The issue of which state should hear a case involving custody or visitation of the children, both when suits are originally filed and later if orders are sought to be modified, is of critical importance. Here are some examples of results in my caseload:
Issue: W, the primary custodial parent, decided after her divorce from H to move the children to the state of Washington to join her fiancé and for the experience of trying a new city. H had a Divorce Decree which restricted the children’s residence to Tarrant and Dallas Counties; unfortunately, H moved to a nearby county that was NOT in Tarrant or Dallas County, never dreaming that his Ex would move out of the area. W seized upon H’s mistake and relocated to Washington. H sought legal advice from a few attorneys and was told he could not know anything about it. He came to me almost a year after W had relocated and asked me to try to return the children to Texas. We filed a Petition to Modify in his Texas Divorce court, seeking to have the Court retain jurisdiction and order the return of the children to Texas.
Result: W filed a motion to dismiss the Texas case and to have the case heard in Washington since the children had lived there for over the requested 6 months. We argued that there was still a “significant connection” with the State of Texas and that Texas should retain jurisdiction. After a lengthy hearing, the Court ruled in our favor and ordered that the jurisdiction remain in Texas, notwithstanding that the children had lived in Washington that long.
Lesson to be Learned: This is an important ruling and lesson — do not allow your Ex to move with the children out of state, but if that happens, file to return them as soon as possible. But even if, for whatever reason, you have to wait a while before you can file, you still may have a good chance of retaining jurisdiction here if you still live here!