? About Domicile Restrictions

Discussions from before 2005.

? About Domicile Restrictions

Postby Just Divorced » Sat Dec 04, 2004 9:42 pm

I live in Texas and I just recently finalized my divorce. My main focus was to get a domicile restriction.... which I did indeed get.

The agreement is for us to have split custody/conservatorship with the ex having primary residency. The only way I was willing to agree to this was to have the domicile restriction in place. She has agreed to remain in this or any contiguous county.

How difficult will it be for her to get this lifted in the near future? I know she wants to move and knowing her the way I do I'm sure she is "shopping" around.

I know it's not possible to give a concrete answer. But in general terms.... how hard is it to get a domicile restriction overturned? Or more importantly what can I do to help myself fight it when the time comes?


Any advice is appreciated.
Just Divorced
 

Re: ? About Domicile Restrictions

Postby Pete » Sat Dec 04, 2004 10:01 pm

You might find this informative. If she can prove just cause for the move such as increase in income, etc...she may have a case. Without a doubt, if she moves far away, you would have to modify the custody order to be more suitable, and may find basis to be the primary placement parent (for schooling, stability, etc.

I am not a lawyer, but I know of several posters here who are more familiar with TX laws on this.

It is a lengthy read involving a supreme court ruling which is headed "DOMICILE RESTRICTIONS IN A DIVORCE DECREEARE NOT IN THE BEST INTEREST OF A CHILDAND ARE UNCONSTITUTIONAL"

