Family Law: Relocation challenging absent compelling evidence



President at Schwager Firm
Welcome to Schwager Law Firm from our Founder and Principal, Candice Leonard Schwager. Candice is an experienced litigation attorney with a wide array of experience, including Family Law, Probate, Guardianship, Civil Rights, Contractual disputes, personal injury, products liability, & school law, representing children with disabilities. The Founder & President of two Non-profits for special needs, the elderly and disabled, Candice's practice is a diverse combination of people from al walks of life. Candice's public interest work has been recognized by the Texas State Bar Pro Bono College 7 years in a row, with thousands of hours donated to low income Texans who would not otherwise have access to justice. A 1997 Cum Laude Honors Graduate of South Texas College of Law, Law Review Editor, Brief Writer for STCL's award winning National Moot Court Team, and Research/Writing Assistant to W. David East, Associate Dean, Candice believes in excellence and has been blessed with the opportunity be mentored by the best lawyers in the State of Texas for 2 decades.

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Unless there is a history of parental misconduct, such as domestic violence or abuse, Texas courts typically award divorcing parents “joint managing conservatorship” (referred to as “joint legal custody” in some states) over their child. This means the parents will share the right to make important decisions about their child’s life, including where the child will live. Although there may be many great reasons for a parent to relocate for a better job, more often than not the Judge will deny relocation because of the prejudice to the parent not moving. That’s not to say it’s impossible, but my experience has shown an uphill battle.

Divorcing parents can come up with a joint managing conservatorship arrangement on their own, and turn their agreement into a document called a “parenting plan.” However, if no parenting plan is filed with the court, a judge may decide custody issues.
In Texas, there is a legal presumption that both parents should be joint managing conservators of their child. However, this presumption may be rebutted (overcome) if the court finds there is a history of family violence involving either parent. If there is a history of domestic violence, or if one parent has otherwise demonstrated an inability to act in the child’s best interests, the court may order “sole managing conservatorship,” which means only one parent will make decisions regarding the child’s welfare.

  • When making custody decisions, courts consider several factors, including:
    whether the child’s physical, psychological, and emotional needs and development will benefit from the proposed arrangement
    the parents’ abilities to make the child’s welfare their first priority and reach shared decisions that are in the child’s best interests
    whether each parent can encourage a positive relationship between the child and the other parent
    whether both parents participated in child rearing before the divorce or custody action
    the geographical proximity of the parents’ residences
    the child’s preference (if the child is at least 12 years old), and
    any other factor the court deems relevant to the decision.

In an agreed-upon joint managing conservatorship arrangement, parents may state that neither parent is the “primary” parent, and simply agree that the child’s residence will remain within a particular geographic area. The parents can then create a “shared possession schedule” designating exactly when and where the child will spend time with each parent. When parents can’t reach an agreement, a judge will have to decide for them.

When the court makes an order awarding joint managing conservatorship, the court must also designate one parent as the “primary parent” (the parent that has the exclusive right to determine the child’s primary residence). The court must also establish a geographic area within with the primary parent can maintain the child’s primary residence. The other parent then visits the child in accordance with a detailed visitation schedule.

In most cases, the judge’s initial custody orders prohibit the primary parent from moving outside of a specific area (usually the child’s current county of residence plus any contiguous counties). Therefore, when parents want to move out of state with their children, they need to get a court order allowing them to do so; they can’t just pick up and leave.

Even if you have an older order (or agreement) that doesn’t restrict your child’s residence to a particular area, you still need to give the other parent notice if you intend to move with the child. If your child’s other parent wants to try to stop you from moving, he or she may file an application for a temporary restraining order (legal paperwork), which prevents you from moving until a court can hold a relocation hearing.
At the hearing, you’ll have to show compelling reasons for the proposed move, which may include a job relocation (if you can’t find comparable work locally), or a relocation to be closer to family, who will help support and care for the child. If the court suspects that you’re moving to interfere with the child’s relationship with the other parent, you will not be allowed to go. Food for thought before your final orders are signed.