When parents share custody, it isn’t unusual for one parent or the other to request changes to their custody orders at some point in time. The modification of parenting plan arrangements often makes sense as a child gets older and their needs change. The parents’ lives, careers and financial circumstances can also change over time, which may warrant a modification of child custody or child support.
That being said, how to change a court order for child custody does vary from state to state. Depending on the state, parents must meet certain requirements before the court will even consider a child custody modification request. If you believe changes to your custody orders are needed, it’s important to speak with a family law attorney in the jurisdiction where you live to discuss your options.
If you live in the Dallas / Fort Worth area and have questions about custody modifications, contact our office to schedule a confidential case review with one of our child custody lawyers.
How to change a court order for child custody in Texas, the basics
If you have a valid reason for modifying your child custody orders, the steps involved in your modification case will likely be similar to those followed during your original child custody case. First, you will meet with your child custody lawyer to discuss the issues you are trying to resolve and weigh the options for resolution.
Once you agree on a legal strategy, your attorney can file a motion to change custody order provisions with the court, including an affidavit explaining the facts and reasoning behind your request. The phases of the case that follow include temporary orders, discovery (the exchange of relevant information and documents between parties), mediation and trial (if you can’t resolve issues in mediation).
Now, if you’re wondering how to modify custody agreement provisions when both parents agree to the changes, the process is usually much simpler. You will still need to file a petition to modify custody orders with the court. If the court agrees to the changes you request, your attorney and the other parent’s attorney can help you execute the final revised custody orders and file them with the court.
Keep in mind, you must have a valid reason to request a child custody modification in Texas. The request must also meet certain requirements as defined in the Texas Family Code.
When will the court consider changing custody order provisions in Texas?
Let’s first consider what custody orders generally cover. In Texas, the custody components are broken down into conservatorship, which includes parental rights and duties, like who has the right to make education and medical decisions, who gets to choose the child’s primary residence, and who is responsible for other rights and duties pertaining to the child’s well-being.
Texas child custody orders also include provisions regarding possession and access, such as how much time each parent has with the child, what days they have possession and how possession is handled during the holidays, summer vacation and so on. Finally, custody orders provide financial provisions regarding who pays child support, school tuition, health insurance and other expenses for the child.
If you’re seeking a modification of court order to change who has primary custody of a child or how possession and access should be handled, the state of Texas (Texas Family Code 156.101) requires that at least one of the following conditions be met:
- The circumstances of the child, a conservator, or other party affected by the order have materially and substantially changed since the earlier of:
- the date of the rendition of the order; or
- the date of the signing of a mediated or collaborative law settlement agreement on which the order is based;
- The child is at least 12 years of age and has expressed to the court in chambers as provided by Section 153.009 the name of the person who is the child’s preference to have the exclusive right to designate the primary residence of the child; or
- The conservator who has the exclusive right to designate the primary residence of the child has voluntarily relinquished the primary care and possession of the child to another person for at least six months.
Most important, the Court will only consider modifying custody order directives if it is in the best interest of the child. You need to show the remedy you’re requesting will be beneficial to them.
If you want to learn how to modify custody order provisions for child support in Texas, check out our past blog, Grounds for Child Support Modification Texas.
What circumstances qualify as a material and substantial change in Texas?
If a parent is seeking to change conservatorship, visitation or access due to a material and substantial change, they will need to provide evidentiary facts that such a change has occurred. There’s not a bright line rule regarding what qualifies as material and substantial, but cases have been decided in Texas that say what is and is not material and substantial.
For example, we frequently have parents come to us seeking to modify parenting time because they agreed to the orders a few years earlier just to wrap up their case quickly. Flash forward to present day, and now they want to be granted more time with their children. Texas case law is clear that wanting to secure more time with one’s child is not a material and substantial change in circumstance and doesn’t meet the burden of proof for a modification.
On the other hand, the Court has also held that when parties move a substantial distance from one another, the move may constitute a material and substantial change in circumstance. This tends to make sense, since getting a child to and from school and other activities can be challenging when a parent moves an hour or more away.
What to consider before you file a motion to change parenting time
If you really want to know how to change a court order for child custody, it’s important to consider whether your case will have merit in the eyes of the court or not. This is where an experienced child custody lawyer comes in handy and why I always encourage people to consult an attorney before getting their hopes up.
