Texas Child Custody Law
B. Geographic Restriction / Relocation
C. How does a court choose a primary conservator?
- Standard Possession Order
- Children under the age of 3
- Long Distance Visitation
- International Travel and Passports
1. Sole Managing / Joint Managing
Prior to 1995, the status of the law was that when parent divorced, one parent (generally the mom) was appointed the sole managing conservator and the other parent was appointed a possessory conservator (also known as the visiting parent). In 1995, the legislature added the presumption (found at §153.131 of the Family Code) that, unless there is a history of domestic violence, or there is some other really good reason why the parents shouldn’t be joint managing conservators, the court shall appoint the parents to be joint managing conservators. However, in actual effect, not that much was changed.
A lot of clients think that joint managing conservatorship (JMC) is the same as “joint custody” or a 50/50 split of time with the children. It is not. Actually, JMC is more of a title, and does not affect the amount of time either parent spends with a child. JMC simply means that the decision-making rights that were exclusive to the sole managing conservator under the old scenario can now be made (1) exclusive to one parent, (2) joint (meaning that both parents need to agree before a particular decision can be made for the child), or (3) independent (meaning that either parent can make a particular decision for the child, without the consent of the other parent).
The rights and duties that now have to be allocated between the parents in a JMC are as follows:
§ 153.132. RIGHTS AND DUTIES OF PARENT APPOINTED SOLE MANAGING CONSERVATOR.
Unless limited by court order, a parent appointed as sole managing conservator of a child has the rights and duties provided by Subchapter B and the following exclusive rights:
(1) the right to designate the primary residence of the child;
(2) the right to consent to medical, dental, and surgical treatment involving invasive procedures;
the right to consent to psychiatric and psychological treatment;
(4) the right to receive and give receipt for periodic payments for the support of the child and to hold or disburse these funds for the benefit of the child;
(5) the right to represent the child in legal action and to make other decisions of substantial legal significance concerning the child;
(6) the right to consent to marriage and to enlistment in the armed forces of the United States;
(7) the right to make decisions concerning the child’s education;
(8) the right to the services and earnings of the child;
(9) except when a guardian of the child’s estate or a guardian or attorney ad litem has been appointed for the child, the right to act as an agent of the child in relation to the child’s estate if the child’s action is required by a state, the United States, or a foreign government; and
(10) The right to (a) apply for a passport for the child; (b) renew the child’s passport; and (c) maintain possession of the child’s passport.
The right to determine the child’s primary residence (#1) and the right to receive and disburse child support (#4) will almost always be exclusive to one parent. That is the person we refer to as the “primary parent”.
Depending on how the parents work together, how involved the secondary parent has been in the child’s life, a parent’s track record on making good decisions for the child, how far apart the parents live, etc., will determine whether or not the rest of the rights and duties will be exclusive, joint or independent. The three “big” ones are the right to make non-emergency medical, dental (#2), the right to make psychological and psychiatric decisions (#3) and the right to make educational decisions (#7). Sometimes these are exclusively assigned to one parent, but if they will be assigned to both parents, the court (or the parties, if the divorce will be by agreement) has to determine if the rights will be exercised jointly or independently.
An example of how this works is as follows: A pediatrician will often recommend that a child who has chronic strep throat, bronchitis or tonsillitis should have their tonsils and adenoids removed. This is elective, non-emergency surgery. If the right to make medical decisions is to be exercised jointly, both parents have to consent. If one parent is against this type of surgery and the other wants to go forward, they cannot. If the right is to be exercised independently, either parent can consent, and in this scenario, the parent who wants to go forward will simply schedule the surgery during their time of possession.
The other major issue with regard to these rights and duties is that in a joint managing conservatorship, the court must state whether or not the exclusive right to determine primary residence (#1) must be restricted to a particular geographic area, or whether the right is unrestricted. This is one of the hottest areas of child custody litigation, and I will get into it more fully below.
Under either scenario (Sole/Possessory or JMC), all parents continue to have certain rights and duties at all times. These rights and duties are very rarely altered by the court. These rights and duties are as follows:
§ 153.073. RIGHTS OF PARENT AT ALL TIMES.
(a) Unless limited by court order, a parent appointed as a conservator of a child has at all times the right:
(1) to receive information from any other conservator of the child concerning the health, education, and welfare of the child;
(2) to confer with the other parent to the extent possible before making a decision concerning the health, education, and welfare of the child;
(3) of access to medical, dental, psychological, and educational records of the child;
(4) to consult with a physician, dentist, or psychologist of the child;
(5) to consult with school officials concerning the child’s welfare and educational status, including school activities;
(6) to attend school activities, including school lunches, performances, and field trips;
(7) to be designated on the child’s records as a person to be notified in case of an emergency;
(8) to consent to medical, dental, and surgical treatment during an emergency involving an immediate danger to the health and safety of the child; and
(9) to manage the estate of the child to the extent the estate has been created by the parent or the parent’s family.
