As we witnessed during the COVID-19 pandemic, life’s circumstances can quickly and dramatically change from one day to the next. These changes could impact your relationship with your children.
If you are divorced with children or have gone through a child custody legal matter as a single parent, then you should know that you have the right to pursue a modification of a child custody order if circumstances have changed.
Let me further explain how to win a custody modification case in Texas to help protect your parental rights and allow you to maintain a thriving relationship with your children.
When Should You Pursue a Custody Modification Case?
The Texas Family Code allows for the original custody order to be modified in several different types of situations. Regardless of the reason that affects your situation, the modification suit must be based on a “material and substantial change of circumstances” to warrant review by a court.
If you believe that your situation has materially and substantially changed, then you can pursue a custody modification on these grounds:
- Modifying the order to re-establish conservatorship or visitation rights.
- Modifying the exclusive right to determine the primary residence of the child(ren).
- Modifying the order due to increased expenses from a change in residence.
- Modifying the order due to a conviction for child abuse or family violence.
- Modifying the order due to the death of the conservator.
1. Conservatorship or Visitation Rights
A Texas court can modify a custody order to appoint a new conservator of the child, change the terms and conditions of conservatorship, or change possession of or access to the child (visitation rights) if this would be in the best interest of the child.
You would need to provide substantial proof that the circumstances surrounding the child, the other party, or yourself have materially and substantially changed since the original order was established to initiate a change to the order.
– A common issue that comes up in a custody modification is determining the primary residence of the child. The court will weigh the opinion of the child if the child is at least 12 years old and has expressed their preferred primary residence.
Or, the court could modify the order if the conservator who has the exclusive right to designate the child’s primary residence relinquishes primary care and possession of the child to another person for at least six months.
For example, if the conservator is planning to take a 6-month trip out of the country and wishes to place the child in the care of a neighbor, friend, or another family member, then you could pursue a modification of the order to obtain primary care of the child.
2. Modifying the Primary Residence Due to Danger
You can also pursue a change to the child’s primary residence if you believe your child faces imminent danger in their current living environment.
The court will require an affidavit containing supporting facts if you allege that the child’s conditions at the primary residence may endanger their physical health or significantly impair their emotional development.
Pursuing a modification due to danger could also relate to the child being left with someone else for six months. If you believe that your child would be in danger if left with the person selected by the custodial parent, then you can pursue a modification. After reviewing the facts, the court will then act in the best interest of the child.
3. Increased Expenses
For the party with visitation rights, the court will consider modifying a custody order if a change in residence has resulted in increased expenses. In this case, the court will consider how to allocate the change in expenses on a “fair and equitable basis.”
Ultimately, the court will act in the best interest of the child after reviewing the cause of the increased expenses and how this affects the parent-child relationship. If you have suddenly realized a dramatic increase in expenses under normal circumstances, then you will need to provide ample proof so that the court can determine the validity of your request.
4. Conviction for Abuse
The Texas Family Code recognizes two forms of convictions that could lead to a modification of the original custody order.
– If the conservator parent is convicted of child abuse, then this rises to the level of a “material and substantial change of circumstances.” This is sufficient to justify modifying the original court order that appointed the conservator parent and the non-conservator parent with visitation rights.
– If the conservator parent is convicted of family violence, then this is also considered a “material and substantial change of circumstances” that would justify a modification.
The key is a conviction. The Texas law makes it clear that the custodial parent must be convicted of an offense before any action can be taken. The only exception is if the custodial parent receives deferred adjudication for the offense, which is essentially a form of probation without a formal conviction.
5. Death of Conservator
If the conservator dies, then this is considered a material and substantial change in circumstances that is a sufficient reason to modify the original order. In this situation, the court will consider modifying the roles of the remaining parties while acting in the best interest of the child.
To ensure the court continues to act in the child’s best interest, the court must go back to the original order to review any terms or conditions contained in the order. For example, if there were terms denying possession of the child to the surviving parent or limiting visitation rights for the surviving parent, then these terms will be re-reviewed.
If the court finds that the original terms are still in the best interest of the child, then the court may include those terms in the modification of the original court order. Obviously, this would introduce a host of challenges determining who ultimately has possession of the child in the event of the conservator’s death.
Find Legal Support Winning a Custody Modification Case
Does your change in circumstances meet the criteria for pursuing a modification of a child custody order in Texas? I can help you gather the appropriate evidence, build the strongest case, and help you navigate the legal system to successfully modify the order.
As a family law expert, I understand what the courts are looking for when evaluating the validity of a modification. I’ll help you arrive at the best possible outcome to support you and your child.
I currently help clients with custody modification cases in Fort Bend County, Brazoria County, and Harris County. If you live in one of these counties, then reach out to me for support.
Call my offices at 281-944-5485 or 979-267-7660 to further discuss how to win a custody modification case in Texas and get started on your modification. I’m here to help!