When a client comes to our firm to change custody order provisions, we like to analyze the current parenting scenario as a whole. You don’t want to file a petition to modify parenting time based on one simplistic issue without considering whether there are other issues going on. It’s critical for your attorney to get a complete picture of your situation if you want to be successful in court.
In all honesty, I frequently talk people off the ledge from filing a modification for simplistic issues. For one, those simplistic issues often do not qualify as a material and substantial change. However, you will generally be in a better position to tackle a simplistic issue if you couple it with other issues.
For example, if the other parent makes a habit of not taking possession and access of the child on time, not returning the child on time, not paying child support, and so on, the cumulative impact of those transgressions tends to be more powerful when presented to a judge. We like to lump those issues together, so when we file an enforcement for a party’s wrongdoing, we can also file a modification indicating that the previous order should change based on those wrongdoings. That way we have several arrows pointed at the other side, as well as multiple options for the remedy.
So, if you’re seeking a modification of conservatorship or the right to establish the primary residence, you generally have to have some other existing issues that you need to resolve. As mentioned previously, the single-issue desire to have more time with your child usually doesn’t cut it. A parent’s desire to not pay child support also doesn’t cut it (which is why many parents seek to increase parenting time).
In order to change custody order details, the remedy must resolve the issues at hand
Again, the decision of whether or not to file a modification truly does require an analysis of all issues pertaining to custody. First, does the issue or issues presented rise to the level of a material and substantial change? And further, if you want a change in conservatorship on a temporary basis, do you have a child 12 or older who will express a preference for change in conservatorship or is that material and substantial change significantly impairing the physical or emotional health, safety and welfare of a child?
Second, do you have the evidentiary facts to support those claims. Third, does the remedy you’re asking for actually fix the problem? In other words, does the punishment fit the crime?
For example, we often see cases where a party wants to go for from a week on/week off schedule to a schedule where the other parent has first, third and fifth weekends. The common reason for this “ask”? “They’re not getting the child to school on time.” Well, in Texas, even with a standard possession schedule, that other parent will still have possession Thursday to Monday, which means there will still be a couple of days where the child could potentially be late to school.
In that scenario, the remedy doesn’t resolve the issue, so it’s unlikely the Court would find merit in the case. That’s why it’s really crucial to think about logistics when you’re considering filing a motion to change parenting time. You’ve got to think about exchange times and work schedules, as well as other time obligations and habits of each party if modifying parenting plan arrangements is your goal.
Custody modifications can be costly. Is it worth it?
When our firm analyzes a client’s custody modification request, it isn’t unusual for a cost-benefit analysis to enter the conversation. These scenarios frequently come up when child support is at issue.
For example, say a parent has a 2-2-3 schedule or week on/week off and now they want to file a modification to get primary custody. In my experience, nine times out of 10, the reason people ask for that is to get child support. However, it doesn’t always make sense financially.
The discussion often goes like this: “Hey, look, you’ve got week on, week off, and you’ve got somebody that’s making $60K a year and you’re going to get another $600 a month, but you’re going to spend $20,000 to get that $600. Is that really worth it, knowing that they can come back and file a modification a year or two from now when the wind blows a different direction?” You have to do the math and weigh the pros and cons.
Want to alter your parenting plan without going to court? Be careful.
When parents get along, communicate well and are willing to be flexible when minor tweaks to possession are needed, it may not be necessary to put those changes in writing, especially if they are temporary or one-offs. However, if you and the other parent continue to veer off course when it comes to your parenting plan roadmap, that could become a problem.
For example, say you have primary custody and your child begins staying extra days at the other parent’s home on a regular basis. The other parent may consider pursuing primary custody. And if you’ve allowed it to occur, you’ve essentially set a precedent that it’s a workable arrangement.
There are also situations where parents agree to tweak the parenting schedule or change pick up and drop off times. The problem with doing that without filing a custody modification is that there is no way to enforce those changes if a parent fails to comply. It’s generally best to follow your parenting plan as closely as possible, and when issues become intolerable, speak with a child custody lawyer about your options.
Still have questions about how to change a court order for child custody?
If you live in the Dallas / Fort Worth area, the child custody lawyers at the Sisemore Law Firm are here to help. To schedule a confidential consultation with an attorney at our firm, please call (817) 336-4444 or connect with us online.
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