I have pasted the relevant portion herein following the link

http://64.233.161.104/search?q=cache:8u ... n&ie=UTF-8

THE RIGHT TO TRAVEL UNDER THE PRIVILEGES ANDIMMUNITIES CLAUSE OF ARTICLE IV, SECTION 2If the legislature wrote a law that said that the mother may not move from the State of Texas, it would certainly be apparent that the legislature had over stepped its bounds and the law would be unconstitutional under the cases cited below. The Courts certainly must observe the United States Constitutional provisions.The United States Constitution in Article IV, Section 2, Clause 1 says, “The Citizen of each State shall be entitled to all Privileges and Immunities of Citizens in the several states.” This clause gives to each citizen the right to travel and have the right of “free ingress into other states and egress from them.” These cases hold that the right to move freely in our society is a basic right under the Privilege and Immunity Clause. In Zobel v. Williams, 457 U.S. 55, 74, 102 S.Ct. 2309, 72 LEd. 2d 672 (1982), the Supreme Court said:“…In any event, in light of the unquestioned historic recognition of the principles of free interstate migration, and of its role in the development of the Nation, we need not feel impelled to “ascribe the source of this right to travel interstate to a particular constitutional provision.” The Zobel Court cites Shaprio v. Thompson, 394 U.S. 618, 630 (1969) and makes the following quotes from that case:“The constitutional right to travel from one State to another…occupies a position fundamental to the concept of our Federal Union. It is a right that has been firmly established and repeatedly recog-nized.“…[T]he right finds no explicit mention in the Constitution. The reason, it has been suggested, is that a right so elementary was conceived from the beginning to be a necessary concomitant of the stronger Union the Constitutional created. In any event, freedom to travel throughout the United States has long been recognized as a basic right under the Constitution.” Id., at 630-631, quoting United States v. Guest, 383 U.S. 745, 757-758 (1966).THE INTERSTATE COMMERECE CLAUSE, ARTICLE I,
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SECTION 8, CLAUSE 3Another Constitutional Provision which is violated in Article I, Section 8, Clause 3, the power of Congress to Regulate Com-merce which says “….to regulate commerce with foreign visitors, and among the several States, and with the Indian Tribes.” Under this clause, a State may not, by its police regulations, whatever their object, unnecessarily burden foreign or interstate commerce. Bowman v. Chicago & N. R. Co. (1888) 125 US 465, 31 L.Ed. 700, 8 S. Ct. 689; Reid v. Colorado (1902) 187 US 137, 47 L.Ed. 108, 23 S. Ct. 92; Leisy v. Hardin (1890) 135 US 100, 34 L.Ed. 128, 10 S. Ct. 681; Morgan v. Virginia (1946) 328 US 373, 90 L.Ed. 1317, 66 S. Ct. 1050, 165 ALR 574.In a society where the divorce rate is high, the restriction, if valid, would have an enormous impact upon interstate commerce. Many people would elect to stay with their child as opposed to moving and giving up their child. Businesses would soon feel impact of such a decision.14TH AMENDMENT – THE EQUAL PROTECTION CLAUSEFinally a restriction in a divorce decree violates the equal protection clause of the 14thAmendment of the United States Consti-tution and discriminates against the parent with the right to establish domicile. There is no such restriction on the other parent. In Zobel v. Williams, supra. The Court held that the State of Alaska could not benefit the citizens of the State based upon years of residence in the State. The Court said:“For if each state were free to reward its citizen incrementally for their years of residence, so that a citizen leaving one State would thereby forfeit his accrued seniority, only to have to begin building such seniority again in his new State of residence, then the mobility so essential to economic pro-gress of our Nation, and so commonly accepted as fundamental aspect of our social order, would not long survive.”In Grapin v. Grapin, (1984 Fla.) 450 So.2d 853 the Court held that a Court order in dissolution proceedings requiring father to pay expenses of emancipated daughter’s college education violates equal protection; because the obligation of such support is merely a moral duty and enforcement of such moral obligation against only one parent violates equal protection.THE 14THAMENDMENT – DUE PROCESS FOR A MINORUnder the 14thAmendment the U.S. Supreme Court has held that liberty interests of minors are restricted in scope compared with those of adults, being subject to reasonable regulation by state to an extent not permissible with adults. Planned Parenthood of Cent. Missouri v. Danforth (1976) 428 U.S. 52, 49 L.Ed.2d 788, 96 S. Ct. 2831.However, the Supreme Court has also said that minors have liberty interest that entitles them to due process whenever state ini-tiates action to deprive them of liberty. In Re K. (1979) 24 Cal.3rd395, 155 Cal. Rptr. 671, 595 P2d 105, cert den 444 U.S. 973, 62 L.Ed.2d 388, 100 S.Ct. 468.The Supreme Court of California held In Re K that minors are persons under the 14thAmendment to the United States Constitu-tion and they are possessed of rights that the government must respect. In Re K a Court order declared the seventeen year old to be a ward of the Court and placed him on probation. The order was based on a finding that the defendant unlawfully possessed marijuana for purpose of sale in violation of the law. The question he appealed before the Court was whether a warrantless, parent-approved, police search of defendant’s personal property was permissible.The boy’s mother found marijuana in his desk drawer. She gave it to an off duty police officer who lived in the neighborhood and told him that conversation with other parents led her to believe that her son might be selling marijuana. The police officer informed the Narcotics Squad of the situation. The Narcotic officer called the boy’s father and said he was coming to the boy’s home to arrest the boy. The officer went to the home without a search warrant. They arrested the boy, and the father gave the police permission to search the boy’s bedroom. They found a locked toolbox in the room. The father told the police that he had no key to the toolbox and it was the boy’s toolbox. The police officer then told the boy to give him the toolbox that his father had told him he could break it open. The boy gave the police officer the key to the toolbox.The trial court ruled the search illegal because there was no search warrant, but the court denied the motion to suppress as evi-dence to marijuana taken from the toolbox. It concluded that the search of the toolbox was independent from the arrest and was pursu-ant to a valid consent given by the father.The Supreme Court of California reversed the trial court and held that a minor has a liberty interest that entitles him to due process whenever a state initiates action to deprive him of his liberty. The court also held that a parent may not summarily waive their child’s right to search and seizure protection. The Court cited Planned Parenthood of Central Missouri v. Danforth, (1976) 428 U.S. 52, 96 S.Ct. 2831, 49 L.Ed.2d 788 which rejected the argument that parental authority should prevail over a minor’s decision to terminate pregnancy.