§ 153.074. RIGHTS AND DUTIES DURING PERIOD OF POSSESSION.
Unless limited by court order, a parent appointed as a conservator of a child has the following rights and duties during the period that the parent has possession of the child:
(1) the duty of care, control, protection, and reasonable discipline of the child;
(2) the duty to support the child, including providing the child with clothing, food, shelter, and medical and dental care not involving an invasive procedure;
(3) the right to consent for the child to medical and dental care not involving an invasive procedure; and
(4) the right to direct the moral and religious training of the child.
§ 153.076. DUTY TO PROVIDE INFORMATION.
(a) The court shall order that each conservator of a child has a duty to inform the other conservator of the child in a timely manner of significant information concerning the health, education, and welfare of the child.
(b) The court shall order that each conservator of a child has the duty to inform the other conservator of the child if the conservator resides with for at least 30 days, marries, or intends to marry a person who the conservator knows:
(1) is registered as a sex offender under Chapter 62, Code of Criminal Procedure; or
(2) is currently charged with an offense for which on conviction the person would be required to register under that chapter.
(b-1) The court shall order that each conservator of a child has the duty to inform the other conservator of the child if the conservator:
(1) establishes a residence with a person who the conservator knows is the subject of a final protective order sought by an individual other than the conservator that is in effect on the date the residence with the person is established;
(2) resides with, or allows unsupervised access to a child by, a person who is the subject of a final protective order sought by the conservator after the expiration of the 60-day period following the date the final protective order is issues; or
(3) is the subject of a final protective order issued after the date of the order establishing conservatorship.
(c) The notice required to be made under Subsection (b) must be made as soon as practicable but not later than the 40th day after the date the conservator of the child begins to reside with the person or the 10th day after the date the marriage occurs, as appropriate. The notice must include a description of the offense that is the basis of the person’s requirement to register as a sex offender or of the offense with which the person is charged.
(c-1) The notice required to be made under Subsection (b-1) must be made as soon as practicable but not later than:
(1) the 30th day after the date the conservator establishes residence with the person who is the subject of the final protective order, if the notice is required by Subsection (b-1)(1);
(2) the 90th day after the date the final protective order was issued, if the notice is required by Subsection (b-1)(2); or
(3) the 30th day after the date the final protective order was issued, if the notice is required by Subsection (b-1)(3).
(d) A conservator commits an offense if the conservator fails to provide notice in the manner required by Subsections (b) and (c), or Subsections (b-1) and (c-1), as applicable. An offense under this subsection is a Class C misdemeanor.
For the most part, the only one that gets altered is Right #6, the right to attend school activities. When a parent has supervised visitation because of previous bad behavior, the court will often restrict this right to require the visiting parent to either have a supervisor present at such events, or to get the primary parent’s consent before attending.
An issue that comes up regularly is that when clients read the language in §153.076, they often believe that they are being accused of dating sex offenders and that this language is aimed directly at them. Of course, that isn’t the case. This language is required to be in all orders.
B. Geographic Restriction / Relocation
Whether or not the child’s residence will be restricted to a particular geographic location is a very difficult and emotional topic. It is important to note that it is only the child’s residence that is being restricted, and not the parent’s. It would violate a parent’s U.S. Constitutional right to travel for a court to order an adult to reside in any particular area. However, the court can restrict a child’s residence for certain purposes.
So, when a client asks, “Why is only my residence restricted and not the other parent’s”, we explain that it is not a parent’s residence that is restricted, it is the child’s, and if they want to be the primary parent and have the exclusive right to determine the primary residence, their residence will necessarily be restricted too. However, if the non-primary parent moves outside the restricted area, the restriction is lifted completely (since the restriction only exists to ensure that the non-custodial parent’s access to the child remains convenient and therefore the relationship with the child remains intact).
The reason the court imposes geographic restrictions is so that the child can have close and continuous contact with both parents. If the visiting parent lives 10 miles from the child, that parent will have a very different relationship with the child than if the parent lives 1000 miles from the child. When the parents reside near each other, the visiting parent can be very involved in school functions, after-school activities, the child’s friends and those friends’ parents, etc.
When one parent moves far away, the visiting parent only sees the child during vacation times and cannot participate in daily life. Such participation makes a very big difference in the relationship between a child a parent.
For example, when the parents live close to each other, the dad (for illustration purposes) can attend parent-teacher conferences at school, can coach the child’s soccer team, can volunteer at the child’s school, can have lunch with the child on a weekday, can get to know the child’s teachers and friends, and will not be considered an outsider or an uninvolved parent. Once the child moves away, all of that disappears.
