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Modifying Child Custody

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 few requirements you need to keep in mind. A modification must always be in the child’s best interest, plus one of three alternative grounds:

  1. A material and substantial change in circumstances
  2. The child is at least 12 and has told the judge in chambers under § 153.009 which person the child wants to have the exclusive right to designate the primary residence
  3. The parent who has the primary physical possession of the child (i.e. the custodial parent) has voluntarily relinquished primary care for at least six months.

If you file within one year of the order and you are asking to change who has the exclusive right to designate the child’s primary residence, § 156.102 requires an affidavit showing endangerment, the other party’s consent, or a voluntary relinquishment of primary care for at least six months. The judge must deny the request without a hearing if the affidavit is inadequate. The affidavit must allege one of the following along with the applicable facts:

  1. the child’s current environment may endanger the child’s physical health or significantly impair the child’s emotional development;
  2. that the custodial parent is seeking the modification, and the modification would be in the child’s best interests, or
  3. 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:

  1. Medical condition that affects the ability of the parent to take care of the child;
  2. Criminal acts and convictions of the parent;
  3. One parent moved to a different state;
  4. 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.