Relocating With Your Child After Divorce: What You Need to Know

A new job, a remarriage, or a chance to live closer to family can make a move feel like the right next step. Before relocating with your child after divorce in Texas, the first thing to know is what your custody order says about where the child can live. If the order sets a geographic area for the child’s primary residence, moving outside it generally takes either the other parent’s agreement, written into a modified order, or a new court order.

What a Geographic Restriction Actually Says in Your Order

A geographic restriction is the part of an order that names the area where the child’s primary residence must stay. Under Section 153.134(b)(1) of the Texas Family Code, an order naming parents joint managing conservators, the Texas term for shared child custody, must designate which parent has the exclusive right to determine the child’s primary residence. It must also either establish a geographic area for that residence or specify that the parent may choose it without regard to location.

An agreed parenting plan has to make the same choice, so parents who settled carry the same kind of provision. For a parent thinking about a move, the restriction and who holds that exclusive right decide what has to happen first.

Do You Have to Tell Your Co-Parent Before You Move?

In most cases, yes. Under Section 105.006, Texas custody orders require each party to give notice of an intended change of residence to every other party, the court that issued the order, and the state case registry, a statewide record of these orders. Notice is due on or before the 60th day before the move. If a parent did not know and could not have known about the move in time, notice is due on or before the fifth day after learning of it.

Notice is not permission, and it does nothing to lift a geographic restriction.

How to Get a Geographic Restriction Lifted

Moving outside the area an order allows generally follows one of two paths. If the other parent agrees, the agreement is written into a modified order so a court can enforce it. Without agreement, the parent files a suit for custody modification, usually in the court that issued the order, which Texas law calls the court of continuing, exclusive jurisdiction. The court then decides whether the change is in the child’s best interest and whether circumstances have materially and substantially changed, the two requirements of Section 156.101.

The child’s best interest is always the court’s primary consideration, so showing a change in circumstances without showing a benefit to the child does not meet the standard.

What Counts as a Material and Substantial Change?

A material and substantial change is a meaningful change in the circumstances of the child, a parent, or another party affected by the order. It has to have happened since the earlier of two dates: the date the order was rendered, or the date the parties signed the mediated or collaborative law settlement agreement the order is based on. Changes that can come up in a relocation case include:

• A new job or a job transfer
• A remarriage
• A change in the child’s medical or educational needs
• The other parent’s own move

Fitting one of these examples does not decide the outcome; the facts and the child’s best interest do.

What If Your Order Is Less Than a Year Old?

Under Section 156.102, a parent who asks to change who has the exclusive right to designate the child’s primary residence within one year of the order, or of the mediated or collaborative agreement it is based on, must attach a sworn affidavit, a written statement made under oath. The affidavit must state supporting facts and allege at least one of the following:

• That the child’s present environment may endanger the child’s physical health or significantly impair the child’s emotional development
• That the parent with the exclusive right is seeking or consenting to the change, and the change is in the child’s best interest
• That the parent with the exclusive right has voluntarily given up primary care and possession of the child for at least six months, and the change is in the child’s best interest

If the affidavit does not state adequate facts, the court denies the request without setting a hearing. For a parent hoping to move a child by becoming the parent with that exclusive right, the date on the order can decide whether the request is heard at all.

Can a Court Let You Move While the Case Is Pending?

Usually not. While a modification suit is pending, Section 156.006(b) bars a temporary order that creates, changes, or eliminates the geographic area for the child’s primary residence, or changes who has the exclusive right to designate it, unless the order is in the child’s best interest and one of these conditions is met:

• The order is necessary because the child’s present circumstances would significantly impair the child’s physical health or emotional development
• The parent named in the final order has voluntarily given up primary care and possession of the child for more than six months
• The child is 12 or older and has told the judge in chambers, meaning privately in the judge’s office, which parent the child prefers to have the exclusive right

The six-month condition does not apply to a parent who temporarily left the child with someone else during a military deployment, mobilization, or temporary duty.

What Happens If You Move Anyway

Moving a child outside the area an order allows violates that order. Under Section 157.001(b), a court may enforce any provision of a temporary or final order by contempt, which is the court’s power to punish a party who disobeys its order. An unauthorized move can also become part of the other parent’s own modification case, and how a court weighs it depends on the facts.

Planning Ahead for Relocating With Your Child After Divorce

A move can mean a fresh start, and it is natural to want the legal side settled before committing to a new job or a lease.

1. E. Schmidt & Associates PLLC handles child custody matters and modifications, backed by 100 years of combined legal experience. Before the moving plans are final, call (281) 550-6650 or contact us so we can look at what your order means for relocating with your child after divorce.