Hey, Can She Really Do That??!!
Imagine a few years after a divorce from your spouse: your ex has decided to move with your children a good distance away. Your mind races to all the horrific impacts such a move will have on your relationship with your son and daughter. The relocation by your ex may be 100 miles away, 1,000 miles away, or halfway around the globe. It doesn’t matter. The severe blow this move will have upon your relationship with your children consumes your waking hours. Whether your ex will be able to make such a move with the children will depend on a number of factors. Let’s explore 10 of them.
(A juicy steak, a scrumptious salad, a nice red wine, and a picture-book blueberry galette are the perfect catalyst for creativity and candid communication. A quick time-out while I enjoy said catalyst. … Okay, time in.)
In Texas, a “material and substantial change” in the circumstances of your ex, your children, or of you after a divorce is one prerequisite that permits such a move by your ex with the children. I continue to say “with the children,” since your ex may move anywhere at any time without the children—there is freedom of travel in the United States. Not every move will constitute a material and substantial change. To conclude whether a relocation with the children is a material and substantial change, appellate courts around Texas have considered the following ten factors:
1. The distance between the parties after the relocation. A move from Texas to Hawaii was a material and substantial change all by itself. No other factors had to be considered. A move 150 miles up the road, without other factors, may not be.
2. The proximity, availability and safety of travel arrangements. How close is the nearest airport, if air travel is involved? How old are your children? Are they able to travel alone or must they be accompanied by an adult? Is international travel involved?
3. The quality of the relationship between you and your children. Is the quality of your relationship strong or weak? Do you have such a poor relationship with your son that he wants to change his last name? Or are you the parent the child idolizes and wishes to follow in your footsteps?
4. The nature and quantity of your children’s contacts with you now. Before the move, how often do you see them? Do you eat lunch with your kids? Do you attend not only their games but also their practices? Do you know their friends’ names? Do you know your children’s heroes?
5. The impact of the move on the quality and quantity of your children’s future contacts with you. How likely are you to eat lunch with them or attend their practices after they move to Maine?
6. The possibility that the relocation would deprive you of regular and meaningful access to your children. After moving with the children to Mexico, your ex may not return your children for court-ordered possession periods with you.
7. The motive of your ex for moving away or your reason for opposing the move. If your ex is moving because her new husband got a really nice job in Miami, that’s one thing. If she is moving to retaliate against you for having an affair that destroyed your marriage and her idyllic life with you, then that is another. Is your reason for opposing her move because it will annihilate your relationship with your children?Or because you are simply controlling and narcissistic?
8. The feasibility of preserving the relationship between you and your children through suitable visitation arrangements. Is your ex willing and flexible enough to give you extra time in the summer and during holidays and Spring Break as a compromise so the children can spend more time with you?
9. The nature and quality of the children’s relationship with your extended family. How often do your children interact with your mother and father, brothers and sisters, and their children? How many of your extended family live within a 25-mile radius of where you currently live? How many of your extended family will live within a 25-mile radius of where your ex will live after the move?
10. The impact of the move on the children’s stability. In one case, even though the mother and the stepfather did not have a job or a home waiting for them in Mexico, the mother abruptly removed the child from school in the middle of the school term to move there. Uprooting the children from a neighborhood they have been enjoying for many years and wrenching them away from numerous friends and familiar schools will not be viewed with favor by most judges.
These are just ten of the factors a judge can consider in determining whether the relocation is a material and substantial change. At the outset, I said a material and substantial change in circumstances is only one of the prerequisites in concluding whether your ex gets to move with the children. The other prerequisite is: is the move in the best interest of your children? Over the years, courts have developed some 14 factors when studying the impact of the move upon the children. Perhaps those should be left to another blogpost and another steak dinner.
If you are considering moving with the children to another area, or if your ex has advised you of an impending move, schedule a visit with the Law Office of Randy Michel, PLLC, or with a family law attorney who is experienced in relocation cases.