Nearly half of all American marriages end in divorce. Often, people leave their spouses or long-term partners seeking a fresh start, but many people feel they need to live somewhere different in order to have a new life. This can open up a whole new set of legal issues for divorcees with shared children because Texas courts try to ensure children benefit from time with both parents. It can be difficult terrain to navigate if you don’t understand the law. Here is what you should know about child relocation.
In This Guide:
- Child Relocation Factors to Consider
- How Custody Orders Affect Relocation
- Pursuing Relocation
- Relocation and the Best Interests of the Child
Child Relocation Factors to Consider
The Texas Family Code has no statutes specifically addressing child relocation after a divorce. However, there is enough language in the code and relevant case law to provide a framework for resolving child relocation disputes, which is:
“The best interest of the child is always the primary consideration of the court in determining issues of conservatorship, possession of and access to a child.” Tex. Fam. Code Ann. § 153.002 (2002).
Whether you want to move with the children away or you’re contesting a relocation, certain factors will determine your case’s outcome.
The Reason for the Relocation
Parental relocation is when a divorced parent wishes to make a long-distance move with their child. Generally, single parents relocate with their children to:
- accept or seek a better job
- pursue or continue higher education
- be closer to family or close friends
- remarry or pursue another relationship
- enroll the children in a better school
- escape personal hardship, such as an abusive relationship
The parent’s motivation for wanting to relocate with the child or children matters. A judge could forbid a parent to relocate with their child if the judge determines the moving parent’s aim is to deny or hinder the other parent’s rights. The court could also require that the moving parent relinquish primary custody of the children to the other parent before moving away.
If the court decides the move would be more favorable to the child, it will likely grant the request for relocation.
Is a Court Order in Place?
In Texas, every divorce involving children includes a court order determining parental rights and responsibilities. Most of us know this as “custody,” but in Texas the legal term for it is conservatorship.
Unless there’s a court order already in place that establishes which parent has primary custody (possessory conservatorship) of the children, both parents have equal access and possession rights under the law.
With no court order in place, either parent can make decisions about the child without consulting or even notifying the other parent in advance. This is why most couples seek a temporary order from the court once one of them has filed for divorce.
Get Temporary Orders
A temporary order is a set of agreed-upon or court-ordered rules governing each parent’s conduct during the period of separation before a divorce is finalized. These orders control a variety of domestic matters, including child conservatorship (custody) and support, visitation rights, property division, and spousal support. These orders can be changed or kept in place in the final decree of divorce.
Important Note for Unmarried Couples Who Split Up
It’s critical to talk with a family law attorney if you are unmarried with children and you and your partner are ending your relationship. A family law attorney can help you obtain custody orders from the court to protect your rights.
If you worry that your ex might move away with your child, consult a family law attorney immediately. When one parent runs off with a child, the other parent must act quickly because Texas will only have jurisdiction in the custody case for six months.
How Custody Orders Affect Relocation
Once a family law judge has made an order, each parent’s rights and responsibilities are enforceable by law.
Whether a parent can relocate with the children depends on what kind of custody they have and whether the non-custodial parent intends to dispute the move or even has the power to do so.
There are two parent custody designations in Texas: sole managing conservatorship and joint managing conservatorship.
Sole Managing Conservatorship
A sole managing conservatorship gives one parent all the legal decision-making authority over the child. This includes the right to establish the children’s primary residence without any geographic restriction and without obtaining either a court order or permission from the other parent. However, it’s usually best to give the other parent advance notice of a pending relocation. Texas Family Codes Sec. 153.132
Texas courts prefer not to award one parent sole managing conservatorship but recognize it can be necessary for the child’s best interests. A court may order sole managing custody if one parent has:
- committed domestic violence
- abused or neglected the child
- a history of drug or alcohol abuse
- been absent from the child’s life
Note: Sole managing conservatorship isn’t necessarily permanent. If the other parent can show they have taken steps to correct past issues, he or she may file a petition to modify the original custody order.
Joint Managing Conservatorship
Under a joint managing conservatorship, parents share legal decision-making authority for most matters, even if one of them moves out of state. This is the more common arrangement in Texas, as the state prefers that both parents participate in their child’s life. Texas Family Codes Sec. 153.001
Joint managing conservatorship does not necessarily mean the parents have equal parenting time. That is rarely the case. One parent is usually granted primary physical possession of the children, even if both parents share decision-making authority. Texas refers to this as possessory conservatorship.
