It would be wonderful if a divorce or child custody case could deal with all the resulting issues until the children reach adulthood. Unfortunately that is not always the case. Lives evolve after people go their separate ways. Often what the court ordered at the time of the divorce or child custody case is no longer practical. Long after your divorce lawyer finished the divorce you may find the need to modify the current orders.
The Texas Family Code provides opportunities to modify the terms of the court order to rearrange custody and child support. Modification suits can be complex; often they are even more complex than the original divorce or child custody case. An experienced family law attorney can help you pursue a modification of custody rights and child support.
Child custody modifications in Texas
After the court issues child custody orders affecting parental rights and parenting time/visitation, it may become necessary to modify those orders to change rights, duties and schedules. Although parents are free to informally agree to deviate from the order, when the parents cannot agree on changes then the court has to formalize changes in a modified order.
Under the Chapter 156 of the Texas Family Code, a court can modify a custody order when there is a meaningful change in circumstances since the last order. That change in circumstances can include a change in the life of one or both parents, a change to the child’s needs, or a change in the co-parenting relationship. The Texas Family Code provides specific circumstances that permit the court to find a change in circumstance justifies a custody modification. If you believe modifying the existing order is necessary, then you should talk to a custody modification attorney in Texas.
Section 156.101 of the Texas Family Code identifies the three conditions that permit your custody modification attorney to file a motion to modify a custody order:
- A material and substantial change in circumstances;
- A child age twelve or older tells the judge the child wants to live with a different parent;
- The custodial parent relinquished custody for at least six months.
Let’s talk about these in turn.
Material and substantial change in circumstances
Most custody modifications in Texas fall under the material and substantial change in circumstances. Although the Texas Family Code does not specify the exact situations that create a material and substantial change in circumstances, your custody modification attorney can advise you on the probability that your judge will consider your circumstances sufficient. Some of the circumstances Texas judges often find sufficient include:
- The death of one of the parents;
- A parent marries a new spouse;
- A parent suffers a debilitating injury or illness that significantly affects that parent’s ability to work or perform child-raising tasks;
- Criminal convictions of a parent;
- One of the parents relocates somewhere that causes hardship to the child or the other parent to exercise visitation.
The facts of your individual situation will determine whether a material and substantial change exists. Judges generally will not modify an order if there have been slight changes in circumstances or a minor inconvenience to one of the parents.
Generally in Texas child custody cases the judge does not want to have children in the courtroom unless absolutely necessary. In this situation the judge has little choice. The Texas Family Code permits modifying a custody order if a child of twelve years of age or older wants to live with the other parent. To satisfy that requirement the judge must interview the child in chambers. The judge must also find that changing the custodial parent is in the child’s best interests. Changing the custodial parent often will require modifying the conservatorship rights between the parents as well.
Relinquished custody by the custodial parent
The third reason a court can modify a custody order is when the custodial parent relinquishes custody to the other parent for six months or more. If the custodial parent has voluntarily turned over the child to the non-custodial parent for half a year then it often makes sense to allow the non-custodial parent to legally assume the role of custodial parent. This does not apply if the custodial parent relinquished custody to the other parent due to active military deployment or duty.
Note, however, that this is specific to the custodial parent relinquishing custody to the non-custodial parent, only. The custodial parent has the right to designate the primary residence of the child which can be with a non-parent. For example, the custodial parent may decide to place the child with a grandparent as a primary residence. The custody order permits the custodial parent to make that decision; however, there may be circumstances in which that could constitute a material and substantial change in circumstances. This is a good reason to talk to a custody modification attorney.
Filing a custody modification in Texas
Filing a custody modification usually requires returning to the court that issued the custody order in the first place. A motion to modify the custody order has technical requirements depending upon the reason for the request and the time since the last order. Depending upon the reason to modify certain allegations must be raised explaining the basis for the modification. Effectively the modification creates a new custody case. There may be temporary orders issued, discovery, mediation and even a trial.
Modification lawsuits can be more challenging than the first case. In the first case the judge could rely upon basic solutions like ordering the Standard Possession Order. In a modification the petitioner must assert a failure of the existing order to provide for the child’s best interests. As a result the parties often must present more evidence and the judge may insist on experts to assist the judge in coming up with a new order. The outcome may be a more creative visitation schedule.
When parents seek modification of child custody orders in Texas the courts commonly look at several key factors:
- Best interests of the children;
- Past parental involvement with the children;
- Parental cooperation;
- Home stability;
- Criminal activity around or affecting the children;
- Child’s wishes;
The best interests of the children are often determined in Texas by the Holly factors described by the Texas Supreme Court in Holly v. Adams. These include:
- the desires of the child;
- the emotional and physical needs of the child now and in the future;
- the emotional and physical danger to the child now and in the future;
- the parenting abilities of the individuals seeking custody;
- the programs available to assist those individuals to promote the best interest of the child;
- the plans for the child by these individuals or by the agency seeking custody;
- the stability of the home or proposed placement;
- the acts or omissions of the parent which may indicate that the existing parent-child relationship is not a proper one;
- any excuse for the acts or omissions of the parents.