Additionally, as the child grows older and gets involved in more and more activities, the child will not want to leave one weekend a month to visit dad and miss out on whatever activities are happening that weekend at home.
For example, if the child plays high school football, how can he tell the coach that he will have to miss one game a month because he has to go visit his dad? Or miss a best friend’s birthday party, or a school dance, or a boy scout camping trip? The child becomes resentful if the dad makes him/her go for a visit instead of participating in activities and the relationship between the parent and child deteriorates.
It is for these reasons that from about 1995 through 2002, courts routinely imposed these restrictions, regardless of the mom’s reasons for wanting to move away.
However, the reasons to move can be equally as compelling as the reasons to stay, and in 2002, the courts began to find that it was not in a child’s best interest to be so strict about geographic restrictions, and the law began to change.
The current state of the law is that if a parent with the exclusive right to determine primary residence has a compelling reason to want to move, and can propose a reasonable plan for visitation between the child and the other parent, the court will likely let him/her go.
The leading cases that cover this issue are Lenz v. Lenz, 79 S.W.3d 10 (Tex. 2002), Bates v. Tesar, 81 S.W.3d 411 (Tex.App.- El Paso, 2002), and Echols v. Olivarez, 85 S.W.3d 475 (Tex.App.- Austin, 2002). In February 2002, the Supreme Court of Texas decided the Lenz case. In the Lenz case, the Court for the first time acknowledged the concept of the child’s best interest in the context of the custodial parent’s happiness. The Court looked to decisions in other states, such as the New Jersey case of Baures v. Lewis, 770 A.2d 214, 223 (N.J. 1999), which found that “the interests of the child are closely interwoven with those of the custodial parent, [which] is consistent with psychological studies of children of divorced or separated parents. . . . Since that time, social science research has uniformly confirmed the simple principle that, in general, what is good for the custodial parent is good for the child.”
In the Echols case (which is an Austin case), Judge Yeakel noted that the courts should look at the reality of how people need to move on after a divorce and that this may sometimes involve relocating the children and affecting the relationship between children and visiting parents:
“[I]n the context of relocation cases, slavish adherence to [the old] policy ignores the realities of a family that has been dissolved. After the dissolution of the family, each parent must establish a separate life. And in today’s society, it is unrealistic to expect that any family, whether intact or not, will remain in one geographic location for an extended period of time.
“The high incidence of divorce, remarriage, second divorce, unpredictability of the employment market, and competing economic factors are all forces that affect the lives of many families and render the possibility of relocation a condition to be faced by most. In fact, there is an emerging trend of recognition by social scientists that the divorced family is a fundamentally different unit than the marital family and that a child’s circumstances may actually be improved by a relocation when other positive factors are present.”
The Bates case, which also came out about the same time (in June 2002) applied the same rule, but the result in that case was that the court found that the mom did not have a good enough reason to move away, that the dad had a very close relationship with the children before the move that was essentially destroyed by the move, and that because the mom had moved to a rural place that was far from a major airport, visitation was not only limited for the dad, but hard on the children. Even after the mom and the children had already lived in their new home for a year, the court required them to move back to Dallas County (of course, since the court could not tell the mom where to live and could only restrict the children’s residence, the mom had the choice of sending the children to live with dad, or to move back with them).
So then, what would be a compelling reason that the court would approve? I have found that the most important reasons courts look to is the parent’s support system, especially at the time of divorce. When parents are initially splitting up, the primary parent, who will now be a single parent, will likely need the emotional support, financial support and child care support of his/her family.
This is especially true if the primary parent did not want the divorce in the first place (for example, if the other person was having an adulterous relationship), and if the primary parent was not working full-time during the marriage, but will now have to work full-time in order to support the child. In Austin in particular, it is extremely common that one or both parents moved here from somewhere else, and that their extended family is not local.
At the time of divorce, many soon-to-be single parents want and need to move back home, which for many parents in Austin, is out-of-state. So relocation, which is a major issue in every state, comes up even more so in this region.
If the parties agree to a residency restriction at the time of divorce, but one party later seeks to have the restriction lifted or modified because of a substantial change in circumstances, the reasons will likely be different. Usually the post-divorce reasons include new jobs or new spouses who are being relocated with their job.
Depending on the parent’s career, sometimes there can be very limited options in a particular region. For example, when the technology industry took a hard economic hit in 2001 and again in 2008, many of the technology jobs in the Austin area disappeared. Many people had the option of either changing careers (which was not always much of an option, given the change in income that would likely result), or relocating to where the jobs were.
In fact, the Echols case was a case where the mom had a significantly better job opportunity in Tennessee, which was unique and for which there was no job-equivalent in the Austin area. The court found that if the mom would be happier in her new job and would be making substantially more money, the child would receive significant benefits that would outweigh the benefit of having a geographically close relationship with the dad.
