What to do if my wife has taken my son out-of-state and doesn’t plan to return?

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What to do if my wife has taken my son out-of-state and doesn’t plan to return?

We haven’t started any paperwork for divorce and I am stationed here until the end of next year. We cannot afford frequent trips back and forth.

Asked on October 3, 2011 under Family Law, Texas

Answers:

B.H.F., Member, Texas State Bar / FreeAdvice Contributing Attorney

Answered 10 years ago | Contributor

Residency for divorce and custody issues usually follow the children-- where they resided in the previous six months.  If your wife just recently left, you may still have time to file for divorce in Texas and try to set up some reasonable temporary orders that provide for visitation.  Texas has standard visitation orders for parents who reside close and far away from each other.  Another option is to consult with an attorney in the state where your wife has moved to and possibly file for divorce in that state.  Their residency requirements may be different and their child custody laws may work better for you.  You don't mention whether you are seeking custody of your son.  If you are, you need to start working now on demonstrating that you are in a better position to care and provide for you son.  Courts do not like to bounce kids around-- so if two parents are relatively equal-- they tend to keep a child with the parent they are already with at the time of the final hearing.  You do mention, however, that you are stationed here and may be moving later.  If you are moving to the same state as your wife, this should also be another factor to consider on where to file for divorce and temporary orders.  Once a case is filed, that court continues to have jurisdiction over the child at later dates.  So, for example, if you were okay with your wife having custody for now, but may want to modify and try to get custody later-- you would have to pay extra to get the case transferred to a new jurisdiction or state.  The most important thing is start moving on the paperwork, regardless of which state you file in.  Until there is an order that says who does want and who has what custody rights, you will both have equal access to the child-- which means she can take the kids where she wants and is not required to bring him to you for a visit.


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