Out of State Child Relocation and the Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA)
In today’s hectic pace, moving to another state for business, family demands, or pleasure is a very common occurrence. But what about the family that is separated by divorce or separation and share custody of their children? What happens to this family situation when Mom or Dad decides to take another job or wants to move to another state and take the children to or from the other? A Child Custody Relocation Case?
Sadly this happens frequently. Most Texas attorneys employ a geographic restriction in divorce decrees for couples who have children. These restrictions dictate that the Child and Custodial Parent must live within a school district, County of Domicile, or consecutive contingent counties near the non-custodial parent. But what happens if this restriction clause is not contained in the divorce decree or if Dad/Mom were never married?
Forty Nine States, including Texas have adopted the UNIFORM CHILD CUSTODY JURISDICTION AND ENFORCEMENT ACT (UCCJEA) drafted by the National Conference of Commissioners on Uniform State Laws in 1997. The UCCJEA is a very helpful law since all states but one participate in the determination of the ”HOME STATE” and which jurisdiction will handle the family case. UCCJEA also helps to protect non-custodial Parents fighting for child custody out of state when their children have been moved to another state or over 100 miles away from them.
How does The State of Texas treat an initial Child Custody determination?
Texas Family Code 152.201 of the UCCJEA states, among other things, that a court may consider custody issues if the Child:
*Has continually lived in the state for 6 months or longer and Texas was the home state of the child within six months before the commencement of the legal proceeding.
*Was living in the state before being wrongfully abducted elsewhere by a parent seeking custody in another state. One parent continues to live in Texas.
*Has an established over significant time relationships with people (family, relatives or teachers), ties, and attachments in the state
*Has been abandoned in an emergency: or is safe in the current state, but could be in danger of neglect or abuse in the home state
Relocation is a child custody situation which will turn on the individual facts of the specific case, so that each case is tried on its own merits.
Most child custody relocation cases tried in Texas follow a predictable course:
- Allowing or not allowing the move.
- Order of psychological evaluations or social studies of family members
- Modification of custody and adjusting of child’s time spent with parents
- Adjusting child support
- Order of mediation to settle dispute
- Allocating transportation costs
- Order opposing parties to provide all information on child’s addresses and telephone number.
There is another important cause of action in Texas where the court will “take “EMERGENCY JURISDICTION’ over a case even though another state has the original jurisdiction. If the opposing party can prove that a legitimate emergency exists and Texas needs to assume the jurisdiction. These emergency situations could be abuse of the child, abandonment or cause neglect of the child, or any action that would put the child in immediate harm’s way.
The Nacol Law Firm P.C. @ www.nacollawfirm.com is committed to helping parents have the right to have frequent and continuing contact with their child at all times and encourage parents to co-share in the rights and duties of raising a stable, loving child. Many times, because of parental alienation or other personal factors, a child will be taken away from the non-custodial parent and this can cause some serious mental and behavior problems for the child which could follow her/him into a lifetime adult situation.
Sometimes you can settle, SOMETIMES YOU FIGHT FOR YOUR RIGHT! We can help!
Getting a Divorce? Should I Move Out of the Marital Home?
This is a complicated question to answer depending upon the facts of each case. If you have experienced domestic violence you need to immediately do whatever is necessary to secure you and your child’s safety. Many times a victim will go to court for a protective order and ask the judge to move the abusive or violent spouse out. In this situation contact an experienced family law attorney now!
In most cases, absent of violence or risk of abuse, we would not suggest that a spouse move out of the marital residence.
Why is this? One reason is once you have vacated the residence it may be very difficult to get back in! You have no legal obligation to leave the residence if your name is on the lease or mortgage personally and exclusivity.
Our suggestion to a client might be, to remain in the residence since the person who vacates may still have financial obligations and expenses of the family residence, while paying all expenses on a new residence for themselves. Double expenses are not a desirable result during the divorce process.
The higher wage earning spouse who moves out of the marital home must expect to continue to pay most of the household expenses, including the insurance and mortgage! What about the personal property and furnishings in the residence?
If an agreement has not been made between the divorcing couple, the moving spouse will generally only be able to leave with personal belongings (clothing & jewelry) until a court rules fairly as to temporary possession.
Secure a court order ASAP to equalize property and household expenses.
A Father’s Uphill Battle – I Love My Children
A regrettable truth in family law often finds one parent unilaterally removing a child from the other parent while dissolving a marriage without any grounds or evidence of wrongdoing. Not surprisingly, disturbing numbers of children are routinely separated from loving, responsible parents for reasons that have nothing to do with their wishes, safety, health, or welfare and many times have to do with a lack of proper legal counsel.
