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Erin M. JD
Erin M. JD, Family Law Attorney
Category: Family Law
Satisfied Customers: 137
Experience:  Practice Family Law in Texas
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I currently reside in TX with the children and I have been

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I currently reside in TX with the children and I have been for almost 2 years now. The parenting plan is through NM and the children's father lives in CA (military). I need to transfer my case to Bexar county, modify child support (as of right now he is not required to pay the 8 weeks of summer visitation), and modify child custody. One of the things that needs to be changed is their travel and the length of time in which they are to spend with him. For example, this thanksgiving is his year for visitation, and I have christmas, however, the children are 5 and 6, and one is in school. As of right now, the children are flying to CA for 3 days of visitation for the holiday. He is paying for their flight out there and I am to pay for their return flight. If he wants to see them then he should pay for their round trip travel, also, just because I do not have the children does not mean I can stop maintaining everything for them here (I understand that the child support may go up or down, however the court sees fit). I also feel as though 3 days of visitation, a two hour time change and two days of flying is not in the best interest of my children considering when they get back they have to go straight back to school the following day. Also, he has mentioned moving to TX at the end of his enlistment but residing in Dallas/Houston area and wanting the children every other weekend, etc. Once again, that is a lot of traveling for two small children for maybe 48 hrs of visitation. He will not compromise with me and is very demanding so while I can try my best to settle everything else myself without the courts intervention, I feel as though at some point it may be necessary. Can anyone give me some suggestions on where I can look to find my answers or should I just wait and see if he moves to TX at the end of his enlistment as he says he is going to and pursue it from there?
Submitted: 1 year ago.
Category: Family Law
Expert:  Erin M. JD replied 1 year ago.

Erin M. JD :

Hello! My name is XXXXX XXXXX I will be assisting you with this matter! Are you looking for an answer on how to get the case transferred to Texas, or are you looking for answers to all of your issues?

Customer:

All if possible

Customer:

I know it's a complicated situation.

Erin M. JD :

Ok, I am sure I can help you with how to get the case to Texas, but some of the other things are going to require legal advice, and I can only give you general principles of law. Hold on and I will find the provision on how to get the case to your county in Texas.

Customer:

ok

Erin M. JD :

Your case is going to fall under the Uniform Child Custody Jurisdiction Enforcement Act (UCCJEA) because none of the parties live in New Mexico any longer. Is his primary residence still in NM, but he is just stationed in California?

Customer:

No, his primary residence is not new mexico. he is actually still claiming FL as his home of record.

Erin M. JD :

Ok, then Texas will have jurisdiction to modify under the UCCJEA as long as the children have lived in Bexar county for at least 6 months. Have they lived in that same county for the whole two years?

Erin M. JD :

Sec. 152.203. JURISDICTION TO MODIFY DETERMINATION. Except as otherwise provided in Section 152.204, a court of this state may not modify a child custody determination made by a court of another state unless a court of this state has jurisdiction to make an initial determination under Section 152.201(a)(1) or (2) and:


(1) the court of the other state determines it no longer has exclusive continuing jurisdiction under Section 152.202 or that a court of this state would be a more convenient forum under Section 152.207; or


(2) a court of this state or a court of the other state determines that the child, the child's parents, and any person acting as a parent do not presently reside in the other state.


Added by Acts 1999, 76th Leg., ch. 34, Sec. 1, eff. Sept. 1, 1999.


 

Customer:

We lived in San Patricio County and just moved to Bexar County at the beginning of Aug.

Erin M. JD :

This provision applies if the Texas court would be able to exercise original jurisdiction -- that is, if the children have lived in Texas for at least 6 months. The proper county, at this time, would be San Patricio County until the kids have been in Bexar county for 6 months.

Customer:

ok, so I have to wait until after the first of the year to file for change of jurisdiction.

Erin M. JD :

You would "register" the previous order with the clerk in the county that has jurisdiction (you will have to wait 4 months if you don't want to do it in San Patricio County), and then you can file a Motion to Modify that order.

