Relocation Cases
June 3rd, 2008Here is an interesting post about relocation cases in the state of Nevada. The author is a college professor in Nevada who blogs about his divorce experience. He describes the relocation statute and how, in his opinion, it is usually applied in a way that allows the custodial parent to move the child away from the non-custodial parent.
The Nevada statute gives very specific guidance to the court making such a decision but some of the factors seem rather weak to me. For example, the statute lists factors the court should consider in making its decision, including “whether housing and environmental living conditions will be improved,” and “whether the custodial parent’s employment and income will improve.”
The Texas Family Code has a statute that requires that all orders naming the parties as joint managing conservators (typically, divorce and paternity cases) to give the exclusive right to establish residence to one parent (this is generally what determines which parent is “primary”). That statute further requires that the order state whether the residency is restricted to a specific geographical area (and if so what area) or that there is no geographical restriction. The vast majority of Texas cases include a geographical restriction. A typical example would be a restriction to Harris County, Texas and the contiguous (surrounding) counties.
Unlike Nevada, the Texas Family Code does not provide any specific guidance as to how the courts are to determine relocation cases. So when a custodial parent with a residency restriction wants to move that parent would file a petition to modify, essentially asking the court to remove the restriction. Ultimately, the standard applied by the court in deciding the case would be whether the move was in the child’s best interest.
Although a lot of factors would be considered, in most cases the biggest factor is how involved the non-custodial parent was in the child’s life. If that parent was very involved with child, the custodial parent probably would have a difficult case to win. If the non-custodial parent was uninvolved, the custodial parent would have a much stronger case.
June 3rd, 2008 at 9:21 am
Thanks for the link, Scott. Technically the Nevada statute is silent on the factors. The factors are derived from case law.
Interestingly, I was a resident of Texas for 5 years before moving to Nevada. In hindsight, it would have been much better divorcing in Texas.
June 3rd, 2008 at 4:03 pm
Steve, thanks for the clarification.
July 2nd, 2008 at 12:56 pm
Hi, a question that I am going thru now, I have custody of my 2 year, my ex does have alot of time with her, but I need to move a little over 100 miles away to get a better job. My divorce states that as long as I stay within 100 miles that I can move wherever, now the move I want to make is 125 miles away, does that make a difference since it is such a small number of miles over the allowable limit? Can my ex keep me from moving, can he go to the court and get custody of my child because of a move to another city? Typically how long of a fight can I expect were it to go to that point. Thanks for your help. James
July 2nd, 2008 at 1:41 pm
James, I usually try to avoid giving the standard response of, “you need to talk to a lawyer” about the specifics of your situation and the language of your order. In your case though I think it is good advice. The specific language of the court order is crucial in evaluating your situation and no attorney could really help you without first doing that.
July 19th, 2008 at 9:06 pm
Hello I m running into this issue with my ex in collin county, we have gone to court spet and in march and are now scheduled to go again in aug due to her asking to lift the current restrictions she has to live in collin county etc,,, she wants to lift the restrictin and move to CA,,,,she laims for work yet I know it is not, she works from home and we work for the same company… how do i put an end to going to court every 4 mnths, its getting old… and hurting the kids,,,
July 29th, 2008 at 10:06 am
My sister’s divorce decree states that if her ex misses two periods of visitation in any calendar year, that the geographic restriction “is lifted” in that exact language. Since this special provision is unique, we feel that a motion to modify was not necessary for her to request permission to leave the state after he did miss (he also admitted to missing more than two visitations during the motion to modify trial). Is she wrong to assume that this special provision allows for automatic permission once the admission was made that he missed? She is very afraid to leave the state and be pulled back because “is lifted” does not actually mean “is lifted.” Help! Thanks.
July 29th, 2008 at 4:04 pm
Danielle, this is another one of those situations where your sister needs a good family law attorney to review her Decree and get detailed information so she can get some good advice. Geographical restrictions are tricky and an area where the law keeps evolving, so she really needs someone good to properly advise her.
October 5th, 2008 at 2:03 pm
I tried to get the geographical restriction lifted this summer but, my ex wouldn’t negotiate. I am an employee with Dallas ISD and I am in the pool to be RIFed. How will this be handled with the courts trying to get this restriction lifted? I was told in pre-trail court under Judge Hanschen, that he would side with my ex, without hearing the facts of the case. I have no family here and I am facing loosing everything.
October 11th, 2008 at 3:36 pm
Scott -
My problem is similar to James’ in that I am wanting to move 20 miles past my geographic restriction. My ex has agreed (verbally) to this, but I want to have it in writing. I am unsure on the wording for this, however. Could you help? I’m planning on having it notarized and filing it with the court, as well.
Thanks!
