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Modification of Child Custody Travel Provision in a Texas Case When There’s an Abduction Risk

sunsetIn a recent Texas child custody case, a father challenged the modification of conservatorship of a former couple’s child. The modification allowed the mother to go abroad with their child. The case arose when the mother moved to modify the divorce decree, which had appointed her and her ex-husband as joint managing conservators of the child. The decree didn’t mention the child’s ability to go abroad. In her motion, the mother claimed there was a substantial change in circumstances. Specifically, the mother claimed it was in the child’s best interests to be able to go to the country of the mother’s birth (Kenya) because her grandmother had recently died, and the mother wanted to go visit and go to the memorial service.

The mother asked for temporary orders. She wanted the father to execute a written consent and other forms required for travel, and she also wanted an international travel provision to be added to the final decree.

The father asked the court to deny international travel privileges until their child had reached age 16 or the age of maturity under the Texas Family Code section 153.501. This code section states that if there’s credible evidence showing a potential risk of international kidnapping of a child by a parent, the court can take specific protective measures.

Under Family Code section 153.503(4), the lower court can deny a child the ability to travel abroad. The father argued that since Kenya isn’t a signatory to the Hague Convention on the Civil Aspects of International Child Abduction, the court needed to put this measure into place. Allowing the mother to get the child a passport and return to Kenya permanently could cause him to lose any contact with their child. He argued that she stayed in the United States as an illegal resident for seven years, and 16 years later, she was petitioning to secure the passport with an intention of permanently resettling to Kenya. He argued that there would be no consequences for her of failing to obey the court’s order and that all children should have a right to access both parents.

The lower court granted the mother’s motion to modify and modified the divorce decree. It ordered either parent could apply for a passport, and the mother had the right to keep possession of it. Each parent was supposed to provide written notice to the other of any international travel plans within 21 days of the departure date. It did find there was credible evidence of a potential risk of abduction by the mother and required her to post a $75,000 bond and follow other procedures.

The father appealed, arguing the lower court had abused its discretion. The appellate court explained that a court can modify a conservatorship or possession order when doing so is in the child’s best interests, and the court can find a material, substantial change in circumstances. The issue was whether the lower court acted arbitrarily.

The father argued the circumstances at the time of the modification weren’t substantially different from those at the time of the original decree. The lower court had found that the child’s need to attend a memorial service in Kenya was a material, substantial change. The father argued that even at the time of the original decree, the mother knew that international travel would be needed to meet her family in Kenya.

The appellate court agreed, finding that if a circumstance is contemplated enough at the time of the original agreement, it is an anticipated circumstance rather than a material, substantial changed circumstance. It found that her desire to visit her family wasn’t a change in the state of affairs from three months before, since the child had previously traveled to Kenya, and future travel was anticipated. The appellate court found that it was an abuse of discretion and arbitrary to change the order, when the court had expressly found the mother to be a flight risk.

The appellate court found an abuse of discretion and reversed.

If your divorce involves matters related to child custody, call the Texas attorneys at the McClure Law Group at 214.692.8200.

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