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What’s the right to determine the child’s primary residency really mean?

On March 5, 2019

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The right to determine the primary residence in Texas Family Law has traditionally meant that the parent awarded that right also determines the public school which the child will attend.  The most frequently cited case for this proposition is Doncer v. Dickerson, 81 S.W.3d 349, 361 (Tex. App.—El Paso 2002, no pet.) which holds that designating a primary residence is necessary for two reasons: to determine residency for purposes of public school enrollment and as a significant factor in the power of relocation.

Austin’s Third Court of Appeals which covers Travis and Williamson County has a potentially different view on this finding in In re Cole, NO. 03-14-00458-CV.  The facts of the case are the father determined the primary residence of the child in Travis County, Texas and Dallas County, Texas.  There was a dispute about which school district the child would be enrolled in with the father electing Lake Travis ISD and the mother requesting that the Court allow her to enroll the child in Eanes School District.  At a temporary orders hearing in Travis County District Court, father asserted that the Court could not preclude him from deciding which school the child was enrolled in because this would have the “effect” of changing the designation of the person having the exclusive right to designate the children’s primary residence in the absence of the evidence required to authorize such an order per Tex. Fam. Code § 156.006(b). Mother countered that because the divorce decree required the parents to make educational decisions by agreement father did not have the right to enroll the child in Lake Travis ISD regardless of whether father had the right to determine the child’s primary residence.

The Third Court agreed with the mother, finding that father’s “ability to designate the children’s primary residence, which presumably is his home in Lakeway, was unaffected by the trial court’s order that they attend school in the Eanes District.”

This case presents all kind of problems unanswered by the Court.  What if the father had established the child’s residence in Dallas, Texas (which he was entitled to do)?  How would requiring the child in Eanes School District not infringe on that right?  If the real deciding factor in which school child attends is the right to make educational decisions, does the assignment of this right by agreement mean the child will not attend school absent agreement?

This case has not been cited as authority by any other appellate court, but anyone practicing in Travis or Williamson County needs to be aware of its existence.

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