Joint Custody Comes With Geographic Restrictions
Joint managing conservatorship is a kind of shared legal custody. Therefore, neither parent has a right to move so far away that it disrupts the other parent’s access to “frequent and continuing contact” with the child. In fact, most Texas custody orders impose geographic restrictions upon the parent with primary custody.
The typical geographic restriction limits the primary parent’s residence to the county where the court order was issued and any adjacent counties or school districts bordering it so long as the intended residence is within reasonable traveling distance for the non-primary parent.
Geographic Restriction versus Relocation
The Texas Family Code provides no bold-line factors to determine whether a geographic restriction should be imposed or exactly how restrictive it should be. However, the Texas Supreme Court, in Lenz v. Lenz (Texas, 2002), offered some guidance for determining whether relocation would be in a child’s best interests:
- reasons for and against the move
- any effect on extended family relationships
- effect on the non-custodial parent’s ability to maintain a full and continuous relationship with the child
- likelihood of an acceptable visitation schedule between the non-custodial parent and child
- nature of the child’s existing contact with both parents
- child’s age and community ties
- child’s health and educational needs
Again, there’s no hard and fast rule for child relocation cases. Texas courts insist each matter be handled on a case-by-case basis.
“ … the court has clearly stated that suits affecting the parent-child relationship are intensely fact-driven and consequently involve balancing numerous factors in the court’s particular best-interest analysis. Evidentiary review in relocation cases is inherently fact specific.” (Cisneros v. Dingbaum, 2005 Tex.)
When Geographic Restrictions Do Not Apply
The parent with primary joint custody is not always the one who wants to move away. When a parent who does not have primary joint custody moves outside the court-imposed restricted zone, the geographic restriction is nullified.
All other rights and responsibilities as a joint managing conservator will still apply to both parents, however, the non-primary parent who moved out of the restricted area probably will need to alter their visitation schedule.
Data from the American Community Survey has shown that between the years 2015 and 2020, more than 40 million Americans relocated every year. Census data has revealed that more than 10 million of those individuals were single mothers who had primary custody and relocated within four years of a divorce.
This illustrates just how often child relocations occur. However, in most states — including the Lone Star State — there are only two ways a parent who shares custody can legally relocate their children.
One: Agreement with the Non-Moving Parent
Parents who seek to move away with their child or children have the option of reaching an agreement with the other parent. However, even when the non-moving parent agrees to the relocation, a number of issues must be addressed with the court, such as:
- child support
- travel schedules
- adjusted visitation
Even if the agreement seems amicable, it’s important to get it in writing. We also strongly recommend you talk with an attorney to make certain the agreement is fair, enforceable, and fits your specific parenting needs.
An attorney will review the agreement to ensure no important details are left out. For example, does the agreement layout arrangements for certain holidays, grant longer visitation during the summer, or even provide assistance for travel expenses?
If a relocation agreement cannot be reached with the other parent, there’s one other legal option: permission from the court.
Two: Court Intervention
Sometimes, for a number of reasons, an agreement between two divorced parents just isn’t in the cards. When this happens, the parent seeking relocation can petition for the court’s permission. The primary parent must show that the move will serve the child’s best interests and not cause undue harm to the family.
Relocation and the Best Interests of the Child
Americans have a fundamental right to travel freely between states and seek new opportunities. American parents also have a basic right to the care, custody, and control of their children.
Therefore, Texas courts must follow a certain standard when asked to consider curtailing someone’s right to travel or their right to continue meaningful involvement with their children. However, the court must, first and foremost, consider what is best for the children.
Factors for Determining Whether Relocation is in a Child’s Best Interests
Courts must weigh the potential benefits of the relocation against the state’s preference that children have ample contact with both parents. Tex. Fam. Code Ann. § 153.001(a) Here’s how courts determine the best interests of the child:
- whether the proposed living environment is safe and stable
- educational, health, and leisure opportunities the move could provide
- children’s age
- whether meaningful relationships with the non-primary parent and other family will be disrupted
- ability of the child to adjust to a new city, state, country, and school system
- if the move accommodates the special needs or talents of the child
- existing relationship between the child and each parent
- moving parent’s ability to care for their child in the new environment
- whether parental cooperation is likely to continue or be disrupted by the relocation
In some cases, children who are older in age may get an opportunity to give their own opinions about relocation for consideration by the court. However, the ability for a child to talk with a judge to discuss relocation is done only on a case-by-case basis.
An Experienced Attorney Can Make All the Difference
Texas family law courts have broad authority to interpret the specific facts of your child relocation matter. For this reason, it’s important to have a lawyer with the knowledge and experience to argue your case. Call (214) 884-3775 to begin your free case assessment.