Chris Anne
October 12th, 2008 at 5:01 pm
Chris Anne, you should really go to an experienced family law attorney to review your Decree and make sure that this is handled correctly in order to protect yourself from a future action. There is not a generic “correct” answer to these situations as it depends on analyzing the specific language in the Decree and then taking the necessary action to ensure that you are covered and not in jeopardy of a future contempt case.
December 12th, 2008 at 6:01 pm
Scott,
My X and I have joint custody of our 12yold daughter although I am the parent with the right of residency. He looks good on paper…paying child support on time every month and exercising his standard visitation. My daughter has been very unhappy the last several years going over there. She would rather just stay with me. There have been tears shed over this. She has also said things like she wants to runaway sometimes when she is over there. So obviously, there is a lack of relationship between the two. We are both remarried with other children. My husband got laid off 1 month ago but was lucky enough to find another job right away. Unfortunately, it is in Colorado. We are in collin county, which is where the divorce took place. My husband is in the fitness industry and has worked his way up the corporate ladder quite nicely. There are no other manufacturers of fitness products based out of Dallas. Staying in the same field would require us to move not matter where it would be. He has worked so hard and this is such a great opportunity for him and our family. I am so scared that I will be leaving him to go to Colorado alone and staying with the kids cause my x won’t let my daughter go. I am so stressed out right now. My place is with my husband and my daughters place is with me. What are my chances? What should I start working on with my attorney to have the very best chances. He pays child support….which I would give up all together to not have this battle. My daughter has already said she will sign whatever to go with me and her step-dad, whom she is very close to as well. HELP!!!!!!
one stressed out mom in collin county!!!!!
December 13th, 2008 at 9:32 pm
Angie, I’d recommend you consult with a good Collin County family law attorney as soon as possible (preferably one board certified in family law) to review your Decree and discuss your options.
I don’t know any of the judges in your county, but in Harris County and Fort Bend County where I practice, it is usually pretty difficult to convince a judge to lift a geographical restriction when dad is pretty involved with the child (paying support, exercising visitation regularly, etc.). Of course, if your ex agreed to lift the restriction your problem would be solved, but that usually is not what happens.
Good luck with your situation and, like I said, get the advice of a local family law attorney as soon as possible to help guide you through your situation.
December 14th, 2008 at 2:46 pm
Thanks for the reply. What if there is not restriction though? Our divorce was final in 97 and there does not seem to be a distance restriction anywhere in the papers. My husband and I have both looked over and over. There is a paragraph about parents that live more than 100 mile apart which is the standard visitation schedule, and then there is an alternative one too for over 100 miles (Basically every spring break, alternating holidays and 42 days out of the summer. It also has one weekend out of the month of his choice but I don’t think that will be exercised due to the cost and distance. Of course we would pay 1/2 the travel cost…and take less child support for assist him in the travel cost as well. He will also be able to take her off his insurance plan which has been court ordered since 97. Does the fact that we are so willing to work with him and help keep the relationship (or lack of) going help us at all? Does what she wants matter? And with the current economy, would your judge take into consideration that it is either moving or financial devastation? I’m sorry for all the questions, it’s just eating me alive!!! I do have an appointment with a great family attorney on Wednesday. I am just trying to get a “leg up” on things to talk with him about. Apparently, this attorney is very well-respected in this court and by this judge. So I know some of this is political. I am hoping that helps our case some. Thanks for your help. Wish me luck!
December 15th, 2008 at 11:47 am
Hi Angie, I commend you for scheduling an appointment with a good family law attorney. That is a crucial step that many people in your situation try to skip and then they regret it later.
With a Decree that old it is likely that there is no specific language on whether or not there is a geographical restriction. This was not required statute until (I think) 2003. Of course, I am just guessing and your lawyer should be able to properly advise you after reviewing the ‘97 Decree.
All of the issues you raised can help your case and might possibly help you reach an agreement with your ex. But the best thing you can do is get good advice about your specific situation with an expert (sounds like you have this lined up) and then follow that advice to the letter. Good luck!
January 2nd, 2009 at 11:59 pm
Scott,
I currently have a geographic restriction that I can only reside in counties contingent to Caldwell County. Between the agreement of both parties I was able to relocate to my hometown, McAllen, five hours away. The reason for the move was to attend graduate school and to be closer to my family after my father’s death. The agreement was only for a year as my child will enter school age and cannot go back and forth. My question is, will graduate studies positively effect a restriction being lifted and the obvious evidence that I am trying to better the life of my son through my choices as a teacher/coach and graduate student? Also, very important, my X-husband and I are very good friends and parent very well together, compromise, and have no hostility within the family. He and his family are still considered family. Will this friendship matter in deciding the best interest of the child?
