During the divorce that you and your spouse were going through, your wife made it known that she planned to move to Louisiana after the case was over. She did this because she has family there and thought that her son would be able to benefit from having contact with his extended family in a new place. The divorce wasn't easy on anyone, but this put you in a difficult position where you would be remaining behind in Texas while your son moved to a new place with his mother. Regardless of how you felt about the move, the judge approved the move and now you and your family are left to deal with the effects of that decision.
For visitation, you were awarded periods of possession on two weekends of each month and half of the major holidays. Louisiana isn't exactly a short drive, but it isn’t halfway around the world, either. You would make the visitation work because you love your son and want to do everything you can to build a relationship with him. You have questions now about who will pay for the costs associated with travel to see your son. Sometimes you drive in to see him but other times it makes more sense to fly.
What are travel expenses?
When we think about travel expenses associated with seeing your child we think about things like airfare, gas, hotels, and all the other costs that are associated with traveling a relatively long distance from home. Depending upon the length of time away from home and the circumstances associated with that visit the costs can be substantial. You will need to plan out these costs and present them to the court before the end of your divorce. More accurately, you will need to present estimates of those travel costs and present them to your co-parent so that the two of you can negotiate on these costs. It will be those travel costs that are shown to be necessary that are going to be considered expenses.
If you travel to Louisiana to see your son your meals and food while you are visiting with him probably would not be covered as travel expenses. These are costs that you would have had regardless of whether you were visiting with your son in Texas or Louisiana. This is otherwise known as an ordinary expense associated with parenting. However, you may be eating out significantly more due to your traveling rather than eating at home. You can estimate what a year's worth of eating out looks like and then submit those costs to your spouse during final orders mediation.
We know that plane tickets are expensive. The higher price of gasoline has made airline tickets skyrocket in price, as well. If your child will be flying, then there can be increased costs associated with his travel. Planning for your child to fly alone on a plane usually carries with it some increased costs that must be considered. Either way, if your child is in an airplane then either you or your co-parent will likely be traveling with him. Getting your child for a weekend in Houston means flying to Louisiana, picking your son up, and then flying back to Houston. That is a lot of travel for a little kid and cuts into the quality time that the two of you can experience during a relatively short weekend.
Petition the court to award you travel expenses in your divorce
Travel expenses for visiting your son are reasonable given the circumstances that we have been discussing today. Depending on the most frequently used type of transportation that you used to facilitate these visitation sessions you will need to specify that method and then be prepared to present to the court all the costs associated with that method of travel. If it is air travel that you use most frequently then flight records, costs for parking a vehicle, food, lodging, and other necessary costs should be prepared for the court if you are attempting to modify your court orders.
What are some costs that you may not be considering?
When it comes to traveling to see your child, the important thing is that you get to spend time with him or her. However, you need to be able to keep track of the "little" costs associated with travel that you may be overlooking. Here are some examples of the often-overlooked costs associated with travel.
We know that gas is expensive these days. However, you need to consider the costs of traveling to and from your home to the airport. Parking, fees for checked bags, hotels, eating out and even the increased cost of car insurance due to your being on the road more often are all reasonable expenses to consider.
Another factor to consider when you agree to or have increased travel ordered for you is that you may lose out on income as a result. As parents, we never think about money before our kids. However, the reality is that you may need to sacrifice income opportunities to make time for your kids. This is true even in the best of circumstances, but it is especially true in a circumstance where you are needing to visit with your child who lives in another state.
For instance, if you work in sales you may need to miss important sales calls and other meetings to make sure that you can have enough time for your child. Important accounts may be given to other people on your team because they don't have a family or simply have more time to devote to work. This doesn't mean that you are an untrustworthy salesperson, it just means that you need to devote more time to your family than other people. Losing out on sales opportunities may be a consequence of this reality.
Child support and travel expenses
A Texas family court may consider extra costs associated with traveling to see your child when it comes to awarding child support, but it does not have to. These are extraordinary costs that most parents who go through the family courts do not have to bear. Consider that most families who live in separate households typically do so and remain close to one another geographically. Many families who go through family court agree to something known as a geographic restriction which would substantially limit the number of travel costs and expenses that you would need to shoulder.
If you claim to have suffered expenses as a result of traveling to see your child for visitation, then a court is not required to offset child support to account for those expenses. The court can determine whether those travel expenses should be treated. The specific set of circumstances that you and your family are facing will be important. If this was a move that you agreed to it may be that you are not able to have those travel expenses offset. This is because you had ample opportunity to consider the effects of that move and eventually agreed to it.
On the other hand, if you did not agree to the move and the travel expenses have become burdensome for you (and why wouldn’t they?) then a court may consider this in awarding child support. If all of this is happening during an initial child custody or divorce case, then you should make sure to do the math and present to the judge in the trial what your costs may be if a move to another state with your child were ordered. This will allow the judge to consider your circumstances, what child support would ordinarily be, and whether an offset is warranted.