Erin M. JD :

Yes, unless you want it in San Patricio County. I don't know how far apart those are.

Customer:

About 3 hours. Is there anywhere that you know of that I can find a sample Motion to Modify?

Erin M. JD :

I think the Legal Aid site has them. Let me see what I can find.

Customer:

ok. Any recommendations as far as the rest of it goes? Am I asking too much or being unreasonable?

Erin M. JD :

I don't think you are being unreasonable, but I think it will be tough to change the order, as it is, because the courts believe that seeing their parents is in the children's best interest. If they are having trouble in school or something, that might be cause to modify. If you wanted to modify when he is living in Dallas, he could actually choose to exercise one weekend a month so it would not disrupt the children. Otherwise, the Family Code actually deems a standard possession order (1st, 3rd, 5th weekends, alternate holidays) to be in the best interest of the children unless that presumption is rebutted by significant evidence to show that it is not. A good thing to do in order to show that would be to have the kids see a counselor, and the counselor could make any recommendations.

Customer:

Well, if 1st, 3rd, and 5th is what they order then that is what is ordered, but I will argue concerning the travel and child support being changed.

Customer:

I will try and see about getting them into a counselor thought.

Customer:

And I will look on the Legal Aide Website and see if I can find a sample Motion to Modify. I am sure I will need support in arguing that the children's primary residence is TX.

Erin M. JD :

http://texaslawhelp.org/files/685E99A9-A3EB-6584-CA74-137E0474AE2C/attachments/1A742DC1-F1A5-445A-B50C-2E0AF1F90CB0/mod_kit_revised.pdf This has some sample forms which include a Motion to Modify. However, you need some specific language about the order being a foreign order, and I cannot find a sample motion with that language.

Customer:

I know if you are arguing Pro Se, there is an attorney at the office that will look over it before you file it, so if I get the wording incorrect then maybe they will help, or I can keep searching to see if I can find anything.

Erin M. JD :

You may be able to find a form if you have a local law library to go to. It is not a usual thing to do. I have only filed one Motion to Modify Foreign Order (that may not be the exact name), but that would be the process. In your petition, you can also put that his change of residence has caused you to incur increased expenses, and you can ask for more child support, as well.

Customer:

That's a good point. I was just thinking about even if I don't have them I still have to maintain everything for them. Just because they aren't here doesn't mean I don't still have to buy clothes and maintain the roof over their head, etc, for when they return. We have a Law Library at St. Mary's University.

Customer:

So, I may be able to find something there. Or a Law Student willing to help.

Erin M. JD :

You might try to go to St. Mary's and look and see if you can get someone to help you find the forms because I am not finding any samples for you to go by.

Customer:

Yes ma'am.

Erin M. JD :

Well, I hope that helped you. I think I have to stop short on the other issues so I don't give you legal advice, but the counselor would be a very important witness if they believe it is not in the kids' best interest to have standard possession with dad being so far away.

Customer:

Right now as far as him being far away he really only gets them every other christmas, thanksgiving, and 8 weeks out of the summer, but I worry about all of that travel when something like thanksgiving is so short. I know he is going to argue even moving the case to TX in general just because everything was in his favor in NM because I wanted everything finalized. He had wasted enough of my time and money, but if I can argue this myself then I may be ok. He really has no legitimate reason to not allow the case to come to TX.

Erin M. JD :

If no party lives in New Mexico, he isn't going to have a choice to have the case moved to Texas.

Erin M. JD :

If you qualify, you may also be able to get the help of an attorney at your local Legal Aid office, as well. You might try to make an appointment and see.

Customer:

I will try that, thank you.

Erin M. JD :

Good luck with getting the order modified. If you have any further questions about this matter, please let me know. Otherwise, please remember to rate my answer so I can receive credit for helping you. I hope you have a good day.

Customer:

Thank you again. You too.

Erin M. JD, Family Law Attorney
Category: Family Law
Satisfied Customers: 137
Experience: Practice Family Law in Texas
Erin M. JD and 3 other Family Law Specialists are ready to help you

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