In 50% of the marriages that end in divorce, 80% of these are over the objection of one spouse (close to 100% when children are involved). I am sure you have heard about “custody battles,” but you probably do not know that many start out with one parent taking a child from the other and refusing visitation until a court orders possession sometimes months down the line. You have heard about the witch hunt for “deadbeat dads,” but did you know that many of these fathers are well educated men who have lost their jobs due to a downtrodden economy and still love their children and want to play a leading role in their lives and upbringing. You have heard the hysteria over “child abuse,” but did you know that many accusations against fathers are shown to be false and used by one parent as a weapon to alienate the children from the other parent.
David Popenoe in his book “Life Without Father” tells us that negative consequences of fatherlessness are all around us. Evidence indicating damage to children growing up in fatherless homes has accumulated in near tidal-wave proportions. Fatherless children experience significantly more physical, emotional, and behavioral problems than do children growing up in intact families.
Children from fatherless homes are:
- 5 times more likely to commit suicide
- 32 times more likely to run away
- 20 times more likely to have behavioral disorders
- 14 times more likely to commit rape
- 9 times more likely to drop out of high school
- 10 times more likely to abuse chemical substances
- 9 times more likely to end up in a state-operated institution
- 20 times more likely to end up in prison.
(Information from Mark Hall, Father’s Manifesto).
In “My Rewar, My Punishment…My Son, Sons of Divorce,” Steven Manchester describes the situation many dads are dealing with when exercising visitation:
“I’d take my son for our court-ordered visits, only to drop him off two hours later, so another man could bounce him off his lap. Ironically, each new boyfriend was given all the time he wanted with my son. At first, it killed me, but I decided, “Whatever’s best for my boy. His happiness must come first!” Though it stung terribly, that attitude sustained me all the way to Christmas.
I waited in my old driveway for 4 excruciating hours, while three inches of snow muffled the screams from the cab of my truck. When they finally pulled in, my ex-wife snickered, “I must have lost track of time?” and handed over my son. I was livid! My boy was dead tired and half-asleep. And the EX…well…she just grinned, confident that there was nothing I could do about it. It took everything I had left to conceal my tears. I didn’t plan to give her anything for Christmas and was doing my best to stick to the plan.”
It is a sad scenario.
In divorce court, many fathers are left feeling that everything they have done, years of hard work, years of tender love, years of unstinting devotion to their family and children count as nothing.
In the 1960’s women fought hard to get laws passed to protect them against family violence, stalking and sexual harassment. The shame is that women of the 1990’s now use these same needed and appropriate laws wrongfully to their advantage and feel justified in punishing their spouse for wrongs they feel have been done to them by misusing the legal system; and in the process erase fathers from the lives of their children!
The facts are that many times the courtroom becomes a legal battleground. Inadequate counsel or absence of counsel can result in decisions that negatively affect children and the family for years to come.
Temporary Restraining Orders in Texas – What Does a TRO Do
A temporary restraining order, commonly known as a “TRO” is used in family law to place injunctions without a full hearing on one or both parties. These injunctions prohibit specific actions that could endanger or prove damaging to the property in a divorce or the children of a divorce. You should have an idea on what the process entails.
A TRO is governed by Texas Rules of Civil Procedure Rule 680 and Texas Family Code § 6.501. If your spouse wishes to file a TRO that immediately excludes you from possession of or access to your children, a notice of this hearing must be given to you prior to the court date. The only exception to this is an Ex-Parte meeting with the judge, which means that only your spouse or her attorney will be present at the preliminary hearing. The judge may order a TRO Ex-Parte only if the TRO clearly demonstrates from specific facts shown by affidavit or by a verified complaint that immediate and irreparable injury, loss, or damage will result to the applicant or children before notice can be served and an actual hearing.
If you are on the receiving end of TRO and it prohibits you from access to your children, there are some things to keep in mind.
First: a TRO has a time limit, which is 14 days. After 14 days the TRO may be extended by a judge only once for an additional 14 days. Thus at most this TRO may only last 28 days’ absent agreement to an additional extension. A Judge does have the discretion to extend the TRO more than once if it is uncontested (you do nothing or do not appear).
Second: A TRO is NOT a Protective Order. This means that the police cannot kick you out of your house or forcibly arrest you for violating a TRO, absent any related criminal conduct. There are consequences for violating the TRO but not criminal consequence. You may be found in contempt of court by the Judge who ordered the TRO and forced to pay fines or be held to more severe sanctions. Violations will not be good for your case if you intentionally violate.
Third: A TRO must have a signed and notarized Affidavit or a verified pleading attached to the motion. If the opposing counsel did not follow these procedures the order may upon motion to dissolve be found void due to violation of the Texas Rules of Civil Procedure.
Fourth: You cannot practically appeal a TRO because it may only last for at most 28 days, if contested. Once you are served with the Ex-Parte TRO, you may request a motion to modify or dissolve the TRO after giving your spouse 48-hour notice and seek attorney fees if the filing was false or frivolous.
TRO’s are civil injunctions that are usually given without notice only if immediate and irreparable injury, loss, or damage will happen. The proof rules are more relaxed in Family Law Cases. Specific TRO procedures can differ in all counties and in different courts so make sure the check online the rules of each specific jurisdiction.
