One of the scariest thoughts that a parent can encounter is something happening to their children. We all hear of scary stories involving persons taking children from their parents at the grocery store, in public settings and our minds immediately rush to what would we do if that were to happen to us. We likely have several thoughts on the subject, but we truly have no idea about what we would do if that situation happened to us. Who would we turn to for help? What resources are available to a parent if they need immediate help locating their children?
I think that most of the time when we as parents consider something happening to our children such as an abduction, we usually consider the event occurring about someone we don’t know apprehending our children and taking them to a location that we are unaware of. However, in today’s blog post I would like to discuss with you the reality that this could occur in the context of a divorce. Namely, what would you do if you need to file for divorce from your spouse if your spouse fled the state of Texas with your children? While it is far from a given that your spouse will be harming your children while they are away from you, the reality is that you can never be sure. As a result, if you find yourself in a scenario where this is even remotely a possibility you should consider your options and learn what you can do to minimize risk to yourself and your children.
Your first inclination would likely be to figure out if you know where your spouse is taking the kids. For example, consider a scenario where your spouse removes the kids from Texas and takes them to a parent or other relatives’ home in another state. More than likely you will have a pretty good idea of where your spouse is taking the kids and what you need to do to confirm their safety. I have worked with enough families to know that oftentimes the spouse who does the removing of the children does so without warning to the family in another state. As a result, you may be able to contact those family members in hopes of working with them to confirm your child’s safety. while some family members may be hostile to your wishes many will cooperate with you and communicate with you as much as possible.
Your first inclination at this stage may be to jump on a plane or hop in the car and immediately attempt to retrieve your children. Honestly, I can’t say that my reaction will be any different. Having your children taken from your home by your spouse of all people has got to be an extremely disconcerting frustrating thing to go through. As a result, you are well within your rights as a parent to attempt to retrieve your children. However, there are issues that you need to bear in mind regarding involving the abduction of your children to another location.
The first is that most ball enforcement officials will not be overly excited about the prospect of assisting you with retrieving your kids. Remember that law enforcement officials deal in criminal matters primarily. At best this situation would be classified as a civil matter I’ll be at one where no civil cases have yet been filed. As a result, if you expect to enlist the services of local law enforcement once you locate your children then you may be in for a dream awakening. The last thing you want to do is travel hundreds or even thousands of miles to retrieve your children only to find that law enforcement is not willing to assist you.
Another factor that you need to consider is that your spouse has just as much a right to be with your children as you do. Until there are court orders in place designating specific periods of possession for you or yourself and your spouse with the kids there is no legal authority that prohibited you or your spouse from spending time with your children apart from the other person. What I’m trying to say is that you may not even be able to enlist the services of law enforcement to retrieve your children in a situation like this because your spouse has the right to take them places. In Texas, there is a presumption that parents act in the best interests of their children. Without an ongoing legal case such as a divorce, there would not be much evidence to suggest otherwise.
So, while you may feel that morally you are in a strong position to go and get your children back immediately the law may not be on your side. What steps, then, can you take to not only have your children returned to Texas but to return safely to you and away from your spouse? If you believe that a divorce is necessary and in the best interest group family what role does filing a divorce play in the safe return of your children to your home? That is what I would like to discuss with you in today’s blog post.
Filing for divorce in Texas
Using the above scenario as a backdrop, I will tell you that it is still proper for you to file for divorce in Texas as opposed to another state. Even if your spouse plans to not return with the children and instead take up residency in another state a Texas court would still have jurisdiction over your case because you are a resident of Texas. Residency in jurisdiction requires you to have resided in Texas for the six months before filing your divorce and for three months in the county or you will be filing your case.
Please note that jurisdictional requirements to file for divorce vary from state to state. While the state your spouse went to may not have the same jurisdictional requirements as Texas they are likely similar. Therefore, your spouse should not be expected to be able to file for divorce immediately from you in another state once he or she leaves Texas. However, if you failed to file for divorce first in Texas and wait to retrieve your children then it is likely that your spouse would take the initiative and file for divorce in the new state. At that point, a Texas court and a court from the state would need to communicate with one another to determine where jurisdiction is appropriate. This involves determining the most convenient forum, jurisdictional arguments from attorneys, and determinations on what is in the best interests of your children.
You can avoid situations like this simply by filing for divorce as quickly as possible once you’re spouse leaves the state of Texas. Not only does doing so makes sense from the perspective of establishing jurisdiction in Texas and preventing your spouse from attempting to establish jurisdiction in your state but there are procedural, legal, and other advantages to your filing for divorce in Texas even if your children are not here in this state.
Advantages to filing for divorce in Texas part of filing for divorce involves testing temporary orders. Temporary orders are orders that will last for a temporary period. This either means that the temporary orders will last until the end of your divorce or at least until a future date to be determined by the court. Temporary orders are a part of almost every divorce in our state, but you may also seek emergency temporary orders if there are exigent circumstances ongoing. Certainly, I believe that your spouse moving your children to another state without your permission or knowledge would count as exigent circumstances.