Therefore, the timing of a relocation request is extremely important. If a mom agrees to a residency restriction at the time of divorce, but finds two years later that she is really struggling and wants to move closer to family, at that point it will be a harder and much more expensive battle – often more expensive and more contentious than the original divorce – and if she is already struggling to get by, she will not likely have the resources to launch a new battle.
Also, if she is struggling more emotionally than financially, and has an established place to live where the child is established in a school and other activities, the mom’s position is harder to advocate and the case is harder to win.
The last piece to consider when deciding whether or not to launch a relocation battle is to consider the decision maker. Judges have their own personal views of this issue and as long as they make a “reasonable” decision based on the evidence, it will be upheld on review by an appellate court. If you are in a jurisdiction where the judges are very hesitant to allow a move, you may want to consider requesting a jury.
In Travis County, the trend right now is that the judges tend to allow parents to move somewhat easily if they meet the basic test. In fact, there is at least one judge who shares her children with their father in Colorado and has no problem approving a long-distance visitation schedule under the right circumstances.
In Williamson County, it is a bit harder, with several judges who are very involved fathers and therefore will not approve a relocation, except in exceptional circumstances.
C. How does a court choose a primary conservator?
The courts look to a lot of different factors when selecting which parent should be the primary parent at the time of divorce.
The most significant factor, particularly with young children, is to determine which parent has been the child’s “psychological parent”. That is, who primarily cares for the child’s day-to-day needs? Who does the child cry out for during the night? Who bathes, feeds, clothes the child? Who takes the child to the doctor, dentist? Who takes the child to school, picks the child up, attends conferences, takes the child to after-school activities?, etc. etc.
Although the Family Code prohibits the court from considering gender in making its determination (§153.003), with young children, it is most often the mom who has assumed the role of primary parent during the marriage, and therefore has a very strong position when seeking to be appointed the primary parent during divorce.
How does a parent go about proving this in court? Witnesses who know the dynamics of the family are extremely important. This includes family members, but since they are often seen to be biased witnesses, the better witnesses are the unbiased ones, like neighbors, parents of the child’s friends, teachers, coaches, counselors, childcare workers, babysitters, etc.
Also, the child’s school records and medical records can be very telling. Daycare agencies and preschools keep a log of who drops off and picks up a child every day, and keep records of who signs permission slips, enrollment slips, medication dispensing notes, etc. Schools keep records of who attends parent-teacher conferences, ARD meetings, who signs registration forms and permission slips, who picks up the child if the child has to go home sick, and who sends notes to the teacher regarding the child. Medical records show who takes the child to the doctor, who calls the doctor with questions and who signs the child’s shot records. All of these records are generally admissible and can rebut the other parent’s claim that they share parenting responsibilities equally.
However, as the children get older, the roles often change. Often, the dads take a more active role in the children’s sports activities and begin to spend a lot more time with the children. Also, when a family is splitting up, it is often the woman who becomes very emotional – and often this emotion can begin years before the actual break-up.
When the mom is so emotional, older children tend to distance themselves from her, and at the time of divorce, older children may choose to live with dad instead. Or, if dad is at fault for the break-up (maybe because he is cheating on mom, or maybe he is abusive toward mom), older children can get very protective of the mom and don’t want anything to do with the dad.
At the age of 12, the Family Code says that a child can have a say in who their primary conservator will be (§153.009). Although most clients like to interpret this to mean that a child over 12 can choose their primary parent, that is not necessarily the case. The way this usually happens is that the parent who wants the child’s wishes to be considered files a request with the court for the judge to interview the child in chambers.
If the child appears to have made a mature decision and can articulate the reasons for the decision, it will likely be approved by the judge. However, there are a lot of dangers with using the child’s choice as a basis for requesting custody.
First of all, many children so desperately want to please their parents, they will say anything they think their parents want to hear – something that they perceive will make the parent happy. In other words, if a child perceives that by telling dad he would really like to live with him full time will make dad happy and love the child more, the child will say it regardless of whether or not the child really means it.
Children don’t generally think ahead to the serious consequences of their actions and may not even realize the wheels they may be setting in motion by making such a statement. In fact, it often happens that after a child tells one parent that they want to live with them, they then tell the other parent the same. Children who love both parents don’t want to hurt either one and this is one way this gets expressed. Also, children love to manipulate their parents by complaining about the other parent – and maybe even exaggerating what goes on in the other parent’s home – and this is especially true when they know that the parents do not communicate very well.
If the child is convincing, the visiting parent then starts up expensive and emotional litigation – sometimes for good reason, but not always. Sometimes, at the time the child is interviewed (which is generally at the time of the court hearing) the child recants and the whole thing becomes a big waste of time and money. This further drives a wedge between two parents who couldn’t work together to begin with, so it is important to be sure that the child understands the consequences of their statements and that there are good reasons for them to be making such statements.
