Modifying Custody in Texas
Sometimes a “custody” order needs to be modified. Children get older, circumstances change, or one parent is not acting in the best interests of the child. Modification of the original order is recommended to ensure that the child and the parent is protected under the law.
If you want to modify your “custody” order in Texas there are a a few requirements you need to keep in mind. The Texas Family Code lists out the following:
- The modification must be in the best interests of the child and the circumstances of the child or parent have materially and substantially changed since the original child custody order or agreement;
- the child is at least 12 years old and has told the court that he/she wants to change, or
- the parent who has the primary physical possession of the child (i.e. the custodial parent) has voluntarily given the child’s care and custody to another person or parent.
If you are attempting to modify an order that is less than one year from when the order was made, then you must file an affidavit with your modification. The affidavit must allege one of the following along with the applicable facts:
- the child’s current environment may endanger the child’s physical health or significantly impair the child’s emotional development;
- that the custodial parent is seeking the modification, and the modification would be in the child’s best interests, or
- that the custodial parent has voluntarily relinquished the custody and care of the child, and the modification would be in the child’s best interests.
Material and Substantial Change
Material and Substantial change could be anything that affects the court ordered possession period with the child. Examples include:
- Medical condition that affects the ability of the parent to take care of the child;
- Criminal acts and convictions of the parent;
- One parent moved to a different state;
- Even the use of drugs and alcohol could be viewed as a material and substantial change.
Preference of the Child
After hearing the proper motions, the court may decide to interview children who are at least 12 years old in cases involving modification of “custody” orders. The Judge will interview the child privately to determine where the child wants to live. The Judge may even decide to interview children younger than 12 years of age. Be forewarned, the court will always base its’ decision on the best interest of the child and not necessarily on the child’s interview.
Relinquishment of Possession
Modification of the “custody” order can also occur if the primary parent voluntarily gives up care and custody of the child to the other parent for at least six months. This does not apply to military members who are deployed, mobilized, or called up for training.
