A lot can change in the years following a divorce and the creation of a custody schedule and child support agreement. Children grow up; parents get remarried or find new jobs; financial circumstances often fluctuate; or a child may end up needing special medical care, education or therapy that wasn’t anticipated.
Considering all that can change in the lives of parents and children, some parents may find it necessary to modify child support, child custody and visitation agreements over the years. Here’s what you might expect when seeking a modification to custody or child support in Texas.
When a child custody modification may be appropriate in Texas
In accordance with Texas modification laws, there are three general events that could justify a request for modification of an order pertaining to conservatorship (custody), visitation and access to a child in a suit affecting the parent-child relationship (SAPCR). These three events include:
- A material or substantial change in a child or parent’s circumstances;
- A child expresses his or her preference to the court in the judge’s chambers (he or she must be at least 12 years old) regarding which parent he or she would like to choose the child’s primary residence. (Details about this Texas statute can be found here: Motion to Confer with Child Texas Family Code.); or
- The parent or conservator with primary custody relinquishes custody of the child to another person for at least six months (this does not include a parent who has temporarily relinquished custody to perform military duties).
Material changes in circumstances are perhaps the most common reason for a parent to request modification. Changes that are temporary or insignificant in the context of custody arrangements may not result in modification. For instance, if you move across the city, modification may not be granted. On the other hand, if you want to move to a different state, you will likely need to request a modification to the custody orders.
It is important to note that in addition to there being grounds to modify possession of or access to a child, the courts must also determine whether that modification is in the best interest of the child. Moving a child to a different state may benefit you but it may not be in the child’s best interest if the child doesn’t get to spend time with the other parent.
Material or substantial changes may also include the primary parent’s inability to continue properly caring for the child. These changes may arise due to substance abuse, physical or mental health issues, job loss and other concerns.
An experienced family law attorney is your best resource to resolve custody modification issues
If your ex is attempting to modify your custody agreement, or if you want to pursue modification, then it is critical to understand your legal options. Agreements regarding custody, access and visitation are vital to the parent-child relationship and the wellbeing of the child, so modifications should not be made without cause or legal counsel.
The courts do not take requests to modify custody lightly either. By that we mean if you’re asking the court to flip primary custody (and the right to designate primary residence) from the other parent to you, you better be prepared to provide clear and convincing evidence that a material or substantial change of the parties to the suit or the child has occurred.
Sometimes a temporary change in primary custody may be warranted
Parents may also file a motion to change primary conservatorship on a temporary basis. There are three instances when the temporary change of primary custody will be considered by the Texas family court. These include:
- The child’s present circumstances would significantly impair the child’s physical health or emotional development;
- The person designated in the final order has voluntarily relinquished the primary care and possession of the child for more than six months; or
- The child is 12 years of age or older and has expressed to the court in chambers the name of the person who is the child’s preference to have the exclusive right to designate the primary residence of the child.
When you file a lawsuit to temporarily modify custody in Texas, you also need to submit an affidavit to the court that provides proof that the other parent either consents to the modification OR that the child’s current living situation poses a danger to the child’s physical health or emotional wellbeing.
One emotional threat that Texas family courts will consider is parental alienation, where one parent takes actions to discredit the other parent—often unjustly—in their child’s eyes. If you do a Google search on parental alienation Texas family code, you won’t find specific mention of parental alienation in the Texas family code. However, Texas judges take allegations of parental alienation very seriously, and parents found guilty of such alienation often find their actions backfire on them in family court.
How modifications to temporary custody orders are handled
The court will also consider modifications to a temporary custody order Texas parents have in place if a child’s safety or welfare is in jeopardy. (Get details about the statute here: Texas family code temporary orders modification.) If you have questions about temporary custody Texas or need a motion for temporary orders Texas form, contact your lawyer or seek guidance from a family law attorney in the county where you reside.
If the situation is dire, and the child needs to be removed from a parent’s custody as soon as possible, your attorney can help you submit an emergency custody order Texas courts will consider right away.
To modify child support Texas parents should act quickly
If your or your spouse’s income has changed, and you believe a modification to child support is in order, there are a few basic reasons for a child support modification Texas family courts will consider. To modify a child support order Texas parents need to show income has changed by $100 or more OR 20-percent or more per month, and/or it has been 3 years since the most recent child support order was put in place.
It’s also important to file your motion to modify child support Texas as soon as possible because you can only increase child support from the date of filing moving forward. You can’t go back retroactively or get credit for the child support the other parent could have been paying you prior to that date. If you believe the other parent’s income has increased and think you’ll be able to prove it, file to modify child support Texas right away.
The tricky part with Texas child support modifications is that it isn’t always easy to prove the other parent’s income has changed. We often have clients who say, “My ex owns her own little business and she’s 1099. How do I prove her income?”
We also have clients who didn’t include a finding of income in their initial child support order, which further complicates matters. Not only do you need to prove income today, you need to go back and determine what both parents’ incomes were when child support was initially ordered.
Other factors come into play during a child support modification in Texas. You need to look at how possession and access are currently handled and the lifestyle of the child, along with parental income. In addition, sometimes the physical or mental health needs of the child may have changed and require more financial resources from the parents than previously.
Learn more about Texas child support basics and Texas Family Code Chapter 154 here.
Contact our Fort Worth law firm to learn more about your options
If you live in Tarrant County and have questions about a modification to child custody, visitation, access or support, our divorce lawyers in Fort Worth, TX are here to help. To schedule a confidential case review with our founder, Tarrant County family law attorney Justin Sisemore, please call our office at (817) 336-4444 or schedule a consultation online.
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