As part of requesting an emergency temporary order, you can seek to get in front of a judge to hold the hearing on having your children returned home. A hearing can be held without your spouse present or even providing notice to him or her under certain circumstances. You need to establish the nature of the removal being without your knowledge or permission and specify that you believe your children are in danger due to being removed from their home. Under the legal concept of habeas corpus, a judge can issue an order 2 law enforcement seeking to return your children to the state of Texas.
It is the standard operating procedure for courts in other states and law enforcement to cooperate with child custody orders issued by another state. An emergency order that requires your children to be returned home to Texas may result because of an emergency hearing such as this. However, you need to file first for divorce and establish jurisdiction to get to this point. Do not assume that these remedies will be available to you under other circumstances.
Next, as part of a divorce, you can establish the need for an ongoing temporary order that bars your spouse from removing children from a certain geographic area. It would not be difficult to establish at that point that you are so at the risk of removing the kid’s basement exit and seeking orders to limit their ability to do so would be prudent. By choosing to remove your children from Texas in this way your spouse puts him or herself at risk of having strict limitations put on their ability to interact with their children. He or she may even have supervised visitation ordered due to these incidents having unauthorized and Interstate travel with the kids.
Avoiding problems regarding unauthorized travel in the future
Much of what a final decree of divorce does is to minimize risks of harm in the future. One of those areas where you would want to avoid running into problems in the future is with having your children be able to reside a great distance from you. One of the ways to prevent this from being able to occur is chill have a geographic restriction in place. A geographic restriction seeks to allow your child to reside within a certain geographic area and nowhere else. For example, you and your spouse may agree to a geographic restriction covering your home county and a number of the counties surrounding your home county. I have even worked on cases where the parents agreed to when geographic restrictions for a certain school district.
If you are named as the parent who has the right to determine the primary residence of your children then you will be ordered to maintain the children’s residence within the geographic location outlined in the child custody orders. If at any point you move beyond that geographic location, then your ex-spouse can file a motion to enforce the divorce decree. Likely, you could be forced to move back into that geographic region or risk fines, fees, and possible contempt of court findings if you refused.
In the alternative, if your ex-spouse moves beyond the confines of the geographically restricted area then that would absolve you from having to live within that same region yourself. If the non-custodial parent decides to move outside of the geographic area then you may decide to do so as well. The geographic restriction is in place to benefit the non-custodial parent. Imagine a situation where you would move across the country with your children due to there not being a geographic restriction period as such, your spouse will be forced to follow you at the drop of a hat to keep up with the kids. If your ex-spouse does not wish to abide by the terms of the geographic restriction which is intended to benefit him or her then you will not be expected to do so either.
When it comes to travel many families choose to insert specific provisions into their final decree of divorce to mandate that specific guidelines be followed in terms of providing notice to another parent of an intended trip as well as details about the trip itself. most of these instances occur for international travel but nothing is stopping you from requiring the same notice and information be provided in the event of interstate travel. For example, you could require your spouse to disclose the intended dates of travel, location of travel, accommodations, emergency contact information, and other information if he or she intends to travel with your children in the future. This would provide you with some Peace of Mind and prevent him or her from absconding with your children to a large extent.
This can be especially important protection if your spouse and you have an international background. Living in Southeast Texas there are many of our neighbors who have resided outside of the United States and only recently moved to Texas. With that being said, the threat of international abduction of children is a real concern. Not that this would happen to your family but there is a threat certainly of this occurring. If you or your spouse have family members outside of the United States and planted travel with your children in the future, then it may be a good idea for you to discuss these types of limitations to travel with your attorney.
If your Co-parent has threatened the safety of your children in the past you are likely justified in requesting supervised or extremely limited possession and visitation at least for the time being. Supervised visitation works in such a way that a third party will always be available to oversee periods of possession for your spouse and your children. A third party could be a family member, friend, or even a designated supervised visitation facility. This is another layer of accountability to prevent your spouse from engaging in unbecoming behavior around your children. It may be appropriate to include gradual increases in autonomy in time with your children when it comes to your spouse’s periods of possession. Many times, this is referred to as stairstep visitation in the world of Texas family law.
Whatever your situation is regarding child custody matters and your spouse you need to have a well-defined plan in a method of achieving the goal set for in that plan. If you are an inexperienced participant in a divorce, then it would make sense for you to seek out the advice of an experienced family law attorney. The difference between representing yourself and having an attorney to represent you can be significant. I am it is certainly a risk to be unrepresented in a divorce case where the safety and well-being of your children are at stake.
Questions about the material contained in today’s blog post? Contact the Law Office of Bryan Fagan
If you have any questions about the material contained in today’s blog post please do not hesitate to contact the Law Office of Bryan Fagan. Our licensed family law attorneys offer free of charge consultation six days a week in person, over the phone, and via video. These consultations are a great way for you to learn more about the world of Texas family law as well as about how the circumstances of your family may be impacted by the filing of a divorce or child custody case.