Question: My ex-wife wants to take our three children to live in Mexico. They were all born in the U.S. I do not want them to go.
What are my legal rights in this?
The divorce decree does not specify anything about an international move. I’m not sure if this makes a difference, but she does have family in Mexico, including her new husband.
International change of domicile is a highly complicated area of law, and I suggest that you contact an attorney in your area immediately if you intend to challenge your ex-wife’s plan to move your children to Mexico. This is because not only Texas law but international laws from the Hague Convention, to which both the United States and Mexico are signatories, and federal law like the International Child Abduction Remedies Act apply. These laws intertwine and (sometimes) contradict each other. They are difficult to read for lawyers, let alone laymen.
That being said, there are a few things you should consider as you search for an attorney and/or speak to your ex-wife about the move.
First, re-read your divorce decree, and any amendments and other subsequent orders, thoroughly. Is there a provision requiring joint decision-making for the children’s important life decisions (i.e., do you have joint legal custody?). Is there a provision requiring your ex-wife to seek permission to move the children to another state (and, implicitly, out of the state altogether)? Discuss all of these provisions with your ex and your attorney.
Second, determine whether you were awarded parenting time or custody. In general and for Hague Convention and ICARA purposes, parenting time merely gives you “rights of access” to your children, not the right to determine where they should reside (which is a custodial parent’s right).
Nevertheless, and third, you may file a motion in the court that issued your divorce decree, assuming the court has retained continuing exclusive jurisdiction, to modify your parenting time if the move will substantially impair your parenting time rights and/or there has been a change in circumstances sufficient to modify parenting time or custody. Has your ex-wife withheld your children from? Are the children old enough to state their reasonable preference for the move? Is the children’s proposed home in Mexico in a safe neighborhood? The standards for modification vary by state, and the outcome is highly fact-specific. You will need to consider all of these questions and more.
Fourth, document, document, document. Put all of your concerns in writing to your ex-wife, her new husband, and whomever else you think relevant to the move. Documentation will help refresh your memory if you do have to testify about this issue in a deposition or in a court hearing or trial, will put everyone on notice of your position and will show that you are a concerned father who will not consent to or acquiesce in the move. Consent and acquiescence are common defenses in international change of domicile cases.
Fifth, contact an attorney in your area to challenge the move immediately if the children do move because there are specific time periods, some as short as one year or until the child’s 16th birthday, under the Hague Convention and state and federal laws to litigate the change of domicile.
Keep in mind that I am a Michigan attorney and cannot give you detailed advice about the laws in Minnesota. You should not rely on this answer as establishing an attorney-client relationship, and you should contact an attorney in your area immediately if you need additional information or legal representation, as most parties in divorce cases do. Cordell & Cordell has offices in Dallas and Forth Worth, Texas.
Jennifer M. Paine is an Associate Attorney in the Detroit, Michigan office of Cordell & Cordell P.C. She is licensed to practice in Michigan, and has been admitted pro hac vice in Illinois, Ohio, and the United States Court of Federal Claims. Ms. Paine received her BA in English and Mathematics from Albion College and graduated Summa Cum Laude. She received her Juris Doctorate from MSU College of Law and graduated Summa Cum Laude.