A lot can change in the years following a divorce and the creation of a custody schedule in Texas. Children grow up; parents get remarried or find new jobs; financial circumstances often fluctuate. During that time, grounds for full custody of a child can change dramatically between the parents, which may necessitate a change in custody or child support modification Texas.
Considering all that can happen in the lives of both parents and children, it is important for parents with custody and visitation agreements to understand how Texas custody laws work, when and if that agreement might change and the reasons a judge will change custody in Texas.
When a child custody modification may be appropriate in Texas
In accordance with Texas modification laws, there are three reasons a judge will change custody in Texas to a sole or joint arrangement. These three include:
- A material or substantial change in a child or parent’s circumstances;
- A child expressing his or her preference to the court (as long as he or she is at least 12 years old), where a child wants to live with noncustodial parent in Texas; or
- Voluntary relinquishment by the parent with primary custody.
Material changes in circumstances are perhaps the most common reason for a parent to request modification of child custody in Texas. 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 a modification to order a change of custody 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. A judge will often agree that changing custody orders will be in the best interest of the child under these circumstances.
An experienced family law attorney is your best resource to help with a modification of child custody in Texas
If your ex is attempting to modify your custody agreement, or if you want to pursue modification, then it is critical to understand Texas custody laws and your legal options. Agreements regarding custody, access and visitation are vital to the parent-child relationship and the well-being of the child, so a modification of child custody in Texas 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.
Three reasons a judge will change custody in Texas if a temporary change in primary custody is desired
While parents can always request a change in conservatorship, there are limited grounds that allow a change in conservatorship on a temporary basis. The three reasons a judge will consider changing custody in Texas on a temporary basis 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 of child custody in Texas 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, 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. Typically, to prove parental alienation, a parent has to prove that the other parent is speaking so poorly about that parent that the children do not wish to be around that parent.
How modifications to temporary custody orders are handled per Texas custody laws
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 warranted, there are a few basic factors that family courts consider for a child support modification Texas. To support a Texas child support modification, the movant needs 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.
If you believe your circumstances merit a Texas child support modification, it’s also important to file your motion to modify child support Texas to prevent overpayment as the obligor or underpayment as the obligee. If you believe that the income for the parent responsible for child support has changed 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 ordered.
How long does a child support modification take?
When seeking a child support modification Texas parents not only need to move quickly, they also need to be patient, especially if the other parent disagrees that a modification is warranted or disputes the amount.
If you need to go to court to fight for (or against) a Texas child support modification, it could take several months before you can get on a judge’s docket. For parents requesting a child support modification, there is some good news. Should the judge agree with your request, the increase or decrease in child support will be retroactive back to the date of service.
In cases where parents mutually agree that a Texas child support modification is warranted and also agree to the amount, the modifying of child support orders should move along more quickly. Since both parties are agreeable, their attorneys can prepare and file the child support modification documents with the court. If everything appears to be in order, the judge will most likely sign off on the modification.
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 the Dallas / Fort Worth area and have questions about Texas custody laws or a modification of child custody in Texas, 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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