Once a custody order is final, can it be modified?
In certain situations, a court can modify a custody order, but these situations are limited and require a specific set of facts.
Legal Grounds For Changing Custody
In the State of Texas, a parent can file to modify a child custody or visitation order only if it is determined to be in the best interests of the child and one of the following:
- The circumstances of the parent or child have materially and significantly changed since the previous child custody order was entered;
- The child is at least 12-years-old and has told the court in chambers that he or she wants the modification; or
- The custodial parent has freely and voluntarily relinquished care and custody of the child to another person.
Significant Change In Circumstances
For a court order to be modified post final divorce decree or final custody judgment, a significant change in circumstances must occur before any provision can be modified.
The burden of showing that this significant change of circumstances occurred is on the party filing a motion to change custody.
The court considers a variety factors when it comes to change of circumstances, which is explained further below.
These circumstances can include:
- Job loss of the custodial parent or change in income;
- Parental relocation;
- Significant change in either the parent’s health or child’s health, including both physical health and mental/emotional;
- Change in the child’s school or extracurricular activity schedules;
- Changes in the noncustodial parent’s ability to pay child support or spousal support; or
- Changes in the work schedule for either parent.
Examples of what could be included as a significant or material change in circumstances would be:
- A parent’s remarriage or subsequent divorce;
- One of the parents begins to suffer with a medical condition that makes it difficult for them to take care of the child;
- The custodial parent is arrested and not able to take care of the child; or
- The custodial parent moves such that it makes keeping up with the current visitation schedule a hardship for the other parent.
Preference Of The Child
Once the child involved reaches a certain age, he or she has the right to have a say in the custody determination. In Texas, the age is 12-years-old.
The court will interview any child who is at that age threshold in chambers, meaning the judge’s private office instead of in the courtroom. In some circumstances, younger children may also be interviewed.
This does not mean the child has the final say. An older child simply has the right to express his or her views regarding with which parents that child wishes to live. The court must consider the child’s best interests above anything else before making that determination.
Relinquishment Of Custody
The court can also modify a previous custody order if the parent who previously had custody has voluntarily relinquished the care and custody of the child to someone else for at least six months.
However, keep in mind that this legal provision does not apply in situations where the custodial parent has only done this because of military deployment, mobilization or duty.
When Can A Modification Motion Be Filed?
If a parent wants to file a motion to modify a previous child custody order, he or she must do this within one year after the order was made.
To do this, the parent must submit an affidavit with the court, which must include at one or more of the following allegations to support the parent’s belief that:
- The child’s living current environment is endangering the child’s physical health or significantly harms the child’s emotional well-being and development;
- That the custodial parent has requested this modification and that the modification would be in the child’s best interests; or
- That the custodial parent has voluntarily given up the custody and care of the child involved, and that the modification would be in the child’s best interests.
Defending Against A Modification
While the burden of proof is in the hands of the part seeking to modify custody, it should never be assumed that the party making the request is going to automatically lose.
It is important that the party facing modification has legal representation to help prevent the unthinkable from happening. Do not wait too long to schedule a consultation as an answer will be required. Not filing an answer could prevent the served party from making a defense.
Contact A Custody Lawyer At Scott M. Brown & Associates Today
To discuss how modification of custody would work for your situation, please contact the family lawyers at Scott M. Brown & Associates. You can reach us by calling 281-972-4386 . We have offices in Angleton, Houston, and Pearland.
