Parental Relocation After an Injury or a Medical Setback

A personal injury due to an accident or a medical setback due to complications like infections may force a parent to prioritize their health. The priority to have surgeries, be treated by doctors, and participate in rehabilitative therapy (along with physical and emotional suffering) may prevent a parent from being able to fully care for their child.

What factors determine which parent(s) have custody of their children in Texas?

The family courts in Texas consider many different factors when awarding custody, awarding visitation, and modifying existing custody/visitation orders. A conservatorship determines where the child lives (who has possession/physical custody of the child) and who makes decisions for the child. Visitation determines the rights of the parent who does not have primary custody.

An injury or a medical setback can affect the following factors (which may vary, depending on the age of the child):

• “The availability of the parents as caregivers”
• “The physical, medical, emotional, economic, and social conditions of the parties”
• “The impact and influence of individuals, other than the parties, who will be present during periods of possession”
• The child’s relationships with his/her siblings
• How close are the residences of the parents to each other

Many parents negotiate an agreement (a standard possession order) that determines which parent(s) will act as conservators and the visitation rights of each parent.

How does an injury or illness of a parent affect child custody in Texas?

If a parent is injured or has a long-term illness, their ability to act as a caretaker may be limited. They may not be able to provide the necessary support for their children because they need to be away from home for their medical care, or they may not have the physical and emotional strength to care for their child.

For example, after a surgery, a parent may need to sleep a lot. The parent may not be able to move, drive, cook meals, clean their home, help a child dress and bathe, and perform many other daily living functions for themselves and their child.

Friends and family may need to care for the parent, and may not be available for their child.

If a parent can stay at their home but can’t fully care for their child, then modifications to the custody and visitation orders may be necessary, including ordering that:

• The other spouse/coparent has physical custody of the child
• The other spouse/coparent has visitation rights with their child if the child relocates to the healthy parent’s home
• There are changes to the child support orders to ensure the child’s needs are being fully met
• There are modifications to a spousal maintenance order if the injured/ill spouse cannot provide for herself/himself.

Modifications to child custody orders may be temporary if there is the expectation that the parent will recover or permanent if the injured/ill spouse is not likely to fully recover.

Any agreements to modify child custody orders and standard possession orders should be signed by the family law judge assigned to your case.

Relocation of a parent or a child

An injured or ill parent may need to move in/relocate with family members who can take care of them or into a long-term care facility. Even if an injured/ill parent can stay in their home, it may be necessary for the child’s primary residence to switch/relocate to the home of the other parent.

Generally, a parent can always relocate without their child.

Relocation by agreement

If a parent agrees that a child’s primary residence should switch to the other parent, then normally that agreement can be negotiated to ensure the parent still is connected (and has visitation rights) with the child. The negotiated agreement should be signed by the family law judge to protect the child and ensure that the terms of the agreement can be enforced.

Contested relocations

If the custodial parent wishes to relocate out of the general location of the child, to another school district, or to another county or state, then (depending on the terms of the existing child custody order), the custodial parent must provide the other parent with at least 60 days’ notice of their desire to relocate. The moving parent must give the other parent their new address. The other parent has the right to oppose the move and request a court hearing.

Generally, if the injured/ill parent is the sole conservator, then they should be able to move if the move is legitimate (for the health of the mother and children, and not to spite the other parent). The other parent should have the right to question the ability of the sole conservator to care for their child in light of their injuries or illness.

If both parents have joint conservatorship, then they will either need to reach an agreement on their own about the terms of any relocation, or the judge will decide the terms for them.

If the parent who becomes injured or ill does not have sole or joint conservatorship, then they generally will not have the right to relocate – unless they can negotiate a modification. The circumstances would have to be fairly unique for the parent who also has conservatorship to agree.

At Grable Grimshaw PLLC, we help parents and children when injuries and illnesses change the ability of a parent to care for their child. Our San Antonio custody lawyers negotiate child custody modification orders so a parent can take care of their health until they’re able to resume the care of their child.

To discuss child modification orders, including orders to permit a parent to relocate, call us today or fill out our online contact form to schedule a free consultation.