What to consider in allowing a custodial parent to relocate with a child?

What to consider in allowing a custodial parent to relocate with a child?

People change residences for all kinds of reasons, but people generally don’t have to get court approval to relocate. That is not always the case, however, for divorced parents with minor children.
In Texas, unless an agreement between the parents says otherwise, a modification of a child custody order is needed if the parent with primary physical custody plans to move with the child to another county or beyond.
If the parent without primary custody contests the move, then both parents may have to present their cases to a judge. The judge will consider each party’s claims and evidence, all while keeping the child’s best interests as the top priority.

Reasons to relocate with a child include:

• The move would put the child closer to family who can help with child-raising responsibilities.
• The custodial parent has been offered a job that would be in the child’s best interests.
• The custodial parent has arranged to continue his or her education, also in the child’s best interests.

The distance a parent intends to move is also a consideration. If a judge grants a relocation that is less than 100 miles away from the non-custodial parent, then regular visitation guidelines apply. If the move places the parents more than 100 miles apart, or if the move takes the custodial parent and the child to another county, state or country, then there will be additional guidelines and considerations.

A judge may consider the role the non-custodial parent has played in the child’s life. Has the non-custodial parent actively helped care for the child? Or has the non-custodial parent been largely absent?


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Retirement plans are viewed by the Texas courts as indirect compensation to a spouse, which is actually an income, earned by the spouse during the marriage.
Any contributions to a retirement plan made during the marriage are viewed as community property by a Texas court and subject to division upon divorce. Marital retirement accounts are pensions, IRA, Roth IRAS and 401(k) accounts established during the marriage.

Assessing the value of retirement accounts is a complex process, particularly if an individual contributed to the account before the marriage, or if some assets accrued in the account while the couple lived in a common-law state.
Since most retirement accounts are subject to steep early distribution penalties, qualifying domestic relations order (QDRO) must be drafted and incorporated it into the final divorce decree. A QDRO allows the parties to avoid paying early withdrawal penalty fees imposed by the federal government. Each party has the option of withdrawing the marital funds, pursuant to the divorce award, and transferring it into a separate retirement account.
In most instances, these are tax-deferred accounts, so no tax consequences are incurred by merely dividing a retirement account in a divorce. However, there may be tax consequences after a divorce if you withdraw funds from a 401(k) before you are retired.


The courts value the retirement plan at the date of divorce, not the actual value of the actual retirement benefit. Thus, the value of the community interest in the retirement plan at the date of divorce is not the same as the actual value of the retirement benefit.
Also, a Texas court may consider a disproportionate allocation in accordance with unequal earning capacity between spouses, unequal wealth or parenting time.

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When parties enter into either a divorce or child custody case, the Court which has jurisdiction over the case will weigh whether or not to place a geographic restriction on the residence of the children.
A restriction will typically bind the children’s primary residence to one county and either the counties contiguous to their home county or to places within a certain distance from their home city. Of course, the parties can come to their own agreement without the Court being involved and they can choose whether or not to place a geographic restriction upon themselves.

For those situations that do require the Court to become involved all that is required for a restriction to be set up is for one party to request it.


Reason being is that the Court wants to encourage the parties to live close to one another to best facilitate the opportunity for the parents to “co-parent” with one another and to lessen the transportation burden on both parties.

When two parents get divorced or when non-married people cease to live in the same house, the child cannot live primarily with both parents. The parent with whom the child primarily resides (the custodial parent) and the parent who has visitation of the child (non-custodial parent) will share the child’s time between their residences.
By the end of a case the Court will typically ensure that a geographic restriction continues unless the parties come to a prior agreement on the subject or if the restriction is not in the best interest of the child. Once a restriction is put in place it is extremely difficult to get it overturned in a modification.

All in all, a geographic restriction will in most situations do a lot to benefit the non-custodial parent by limiting where the children can move. For every parent who is concerned heading into a divorce or child custody case that they will lose a lot of time with their child, the geographic restriction concept should allow them some peace of mind.

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Texas parents have the legal responsibility to financially provide for their children after a divorce. Child support orders generally reflect the circumstances that were present at the time that the divorce was final, but time can bring significant financial changes to one or both parents.

If you find that your current child support order does not reflect your needs or that you are unable to meet your current obligations, you may have grounds for a Modification.

The requirements for modifying your support order in Texas
Even if you and your spouse agree to temporary changes in the amount or the frequency of child support payments, it is not legally binding. Modifications are only attainable through either a court hearing or through the child support review process.

In order to be eligible for a modification, one of the following requirements must be met:

• There is an increase or decrease in the noncustodial parent’s income.
• The noncustodial parent is now legally responsible for the care of other children.
• There has been a change in the kids’ medical coverage.
• There has been a change in the kids’ living arrangements.
What worked for you at the time of the divorce may not be applicable years down the road.

