Child Custody & Relocation

Child Custody & Relocation FAQs:

What happens if one spouse wants to move to another state and take their children? Do they need to go through some process to do that?

Well, one of the rights and duties that have to have apportioned in a paternity order, or an order establishing paternity or a divorce decree with children, is one parent is given the exclusive right to designate the primary residence of the child. Then within that right, the parties either have to agree or a court decides whether there’s going to be a geographic restriction on that right or no geographic restriction on that right. Historically, we’ve seen courts or parties agree to a geographic restriction that involves the county of residence or the county that the divorce is pending in, or the lawsuit’s pending in. It may be contiguous counties to that, to give a parent some ability and flexibility to move around. If there’s no geographic restriction in the order and you have a parent that wants to move away, for instance, if the divorce was here in North Texas and they want to move to the east coast or the west coast, then they’ve got the right to do that. They would need to give notice to the other party, and certainly the other party has a right to come in and petition for a modification to either impose the geographic restriction or to potentially change custody.

If there’s a geographic restriction in the original order and a parent wants to move with the children outside of that geographic restriction, they’re going to have to petition the court for that ability to relocated; and they’re going to have to show the court why they think it would be in the best interests of the children to be able to do that. In Texas, in a modification, you’ve got to show that there’s a material change of circumstances between the time of the original order and the requested modification. So, a lot of times what we see is a spouse who has primary custody either gets a job offer outside of that geographic area or maybe they’ve remarried and want to move out of that geographic area. Maybe their new spouse has a job offer outside of that geographic area. Or maybe they want to move home.

Relocation litigation is hotly contested and can be some of the most intense litigation. But certainly the parties have a right to go to the court and ask for that, and more and more we’re seeing courts allow that. Again, it goes back to how involved the parents are with the kids. If you’ve got a mom and dad who are very involved, you may not have the right to move out of this area, but if you’ve got a dad who exercises his visits but really isn’t engaged in the process with his kids and doesn’t participate in rearing his kids, then a court may be more inclined to let you move out of this area.

Do negotiations occur in that situation so that one spouse gets the children for the summer, for instance, in an arrangement that works for the children and for the couple? Is that how it’s sometimes resolved?

Certainly. If we have a client that comes to us and wants to move out of the area, one of the things to do is try to create as much time for the other parent as possible. We also have to have the ability to sell the new community that they want to move to. we have to know what schools the kids would go to and what activities are available for those kids in that new town. We have to be able to look at the school schedules and say, okay, if mom’s moving and dad’s still here then we want to look at the school schedules in the new community, find out where we have long weekends, where we have holiday schedules. We want to look at the summer schedules and try to make the children available for the dad as much as possible so they don’t lose a lot of time with their kids.

But in today’s times, you also want to open up lines of communication so that dad can FaceTime, Skype, and email, depending on the age of the kids. You want to sell to the court that dad will still be involved and have access to his children even if physically they don’t live in the same geographical area.

Another issue that can be negotiated is travel cost, because there’s a presumption that the person that moves away is going to participate more in the increased cost related to the travels. You can negotiate child support or you can negotiate buying plane tickets or paying for gas and hotels and these types of things. Certainly, if you have a client that wants to move out of this area, you want to try to negotiate some of these things and give the other party some benefits.