If you have not been keeping up with our blog posts in the past few days, let me bring you up to speed with where we left off yesterday. I presented you with a hypothetical situation that involved you as a parent to two children wanting to move across state lines away from an ex-spouse. There is no geographic restriction in place, however. You are also the sole managing conservator of your kids, which means that you hold superior rights in comparison to your ex-spouse when it comes to decision making for your kids. It seems that you would be within your rights to make that move, right?
I actually tend to think that a court would not look favorably upon you if you were to make that kind of move. If you were to file a motion to modify the divorce decree to allow you to make this sort of move and to restrict visitation with your ex-spouse I think you would not be successful. For one, if you are choosing to move the kids a far distance from where their father lives that would likely be a point or two against you in the eyes of a judge. This is especially true if your ex-spouse is an active participant in the lives of your kids.
Next, if you choose to move your kids away from their father that would seriously harm his ability to take advantage of the time that he is able to take advantage of under the court orders. Significant car and airplane travel not only takes resources to accomplish, but more importantly takes a great deal of time to accomplish. Short periods of visitation are virtually impossible. Weekend visits when you live across town from your kids usually works out well. However, if you live across the country from them travel time eats away at most of a weekend if you want to see your kids.
Next, a court would look at your motivation for leaving Texas and moving to another state with your kids. What reason did you have? You are making a huge change in the life of your children and your rationale for doing so must justify those changes. If your stated reason for moving states is to improve the chances at you landing a job that can sustain your family it would help if you actually are looking for work diligently. If you move to a new state and do not work for an extended period of time then you are really harming your argument.
Do you have a network of family or friends in the new state? Or are you leaving an established network of family or friends in Texas in order to make the move? This is a key point that a judge would have to decipher. Ultimately, however, the question that the judge needs to answer here is the same as in any modification case: is the move in the best interests of your children? I think that it is safe to say that based on the factors I have listed here it is far from a sure thing that your move was in the best interests of your children. In fact, I think it is likely that the move would not be in their best interests. Having your children change schools is tough. Having your children change schools in the middle of the school year is even tougher.
Lifting a geographic restriction in order to pursue more stable employment
In today’s world, the ability to hold down a job is either easier or more difficult than ever. One could argue that it is more difficult than ever because competition for many jobs is more intense than in years past. One could argue, also, that technology and entrepreneurship have created a jobs climate that makes it easier than ever to land well-paying employment that is sustainable.
Let’s walk through a scenario that involves you looking to move your family outside of a geographically restricted area in order to pursue employment. You and your spouse got a divorce five years ago. You have two daughters together and have a shared custody agreement wherein you alternate weeks of possession. This works out well for the kids because you all live very close together. To ensure that this is the case moving forward, a geographic restriction was placed into your divorce decree which mandates that neither parent can move kids outside of Ft. Bend County.
You have now decided to file a motion to modify with the family court seeking to have the geographic restriction lifted and to be named as the parent who has the right to determine the primary residence of your children. If you are seeking to move with your kids in order to help yourself from an employment perspective then here are some of the factors that I think would help you in that effort.
First, the geographic restriction would need to be something that your ex-spouse was planning to honor into the future. If he was also planning to leave the area and file his own motion to modify that would help your cause. For instance, if your ex-spouse was telling your children on a consistent basis that his plan was to file a modification case in the future to move to another area of the state then that would influence the decision of a judge on whether or not to allow your motion to modify to be successful.
The bottom line is that if your ex-spouse was also willing to uproot the kids and to move them based on his own desires then you doing the same thing is not looked at as harshly. Evidence that your ex-spouse was going to do the same thing or has been contemplating making a similar move would strengthen your case a great deal.
Next, whether or not you have re-married can add another layer of argument to your case. For instance, if you have remarried and your spouse has ties to the new area that you are seeking to move could impact whether a judge is likely to allow the modification to occur. If that spouse has employment opportunities in the new area and a support system for you and your children then that would be all the more reason to allow the move to proceed. Basically, the more stability that is available to you and the family in the new area the stronger case you would have.
Here is where we can talk about job stability. If you are in a situation where you have reason to believe that your job is in jeopardy, then you should take measures to ensure that you have alternatives available to you. That doesn’t mean that you should worry yourself over concerns that may never come to be. However, if you have seen co-workers get laid off with regularity in recent months then you should probably start to think about what else you could be doing to support your family. In a situation where you may have to move to find sustainable employment outside of your immediate area you should be aware of how that move will impact your children and your ex-spouse.
Tips on how to handle a relocation case as the parent who wants to move
If you are filing a modification case in which you are attempting to have a geographic restriction lifted then I would recommend that you focus on factors like these (if possible) in your case.
Number one, I would point out that if your ex-spouse has shown little interest in your child to this point then he or she should not be able to now step in like the white knight here to save the day. Frequent missed visitation sessions, late child support payments, a failure to participate in your child’s life in extracurricular activities are good evidence that your ex-spouse is not participating fully in that kid’s life.
Second, if your ex-spouse is a person who earns a good income and has the ability to move along with you and your children then this is something that I would look to highlight in your case early and often. A high income earner who works remotely (mostly from home) has greater flexibility when it comes to moving. The other thing to think about in this regard is if the area where your moving is a place where your ex-spouse has roots. For instance, if you all are from a particular place originally and you are now trying to move back there that would not be seen as a negative in your case.
Third, if your ex-spouse has a support system of their own in the new area then that would be even more of a reason to allow the move to occur and to have the geographic restriction lifted. Moving your family across the country to a place that your ex-spouse has never been before is one thing. However, if your plan is to move to a location where your spouse has employment prospects and/or family nearby is a completely different equation for the judge to consider. The brighter the job prospects, the more supportive the family structure and the better you explain these circumstances to the judge the better off you will be.
Fourth, look to whether or not your move is a necessity (or near necessity) for your family rather than just as a want or desire. Deciding to move your family is a big decision even in the best of circumstances. When you have already made sweeping changes to the makeup of your family through going to court then that only ups the ante, so to speak. Any changes that you wish to make to your divorce decree will be examined closely. There needs to be something severely lacking in your present circumstances to justify lifting a geographic restriction. Your children’s best interests must be at stake. A lateral move (or even a somewhat greater than lateral move) will not win the day for you.
Fifth, you need to be aware of and voice an understanding that your ex-spouse has a right to have a relationship with your child- no matter what the outcome of your case is. Speeding past an understanding that your ex-spouse’s ability to have a relationship with your child is no way to get your motion granted. Instead, offer testimony and evidence that you have considered the impact of your move on your ex-spouse. Deep down this may frustrate and irritate you but ultimately it could prove to be the thing that helps your case the most. Acting dismissively towards this right of your ex-spouse would be the absolute wrong way to go.
Finally, if you can propose any kind of visitation schedule that would allow your ex-spouse to retain as much time with your child as possible then that would be a positive step towards winning your case. This is an extreme example but I have had clients who have offered to personally fly the children from another state back to Texas in a personal plane if the geographic restriction were lifted. Obviously very, very few people have the means to do something like this but it is helpful to provide assistance in the way of paying for transportation and lodging for extended stays near your home to see your child.
Defending against a modification to have a geographic restriction lifted- tomorrow’s blog post topic
In tomorrow’s blog post we will cover what you can do if your ex-spouse attempts to get the geographic restriction lifted in relation to your children. In the meantime, if you have any questions about the material that we covered 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 here in our office. These consultations are a great opportunity for you to ask questions and receive direct feedback from one of our attorneys about your specific circumstances.