Securing the changes you need

Your desire to parent your children well and provide for their needs has not changed, but your financial circumstances may not be the same. If you think you have a rightful claim to a modification of an existing support order you may need to file for a Modification immediately.
Relying on a verbal agreement or simply skipping payments is not a smart option; instead, you must seek a legal resolution to your concerns that aligns with your current abilities and needs.

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Many people find themselves having to relocate for work or the need to be closer to family. However, for divorced parents, this problem is exacerbated by geographic restrictions that say where there children must live. These are known as “Geographic Restrictions”

Geographic restrictions most often place restrictions on the county in which you may live, or the maximum distance from the other parent that you may live. These restrictions are either negotiated by the parties or provided by court order. This means that if you want to relocate out of your geographic area, you have to go to court again and explain the reasons for your relocation.

The other parent needs to be notified of your intention to move, and the only valid way to do that is to request a relocation hearing. Failing to do this would likely be a violation of the Court order. Geographic restrictions are enforceable in court and, if violated, could affect your status as a joint managing conservator of your child.
Typically with relocation, you must show a genuine need, such as job or the need to be closer to your family. Very likely, the other parent will seek a temporary injunction until the judge has made a decision on the move at the relocation hearing.

Relocation may not seem like such a big deal, but it affects the rights of the other parent to see and have a relationship with their children. Because of this, in all likelihood, it will be hashed out in court.

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Division of Community Property in a Divorce

Understanding the way property is divided is very important in a divorce. This is often the most disputed issue in a divorce, after child custody.

Every state in the nation has a law about how to divide the couple’s property during a divorce. In most states, the law follows a standard known as equitable division, meaning that the division must meet guidelines of fairness. However, Texas follows a different standard known as community property when overseeing asset division in a divorce.

Community property is a type of joint ownership. Assets purchased by the married couple are combined with assets that were earned by the couple during their marriage. The husband and wife own them equally and all debts are incurred equally. This is true regardless of who has the title in the assets. This is in contrast with equitable division states, where couples can show the contributions they made to the marriage and property.

Generally, each spouse in Texas gets an equal share of community property and also incurs the marital debt equally. However, this does not mean that everything is always split 50-50. While some types of assets, such as a joint checking account, may be relatively easy to split in half, others are not. Complex assets, such as retirement plans, stock options and ownership stakes in a business, can be very difficult to divide fairly.

Another important fact to note about property division is that the law gives the court some discretion in how the property will be divided. Courts are instructed to order a division of property in a manner that the court considers fair and just. Therefore, when deciding on property division, courts can consider the needs of the parties and any children they may have.

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Modifying Child Custody Orders and Visitation Rights

Modifying Child Custody Orders and Visitation Rights

Texas family law states that a court may modify a child custody order if the change is in the best interest of the child and one of the following applies:

1. The circumstances of the child or parent have materially or substantially changed since the date of the original child custody order or order to be modified.

2. The child is at least 12 years of age and will tell the court in private chambers with the judge that he/she would like a change.

3. The custodial parent has voluntarily given the child’s care and custody to another person for at least 6 months.
Material or Substantial Change

What could be acceptable as a change for the Texas family courts? Some examples could be a parent’s remarriage, a medical condition the affects a parent’s ability take care of the child, a parent’s criminal acts or convictions, a parent’s change in residence that makes visitation a hardship for the other parent, family violence, drug or alcohol related issues, absence of supervision, and other material changes concerning adequate care and supervision of the child.

Child Wants Change

The child must be at least 12years of age and maybe interviewed in the judge’s chambers. The court will consider the child’s desire but only make a change if it is in the child’s best interest.

Custody Relinquishment

This happens when the custodial parent has voluntarily given up custody of the child to another person for at least six months. This does not apply to a period of military deployment or duty.
After finding one of the three prerequisites, the court must still consider whether the change will be in the child’s best interest. The court will consider factors affecting the child’s physical, emotional, mental, education, social, moral or disciplinary welfare and development. The factors considered for this evaluation are:
1. Child’s emotional and physical needs.
2. Parenting ability of the conservators or potential conservators
3. Plans and outside resources available to persons seeking the modification
4. Value to the child of having a relationship with both parents
5. Visitation schedule that requires excessive traveling or prevents the child from engaging in school or social activities
6. Stability of the person’s home seeking the modification
7. The child’s desires
8. Child’s need for stability and need to limit additional litigation in child custody cases.

Modification within one year of prior court order

A parent who files a motion to modify a child custody order within one year after a prior order was entered must also submit an affidavit to the court. The affidavit must contain, along with supporting facts, at least one of the following allegations:
1. The child’s present environment may be endanger the child’s physical health or significantly impair the child’s emotional development.

2. The person who has the exclusive right to designate the child’s primacy residence is the person seeking or consenting to the modification and the modification is in the child’s best interest.

3. The person who has the exclusive right to designate the child’s primary residence has voluntarily relinquished the primacy care and possession of the child for at least six months and the modification is in the child’s best interest.

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