Is it Possible to Relocate with Children After the Divorce?
April 24, 2023
In many states, a no-fault divorce can be finalized if estranged spouses have “irreconcilable differences.” Texas is both a no-fault and fault-based state; however, the phrase “irreconcilable differences” has been replaced by “insupportability.” Insupportability means “discord or conflict of personalities” that prevents any “reasonable expectation of reconciliation.”
In Texas, there is also fault divorce, which means that one spouse or partner is living elsewhere and/or has abandoned the relationship, is confined to a mental institution, has committed a felony or adultery, or is simply cruel.
Divorce gets more complicated when children are involved, and issues of who gets physical custody and who gets parenting time can make matters more difficult to resolve. If one parent, say the one who ends up with primary physical custody, decides that they need to relocate and take the children, is this legal? What can the other noncustodial parent do?
If you’re involved in a divorce, upcoming, ongoing, or already finalized in or around Spring, Texas, and one parent decides that they need to relocate with the children, that decision can present an added challenge for both the custodial and the noncustodial parent. If you are facing this issue, contact the family law attorney at the Robin Scott Law Firm, PLLC.
Attorney Robin Scott will help see you through troubled times and work toward a resolution with compassion and understanding. She also serves clients in Harris, Montgomery, and Fort Bend counties.
Finalizing the Terms of Your Divorce
Whatever the reason for ending the marriage, the divorcing couple has two options for finalizing everything and moving on to the next phase in their lives. One is called an uncontested divorce, in which the couple presents a divorce settlement agreement to the judge. The other is a contested divorce, in which the judge hears from both spouses and then issues the terms of the settlement.
Now, if children are involved, these two options are also available, but the issues of physical and legal custody need to be addressed and resolved, either by joint agreement or through the court. As for legal custody, Texas courts generally award the parents what is called a “joint managing conservatorship,” which in many other states is simply called joint legal custody. In other words, both parents share the right for deciding what’s in the child’s best interest.
Physical custody refers to where the child will live. The court may assign a primary custodial parent with whom the child spends school nights, while the noncustodial parent will often see the child on weekends, holidays, and maybe for a longer period during summer, non-school months.
If the divorcing couple wants to resolve both physical and legal custody issues, they must agree upon what is called a parenting plan to present to the judge. The agreement can even address the issue of relocating with a child.
Perhaps the custodial parent gets a great job offer a couple of hundred miles away or even in another state. If the parenting plan addresses a geographical perimeter, so to speak, for where the child can live, then the relocating parent will probably have to get permission from the court that approved the agreement.
Child Custody & Contested vs. Uncontested Divorce
If the divorce is a contested one, the judge will designate one spouse as the “primary parent,” and the court order will often designate a geographical area where the primary parent and child can live. This will usually be the county in which the divorce is taking place, or perhaps contiguous counties if they aren’t that far away. This means that if the primary parent wants to relocate with the child, they will need to get the court’s approval.
If the divorce is uncontested and the parenting agreement doesn’t address the issue of relocation, then the relocating parent must still give the other parent notice of the move. In either case -- agreement or court order -- the noncustodial parent can file for a restraining order with the court. The court will then schedule a relocation hearing.
The parent who wishes to relocate will have to present the rationale for doing so and show how it will be in the child’s best interest. As noted earlier, perhaps it is a job that is too good to pass up, or the custodial parent wants to move back closer to family so the child can grow up knowing their grandparents, aunts and uncles, nieces, and cousins. The noncustodial parent can cite the hardships it will bring on them.
Turn to Attorney Robin Scott for Guidance
Obviously, the least costly and contentious route to divorce is through a settlement and parenting agreement reached by the spouses or partners. This may prove difficult, however, as emotions may be running high, and there may even be grudges to deal with.
If you’re considering or facing divorce, contact family law Attorney Robin Scott to help you work out your settlement options. She will team you up with mediators, life coaches, and counselors if necessary to help in the process. If the divorce is finalized and one parent decides to move, contact her as well. There are legal routes to pursue if negotiation leads to a dead end.
Whatever question or concern you have about divorce in or around Spring, Texas, reach out immediately to the Robin Scott Law Firm, PLLC.