Moving the Children out of State

[coxjj]

Court::  Ellis County Texas
Issue:  Wife filed for no-fault divorce which I did not support.  The Judge ruled and split the property (heavy on her side but I can live with it), gave her primary custody and allowed her to leave the state (800 miles away - Indiana).  Based on the hearing, I saw no justification for allowing her to leave the state with my children.  Her only justification was that she needed emotional support from her mother, she has been in Texas over 20 years and has frequent visits from her parents now.

I get one visitation per month, with one month in the summer.  She pays 6 months of travel, I pay the other - very costly.  Very stressful on the kids.  I feel I will be alienated from the children.

What are my options to fight the move order and keep the children in Texas?
If I can't get that overturned, who then has jurisdiction if she does not hold up the order on visitation - I know she can't afford the travel expenses?
Can one or both of the children elect to live with their father, ages 8 and 13?
If so, what is the process for this?
Obviously expenses are an issue as she is running me dry, what can I do on my own and what do I need a lawyer for and how do I find a lawyer that specializes on what I need?

[socrateaser]

>What are my options to fight the move order and keep the
>children in Texas?

Your only option is an immediate appeal on grounds of abuse of discretion: that no reasonable trier of fact would make the decision that your judge made. This ordinarily must occur within 30 days of notice of entry of judgment (which I suspect has long since passed).

I don't know near enough about your case in order to determine the reasons why the judge decided as he/she did. You could have asked for a "findings of fact and conclusions of law," to get a better rationale, and perhaps you still could if your judgment isn't already entered. But, I suspect it is.

If you had a lawyer, then what did he/she tell you? If not, then why not?

>If I can't get that overturned, who then has jurisdiction if
>she does not hold up the order on visitation - I know she
>can't afford the travel expenses?

You can obtain a contempt in TX on the transportation order, but to enforce it, and depending upon precisely what enforcement remedy you would seek, if and when the time comes, you may need to register your order in ID, because until you do, you cannot obtain the assistance of the local sheriff's office.

I recommend that you register the order now, so that the other parent is already on notice. Then, if things deteriorate, you can get enforcement accomplished much quicker.

And, if six months passes with the child in ID, then if you should seek to modify custody, you may have to do it there -- which under the circumstances, could be a good thing, since you didn't like the deal you received in TX.

>Can one or both of the children elect to live with their
>father, ages 8 and 13?

If you think that the child is likely to want to move back to TX, then I suggest that you have the child evaluated by a therapist to assess the child's actual desire, without pressure from either parent. If you don't, you'll have difficulty making a case. 13 is only borderline old enough for a child to know what he/she wants. You've got an uphill climb unless you can show that the other parent routinely places the children in harm's way.

>If so, what is the process for this?

See above.

>Obviously expenses are an issue as she is running me dry, what
>can I do on my own and what do I need a lawyer for and how do
>I find a lawyer that specializes on what I need?

My opinion is that if you had a therapist who would go to bat for you, then I would try to get jurisdiction changed to ID. The other parent might go for this, thinking that it would be more convenient, when in reality you would be getting rid of the judge in your case, and that might improve your chances of getting the children back.

However, to be perfectly honest, your case doesn't look very promising. Once the kids are relocated, the court will be very reluctant to move them again, unless you have some very clear proof of why it's better that they live with you. So, if you're short on dough now, I can practically guarantee, that you will be a lot shorter after a serious custody fight.

[coxjj]

Thanks, this is helpful.
It has only been a week since the judge provided his ruling.  
The mother has not yet moved with the kids.  She is ordered to stay unitl the end of the school year however, my daughter said the movers are scheudled to come on the 14th.  I am not sure what month but knowing my X, I wouldn't be suprised it is was next week.  

Would a temporay restraining order hold her here unitl the date the judge ruled?  This would buy me a little more time to figure out what I need to do.

What if she moves before the date in the court order?

[socrateaser]

>Thanks, this is helpful.
>It has only been a week since the judge provided his ruling.
>
>The mother has not yet moved with the kids.  She is ordered to
>stay unitl the end of the school year however, my daughter
>said the movers are scheudled to come on the 14th.  I am not
>sure what month but knowing my X, I wouldn't be suprised it is
>was next week.  
>
>Would a temporay restraining order hold her here unitl the
>date the judge ruled?  This would buy me a little more time to
>figure out what I need to do.

You said that the mother is restrained from moving until the end of the school year. If you want to stop her legally, then I suggest that you "serve" a letter on her or her attorney that you intend to appeal as soon as soon as you receive notice of entry of final judgment, and that you will ask the court to restrain the mother from relocating the children until your appeal is final. Then, as soon as judgment is entered, you must file and serve the notice of appeal. That's a one page document, and it's not terribly complicated.

However, the appeal briefs are very complicated, so if this is what you intend, then you better get a lawyer.

>What if she moves before the date in the court order?

That would be contempt, based on your existing order, and you would be entitled to sanctions, but exactly what kind I'm not certain. You could use the move as substantial proof that the mother is not acting in her children's interests, by moving before school ends, and therefore that the court should reconsider custody.

Actually, the more that I think about it, you may be better off if the mother does move (i.e., in violation of the existing orders), because it will give you better proof of the mother's instability then just about anything else.

[coxjj]

One question you asked earlier that I did not answer regarding how my lawyer responded to this ruling.  He said he did not agree with the judges ruling and did not understand why he wen that way.  In addition, prior to the judgement, the lawyer told me that the judge normally does not rule in favor of moving the children.