Modification suits can quickly become complex, costly and frustrating. An experienced custody modification attorney can help you navigate this process and present a case that supports your relationship with your children. Often when parties file a modification without attorneys involved the judge is more likely to require expensive professionals to participate in the suit and help the judge decide the case. By not hiring an attorney you may not save any money but lose the opportunity to have an experienced advocate on your side.
Child custody enforcement hearings
Often before a parent decides to file a modification suit there have been problems with the custody rights or visitation schedule. One parent may not follow the requirement in an order to cooperate on medical decisions or a parent may refuse to follow the visitation schedule in the order. A parent may ask the court to enforce the existing order either before requesting modification or along with a modification suit.
An enforcement proceeding asks the court to order the other parent to comply with the existing order and may penalize that parent to force compliance. Sometimes it is desirable to enforce compliance with the existing rule before or during a modification suit. Your custody modification attorney can talk to you about the best approach in your case.
Child Support Modifications in Texas
Like custody modifications, a court can also modify a child support order. These modifications often also occur due to a change in circumstances of the non-custodial parent. A court can increase or decrease a child support obligation due to those changes. Some of the changes in circumstances include:
- A parent lost a job for an extended period of time;
- A parent lost a job under circumstances that require finding a new career with a change in earning opportunities;
- A new job with a change in earning potential;
- A change in the child’s needs;
- Modification of custody.
Section 156.401 of the Texas Family Code defines the grounds for modification of child support. These include:
- A material and substantial change in the circumstances of a child supported under the order;
- A material and substantial change in the circumstances of a parent affected by the order;
- Three years passed since the last order AND the amount in the current order is 20% or $100 different from what should be ordered under the current circumstances and the child support guidelines;
- The parties agree to deviate from the child support guidelines AND the court finds a material and substantial change in circumstances justifies the deviation;
- If at any time the current order fails to provide health care coverage it can be modified to provide health care coverage.
Often child support modifications occur after the non-custodial parent experiences a significant change in income; however, under the Texas Family Code either parent can initiate a modification by right every three years. It is not necessary to wait to see the non-custodial parent driving a new car or for the non-custodial parent to remain unemployed for months before seeking a modification.
Practical considerations before modifying custody or child support in Texas
One of the benefits of hiring an experienced family law attorney is getting the experience of a large number of family law cases. Family law attorneys have experience dealing with similar family situations and how they often play out in court. Parents often feel attacked when served with a modification suit and that can create more problems along the way.
Parents often counter-petition for different modifications and enforcement proceedings may become part of the modification case. Unresolved issues from the original custody case or divorce may resurface. There is a lot to consider both legally and practically with modifying custody or child support. Once you open that door it is not easy to close it. An experienced family law attorney can advise you of the risks and prepare you for this journey.
Modifying child support or custody without a modification lawyer in Texas
Modifying custody and child support orders is the wrong time to try your hand at lawyering. Modifications are an area where it is almost always dangerous to go to court alone. In Texas divorces many people go to court without a lawyer. The courts generally do what they can to help people move through the divorce.
The Texas Family Code establishes several presumptions of facts that make this easy for the family court judge. The parties likely recently lived together and parented together. Their differences about the kids are usually not that great. This allows the family law courts to more easily enter an order in a divorce.
However, many of these helpful tools do not exist in custody and child support modifications. In modifications there are far fewer presumptions. The parties have to do more work to prove their case. The facts are more problematic. The parents are no longer in a situation where they recently lived together and parented together. Now they have separate lives and their own objectives. As a result, the party that prevails in a modification is usually the one that uses the legal system more effectively.
Hiring a custody modification lawyer in Texas
A custody modification lawyer can be an important resource in a custody modification for a number of reasons. An attorney can be a filter of reason and focus through the process to keep the emotional frustration from prolonging the process. An attorney can also use his expertise with the law and the local family courts in both the legal proceedings and with helping to shape a resolution that the courts will accept and may be a compromising fit for both parents. If you have to take your modification to trial then you definitely need representation to present the court the strongest case for your desired modification. Find an attorney in your area and schedule a consultation before making any decisions.
Additional child support and custody modification resources
- 6 risks in a child custody modification lawsuit in Texas
- Terminating parental rights to stop child support payments
- 5 problems with 50/50 custody in Texas
- Mediated settlement agreements and the best interests of the child
- What is a guardian ad litem in a Texas child custody case?
- How to prepare for court in Texas
- What is visitation?