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Modifying Child Custody in Texas: Do I Have A Case?

By Paula A. Bennett

In any divorce, the court takes care to ensure that both spouses are treated equally and fairly. However, in cases when children are concerned, the children’s best interests become the court’s overriding concern. For most parents, the child custody orders contained in the parties’ final divorce order may be the most important orders to come out of their divorce proceeding.

Child Custody Modification Reasons

A custody order can last until the later of the child’s 18th birthday or until he or she graduates high school.  As often is the case, the circumstances of a party or a child may materially change during that time, and that change could necessitate a modification of the existing custody order.   In those cases, the Texas Family Code, which governs family law matters, has provided a way for the custody order to be modified. There are innumerable reasons why a court may grant a modification of an existing order based on changed circumstances. For example, a parent may have been diagnosed with a major illness which precludes his or her ability to care for the child. In other cases, a parent may have lost a job, or even found a new one that requires relocation out of the area. Sadly, many modifications are necessary due to drug use by a parent or child or domestic violence occurring in one of the child’s homes. Often, a teenager drives the modification by his or her desire to live with or spend more time with one parent over the other parent.

Modifying the Child Custody Order

After a divorce, there is typically a one-year waiting period before a child custody order can be modified without agreement of the parents or the existence of extenuating circumstances that are harmful to the child. During this first year, a parent that petitions the Court to make a change to the existing orders that are not agreed to by the other parent, must set forth facts that support his or her allegation that the child’s present circumstances significantly impair the child’s physical health or emotional development.

If that is the case, the danger to the child must have arisen after the child custody order went into effect or was agreed to in writing by the parents. That is, has the child’s other parent behaved in a manner abusive to the child since entry of the last order? Has the child’s other parent abused illegal or prescription drugs since entry of the last order? Has the child’s other parent failed to provide reasonable and necessary care for the child since entry of the last order? If the answer is yes, you may consider filing a petition to modify your existing order.

In Case of Emergency

If a child is in immediate danger, call the police, then call your attorney. A restraining order or a protective order may be necessary, including requests for orders to immediately remove the child from the care of the offending parent to allow the court time to schedule a hearing to learn more about what’s going on.

How to Win a Child Custody Modification Case

Having a lawyer is not required to file a child custody modification case. However, any changes to the custody order must be approved by a judge, and success is not guaranteed. Because of this, consulting an experienced family law attorney is advisable, because they understand the law and are going to give you the best advice relating to your circumstances, help you navigate a way forward, and help you deal with any unexpected roadblocks that pop up along the way.

Also important is to weigh the pros and cons in filing a modification case at all. In addition to the possibility of having your petition denied, you run risk of walking into worse circumstances than when you started. Once you formally request something of the court, your former spouse will have the opportunity to make requests as well. Any court orders relating to the child that are set forth in your prior order could be changed, and not in a way that’s beneficial to you. You need to recognize that as a possibility and decide whether it’s worth the risk.

Should you decide to move forward, remember, your best chance of being successful is with proof. The court wants to act in the child’s best interests. This means that you’ll have to present reliable information and proof as to why your custody order should be modified. Track everything. Should you and the other parent or anyone else you deem pertinent to the case communicate through texts or e-mails, save them. Did you speak on the phone? Keep track of when and makes detailed notes describing what you talked about.

Is the other parent failing to live up to his or her responsibilities? Record those failings, as well. It may seem petty. But if it’s affecting your child, you have a responsibility to do something about it.

Do You Have a Case and What are the Next Steps?

Custody of a child can be and typically is a very sensitive topic. In these situations, it’s easy – and normal! – for us to let our personal feelings color our judgment. Because of this, not everyone who thinks they have a case does, in fact, have one. If you have questions, you’re invited to speak with one of our experienced attorneys who can guide you through the process of filing a child custody modification order and advise you on your next steps.

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