Busting Domicile Restrictions with Electronic Visitation

A domicile restriction is a clause in a divorce decree which orders that the children (and thus the parent(s) with custody) must live within a defined geographical area. The purpose of the clause is to keep the children and both parents living in the same geographical area, which in turn fulfills Texas Family Code Section 153.001 the Public Policy provision which states: " The Public Policy of this State is to: 1. assure that children will have frequent and continuing contact with parents whom have shown the ability to act in the best interests of the child;"

In the Harris County Courts, if a parent requests a domicile restriction, it is almost a given that it will be granted by the court. The courts will often restrict the children to Harris County or to Harris and contiguous counties. The clause will also normally include language that if one parent moves from the restricted area, the other parent is then free to move with the children.

Family Law attorneys will often get retained on cases to modify a divorce decree to remove, terminate or bust a domicile restriction. A parent for one reason or another will want to move with the children and many of them frequently feel as though they are being held hostage in a place where they do not want to be. These cases are obviously very difficult from both sides. A party wanting to move with the children has to demonstrate that it would be in the best interests of the children for them to move. This can be demonstrated or refuted with extremely thoughtful and careful planning and preparation.

A New York Judge in a recent case ruled that an unemployed Mother living on Long Island would be able to move with her two children to Florida to live with her parents. The ruling was conditioned upon the Mother making the children available on SKYPE to talk to their father. This case really sets an unbelievable precedent. Please see the ABA Journal article on the case below:

Family Law

Judge Orders Skype Visits as Condition of Mom’s Move

Posted Aug 12, 2010 12:03 PM CDT
By Molly McDonough

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A New York judge has ordered that a Long Island mother make her two children available to talk to their father via Skype, an online video conferencing service, as a condition of her move to Florida.

This is the first time such a condition has been made on a case in New York, the New York Law Journal reports. But last year, the New York Times reported that a number of states have begun allowing for "virtual visitation," giving judges the option to keep non-custodial parents in contact with their children via e-mail, instant messaging and Web cams.

In the New York case, Suffolk County Supreme Court Justice Jerry Garguilo, in Baker v. Baker, ordered that the mother, at her own expense, "will see to it, prior to re-location, that the Respondent, as well as the children, are provided the appropriate internet access via a Skype device which allows a real time broadcast of communications between the Respondent and his children."

The couple has been divorced since 2008 and the mother, who is unemployed, is planning to move to Florida where she can live with her parents and find work.

In granting the mother's request over the father's objections to his children moving, Garguilo noted that common sense makes clear that a move aimed at finding a better way to support the family is necessary.

Hat tip: Legal Blog Watch.

Also see:

ABA Journal (2005): "Live-Action Interaction: Virtual Visitation Diminishes Distances Between Divorced Parents and Their Kids "

Journal of Law and Family Studies (PDF): "Virtual Parents: How Virtual Visitation Legislation Is Shaping the Future of Custody Law"