January 5th, 2009 at 11:23 am
Hi D -
The changes you have discussed could certainly help your case, although to get a valid opinion on your chances of winning at the courthouse you should absolutely consult with a qualified local family attorney. Of course, if your ex agreed to the change then you should have no problems.
January 5th, 2009 at 2:44 pm
Hi, I reside in Harris County but I moved here 6 months ago from nueces county. I have been divorced for a year and a half and have no restrictions on relocation in my child custody papers. I am engaged and my fiancee is in the coast guard stationed in New York. Unfortunately he is stationed there for the next 3 years and it will be near impossible for him to get back to the Texas area. So I am wanting to move there. My ex-husband is forbidding the move. My ex pays child support regularly and sees my son about 36 hours once every month when he can fit it in his schedule. My ex informs me what weekend he will visit my son about 2 weeks before he comes and I always accomodate. The visitation is so random and whenever it can fit in his schedule. It is a joint conservatorship and he keeps threatening to take me to court. What do you think? I have an appointment on Thursday with a family law attorney. I just want to know what my chances are.
January 5th, 2009 at 2:48 pm
Sorry, one more thing. I also told my ex that the visitation won’t change. I will fly with my son one weekend a month as long as we are rotating the expense of the flights. There is no difference in visitation other than the expense of the plane tickets. He isn’t agreeing to it.
January 6th, 2009 at 1:22 pm
Hi Natasha -
You have done the smart thing by scheduling a consultation with a family law attorney to discuss your situation in detail. Make sure your bring a copy of your divorce decree to the consultation so the attorney can review the language to ensure that there is no residency restriction. If there is none, then the burden is shifted to the father to file a motion to modify, seeking to have the court revise the order to include a restriction. Whether he would actually do this or is just bluffing is anyone’s guess. One very helpful thing you can do is to keep a calendar or a log of his visitation activities. This helps in court if he were to claim that he exercises all or nearly all of his available visitation. Good luck!
March 3rd, 2009 at 2:31 pm
Hi,
i reside In texas and I am in the military. In my divorce decree a metting place between my ex wifes house and my old house was set. Since then My ex has moved and I have moved (closer to her) since I am in then military. however my ex will not change the meeting place. She still would rather drive 3 hours to drop our daughter off rather than 1.5 hours. I am getting out of the military in the next few months. I will have to hire an attorney to revise my divorce visitation to put a clause on there about traveling via air or putting a new metting place between ohio and Texas.
Is it simple to change the divorce decree visitation ???
March 3rd, 2009 at 2:36 pm
What you have described is a modification case and one that (at least currently) is not agreed to by your ex. This is essentially a brand new case and, although the issues are more limited, it can be just as lengthy and expensive as an original divorce. For both parties sake, the best solution in most situations is to reach some agreement so that the modification is not contested. Good luck with your situation.
March 8th, 2009 at 3:24 am
Hi, I reside in Harris County with my fiance. We have lived together for almost 2 years (close to a year in Michigan, and a little over a year in Houston) and we’re now seperating. I would like to move to AZ where my parents and brother live and take our daughter who is 18 months along with my 2 other kids from a previous marriage with me. I have been a stay at home mom and moving would make things easier with having the family to help instead of paying for day care for me to work. How likely is it, since he’s objecting the idea of me moving, that the judge would give a geographical restriction? Do we constitute as common law that we need to file for a divorce? Please help, i’m so lost as to what to do.
May 1st, 2009 at 8:28 am
I have a son that is 15. His father currently resides in the Houston area. We never married. Our agreement was the standard one from 1994. It did not include a geographic restriction. Several years ago my son and I moved from Galveston to Georgia to care for my ill parents. Up until now my son’s father has let me know in late winter when he would have his summer visitation with our son and then would purchase the airline tickets and send me copies. It has always worked out well. In the last couple of years, he began living with someone then married her. Since this has happened, my son has been unhappy with the visits (he is treated like a child instead of a teen and has been made to feel unwanted by the stepmom and her kids).
I have 2 questions
1) this year my sons father stated he wants me to pay half of the airline ticket. he has never asked this before. I always thought it is the responsibility of the other parent to pay to visit…. especially since the child support comes no where near half of my son’s living expenses and I have not asked for an increase but 1 time in his entire life.
2) my son is wanting to get a part time job to save money for a car and college. he does not want to have to give the job up to go to visit his dad and then have to get another one when he gets back but he does want to see his dad…. can we insist that he comes here?
May 1st, 2009 at 10:26 am
Kay, a valid answer and advice on how you should handle this complicated situation really requires a consultation and review of your order by a qualified family law attorney. I would really recommend that you schedule that as soon as possible. Generally, the specific language of your order is going to control and then the legal question would become whether the action or inaction was a violation of the order and potentially subject to contempt. A further complication is that judges are sometimes reluctant to order contempt on a parent in cases involving teenagers who don’t want to do the visitation. A 15 year old is a very different situation than a 5 year old. Nevertheless, the order language is of paramount importance and you really should consult with a lawyer about it ASAP.