We often see a visiting parent bribing (sometimes unintentionally) the child to make this election. Sometimes it is not an outright “bribe”, but rather more flexibility with rules, the promise of a car at 16, etc. Cases involving a choice by a child over 12 are overwhelmingly filed in August, after the child has spent 4 or 6 weeks with dad, had a great time, and decides s/he wants to stay.
Whatever the case, it always helps to have several unbiased witnesses to back up the position that you are advocating.
1. It is presumed that the Standard Possession Order (SPO) set out in §§153.311 – 317 of the Family Code is in the best interest of the child.
In very general terms, the SPO provides that a visiting parent who lives within 100 miles of the child shall have visitation with a child on first, third and fifth weekends (counting by Fridays), Thursday evenings, every other Thanksgiving, half of every Christmas break, every other Spring Break and 30 days in the summer.
Depending on how far apart the parents live and certain other circumstances, the weekend visitation can be either from Friday at 6:00 p.m. to Sunday at 6:00 p.m. or from Friday when school lets out until Monday morning when school resumes. Thursday evenings can be either from 6:00 p.m. to 8:00 p.m. or overnight (the added overnights is generally referred to as the “expanded SPO”).
The factors that the court will consider to determine if the visiting parent should have an expanded SPO is how far the visiting parent lives from the child’s school (they don’t want the child to have to travel an additional hour just to get to school in the morning), the visiting parent’s work schedule (a parent who has to be at work at 7:00 a.m. probably cannot get a child to school at 7:30 a.m.), how important consistency and continuity is for the child (autistic children, children with ADHD and certain other disorders have a very strong need for consistency in routine and sleeping at two different homes on school nights can be very disruptive for them), how well or how poorly the parents get along at exchanges of the children (if the parents cannot properly behave during exchanges, it would be better to pick up the children from school and return them to school than to have the parents appearing at each others’ homes), etc.
Parents who live over 100 miles from the child visit with the child either on first, third and fifth weekends, or one weekend per month (that they can select with 14 days notice to the primary parent), plus every other Thanksgiving, half of every Christmas break, every Spring Break and 42 days in the summer. A parent must elect at the time of the order or at the time the parent begins living more than 100 miles from the child whether they will be exercising the first, third, fifth schedule or the one weekend per month schedule. The main consideration is how far the child will be. For example, if the child will be in Dallas with the other parent in Austin, a first, third, fifth schedule is feasible. If the child will be in Maine, it is not.
Parents can always come up with any other visitation schedule that they can agree to and that fits their individual circumstances. For example, people with unusual work schedules may need to conform their visitation to their work schedule. Firefighters, pilots, hospital nurses, people who work the night shift at a factory are among many who will likely need a custom schedule. There are people who choose to share the children’s time equally. Some people do a week-on, week-off schedule, some split the weeks in half, doing a 4/3, 3/4 schedule, etc. Generally, a court will not make an order for a 50/50 time split if it is not agreed by the parties, but will approve an agreement if the parties sign off on it. There is a lot of psychological evidence that goes against such schedules, but in certain circumstances (like where the parents live only a few blocks away from each other and can work well together regarding the children) it can work. One of the more popular 50/50 schedules for younger children right now is the 2-5-5-2 schedule, where one parent has every Monday and Tuesday nights (overnight), the other parent has every Wednesday and Thursday nights (overnight) and they alternate weekends (from Friday after school until school resumes on Monday morning).
2. Children under the age of 3.
The SPO is presumed to be in a child’s best interest beginning at age 3. However, there are a lot of people who will agree to do a step-up to age 5 or to the beginning of Kindergarten. For example, the parties may agree to begin SPO at age 3, but not expanded SPO until age 5; or they may agree that until age 5, the visiting parent will not take 30 consecutive days in the summer, but rather will break up the 30 days into two 2-week periods.
Prior to age 3, judges have to be creative because there is no presumed schedule for children under age 3, only a list of factors to help guide judges in their decisions. Generally, the presumption is that children should have short, frequent visits under the age of 3, never going 7 days without seeing the other parent. For a newborn, a typical schedule would be Tuesdays and Thursdays from 5:00 p.m. to 7:00 p.m. and Saturdays from noon until 4:00 p.m. This would probably step up at 6 months to more hours on Saturday, and then again at a year to include one overnight per weekend, but not every weekend. It might step up again at 18 months, and again at age 2 to reach SPO by age 3.
Visitation for a child under age 3 who resides over 100 miles from the visiting parent is very tricky because it will necessarily involve longer periods of visitation time less often, and a parent will have to travel with the child at least until age 5 if traveling by air, which from age 2 through 5 means the purchase of 2 airline tickets each time.
3. Long distance visitation.
When a child will be visiting long distance (by air), the courts generally provide for all of the specifics of how that will take place. A typical provision in a decree would look like this:
“IT IS ORDERED that the following provisions shall govern the arrangements for the travel of the child to and from PARENT Y.
