After having gone through a divorce or a suit affecting parent-child relationship and agreeing to, or having entered into a child custody order stating that the child(ren) must remain in the jurisdiction of the court – meaning the state and county where they resided during the suit (or a contiguous county) – the last thing that the non-custodial parent wants to hear or find out about, is that the primary parent or custodial parent, is attempting to relocate to another jurisdiction outside the jurisdiction of the court, or that they have already moved and left the jurisdiction and have taken the child(ren) with them.
If this move occurs without permission of the court, the non-custodial parent can file a Motion for Enforcement and Contempt and ask the court to bring the children back to their home county and jurisdiction. They can also request the court to hold the parent who moved with the child(ren) to be held in contempt of court and jailed. If the court finds that the relocation occurred without permission of the court, the parent who relocated the children could suffer serious penalties, including having a writ issued where a Sheriff will take custody of the child(ren); having an order issued for the payment of attorneys fees to the other party; and possibly losing primary custody of the child(ren).
In Texas, this type of relocation requires the primary parent to file a Petition to Modify the current Order and the best interest of the children will be examined. Before the parent can move with the child(ren) the Petition to Modify must be granted by the court and an Order to Modify must be entered. If this step is not legally accomplished, the primary or custodial parent cannot move the child(ren). The parent can move, but the child(ren) cannot move.
In Arizona, a Notice of Relocation must be filed; the non-custodial parent must agree to the relocation; and the court must grant the Notice and Relocation before the parent can relocate the child(ren). Otherwise, a hearing must be held to determine whether relocating the child(ren) will be in their best interest. Most non-custodial parents, believe that relocating children would destroy the non-custodial parent’s close and ongoing relationship with his/her child(ren) and many times, the court will side with that parent.
However, if too much time has lapsed since the move, the non-custodial parent may not be able to ask the court for help in returning the children to the jurisdiction. Under the Uniform Child Custody Jurisdiction Enforcement Act, another jurisdiction (county and/or state) will not gain complete jurisdiction over a child until 6 months have elapsed from the time that the child arrives in that jurisdiction.
Upon notification of the relocation of your child(ren), and before 6 months has passed, if the children have been relocated, you must contact a qualified child custody lawyer to assist you in making sure that the child(ren) do not leave the jurisdiction of the court, and if they did, to have the court issue an order and a Writ to bring them back.
Furthermore, attempting to file the necessary documents with the court to protect your rights and the rights of your child(ren) is complicated and trying to do this on your own, is not suggested. Further, if you do not file to stop the relocation; or if you do not file correct paperwork; or if you do not file in time, you will waive your right to have your child(ren) remain close to you and if they move away, this move could harm your relationship with your child(ren) as well as your parental rights. Therefore, it is important to make sure that you contact a qualified custody attorney as soon as possible to assist you in this endeavor.
Best Interest of the Child is Considered in Allowing the Relocation
In the state of Texas and in the state of Arizona, if a primary parent or a custodial parent is attempting to relocate with the children, and the court has previously ordered that the children remain in that jurisdiction, the court will allow for a hearing and they will afford equal consideration to both parents with regard to custodial rights, best interest of the children and parental involvement to determine whether or not the children will be allowed to move or whether they will remain and continue their relationship with the non-custodial parent in the original jurisdiction.
Furthermore, the burden of proof will be on the custodial parent who is attempting the relocation or has already moved the child(ren) outside the jurisdiction of the court, to show that it would be in the best interest of the children to separate the children from the non-custodial parent. If a custodial parent has moved without permission of the court, the court will not take this lightly and that parent could lose custody of the child(ren). If they have not yet relocated and if they are seeking to relocate, the primary or custodial parent must prove to the court that the move will benefit the child(ren) far more than them staying in the current jurisdiction of the court.
However, if the non-custodial parent moves away from the jurisdiction first, the court will more than likely, grant the right of the primary or custodial parent to move.
Custody Issues in Relocation
If you are the non-custodial parent and you believe that relocation of your children is not in their best interest or that it poses no measureable benefit to your child(ren), then, protect your rights by having an experienced child custody attorney file a Motion to Modify (in Texas), or a Notice of Relocation (in Arizona), and possibly a Motion for Contempt with the court, against the primary or custodial parent. In these pleadings your attorney can ask that the court change primary custody to you if the move takes place or you may ask to be named primary for other reasons which will be determined by your child custody lawyer. If the court orders a change in primary custody, your child(ren) would then remain with you while the other parent can leave the jurisdiction.
Transportation Costs Can be Paid if a Move is Allowed
In the states of Texas and in Arizona, if the court allows the primary parent to move with the child(ren) then the non custodial parent can request the court to have the primary or custodial parent pay and or provide for the expense of transportation and costs to allow for visitation. This means that the primary or custodial parent will be responsible for travel arrangements and travel costs incurred so that the non-custodial parent can continue a relationship with their child(ren) and not have to bear the extra expense in doing so. When the only reasonable method of travel is air travel, the courts will make special considerations for both time and financial costs. If the best method of transportation is air travel, a child can now travel alone by air as early as 5 years of age.
This financial provision is not automatic and it must be properly pled, requested and argument presented to the court so that the court deems the expense necessary. If the parties agree to the move, this language must also be included in any new custody Order or agreement entered into by both parents or the court will not enforce it.
If you are interested in protecting your parental rights in a situation like this, contact an experienced custody lawyer who will be able to work with you and prepare you for the upcoming litigation process. They will help to develop the necessary causes of action and arguments that will need to be presented to the court to keep your child(ren) close by you. Furthermore, your child custody litigation lawyer will assist you in the process of requesting travel expense so as to ensure that travel expense are not your sole burden in keeping a relationship with your child(ren).
The child custody attorneys and child custody litigation lawyers at Goldstein & Scopellite, PC are experienced and they know the law. They will protect your parental rights.
Goldstein & Scopellite, PC, was established in 2002 and has offices located in Dallas, TX and Tucson, AZ. For more information, see their local listing in D Magazine.
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