more difficult for the child to see the other parent, and generally speaking the courts consider this a bad thing. The Texas Family Code and the courts generally find that children should have a relationship with BOTH parents. Children should spend as much time as possible with BOTH parents.

What could conceivably happen (I have actually seen it happen) a parent decides they need to move for one reason or another and they petition the court to lift or relax the geographic restriction. The court then denies the motion leaving the parent in the position of choosing to move, but leave the child with the other parent, or stay.

Another consideration is agreement of the parties. Courts generally will honor an agreement of the parties. But here is the rub, if one of the parties later changes their mind they must petition the court to allow a change. If seeking to set aside an agreement or alter an agreement, the party seeking to set the agreement aside will need to show a ‘material and substantial change’ or other change “rendering the former order unworkable.” In the case out of New York when the parties divorced they shared legal and physical custody (in Texas we would call this Joint Managing Conservatorship – the standard in Texas). They lived less than five minutes from each other. I think we can all agree that is probably a good thing because it allowed the children to see both of their parents just about any time. Later the mother of the children sought to move seventeen miles. That still leaves the parties pretty close to each other, probably only twenty to thirty minutes from each other. My mother-in-law lives two blocks from me. My older son (and grandchildren) live about 20 minutes away. Guess who I see more (although in fairness I see them both a lot). But there is a difference between 5 minutes and twenty minutes when it comes to visitation. But the trial court (and later the appellate court) denied the mother’s petition to move with the children based on the couple’s agreement and that the reasons for setting aside the agreement were neither material nor substantial, thus there was no reason to amend or set aside the agreement.

Agreements between the parties are often a better solution than a court’s order, but they can have very long lasting effects. When contemplating a divorce with children or a suit affecting the parent child relationship you need the counsel of an attorney that practices primarily family law and regularly practices in the courts where your suit will be pending. Otherwise, next time it may be a Texas court denying a mother’s petition to move with the children a mere seventeen miles.

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