You have managed to file for a modification of a prior child custody order, you’ve gotten your ex-spouse served and are ready to move on to phase two of your case when you get the impression (for one reason or another) that you may want to move your case to another court.
Maybe you’ve read something online about the judge your case has been assigned to and don’t like what you’ve heard. Maybe you realized that you haven’t lived in the county where your case is long enough for that court to have jurisdiction over the modification. Whatever the reason you want out. The question is- how do you go about doing this.
A family law case is hard enough without having to go through the difficulty to changing courts. Transferring your case to a new venue is the topic that we will discuss in today’s blog post from the Law Office of Bryan Fagan, PLLC.
What does it mean to transfer venues in a family law case?
When you ask a court, through a motion to transfer venue, to change the court that will hear your case you would typically do so when the original county your case was filed in is no long convenient to you. Think about if you or your spouse (or both) move to another county in the middle of your divorce for some reason. I won’t get into the reasons why this could happen but suppose that it does. You are asking the court to transfer your case to a new court (a new venue).
There are specific rules that go into a request to transfer venue in a family law case. We don’t have the space in one blog post to discuss those rules so I would recommend that you speak to family law attorneys, such as those with the Law Office of Bryan Fagan, PLLC, who are experiencing in filing, arguing and winning motions to transfer venue in family law cases. I will note that transferring venue in a divorce case is very difficult. Typically the court where your case is filed is where your case will be heard moving forward.
What happens if your spouse has filed in a county where you don’t reside?
Suppose that your spouse and you have been separated for an extended period of time. For example, you reside in Harris County but your spouse moved to Montgomery County and lives in Conroe. She has lived in Conroe for 8 months consecutively. One day you return home from work and find a process server waiting for you on your driveway with divorce papers. You’ve been served with notice that your wife has filed for divorce in Montgomery County. Is that possible? You’ve never even lived there, after all.
The requirement of a court to have jurisdiction over your case is that you must have resided in Texas for six months at least and in the county where you are filing your family law case for at least ninety days. Since your spouse has met these prerequisites for filing for divorce in Montgomery County she has every right to file for divorce in Montgomery County. It does not matter if you have to drive fifty miles to get up there or that you’ve never lived there.
Modification cases and motions to transfer venue
Let’s consider another type of family law case- a modification of child custody orders. You and your spouse got a divorce four years ago in Harris County. Your spouse remained there after the divorce along with your children but you have moved to Travis County. Along the way over the past four years your oldest child expressed an interest in coming to live with you in Austin. The question has crossed your mind whether or not you can file for a modification of your divorce decree’s orders on child custody in Travis, rather than Harris County.
Typically, the court that issues the most recent order retains what is known as continuing exclusive jurisdiction over your case from the date that it issues the original order (the final decree of divorce, in this case.) Modification cases like the one we laid out in the prior paragraph would then need to be heard in the same court that issued the order in your divorce.
If you and your ex-spouse consent to having the case heard in Travis county, of course, then it could be heard in Travis County. This is not likely. In fact there is no reason at all why I would ever see someone in your hypothetical ex-wife’s position agreeing to something like this. Still, consent from the other party would allow venue to be transferred.
The other two ways that venue could be transferred out of the original court would be if neither your nor your ex-spouse still lived in Texas or if your ex-spouse no longer lived in Texas but you did. In that case the modification could theoretically be moved to Travis County. I have to emphasize that these are the unlikeliest of unlikely options, however.
I’m not from Texas, but I got here as quickly as I could
What if you are one of those folks that can’t call themselves a native Texan? You moved here from another part of the country where you have a prior order that relates to child custody. You’ve since gained a great deal of intelligence and moved to the Lone Star State. Can you get your child custody case moved from your home state to your adopted home state of Texas?
Yes, yes you can. A Texas court can modify a prior child custody case from another state once the case has been registered here in Texas. You must fulfill the residency requirement here in Texas and the out of state court must no longer be the court with exclusive continuing jurisdiction over the case. Maybe your child and your ex-spouse have also moved from that original county. At that point, all bets are off as to where your case would be held.
If you and your child both live in Texas, in the county where you have filed the child custody modification case then you are sitting pretty. If you nor your child live in that original county in the other state then you also have a case to make. The least likely outcome that could allow your case to be heard in Texas is having you and your ex-spouse agree to allow the Texas county you file in to have jurisdiction.
The mechanics of filing a motion to transfer venue
We touched on the process of getting venue transferred at the beginning of this blog post but I wanted to spend a little more time on that before we wrap up the post. Filing a motion to transfer venue can be done at the same time you file a motion to modify. You would need to attach an affidavit (a statement under oath) that tells the judge why your case needs to be transferred.
Your child’s other parent would have until the first Monday after the expiration of twenty days from the date of service in order to file a response (Answer) to your modification/motion to transfer venue.
Talk to an experienced family law attorney before proceeding with a motion to transfer venue
A motion to transfer venue is not an easy motion to win. A modification case is not easy to win either. Combine these two issues and you are looking at an uphill battle. That’s not to say it’s not worth filing the case or not worth pursuing your goals. However, you will need to be prepared for anything that you face along the way. Hiring an experienced family law attorney to represent you and advocate on your behalf to a court is essential in my opinion.
To speak with one of the licensed family law attorneys with the Law Office of Bryan Fagan, PLLC please contact us today. We can schedule a free of charge consultation six days a week, at your convenience. We look forward to meeting with you to answer your questions and to discuss how our office can assist you and your family.