What rights do I have to relocate with my son if I am only legally separated?
03/29/2009 - Category:Divorce - Child Custody - State: TX #15808
My husband and I separated in January, and WITH his consent, my 15-month old son and I moved to Texas. We got married in Texas, and Texas was my home of residency when I joined the navy. However, my son was born in Florida and that is where we lived for 8-months after I got out of the Navy. Now, my husband wants me to move back to Florida and I have already established a life here in Texas. What are my legal rights to stay in Texas with my son?
State laws provide that biological parents make all the decisions involving their children, including education, health care, and religious upbringing. Parents are not required to secure the legal right to make these decisions if they are married and are listed on the child's birth certificate. However, if there is disagreement about who has the right to make these decisions courts can decide. Custody issues between estranged spouses are typically determined in the terms of the separation agreement or custody order if there is a divorce action. In some cases, an interference of custody charge may be brought when the person tries to prevent visitation.
Typically, at the time of the divorce, both parents are living in the same town. But it happens sometimes that at some point after the divorce, one parent wants to move away. Often this is because of a job offer. Other times, the party simply wants to return to his or her family. The issue then becomes: can the parent who is staying behind prevent the other party from moving?
If it is the parent who does not have physical custody, there is no issue. That parent may move. Often, visiting arrangements have to be changed, to allow for fewer, but longer, blocks of time. Typically, children visit spouses in other states during winter break and for part of the summer.
Generally, a parent with physical custody may relocate with a child if not prevented by a court order and it is not done with the intent to deprive the other parent of access to the child. However, if the parent who has physical custody wants to move, and the other parent protests, the courts in most states have the authority to decide, on behalf of the children, whether the custodial parent may move.
The courts typically consider the following factors:
- Whether the move will improve the child's school or community.
- Whether the parent's motive was to harm the non-custodial parent.
- Whether the non-custodial parent's motive in resisting the move is to harm the custodial parent.
- Whether the non-custodial parent will still be able to have ongoing and significant contact with the child.
- The nature of the non-custodial parent's contact with the child so far. In cases that denied the move, a consistent theme is that the other parent has spent many hours each week with the child, consistently showed up for all his or her visitations, and established a close, supportive, and loving relationship with the child.
- The effect, either way, on the child's contact with grandparents and other people who are important influences in his or her life, as well as contact with the child's native culture.
The overall best interest of the child is the deciding factor for the court, based on all the facts and circumstances in each case.
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03/29/2009 - Category: Child Custody - State: TX #15808
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