With many recent corporate relocations to Texas, a particular custody conflict scenario is becoming increasingly common, relocation litigation. A typical scenario starts like this: Dad’s company transfers him to an office in another state. The family is excited for this new opportunity and packs up to move away from friends and family. Dad starts work at the new office, the family gets settled in – but then the marriage begins to fail. Mom now wants to move back to their home state with the kids where they can be near extended family, old friends and familiar surroundings. Can she do this? Is it legal?
The short answer is maybe. If one party files suit in Texas and the other party files suit in the other state, the Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA) will determine the jurisdiction and power of each state. Since laws governing custody can vary greatly by state, the threshold determination of which state maintains jurisdiction could significantly impact the ultimate custody outcome.
How Far Away Can You Move?
In Texas, courts typically award divorcing parents “joint managing conservatorship” over their children. Some states refer to it as joint custody. This means that each parent is expected to be involved in the child’s life, which many courts believe requires a geographic restriction on the residence of the children. A typical restriction in Texas limits parents to moving within the current county or a contiguous county. A geographic restriction allows each parent to see their children on a consistent basis, attend activities and games, take them to appointments and spend quality time together.
What if one parent wants to move the children out of that geographic area or out of state. Whether in the initial divorce or in a subsequent modification request, there are many factors that the court considers when deciding what is in the “best interest of the child”.
How Does the Court Decide if the Couple Can’t Agree?
Determining factors can include:
- Whether the proposed agreement benefits the physical, psychological, emotional, and developmental needs of the child.
- The abilities of the parents to prioritize the child’s welfare and best interests.
- Whether each parent can and will foster a positive relationship between the other parent and child.
- Whether both parents contributed to raising the child before the divorce.
- The geographical distance of the proposed residences.
- Any other factor the court believes is applicable to the agreement.
Children vs. Teenagers: Age Makes a Difference
Another factor that the court could consider is the child’s preference. In Texas, if the child is 12 years old or older, they are permitted to meet with the judge and express their wishes. However, the judge considers the child’s wishes as only one of many factors, so the child doesn’t actually get to make the final choice. As the child matures and gets closer to age 18, their preference may have more influence on the judge’s decision. So while it’s a myth that children get to “choose” which parent to live with, their preference can be factored into the equation and might have an impact on the judge’s decision.
Parents of teenagers who are in the midst of a divorce may have an easier time persuading a judge to let them return to another state if the teen has a network of friends and family in the previous state and also wants to return. And a child nearing college age may want to attend a state university where they grew up, so there might be tuition discounts and other economic advantages to having your ex-spouse establish residence there.
With 31% of the population growth in North Texas coming from people migrating from other states, it’s safe to assume relocation litigation will become more common. If you, your spouse or your ex-spouse want to relocate with your children after a divorce, seeking counsel is your first step. An experienced family law attorney will be able to guide you through the process and help determine what is best for your child or teenager.
