Shared custody, with both parents actively participating in their children’s lives, is typically the ideal post-divorce situation. But what happens when your ex-wife decides to leave Texas for a fresh start and take the kids with her?
If your child’s mother is contemplating an out-of-state move, you need to know what your rights are under Texas custody law. Read this article to learn more about your legal options as a father.
If your ex is discussing relocating outside of Texas with your children, your first step is to look at your parenting agreement. Often, this legal document designates a specific geographic area where your child can live.
If you are in the midst of divorce proceedings and you fear your wife may try to leave Texas with your kids, you can ask the court to incorporate a residency requirement into your divorce decree. Let’s look at an example.
Travis County Case: Residency Requirements for Parents with Shared Custody
Nash Gonzales and Marissa Maggio divorced in 2016 and were named joint managing conservators of their two children. A Travis County district court granted Maggio the exclusive right to decide where the children lived.
During the initial proceedings, Gonzales asked the court to limit the children’s residence to Travis County, as that was where they had spent most of their lives. Meanwhile, Maggio requested that the court not place any geographic limitations on her residency. She wanted to move the children to New York where she had grown up and where most of her extended family still lived.
Ultimately, the court limited Maggio’s residency options to within the state of Texas. This restriction left Maggio free to pursue professional opportunities outside Travis County while also preserving Gonzales’ relationship with his children:
The jury also heard evidence of serious drawbacks if Maggio were permitted to move the children to far-off New York. These included complications for Gonzales in maintaining his visitation and contact with the children were he to remain in Texas. But if Gonzales instead moved to New York to remain near the children, there was evidence of economic and personal risks he would face in living far away from his extended family, community, and professional ties and in a state in which he was not licensed to practice law. Gonzales v. Maggio, 500 S.W.3d 656, 663 (Tex. App. 2016)
If Your Ex is the Custodial Parent
If your ex-wife has been granted sole custody, she has the exclusive right to make all major decisions regarding your child. This typically includes the right to decide where the child will primarily reside without any geographic limitations. Generally, this means she can move your child out of Texas without a court order.
However, Texas family courts typically do not favor sole custody unless one parent has a history of domestic violence. It’s more likely that you and your ex are joint managing conservators, meaning you share custody. This is when it gets more complicated.
If You and Your Ex Share Custody
Even if the court has appointed you and your ex as joint managing conservators, it still must choose one of you to exclusively decide where your child will live most of the time. Tex. Fam. Code § 153.134
If your ex-wife is the custodial parent, she needs your permission to move out of state with your child. If you do not consent to the move, she must petition the court to request permission to move out of state.
The court will schedule a hearing and notify you, giving you the chance to contest the move. Your ex-wife has the responsibility of showing the court that relocation is in your child’s best interests. This is the standard by which all Texas custody cases are judged.
Is the Move in Your Child’s Best Interests?
The Texas Supreme Court has set forth a variety of factors that courts must consider when deciding whether relocation is in the child’s best interests. Those factors include:
- the reasons for and against the move, including the parents’ good-faith motives in requesting or opposing it
- your child’s health, education, and leisure opportunities
- the degree of economic, emotional, and educational enhancement for the custodial parent and child
- the effect on extended family relationships
- accommodation of the child’s special needs or talents
- the effect on visitation and communication with the non-custodial parent to maintain a full and continuous relationship with the child
- the possibility of a visitation schedule allowing the continuation of a meaningful relationship between the non-custodial parent and child; and
- the non-custodial parent’s ability to relocate.
In the Int. of J.B.R., No. 04-21-00253-CV, 2022 Tex. App. LEXIS 7228, at *1 (Tex. App. Sep. 28, 2022)
So What Can I Do?
You can ask the court for a temporary restraining order to prevent your ex from leaving Texas with your child. You can also submit a motion to modify the custody order to restrict your child’s residence.
Let’s look at an example of this.
Harris County Case: Mother Gets Primary Custody
When Gary and Laura Guion divorced in 2016, a Dallas County jury appointed Laura sole managing conservator of their then 4-year-old child. Gary was named possessory conservator.
The divorce decree granted Laura the exclusive right to determine the child’s primary residence without any geographic restrictions.
Court Dismisses Father’s Modification Request
A year later, Gary filed a motion to modify the parent-child relationship. He asked the court to restrict his child’s primary residence to Harris, Dallas, and Travis counties, as well as any contiguous counties.
At the time, Gary was living in Austin. Laura had recently moved to Houston from Boulder, Colorado, where she had been living with the child.
Laura filed a motion to dismiss Gary’s request, arguing that the court did not have the authority to place geographic restrictions on a sole managing conservator post-divorce. A Harris County trial court agreed and ordered Gary to pay Laura $5,000 for attorneys’ fees.
The First Court of Appeals determined that none of the “exclusive rights” legally granted to sole managing conservators were absolute. In fact, the court does have the authority to limit the custodial parent’s rights if it is in the child’s best interests:
“Permitting a trial court to impose a geographic restriction on the designation of a child’s primary residence is consistent with Texas public policy to assure that children will have frequent and continuing contact with parents who have shown the ability to act in their best interest and to encourage divorced or separated parents to share in the rights and duties of raising their children.” Guion v. Guion, 597 S.W.3d 899, 908 (Tex. App. 2020)
The appeals court reversed the trial court’s decision and remanded it back to the lower court.
What if There is No Custody Order?
If you and your ex do not have a formal custody agreement in place, there is nothing preventing her from moving out of Texas and taking the kids.
Time is of the essence in this situation, as Texas will only have jurisdiction over custody when the child has lived in the state within the past six months.
You Have Rights as a Dad. Let Us Help Protect Them.
It’s crucial that a father has the opportunity to continue providing love and support to his children after a divorce. This becomes almost impossible if your kids are in another state. The Texas family law attorneys at Robinson & Henry will fight tirelessly to keep you and your children together. Call 214-884-3775 today to begin your free case assessment.