Child custody disputes can be entered through an agreement by the parents or by a court order by a family court judge.
Often these agreements or orders are the result of months of negotiation or litigation. Because the agreements or orders are so hard to obtain, the state wants to make sure any changes to the agreements or orders are more than fair to the children and the parents.
Agreements can be changed or modified at any time if both the parents agree to the changes and the family judge assigned to the family thinks the agreement doesn’t unduly prejudice one side.
Agreements need to be approved by the family court judge so they are enforceable. Side agreements between just the parents are likely to be breached.
The difficulty arises when one parent wants to change the agreement/order and the other parent wants to keep the agreement the way it was.
In all child custody modification actions, the best interests of the child/children are always paramount. The petition to request a change in modification can be filed by either parent.
It should be filed in the court where the divorce was granted. If the child has moved, then the family court where the child lives will normally hear the change request.
Custody in Texas
In Texas, there are several types of custody orders:
- Sole custody. Here, the child lives primarily with one parent and that parent has the sole right to make decisions about how the child is raised.
- Joint custody. The child lives primarily with one parent and the other parent has visitation rights. Both parents share the decision-making process.
- Shared custody. Here, the child actually has two residences and resides with each parent at least 35 % of the time. Both parents also share how decisions are made.
- Split custody. Each parent has full custody of at least one of the children.
The decision-making process includes where the child goes to school, what religion the child practices, what doctors the child sees and what school and non-school activities the child participates in.
Texas actually calls each parent a conservator instead of a custodial parent.
Factors for granting a change in the custody order
The parent who is requesting the custody modification must be able to prove at least one of the following:
- The child is 12 years old or older and has expressed a desire to change who is the primary caregiver or
- The circumstances of the parent have changed in a material and substantial way
In either case, again, the change must be in the best interests of the child
Typically, a judge will interview the child who wants a change in parental custody in his/her chambers instead of the courtroom.
The reason for this is to make conversation with the child less intimidating. The judge needs to make sure the child is not being pressured by either parent. The child’s decision is not final.
A material change of circumstance includes one or a combination of the following:
- One of the parents has remarried.
- A parent has a new job in a different location or state or a parent has the same job but has to relocate to keep working.
- A change in the income of a parent
- A parent becomes unemployed.
- One of the parents as a medical condition that makes it harder to take care of the child.
- Changes in a child’s school and activity schedule
Some additional change requests are normally brought by a parent who is trying to reduce or terminate the custody rights of the other parent. These change requests are based on a showing of
- Child abuse or family violence
- Alcohol or drug abuse of the parent
- That a parent has been convicted of a crime
The person who files the modification based on child abuse or family violence must know that the other parent has been convicted of abuse/family violence or that the conviction has been deferred. Otherwise, a false claim can result in misdemeanor charges.
When the child modification should be filed
The court prefers modification requests that are made within one year of the original custody order. If a parent files a petition to change custody after one year, then he/she must include an affidavit that includes at least one of the following points:
- That the current situation would endanger the child’s physical or emotional health
- That the custodial parent (the parent who has the sole authority to designate the child’s primary residence) is the one seeking the modification and it would be in the best interest of the child
- A parent has failed to take care or custody of the child for at least six months unless there is a valid reason such as military deployment or military duty.
There must be enough facts to support the allegations in the affidavit. If not, the petition for relief will be denied.
If the modification results in a change of residence and the change in residence causes increased expenses, then the court can allocate the increased expenses fairly.
Make the Call to an Experienced Texas Family Lawyer Today
Changing a child custody/conservator order is hard but not impossible.
If you’re not happy with your current custody arrangement, please call us at 979-849-8526 to make an appointment with Scott M. Brown & Associates today.