Substantial and complex legal issues will likely arise requiring a return to court.
No one can know what the future will bring. After a divorce, the parents settle into their new households under the terms of the divorce order as it concerns the child’s residence, custody issues and visitation. Sometimes, the parent with whom the child primarily resides decides seeks to move away from the area and take the child with him or her.
Obviously, such a relocation could have serious impact on the ability of the other parent to maintain an enriching relationship with the child. Usually, the arrangement established in the divorce order regarding times of access to the child would become unworkable if the child were to move a significant distance. Even a moderate distance could impact certain kinds of visitation arrangements such as one that included evening after-school visits.
Modifying the terms of a divorce
The original court order in the divorce, whether derived from an agreement between the parties or a court judgment, might restrict where a custodial parent (called in Texas the conservator with the exclusive authority to determine the child’s primary residence) may live with the child.
If a custodial parent wants to move away and take the child and doing so would violate the conditions or terms of the divorce decree, the parent must go to court and ask for a modification of the original order. The parent must show both of these:
- The move would be in the best interest of the child.
- The relevant circumstances have changed “materially and substantially.”
As an alternative to the parent showing a material change in circumstances, the judge can allow relocation if he or she has spoken with the child about the child’s preference, as long as it is in the child’s best interest.
If the parent were allowed to move, the visitation arrangements would likely need substantial modification because of the new distance between the child and the left-behind parent.
Opposing a request to move away
A nonmoving parent with access rights may oppose the relocation because it would make the visitation arrangement unworkable and negatively affect the parent-child relationship. The nonmoving parent may be able to show the court that the move is not in the child’s best interest for any of a number of reasons.
This parent may be able to oppose the other parent’s request to modify the divorce decree by showing that it would not be in the child’s best interest. The left-behind parent may also seek a modification of the divorce decree that would impose new geographical restrictions on the other parent based on a showing that to leave the current area of residence would not be in the child’s best interest.
The parent opposing a move may even ask the court to reassign custodial rights such as by transferring conservatorship with the power to determine the primary residence to him or her, if it is in the child’s best interest and there has been a material and substantial change in circumstances.
This article only introduces a complex topic. Any Texas parent who seeks to move away with a child or who opposes such a move by the other parent should seek immediate legal advice and representation to protect his or her legal rights and understand the legal options available.
Family lawyer Michael Suffness of the law firm of Michael B. Suffness, P.C., with offices in Plano represents Texas parents in relocation matters, whether seeking to relocate or opposing relocation, in Collin County, Denton County and Dallas County.