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A RESTRICTION OF DOMICILE PROVISION IN A DIVORCEDECREE IS AN UNCONSITITUTIONAL ATTEMPT OF THECOURT TO CREATE LAW AND CONFLICTS WITH THE LAWWRITTEN BY THE LEGISLATURE OF THE STATE OF TEXAS.A provision in a divorce decree limiting domicile to a particu lar county or counties also conflicts with legislative intent as set forth in the Family Code of the State of Texas which expressly provides for < parenting time > when parties reside more than 100 miles apart. Sec-tion 153.313 provides for a < parenting time > schedule when the parties reside over 100 miles apart.If the legislature contemplates that parties may move about in the State of Texas and in the United States and writes laws to cover that event, then any attempt by the Courts to contravene that law is an unlawful assumption of power and violates Article II, Sec-tion 1 of the Texas Constitution which says:§ 1. Division of powers; three separate departments; exercise of power properly attached to other de-partments“Section 1. The powers of the Government of the State of Texas shall be divided into three distinct depart-ments, each of which shall be confided to a separate body of magistracy, to wit: Those which are Legislative to one; those which are Executive to another; and those which are Judicial to another; and no person, or co l-lection of persons, being of one of these departments, shall exercise any power properly attached to either of the others, except in the instances herein expressly permitted.”EX PARTE RHODES – THE SUPREME COURT OF TEXASSPEAKS ABOUT DOMICILE RESTRICTIONSIn 1962, the Supreme Court of Texas addressed this problem in a Habeas Corpus proceeding, in Ex Parte Rhodes, 352 S.W.2d 249. In this case a divorce had been granted and the Court entered a decree with the following language:“It further appearing to the court that the best interest of said child will be served if she resides in Karnes County, Texas, where plaintiff and defendant reside and where the four grand-parents of said child reside; it is ordered, adjudged, and decreed by the court that said child shall reside within Karnes County, Texas, and that plaintiff not move said child’s residence from within Karnes County, Texas, without first making written application to this court, and after hearing by the court of all parties concerned, and an order being made by the court allowing plaintiff to move said child’s residence from within Karnes County, Texas.”The child was later removed from Karnes County, Texas to Brazos County, Texas. The father filed a contempt action. The District Judge in Karnes County found the mother to be in contempt. The mother appealed.The Supreme Court in its opinion made the following comments:“When counsel for Betty Rhodes made application for leave to file the application for writ of habeas corpus in this Court, sev-eral members of the Court doubted the power of the District Court to impose such restrictions in the divorce decree. It was forcefully argued that such provisions, in effect, prohibit the wife from remarrying and moving, or from seeking gainful employment in another county without the consent of the district judge, and that this deprived her of her liberty without due process of law. While the decree does not prevent Betty Rhodes from remarrying or moving whenever or wherever she pleases, it does require her to obtain the consent of the court to move if she desires to take the child with her. She has not been denied consent to move and take the child with her. She did not ask the Court’s permission to change the child’s residence to Brazos County. Her contention is that the Court was without power to impose such a condition in the Decree.”The Supreme Court held that the District Court had the power to restrict the residence of the child to Karnes County. The Su-preme Court said that the restriction was of an extreme nature. The Court left open the question of whether or not a person would be deprived of this liberty without due process of law if a district Court refused permission to move.RIGHTS OF THE MINORWhen we read the domicile restrictions in a divorce decree, and discuss the rights of the parties, the attorneys and the courtsspeak about the rights of the parents, but they generally do not speak about the rights of the child.The cases hold that minors do have constitutional rights In Re K supra. In a case where the restriction of moving domicile is written in, the child is generally not represented. Ask yourself, was the minor child appointed an attorney ad litem to represent the child? This is usually not the case. Should the child be represented, well probably so, since it is the child’s liberty we are talking about? What
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crime did the child commit to be a hostage of the Court? If we allow the Court to restrict the child’s domicile, why don’t we go ahead and allow the Court to order a urinalysis test at random? After all, we are thinking of what’s in the best interest of the child. Better yet, why not let the Court just put the children on formal probation. We could have the children report once a week or once a month to a probation officer. The probation officer can report to the Court and gather information about the mother and the father and any new spouses.The divorce decree with the restriction on domicile affects all children. The sixteen and seventeen year old child is under the restriction the same as the two or three year old child. Proponents of the restriction would argue that any reasonable Judge would allow the sixteen or seventeen year old to go to Europe for a three month tour with the wealthy grandparents. Opponents of such restriction would argue that not all judges are reasonable, and that the child should not be a hostage of the Court and, the child should be free to travel like anyone else.PRACTICAL APPLICATION OF THE DOMICILE RESTRICTIONIn Ex Parte Rhodes, supra, the Supreme Court upheld a restriction that limited the child’s residence to Karnes County, Texas. The Court did leave open the question of due process if the Court failed to give permission to move. Karnes County is about 60 miles Southeast of San Antonio. The County Seat is Karnes City with an estimated population of 15,000 people; but I doubt the District Court Judge of Karnes County or the Justice of the Court of Appeals or the Supreme Court could say that the best interest of the child would be served by living in Karnes County until the child attains the age of 18 or is otherwise emancipated.Lets consider the ramifications of the ruling of the Karnes County District Judge. If he has the power to make such a ruling, then so would the District Judge for those counties in Texas which are sparsely populated such as Kennedy, Brooks, Jim Hogg, Starr, Za-pata, Webb, Dimmit, Presidio, Brewster, Reeves and Culbertson. You might want to look at your Texas map before you decide that domicile restriction is a good thing and in the best interest of the child. Of course, these sparsely settled counties would argue that life in their counties is much better than life in heavily populated counties such as Harris, Dallas, Bexar, Tarrant, El Paso, and Travis County. So who is right about the best interest of the child? The point is that what is in the best interest for the child in a domicile is nothing more than personal taste, and what we are really talking about is what is in the best interest of the non-custodial parent who wants the child and the custodial parent to be restricted as to movement while the non-custodial parent can say bye-bye I have a better job in South America and take off without obtaining permission of any Court, and no Court is going to tell a non-custodial parent that they may not move be-cause that would be unconstitutional on that surely every lawyer would agree. If that is so, then how did the custodial parent and the child lose their constitutional rights to move about in the United States of America or elsewhere as they desire.CONCLUSIONIt is respectfully submitted that for all the foregoing reasons the Courts should not limit the domicile of a child in a divorce de-cree with a provision such as the one in Ex Parte Rhodes. The Courts are abusing the rights of the custodial parent and the minor child.Respectfully submitted,_________________________Jim ClaunchAttorney at Law2912 West Sixth StreetFort Worth, Texas 76107(817) 335-4003
Pete
 


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