If the court lifts a residency restriction, then it may apply the over-100-mile version of the SPO or craft its own order. Whether the relocation will be allowed is based on the best interests of the child.
Usually, when parents divorce, they remain in the same vicinity as where they lived together because living near each other facilitates joint custody of the children. But sometimes, upon divorce, one parent will want to take the children and move out of state. More often, a divorced parent will want to marry another person who lives out of state and take the children to live with the new spouse. Lawyers call these cases “relocation” cases and they present difficult issues of law and fact that require experienced child custody attorneys.
Texas’ Standard Possession Order
Texas has a detailed, default visitation schedule. It can apply upon relocation. It is called the Standard Possession Order (SPO) because in Texas, visitation is called “possession.” We will continue to us the word “visitation” to avoid confusion.
There are actually two versions of the SPO. One of them applies when the parents live 100 miles or less apart. The other one applies when the parents live more than 100 miles apart. The latter one usually applies in a relocation case.
100 Miles or Less
The major points of this version of the SPO are that the parent with whom the child does not primarily live has visitation as follows:
- Weekends on the first, third and fifth (when there is one) Fridays of each month.
- The Thanksgiving holiday and Spring Break are alternated yearly between the parents;
- Each parent gets either time before and through Christmas, or time after, alternating yearly; and
- The parent with visitation has a month in the summer with the child.
- The parent with visitation has possession of the child on every Thursday during the school year.
Over 100 Miles
In contrast, the other version of the SPO recognizes the issues arising from a parent’s living far away from the other, before or after relocation, by granting the following visitation to the parent with whom the child does not primarily live:
- Either first / third / fifth weekends as in the less-than-100 mile version, or the parent’s pick of any one weekend per month;
- Alternating Thanksgivings but every Spring Break;
- The same Christmas schedule; and
- Forty-two days in the summer rather than just a month.
Relocation and the SPO
The SPO does not take state lines into account. It takes into account only how far apart the parents live, whether before or after relocation. Thus, parents who divorced in Texarkana, Texas, would be subject to the 100-mile version of the SPO even if one of them lived in or after relocation across the state line in Texarkana, Arkansas. By the same token, the over-100-mile version of the SPO would apply whether both parents lived in Texas but 100 miles apart or whether one of them lived in or moved to another state, so long as the parents’ residences were at least 100 miles away from each other.
Most divorce decrees contain the less-than-100 mile provision but then anticipate that if one of the parents seek relocation more than 100 miles away, the over-100-mile version would kick in. Some of them also include geographical restrictions on where the parent with primary custody may live with the child. Common restrictions are within the same county, or within a certain county and adjacent counties.
Relocation Cases Rest on the Child’s Best Interest
If one parent seeks relocation, the courts encourage the parties to try to come to a visitation agreement. If not, the court will make a decision. But the decision is not necessarily whether the over-100-mile version of the SPO will apply. If there is a residency restriction, the court must decide whether to lift it. If the court lifts the restriction, then the court may apply the over-100-mile version of the SPO or craft its own order. Whether the relocation will be allowed is based on the best interests of the child.
If you are seeking or resisting application of the SPO in an out of state custody situation, you should contact experienced child custody attorneys such as those at Boudreaux | Hunter & Associates, L.L.C. Please call (713) 333-4430 to set up a consultation.
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