I have seen spouses use the trick of moving out of the state with the children very effectively to the detriment of the other spouse during a Texas divorce. However, in some cases, this move can backfire and a judge will grant custody of the children to the other spouse because of what the court believes to be wrongful conduct.
We will now touch on a topic of parents moving out of state with their children and how this can impact Texas divorce proceedings.
Is it Illegal for a Parent to Move out of State without the Permission of the Other Parent?
If it happens before there is an order of the court in place regarding custody, then no. Both parents have equal rights to possession and access of the child.
Either parent can make decisions regarding the child without consulting with or notifying the other parent prior to making that decision.
The solution to this problem is to get a court order identifying what each parent’s rights and duties are to the children.
Can I Keep the Other Parent from Leaving the State with my Children if there is an Order?
In most cases, no. When it is your time to have the children, it is your time. When it is the other parent’s time to have the children, it is their time. This means either of you can leave the state when it is your time.
However, sometimes through negotiations, travel restrictions can be put in place. Alternatively, if there are some extenuating circumstances, a court will decided on a case-by-case basis if additional restrictions are needed.
What State Has the Right to Make Orders Regarding the Child?
Under Texas Family Code 152.201, a new case can be established regarding a child if:
- The state is the “Home State” of a child on the date the commencement of the proceeding.
- A court of another state does not have jurisdiction or has declined jurisdiction
Under the Texas Family Code Section 152.102, Texas has defined “Home State” to mean “the state in which a child lived with a parent or a person acting as a parent for at least six consecutive months immediately before the commencement of a child custody proceeding. In the case of a child less than six months of age, the term means the state in which the child lived from birth with a parent or a person acting as a parent.”
Home State and Divorce Proceedings
What the above statute basically means is that the only state that can make orders regarding a child is the state in which the child has lived for the last six months.
Why am I Paying for Child Support for Children I do not Get to See?
As I mentioned in the introduction, moving to another state can be an effective dirty trick. One reason for this is if you wait for six months to file for divorce, Texas will lose jurisdiction over the children. This means:
- Texas cannot make visitation orders
- Texas cannot give you any decision-making rights
- Texas cannot force your ex to move back to Texas with the children
However, Texas can force you to pay child support for your children under Texas Family Code 159.401:
- A parent can ask for the establish of child support in Texas even though the child does not reside in Texas
- As long as the parent on whom child support is to be established is in Texas
Can I make the Other Parent Move Back to Texas?
One of the questions I frequently get asked when a parent has moved to another state with the children is “can I make the other parent move back to Texas?”
If Texas is still the home state of the children, an approach I have seen Family Courts use is to give a parent the choice of:
- Either moving back to Texas with the children or
- Staying where they are and turning over the children to their ex
This means if you would like to ask the court for this relief, it is important that you file for divorce in Texas prior to your ex living in the new state for six months.
What if Texas is no Longer the Home State of the Children?
If Texas is no longer the Home State:
- In most circumstances, Texas cannot make any orders regarding the child other than child support.
- However, if you still want to get a divorce in Texas you are still able to do so.
I have had cases where:
- A parent was not interested in receiving any sort of visitation and just wanted to be divorced.
- I have also had cases in which they did want visitation but wanted to get the divorce part over with.
Seek Legal Advice Immediately
If your spouse is threatening to move out of state or has already moved out of state, you will want to seek legal advice from a Texas divorce lawyer immediately to go over your legal rights. This not a situation you want to take lightly.
The consequences of delay are severe. You do not want to be fighting your case in another state or in two states.
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