“Notice of Place and Time of Possession – IT IS ORDERED that, if PARENT Y desires to take possession of the child at an airport near PARENT Y’s residence, PARENT Y shall state these facts in a notice letter to PARENT X:
(a) the airport where PARENT X is to surrender the child;
(b) the date and time of the flight on which the child is scheduled to leave;
(c) the airline and flight number of the airplane on which the child is scheduled to leave;
(d) the airport where the child will return to PARENT X at the end of the period of possession;
(e) the date and time of the flight on which the child is scheduled to return to that airport; and
(f) the airline and flight number of the airplane on which the child is scheduled to return to PARENT X at the end of the period of possession.
“Flight Arrangements – IT IS ORDERED that PARENT Y shall make airline reservations for the child only on major commercial passenger airlines on flights having no change of airplanes between the airport of departure and the airport of final arrival (a “nonequipment change flight”). IT IS FURTHER ORDERED that PARENT Y shall make airline reservations for the child on flights that depart from a commercial airport near the residence of PARENT X that offers regularly scheduled passenger flights to various cities throughout the United States on major commercial passenger airlines.
“Delivery and Pickup by PARENT X – IT IS ORDERED that PARENT X shall deliver the child to the airport from which the child is scheduled to leave at the beginning of each period of possession at least one hour before the scheduled departure time. IT IS FURTHER ORDERED that PARENT X shall surrender the child to a flight attendant who is employed by the airline and who will be flying on the same flight on which the child is scheduled.
“IT IS FURTHER ORDERED that PARENT X shall take possession of the child at the end of PARENT Y’s period of possession at the airport where the child is scheduled to return and at the specific airport gate where the passengers from the child’s scheduled flight disembark.
“Pickup and Return by PARENT Y – IT IS ORDERED that PARENT Y shall take possession of the child at the beginning of each period of possession at the airport where the child is scheduled to arrive and at the specific airport gate where the passengers from the child’s scheduled flight disembark.
“IT IS FURTHER ORDERED that PARENT Y, at the end of each period of possession, shall deliver the child to the airport where the child is scheduled to depart at least one hour before the scheduled departure time and surrender the child to a flight attendant who is employed by the airline and who will be flying on the same flight on which the child is scheduled to return.
“Missed Flights – IT IS ORDERED that any conservator who has possession of the child at the time shall notify the other conservator immediately if the child is not placed on a scheduled flight at the beginning or end of a period of possession. IT IS FURTHER ORDERED that, if the child should miss a scheduled flight, the conservator having possession of the child when the flight is missed shall schedule another nonequipment change flight for the child as soon as is possible after the originally scheduled flight and shall pay any additional expense associated with the changed flight and give the other conservator notice of the date and time of that flight.
“Expenses Paid by PARENT Y – IT IS ORDERED that PARENT Y shall purchase, in advance, the round-trip airline tickets (including escort fees) to be used by the child for the child’s flight. IT IS FURTHER ORDERED that PARENT Y shall make necessary arrangements with the airlines and with PARENT X in order that the airline tickets are available to the child before a scheduled flight. IT IS FURTHER ORDERED that PARENT Y shall pay any other traveling expenses and charges incurred for the child from the time PARENT X surrenders possession of the child by placing the child on the scheduled nonequipment change flight at the beginning of a period of possession until the time PARENT X takes possession of the child at the termination of the scheduled nonequipment change flight at the end of the period of possession. IT IS FURTHER ORDERED that PARENT Y shall reimburse PARENT X for travel expenses of the child if, because of circumstances beyond PARENT X’s control, PARENT X is required to pay travel expenses of the child on a nonequipment change flight to or from the possession of PARENT Y.
“Miscellaneous Expenses – IT IS ORDERED that the expenses of a conservator incurred in traveling to and from an airport, as well as related parking and baggage-handling expenses, are the sole responsibility of the conservator delivering or receiving the child at the airport.”
As scary as it may sound to any parent of a young child, the airlines will allow a child to travel unaccompanied at the age of 5. This includes flying internationally and changing planes.
4. International travel and passports.
International travel and passports have gotten a lot of attention in recent years and there is quite a bit of new legislation on the subject of international abduction. In general, when there are no risk factors that apply to a particular case, the court may require only language that applies to the application and possession of a child’s passport and international travel as follows:
“IT IS ORDERED that either parent is authorized to apply for a passport for the child. If a party applies for a passport for the child, that party is ORDERED to notify the other conservator of that fact no later than 5 days after the application.
“IT IS ORDERED that PARENT X shall have the right to maintain possession of any passports of the child, subject to the requirements for delivery of the passport and all other requirements set forth below.