May 13th, 2009 at 10:40 pm
hello Scott,
I have a 13 year old son, who is not wanting to visit with his father. We just moved to the houston area about 7 months ago and his father has decided he wants to be active with visitation. He has only seen him a hand full of times in the past 13 going on 14 years. Now, we are in the middle of going to court and the temporary visitations are not going very well, the child has ran away, he walking to friends homes after school on Wednesdays to avoid being picked up. He is an honor student with all AP classes, he is smart kid. My husband has pretty much raised him since the age of 5. My son will not dare to even call his bio-father even “dad”. We aree having such a hard time with him. We see a counsler frequently, she has tried to get his father to come up with a stair step visitation and his father will not hear it. He is stuck in his ways and tells my son that he does not care what he wants and does not care if he does good in school. He will pick him up when its his time from school as ordered in court papers. What should I do?
May 14th, 2009 at 11:07 am
Angie, that is a tough but unfortunately common situation. I don’t have any easy, quick solution. The primary thing you have to be concerned about from a legal perspective is that you avoid doing anything that put you at risk of being held in contempt of court for not allowing dad to have his court ordered visitation. If dad didn’t get visitation because the teenage child refused to go that is one thing, but if you do anything that could be characterized as “interference” with the visitation, then contempt becomes a possibility. My experience with these kinds of situations is that either 1) their relationship will improve somewhat and the visitation will normalize, or 2) as your son gets older the father will get tired of the battle and will stop doing the visitation. But the bottom line is that you should definitely not interfere with the visitation. If you feel that the situation is so bad that it is truly harming your son in a significant way, then you should consult with a lawyer about attempting to modify the visitation order.
May 22nd, 2009 at 1:14 pm
Hi Scott:
I am getting remarried in a couple of weeks to a military man. He is stationed in Alaska and I have 3 kids, 2 of them are with my ex husband. My ex was and has always been a non participant of any court orders…..so we ended up getting a default divorce. I have NO geographical restrictions! He also has until the 28th of this month to modify the divorce and we haven’t heard one word yet. My lawyer says that all I have to do is give him a 60 day notice and that is it. My question is…..do I really just go about making plans to move because I have the right to? Because when you get married into the military and get added on as dependents and get command sponsorship to move….you have to setup travel and we have already signed a lease on a house, plus you are ordered by the military to move since they have to amend his current orders. I just want to make sure that I can do that……just need another lawyer’s opinion……Thanks!!!
May 25th, 2009 at 8:46 am
Hi April - I really can’t give a second opinion without actually doing a consultation and reviewing the order, but it sounds like you already had a lawyer do that. The key issue is whether your current order gives you the right to move already (ie, no geographical restriction) or if you need to modify the order before moving. Assuming the order says you have no geographical restriction then you are fine, unless your husband can obtain a court order otherwise before you move.
June 8th, 2009 at 8:39 am
My husbands ex has sole managing conservatorship. This is a temporary order for ONE year. We have supervised visits through a center…once again this is temporary for ONE year. My husband was previously incarcerated so the judge is trying to get my step daughter used to my husband. The ex has a new boyfriend who does not like my husband so he has told my step daughter that since her father is around they are moving to New York where he is from. Can we stop this from happening? Is there something we can file so she can’t be taken. Her mother does have sole managing conservatorship but its only temporary for a year.
June 8th, 2009 at 9:57 am
Daniella, usually a SMC provides that the parent with custody does not have a residency restriction, although you should review the specific language of the order. Also, you should consider consulting with your lawyer about your chances of modifying the temporary order to create a geographical restriction, if it does not already exist.
June 12th, 2009 at 10:10 am
Hello,
with his ex wife and share joint conservatorship. However, we have no geographical restrictions. We live in San Antonio and currently drive 2 to 3 times a month to meet the ex in Brady, TX (half-way) as the children’s mother lives outside Abilene. We would like to move to Beaumont as I am a student finishing an education degree. Also, we are concerned with the long travel hours of the children. Our 5 year old daughter is developmentally delayed and sometimes rather sickly. Would moving still require us to meet in the same place and also increase travel time? Would we be able to share the travel expenses if plane tickets were involved instead of driving?
My husband has two children (ages 5 &
June 12th, 2009 at 11:06 pm
Hi Denise, it is really worth paying a good family law attorney (in the county where the order was entered) for a meeting to review the Order and give some advice specific to your situation. Geographical restriction issues are complex and you need someone experienced and qualified to look at the order carefully and consider all the circumstances before advising you. Good luck with your situation!