On the other hand, if you are in a position where you did not have the judge take into consideration those costs in your divorce or child custody case and now want to modify a previously issued order from the court it will be much tougher. Let's discuss child support modification based on travel expenses and why it may not be as easy as you may think to create a new order based on the travel expenses that you incur regularly.
Child support modification
It is normal for a family to go through changes regularly. This is no different for your family than for another other. If a family isn't seeing some change over many years, then they are an outlier. You can probably point to several changes that your family has seen just in the past few years. Kids grow up. Kids get sick. Kids need to go to a new school. You got a new job. Your ex-spouse lost his job. The list goes on and on. Things change. Court orders do not- unless you go back to court, that is.
Your court orders do not change or evolve along with the changing circumstances that you and your family have undergone, You and your co-parent are welcome to come up with unofficial modifications as a result of those changing circumstances but ultimately you need to follow what is included in your court orders. While you two may have a handshake agreement on the side of your court order that does not mean that the court will honor that agreement if either of you were to file an enforcement case.
Rather, you will need to go back to court and file a modification to amend or change the prior court order. A material and substantial change in circumstances is the standard that a court will utilize when it comes to deciding whether to modify an order. This means the court will not just look for a small change and then use that small change to justify revamping an order in some significant way. Rather, a court will need you to show that a large change has occurred in the life of you, your co-parent, or your child to have them approve a change in the amount of child support that you have to pay.
Here is the tricky part for you if you are considering a modification for child support. The change needs to have occurred since the time of your last court case. Meaning: the condition that you are asking to modify your court orders on could not have been present the last time you went through a family case. If you agreed to child support at a certain figure and did not negotiate for an offset related to travel costs during the divorce or child custody case, you can’t come back and argue that a change has occurred since you were last in court.
A judge may view the situation as one where some degree of an offset is warranted. However, your best course of action is the negotiate for a lesser amount of child support to be paid at your initial family law case rather than to hope that you will be able to convince a judge to reduce your child support burden based on travel costs. It’s possible that you will be able to do this but it is a better choice for you to do so once you realize that travel is going to be a part of the deal when you want to see your child.
Otherwise, child support can be modified if the change that you are requesting and would be appropriate differ from the amount that you are now paying by either $100 or 20%. You can do the calculations on that whenever it becomes appropriate in your case. For the most part, child support modifications incur when a parent switches jobs and has a greater or lesser ability to afford to pay child support at a certain figure.
A relocation of a child that occurred during the last court case might mean that you file a modification to at least bring your co-parent to the bargaining table so that the two of you can potentially work out an agreement in mediation where you lower your child support burden.
We spoke earlier about a geographic restriction and what that may look like for your family. A geographic restriction allows the court to set a specific area and says that your child must reside within that predetermined geographic area. Many families agree to a geographic restriction of Harris County and any surrounding county that borders Harris. Others are more specific about Harris, Montgomery, or whatever county they happen to reside in. Wherever you happen to live and whatever your circumstances are, a geographic restriction can reflect your reality.
Here is what a geographic restriction does as far as having a specific area where your children can reside. It helps the parent with visitation rights ensure that he or she can always have an opportunity to be with the kids during their time. If you are that parent, put yourself in a position where you are having to follow your children around the state or even the country because your co-parent decides to up and move with them for any reason under the sun. This would become untenable very quickly. If your co-parent works in sales or works as a traveling nurse, then this would be a nightmare for you.
A geographic restriction limits the primary conservator's ability to live anywhere but that geographically defined area. This is a good thing for the children because it allows them to have an ongoing relationship with you. It is a good thing for you because you have the same opportunity to build a relationship with them after the family law case without having to worry about where they are going to be moved next.
The important thing for you to keep in mind is that the best time to discuss a geographic restriction would be in your initial child custody or divorce case. The only downside to a geographic restriction from your perspective is that it limits you on where you can live, too. Although the geographic restriction does not specifically limit where you as the non-primary conservator can reside, it effectively does. If you move outside that geographic area, then the geographic restriction no longer applies, and your co-parent can also move.
Undoubtedly there are a lot of balls in the air during a child custody or divorce case. Visitation, travel expenses, geographic restrictions, and all of the other topics that we have discussed today are enough to keep anyone busy. With that said, hiring an experienced family law attorney to help guide you through this process is your best course of action. Do not underestimate how important it is to have someone in your corner who has been there, done that- and has the results to prove it.
Questions about the material contained in today’s blog post? Contact the Law Office of Bryan Fagan
If you have any questions about the material contained in today's blog post, please do not hesitate to contact the Law Office of Bryan Fagan. Our licensed family law attorneys offer free-of-charge consultations six days a week in person, over the phone, and via video. These consultations are a great way for you to learn more about the world of Texas family law as well as about your family's circumstances that may be impacted by the filing of a divorce or child custody case.