Child Custody and Leaving the State before a Divorce

Child Custody and Home State issue Texas Divorce

Divorce and Moving the Kids out of State

If your spouse moves your children out of state before either of you has filed for a Texas divorce, it can be to your detriment when it comes to the determination of child custody. If you haven’t begun the divorce process, there may be very little that you can do about the move, but it’s also true that the court may interpret your spouse’s action as wrongful conduct – and this can affect how it ultimately determines custody. If you have questions about how a move out of state with your children – either your own move or your spouse’s – could affect custody, you need an experienced Texas family law attorney.

When the Move Takes Place

Before the court issues a custody order regarding your children, you both share equal rights to possession and access of your children. This means that you can both make important decisions related to your children – including what state they’ll live in – independently of each other. This does not, however, mean that it’s a good idea to move out of state with your children before filing for divorce – such a move can backfire on your custody plans. Experienced legal counsel will guide you through the process of obtaining a court order that identifies each of your parental rights and responsibilities as you navigate the divorce proceedings.

Can I Ensure that My Children Remain in State when They’re with Their Other Parent?

Once there is an order in place regarding time with your children, it typically means that when they are with you, it is your time with them and you can take them where you’d like within that time frame – and the same is true for their other parent. If one of you wants to take your kids out of state, you are free to do so as long as you do so within your designated time. The court may, however, take extenuating circumstances into consideration on a case-by-case basis in determining if additional travel restrictions are warranted.

Which State Determines Orders for the Children

If your spouse has moved out of state with your children and they have lived together there for the six months prior to filing for divorce, Texas probably doesn’t have jurisdiction regarding opening a custody case for your children. Under the Texas Family Code, a new case can only be established if two elements are met:

  1. Texas is the child’s “Home State.”
  2. No other state has jurisdiction (or the other state has declined jurisdiction).

Texas identifies a Home State as being the state in which the children lived with a parent (or with someone acting as a parent) for at least the six consecutive months that precede the commencement of a child custody proceeding. In other words, only the state in which the child lived for the last six months has jurisdiction over the child’s custody. If a child is younger than six months old, this restriction refers to the state the child has lived in since birth.

Child Support

If your children have lived outside of Texas for six months prior to you filing for divorce, Texas will no longer have jurisdiction over custody of your children. As such, Texas can’t issue visitation orders, can’t grant you decision-making rights, and can’t force your divorcing spouse to return to the state with your children. What Texas can do, however, is compel you to pay child support.  Texas Family Code allows that a parent living with his or her children outside of Texas can ask for the establishment of Texas child support from the other parent (who does live in Texas).

For more information on support read our family law article, “Houston Child Support Lawyer: Child Support in Texas“.

What if Texas Is My Children’s Home State?

If Texas is your children’s Home State, and your divorcing spouse has moved them out of state, you have options, but it is important to act quickly. If you seek legal relief, you must file for divorce before your kids have been living out of state for six months in order to retain Texas jurisdiction. In such an instance, the court can take action and may instruct your soon-to-be to either return with the children to live in Texas or to return the children to live with you in Texas.

What if My Children Have Been Living out of State for More than Six Months?

If your children have been living out of state with their other parent for more than six months, it means that Texas is no longer your children’s Home State, and in most situations, Texas will have no jurisdiction other than ordering you to pay child support. While you can still obtain a Texas divorce, you won’t be able to address child custody within that divorce.

Addressing Your Concerns

If you are facing a Texas divorce and a move out of state is part of that process, consult with an experienced Houston family law attorney before you take the plunge and move your children out of state – the court could consider your move wrongful conduct, and it could adversely affect the custody of your children. Conversely, if your spouse has moved your kids out of state – or you’re concerned that he or she might do so – time is of the essence. Once you’ve filed for divorce in Texas, the court can issue a custody order that precludes your spouse from moving your kids out of state during the pendency of the divorce proceedings. Whatever your unique situation, you need skilled legal guidance.

If You Have Child Custody Concerns, Contact an Experienced Houston Family Law Attorney Today

Issues related to child custody are often hotly contested during divorce. If you have concerns about moving your children out of state – or about your spouse moving them out of state – during the divorce process, the dedicated legal team at Rudisel Law Firm, P.C., has the experience and knowledge to advocate you and your children’s best interests. We’re here to help, so please contact or call us at 713-781-7775 today.