TRO’s only last 14 days and cannot be enforced by police officers, absent related criminal activity. Do not be distressed if you are served a TRO one day while you are battling your spouse for child custody or property. Take a deep breath call your attorney and set a hearing to modify, vacate or dissolve the TRO.
Many counties have standing orders that issue and are effective as to both parties upon the filing of a Family Law Proceeding. Read such mandatory orders before you file your case.
Supervised Visitation Orders – How Texas Fathers can Return to a Standard Possession Order
I Have Been Ordered, Right or Wrong, Supervised Visitation with My Child –
How Do I Return to a Standard Possession Order?
In a perfect world, parents going through the divorce process work together for the best interest of their child(ren) and are granted possession of the child(ren) approximately fifty (+ or -) percent of the time. However, issues such as severe parental alienation, drug addiction, mental or physical abuse, neglect, and severe mental illness may force a parent to petition the courts to order limited or supervised visitation. On some occasions, a parent is regrettably ordered into supervised visitation due to false, inaccurate or misleading information. Regardless of the circumstances, court ordered supervised visitation is costly, may substantially limit the amount of time a parent is allowed to spend with their child, and can create a difficult and costly transition into a standard possession order.
If the court has ordered supervised visitation seek proper counsel from a qualified attorney as soon as possible. If a case, rightly or wrongly, has been established for supervised visitation by the evidence or circumstances or court order, you will need to build a case for reinstatement of standard or standard expanded possession as soon as possible.
During a supervised visit it is imperative that you keep any comments on the case to yourself. Avoid giving any opinions on the existing judgment or the supervised visitation order. Within reason, limit your conversation to what is strictly necessary for the child to have a safe, happy and healthy visit. Be polite and courteous with the monitor even if you develop strong negative feelings regarding him or her. Continue to enforce the importance of wanting and seeing your child and spending quality time with your child as much as possible. Never, under any circumstances speak negatively about the other parent to or in the presence of the child or the monitor. Never, use vulgar or abusive language toward or in the presence of the child or the monitor. The visitation monitor may be an important asset at future hearings regarding a change from supervised visitation to a standard or expanded possession order.
Make every scheduled visit without fail. If unable to make a scheduled visit, contact the monitor as soon in advance as possible with an appropriate explanation and request an alternative date. Bring family members whenever possible and clear it with the visitation monitor prior to their attendance. Bring cards and gifts, not only from you but from family members. If visits are going well request off-site visits at a nearby restaurant or park. Though visits may be costly, the more frequently you are observed in a loving relationship with your child the better the chance of supervised visitation being suspended or terminated all together.
Involve a psychiatrist or qualified counselor in your visitation schedule if at all possible. Such professionals are key as you begin to build your case for standard possession since they are able to make suggestions to the Court as to how visits are progressing and the manner in which standard possession can be accomplished.
If you have been ordered to have drug or alcohol testing performed, take each test as scheduled and make certain you are free of drugs and alcohol. A positive drug or alcohol test may place you back at square one and undermine your progress.
If a social study is ordered, dispose of any prescription drugs not needed or which are out of date and put away any alcohol in your home. Make certain your home is clean and orderly when the evaluation is performed. In such cases, a qualified professional will come to your home and evaluate the environment as it pertains to the best interest of the child. If you have been ordered into supervised visitation because of drugs or alcohol it is imperative that these items not be sitting around the home when a social worker is performing his/her evaluation to avoid negative results or an invalid conclusion.
Keep your child support current at all times! If the supervised visitation is placing a financial strain on your ability to pay child support, have an attorney address modifying your child support obligation in a Motion to Modify. It is counterproductive to request unsupervised visitation if you are not current in your financial responsibility toward your child.
Some very important tips a non-custodial parent should follow on a supervised visit:
-
Follow the schedule of your visits to the letter. Never cancel except for dire emergencies!
-
Always arrive on time.
-
Focus totally on your children. Don’t ask about the custodial parent or exchange information or be judgmental in your comments. This is your time with your children.
-
Have a game plan on what you will do when talking and spending time with your children. Stay open to suggestion from your children on what they would like to do with you so everyone enjoys the visit.
-
Talk with your children about what you are doing in your life. Ask about their activities and school, but don’t press for information. Let them know that you are interested in what they care about.
-
Always keep your word. Don’t make promises that you can’t keep!
-
Avoid talking about the custodial parent at all times, the divorce, and any court actions. Keep all conversations light and positive. This is your time for your children. Use it to reconnect and enjoy each other.
-
Do not criticize the custodial parent or make negative comments about the supervised visitation. This is all the time you have with the children. Love, embrace and enjoy them every moment.
-
You may not like it, but follow the rules set forth for the supervised visitation. Respect the process and this may help to encourage the court to change your status to unsupervised visitation.