“The parent in possession of the passport is ORDERED to deliver or cause to be delivered to the other parent the original, valid passport of the child, within ten days of receipt of a notice of intent to have the child travel outside the United States during a period of possession. Such parent is ORDERED to return or cause to be returned to PARENT X the original, valid passport of the child, within ten days of the child’s return from the travel outside the United States for which the passport required.
“IT IS ORDERED that if a conservator intends to have the child travel outside the United States during the conservator’s period of possession of the child, the conservator shall provide written notice to the other conservator. IT IS ORDERED that this written notice shall include all the following:
1. any written consent form for travel outside the United States that is required by the country of destination, countries through which travel will occur, or the intended carriers;
2. the date, time, and location of the child’s departure from the United States;
3. a reasonable description of means of transportation, including, if applicable, all names of carriers, flight numbers, and scheduled departure and arrival times;
4. a reasonable description of each destination of the intended travel, including the name, address, and phone number of each interim destination and the final travel location;
5. the dates the child is scheduled to arrive and depart at each such destination;
6. the date, time, and location of the child’s return to the United States;
7. a complete statement of each portion of the intended travel during which the conservator providing the written notice will not accompany the child; and
8. the name, permanent and mailing addresses, and work and home telephone numbers of each person accompanying the child on the intended travel other than the conservator providing the written notice.
“The written notice may be in the form attached to this order as Exhibit A, Notice of Intent for Child to Travel Outside the United States.
“If the intended travel is a group trip, such as with a school or other organization, the conservator providing the written notice is ORDERED to provide with the written notice all information about the group trip and its sponsor instead of stating the name, permanent and mailing addresses, and work and home telephone numbers of each person accompanying the child.
“IT IS FURTHER ORDERED that this written notice shall be furnished to the other conservator no less than twenty-one days before the intended day of departure of the child from the United States.
“The parties are each ORDERED to properly execute the written consent form to travel abroad (attached hereto) and any other form required for the travel by the United States Department of State, passport authorities, foreign nations, travel organizers, school officials, or public carriers; when applicable, to have the forms duly notarized; and, within ten days of that conservator’s receipt of each consent form, to deliver the form to the conservator providing the written notice.
“IT IS ORDERED that any conservator who violates the terms and
conditions of this order shall be liable for all costs incurred due to that person’s noncompliance with this order. These costs shall include, but not be limited to, the expense of nonrefundable or non-creditable tickets, the costs of nonrefundable deposits for travel or lodging, attorney’s fees, and all other costs incurred seeking enforcement of any provisions of this order.”
The federal rule regarding application for a passport for a child under the age of 14 is set forth in Title 22, Chapter 4, Section 213 of the U.S. Code and provides as follows:
“(A) Both parents, or the child’s legal guardian, must execute the application and provide documentary evidence demonstrating that they are the parents or guardian; or
“(B) the person executing the application must provide documentary evidence that such person–
(i) has sole custody of the child;
(ii) has the consent of the other parent to the issuance of the passport; or
(iii) is in loco parentis and has the consent of both parents, of a parent with sole custody over the child, or of the child’s legal guardian, to the issuance of the passport.
“Exceptions.–The regulations required by subsection (a) may provide for exceptions in exigent circumstances, such as those involving the health or welfare of the child, or when the Secretary determines that issuance of a passport is warranted by special family circumstances.”
Additionally, if there is any specific reason for the court to believe that a parent may attempt to abduct the child internationally, the court can make some specific provisions to protect against it. The factors the court will consider in determining whether or not there is a danger of international abduction are as follows:
§ 153.502. ABDUCTION RISK FACTORS.
(a) To determine whether there is a risk of the international abduction of a child by a parent of the child, the court shall consider evidence that the parent:
(1) has taken, enticed away, kept, withheld, or concealed a child in violation of another person’s right of possession of or access to the child, unless the parent presents evidence that the parent believed in good faith that the parent’s conduct was necessary to avoid imminent harm to the child;
(2) has previously threatened to take, entice away, keep, withhold, or conceal a child in violation of another person’s right of possession of or access to the child;
(3) lacks financial reason to stay in the United States, including evidence that the parent is financially independent, is able to work outside of the United States, or is unemployed;
(4) has recently engaged in planning activities that could facilitate the removal of the child from the United States by the parent, including:
(A) quitting a job;
(B) selling a primary residence;
(C) terminating a lease;
(D) closing bank accounts;
(E) liquidating other assets;
(F) hiding or destroying documents;
(G) applying for a passport or visa for the parent or the child; or
(H) applying to obtain the child’s birth certificate or school or medical records;
(5) has a history of domestic violence that the court is required to consider under Section 153.004; or
(6) has a criminal history or a history of violating court orders.
(a-1) In considering evidence of planning activities under Subsection (a)(4), the court also shall consider any evidence that the parent was engaging in those activities as a part of a safety plan to flee from family violence.