I am not a perfect father or perfect husband but I am not physically abusive, mentally abusive, I don't abuse drugs or alcohol, I am financially responsible, everything I do, I do for my families best interest.  She decided to give up on the family and now the children and I are paying for it.  There is nothing to support this ruling that is obvious to me.   We were all completely blind sided by this.

Also, this was my second lawyer as the first one basically laid the ground for this to happen in my opinion.  My current lawyer does not do appeals and I really need someone who will fight for my rights and give me advise I can work with.  

I don't want to put the children through additional unnecessary stress over this if I really don't have a chance to make a difference.  I am fighting for the best interest of my children, there are other factors here that I could right pages on but bottom line it is all circumstantial and would be hard to prove in court without putting my children right in the middle of it.

These kids love their father, they don't want to move, they are already showing signs of distress (physical and emotional) and I feel helpless in trying to protect them.

How do I go about filing a "findings of fact and conclusions of law," as you suggested - does this require a lawyer?
How long does this take?
Do I do this before the appeal or as a part of the appeal?

Do you have any advice on where I can get a lawyer that specializes in custody appeals?  I am willing to spend the money if I have a chance to make a difference.

[socrateaser]

>How do I go about filing a "findings of fact and conclusions
>of law," as you suggested - does this require a lawyer?

You don't file it. The court does. If you contemplate an appeal, you generally file a request that the court provide findings and conclusions, so that the appeals court knows why the trial court ruled as it did, which makes it easier to decide how to rule on the appeal. So, you should have your attorney request findings and conclusions, before the judge signs the final judgment, because afterwards, the judge won't do it.

>How long does this take?

Depends on the judge. Some judges request that the parties submit proposed findings and conclusions, and then the judge picks and chooses from the pleadings.

>Do I do this before the appeal or as a part of the appeal?

Ideally, you do it before trial.

>Do you have any advice on where I can get a lawyer that
>specializes in custody appeals?  I am willing to spend the
>money if I have a chance to make a difference.

Well, if you don't trust your existing attorney to give you a reference, then you could go to //www.versuslaw.com (one month = $13.95), and then search the TX appellate court database for names of attorneys on recent cases, and then contact some of them.

[coxjj]

As I am getting your advice, I am also searching other sources and really need help netting this out:

First, it sounds like an appeal is a waste of time based on the win rates of only 10%.  Assuming there is no valid justification for the decision to allow the kids to move, would that improve my chances any?

If I go ahead and send a letter stating I am appealing and request that they can't move until the appeal proceedings are over, and then I get the "findings of fact and conclusions of law"  completed and decide that it is not worth pursing the appeal, can I stop the appeal or am I locked into following through with it?

Regardless of anything else, I really need to understand the judges reasons for this ruling, can I do the "findings of fact and conclusions of law" without doing anything else?  

Let's net this out, if I am understanding all of this correctly, it seems that once they move, it is basically over for me, if I don't appeal, there is really no recourse unless something drastic happens with the kids and they are in physical danger, and if I appeal, there is a very slim chance of me winning?  Am I missing anything?  Is there any hope for a father who not only want to fight for what is right for the kids but also maintain a presence in the children's life?

[socrateaser]

>As I am getting your advice, I am also searching other
>sources and really need help netting this out:
>
>First, it sounds like an appeal is a waste of time based on
>the win rates of only 10%.  Assuming there is no valid
>justification for the decision to allow the kids to move,
>would that improve my chances any?

Abuse of discretion requires proof on the record that "no reasonable trier-of-fact" could rule as this judge did, based on the record on appeal. This is a VERY difficult burden to meet, and it means that your chances on appeal are far lower than any average number might suggest. As far as your individual chances, I don't read tea leaves, sorry.

>
>If I go ahead and send a letter stating I am appealing and
>request that they can't move until the appeal proceedings are
>over, and then I get the "findings of fact and conclusions of
>law"  completed and decide that it is not worth pursing the
>appeal, can I stop the appeal or am I locked into following
>through with it?

You can voluntarily dismiss an appeal, unless the other party cross appeals for something. However, if your appeal is found frivolous, you could be stuck with your opponent's legal fees (and that could happen anyway, as the appellate court has discretion to award legal fees to either (or neither) party.

>
>Regardless of anything else, I really need to understand the
>judges reasons for this ruling, can I do the "findings of fact
>and conclusions of law" without doing anything else?  

Yes.

>Let's net this out, if I am understanding all of this
>correctly, it seems that once they move, it is basically over
>for me, if I don't appeal, there is really no recourse unless
>something drastic happens with the kids and they are in
>physical danger, and if I appeal, there is a very slim chance
>of me winning?  Am I missing anything?  Is there any hope for
>a father who not only want to fight for what is right for the
>kids but also maintain a presence in the children's life?

You are asking me for value judgments. I don't consider "hope" factors -- just the law. As a tactic, I think that if you do and say nothing, and act like the mother's move is no biggie, and she takes the bait and moves before school ends, then that will provide you with substantial evidence of a change in circumstances affecting the children's best interests, which means you could get another custody hearing on grounds that the mother has demonstrated by her acts that she is will put her personal interests above those of her children, by moving them before school ends.

If you appeal, then the mother will be warned in advance and may be less likely to move, because of the uncertaintly of the situation. Women are emotional creatures, generally, so if she "feels" like it's ok to move, then she will move, and that will give you the evidence you require to get back to court.

I think an appeal is a waste of time and money, unless there is something so obviously wrong with the ruling that only an idiot could miss it. This doesn't happen very often, and if your attorney really believed that this was the case, he/she would be telling you to appeal -- not backing away from it.