Life is constantly changing, and you may be contemplating a modification to your current child custody orders. Fortunately, in Texas, child custody orders are not permanent. If you need to change your child custody orders because of some major life changes, or because that is what is best for your child, it is well within your rights to do so. If this is something you are considering, it would be smart to have the help of a child custody lawyer who is familiar with the issues surrounding child custody modifications. A strong knowledge of and experience with the court system and court personnel where you will need to file your modification is incredibly important as well.
Just like in the original child custody orders, with a child custody modification the court will base its decision on what is in the best interest of the child. The court can look at factors such as the child's needs, the child's wishes if they are over the age of 12, and the child's relationship with each parent. If you are the parent seeking the child custody modification you will need to prove that the changes you want to make are in the best interest of the child. It is extremely important that you put any personal feelings aside regarding the child's other parent and make sure you are putting your child first. The Law Office of Ian Michael Kuecker, PLLC can help you remain objective and formulate a plan to best achieve your goals with regards to the child custody modification.
A modification may be filed by either parent, but it must be filed in the court where the original orders were granted. The exception to this is if the child no longer lives in the county where the original child custody orders were put in place. If the child has moved to a different county, the case may be transferred to the county of the child's new residence. If both parents agree that the modification needs to happen and agree to the changes that need to be made a proposed custody order can be submitted to the court. If both parents do not agree that there should be changes made or do not agree on what changes you will need to prove that the changes you propose are necessary and in the best interest of the child and both parents will need to appear before the court.
There are several reasons a modification to current child custody orders may be sought. These include, but are not limited to:
- The child is over the age of 12 and wants to change the primary caregiver;
- Changes in the marital status of the parents;
- Job relocations of one or both of the parents;
- Unemployment of one or both of the parents;
- Medical conditions of any party of the suit;
- Abuse – including abuse or neglect of the child by either parent or substance abuse by either parent.
If there is an emergency related to abuse and your child's welfare is in immediate danger you should first call the police. After the child is removed from the immediate danger as a result of the police intervention, it is a good idea to contact an attorney immediately. There is emergency relief that can be sought from the court such as a temporary restraining order, while the process of a child custody modification is in the works.
It is important to document any reason you have for wanting to make the changes to the child custody order. It is smart to communicate in writing (via text or e-mail), to keep a calendar or a journal that can be used as supporting evidence for your claim as to why the changes are in the best interest of the child. You also want to make sure that you are dutifully completing any of the responsibilities assigned to you in the child custody order and exercising any visitation you have with the child.
Suit to Modify Conservatorship, Possession & Access:
Sec. 156.101. GROUNDS FOR MODIFICATION OF ORDER ESTABLISHING CONSERVATORSHIP OR POSSESSION AND ACCESS. (a) The court may modify an order that provides for the appointment of a conservator of a child, that provides the terms and conditions of conservatorship, or that provides for the possession of or access to a child if modification would be in the best interest of the child and:
- the circumstances of the child, a conservator, or other party affected by the order have materially and substantially changed since the earlier of:
- the date of the rendition of the order; or
- the date of the signing of a mediated or collaborative law settlement agreement on which the order is based;
- the child is at least 12 years of age and has expressed to the court in chambers as provided by Section 009 the name of the person who is the child's preference to have the exclusive right to designate the primary residence of the child; or
- the conservator who has the exclusive right to designate the primary residence of the child has voluntarily relinquished the primary care and possession of the child to another person for at least six months.
(b) Subsection (a)(3) does not apply to a conservator who has the exclusive right to designate the primary residence of the child and who has temporarily relinquished the primary care and possession of the child to another person during the conservator's military deployment, military mobilization, or temporary military duty, as those terms are defined by Section 153.701.
Sec. 156.103. INCREASED EXPENSES BECAUSE OF CHANGE OF RESIDENCE. (a) If a change of residence results in increased expenses for a party having possession of or access to a child, the court may render appropriate orders to allocate those increased expenses on a fair and equitable basis, taking into account the cause of the increased expenses and the best interest of the child.
(b) The payment of increased expenses by the party whose residence is changed is rebuttably presumed to be in the best interest of the child.
(c) The court may render an order without regard to whether another change in the terms and conditions for the possession of or access to the child is made.
Sec. 156.005. FRIVOLOUS FILING OF SUIT FOR MODIFICATION. Notwithstanding Rules 296 through 299, Texas Rules of Civil Procedure, if the court finds that a suit for modification is filed frivolously or is designed to harass a party, the court shall state that finding in the order and assess attorney's fees as costs against the offending party.
Suit to Modify Child Support:
Sec. 156.401. GROUNDS FOR MODIFICATION OF CHILD SUPPORT. (a) Except as provided by Subsection (a-1), (a-2), or (b), the court may modify an order that provides for the support of a child, including an order for health care coverage under Section 154.182 or an order for dental care coverage under Section 154.1825, if:
- the circumstances of the child or a person affected by the order have materially and substantially changed since the earlier of:
- the date of the order's rendition; or
- the date of the signing of a mediated or collaborative law settlement agreement on which the order is based; or
- it has been three years since the order was rendered or last modified and the monthly amount of the child support award under the order differs by either 20 percent or $100 from the amount that would be awarded in accordance with the child support guidelines.
(a-1) If the parties agree to an order under which the amount of child support differs from the amount that would be awarded in accordance with the child support guidelines, the court may modify the order only if the circumstances of the child or a person affected by the order have materially and substantially changed since the date of the order's rendition.
(a-2) A court or administrative order for child support in a Title IV-D case may be modified at any time, and without a showing of material and substantial change in the circumstances of the child or a person affected by the order, to provide for medical support or dental support of the child if the order does not provide health care coverage as required under Section 154.182 or dental care coverage as required under Section 154.1825.
(b) A support order may be modified with regard to the amount of support ordered only as to obligations accruing after the earlier of:
- the date of service of citation; or
- an appearance in the suit to modify.
(c) An order of joint conservatorship, in and of itself, does not constitute grounds for modifying a support order.
(d) Release of a child support obligor from incarceration is a material and substantial change in circumstances for purposes of this section if the obligor's child support obligation was abated, reduced, or suspended during the period of the obligor's incarceration.