Modification of a Texas Child Custody Order

Why change a court order?

There are many people who have gone through a divorce or child custody lawsuit and have consequently, whether through agreement or otherwise, obtained orders from a court outlining the rights and duties of parents, child support, and visitation with children.  You may think that these orders are forever set in stone, that is not always the case.  It is true, however, that child custody orders can have a long lasting effect because they usually don't change until further order of the court or the child or children turn 18.  That being said, in the modern era where people are increasingly mobile, and electronically connected, life can change in an instant making following a previous custody order difficult or impractical.  There are innumerable ways in which lives can change and sometimes this change can make following a current custody order impossible or even dangerous for the children.  Simply put, a court order that was workable at one time may not be later.  But even though child custody orders can be modified when there is a change in circumstances (more on this below)  a court will not change a child custody order unless it is in the best interests of the child.   

Is it always possible to change a court order when there has been a change in circumstances?

The short answer to that question is no.  There is a policy in Texas that favors the finality of court orders and courts will not just change an order at the request of one of the parties.  You can imagine that if such a policy wasn't in place the children subject of these court orders would suffer as a result of the many modifications that would be requested.  However, Texas law recognizes that circumstances do change and sometimes it is necessary, for the child's best interests, to change a child custody order.  

When can a child custody order be modified and who can ask a court to modify the order?

A child custody order can be modified for several reasons and either parent can petition the court at any time asking for a change.  If both parents agree to the modification of the child custody order then the process is fairly quick.  The parties would only need to submit a proposed order to the court, and in most cases, after reviewing the terms, the judge will sign off on it.  The new order would then be legally enforceable.  One caveat to this is that if the new order doesn't cancel or change a term of the old order then the term of the old order will still control.  It is important to have a qualified family law attorney draft your order carefully to make sure that you don't run into any unwanted surprises.       

If there is no agreement between the parties then the process can take longer and be more contentious.  In that case a party wishing to modify a child custody order would have to go in front of a judge and show the court that: 

• The child is 12 years of age or older and wishes to change the primary caregiver; or
• there has been a material and substantial change in circumstances and;
• the proposed changes to the order would be in the child's best interests.  

The following is a list of some of the things that Texas courts have previously used to fulfill the material and substantial change requirement:

• Substance abuse
• Abuse or neglect of the child by a parent
• A change in one of the parties marital status
• Medical issues
• Unemployment

In deciding whether to modify a previous child custody order a court will consider whether any proposed changes to the current order are in the best interests of the child, this is a requirement and no order will be modified unless the changes are in the best interests of the child.  In doing the analysis they will consider several different factors including, but not limited to the current relationship between the child and each parent, the child's wishes if the age requirement is met, and the specific needs of the child.   

Where should a modification be filed?

In general a modification must be filed in the court that rendered the original order.  However, sometimes children don't always live in the same county in which the order was rendered, and in such a case, the modification lawsuit can be transferred to the child's new county of residence.  It is important to obtain legal counsel to make sure that any transfer to another court goes smoothly.

If you need to modify a child custody order then contact a qualified family law attorney.

A good family law attorney is worth their weight in gold and can help make sure that your modification goes as smoothly as possible.  If you would like to talk about modifying your child custody order to fit your needs then the Law Office of Chad Zubi gladly offers free consultations.

Tags: Visitation, Child Custody