(b) If the court finds that there is credible evidence of a risk of abduction of the child by a parent of the child based on the court’s consideration of the factors in Subsection (a), the court shall also consider evidence regarding the following factors to evaluate the risk of international abduction of the child by a parent:
(1) whether the parent has strong familial, emotional, or cultural ties to another country, particularly a country that is not a signatory to or compliant with the Hague Convention on the Civil Aspects of International Child Abduction; and
(2) whether the parent lacks strong ties to the United States, regardless of whether the parent is a citizen or permanent resident of the United States.
(c) If the court finds that there is credible evidence of a risk of abduction of the child by a parent of the child based on the court’s consideration of the factors in Subsection (a), the court may also consider evidence regarding the following factors to evaluate the risk of international abduction of the child by a parent:
(1) whether the parent is undergoing a change in status with the United States Immigration and Naturalization Service that would adversely affect that parent’s ability to legally remain in the United States;
(2) whether the parent’s application for United States citizenship has been denied by the United States Immigration and Naturalization Service;
(3) whether the parent has forged or presented misleading or false evidence to obtain a visa, a passport, a social security card, or any other identification card or has made any misrepresentation to the United States government; or
(4) whether the foreign country to which the parent has ties:
(A) presents obstacles to the recovery and return of a child who is abducted to the country from the United States;
(B) has any legal mechanisms for immediately and effectively enforcing an order regarding the possession of or access to the child issued by this state;
(C) has local laws or practices that would:
(i) enable the parent to prevent the child’s other parent from contacting the child without due cause;
(ii) restrict the child’s other parent from freely traveling to or exiting from the country because of that parent’s gender, nationality, or religion; or
(iii) restrict the child’s ability to legally leave the country after the child reaches the age of majority because of the child’s gender, nationality, or religion;
(D) is included by the United States Department of State on a list of state sponsors of terrorism;
(E) is a country for which the United States Department of State has issued a travel warning to United States citizens regarding travel to the country;
(F) has an embassy of the United States in the country;
(G) is engaged in any active military action or war, including a civil war;
(H) is a party to and compliant with the Hague Convention on the Civil Aspects of International Child Abduction according to the most recent report on compliance issued by the United States Department of State;
(I) provides for the extradition of a parental abductor and the return of the child to the United States; or
(J) poses a risk that the child’s physical health or safety would be endangered in the country because of specific circumstances relating to the child or because of human rights violations committed against children, including arranged marriages, lack of freedom of religion, child labor, lack of child abuse laws, female genital mutilation, and any form of slavery.
If the court finds that any of the above risk factors apply to a given case, the court can make certain preventative measures as part of the order as follows:
§ 153.503. ABDUCTION PREVENTION MEASURES.
If the court finds that it is necessary under Section 153.501 to take measures to protect a child from international abduction by a parent of the child, the court may take any of the following actions:
(1) appoint a person other than the parent of the child who presents a risk of abducting the child as the sole managing conservator of the child;
(2) require supervised visitation of the parent by a visitation center or independent organization until the court finds under Section 153.501 that supervised visitation is no longer necessary;
(3) enjoin the parent or any person acting on the parent’s behalf from:
(A) disrupting or removing the child from the school or child-care facility in which the child is enrolled; or
(B) approaching the child at any location other than a site designated for supervised visitation;
(4) order passport and travel controls, including controls that:
(A) prohibit the parent and any person acting on the parent’s behalf from removing the child from this state or the United States;
(B) require the parent to surrender any passport issued in the child’s name, including any passport issued in the name of both the parent and the child; and
(C) prohibit the parent from applying on behalf of the child for a new or replacement passport or international travel visa;
(5) require the parent to provide:
(A) to the United States Department of State’s Office of Children’s Issues and the relevant foreign consulate or embassy:
(i) written notice of the court-ordered passport and travel restrictions for the child; and
(ii) a properly authenticated copy of the court order detailing the restrictions and documentation of the parent’s agreement to the restrictions; and
(B) to the court proof of receipt of the written notice required by Paragraph (A)(i) by the United States Department of State’s Office of Children’s Issues and the relevant foreign consulate or embassy;
(6) order the parent to execute a bond or deposit security in an amount sufficient to offset the cost of recovering the child if the child is abducted by the parent to a foreign country;
(7) authorize the appropriate law enforcement agencies to take measures to prevent the abduction of the child by the parent; or
(8) include in the court’s order provisions:
(A) identifying the United States as the country of habitual residence of the child;
(B) defining the basis for the court’s exercise of jurisdiction; and
(C) stating that a party’s violation of the order may subject the party to a civil penalty or criminal penalty or to both civil and criminal penalties.
For a consultation with Weinman & Associates, P.C., call 512-472-4040 or send us an e-mail.