When can you modify custody?

After a final order is entered in a divorce or child custody case, there may be reasons down the road that one party or the other wishes to modify the order.  The Texas Family Code provides four grounds for modifying a child custody order:

  1. The parties have agreed to the terms of the modification and the court finds it is in the best interests of the child;
  2. A child 12 years old or older expresses to the court in chambers who the child would prefer to be the primary parent and the court finds it is in the best interests of the child;
  3. The primary parent has voluntarily relinquished primary care and possession of the child to another person for at least six months and the court finds it is in the best interests of the child; or
  4. The circumstances of the child, a parent, or another party affected by the order have materially and substantially changed since the earlier of the order was rendered or the settlement agreement on which the order was based was signed, and the court finds it is in the child’s best interests.

As you can see, all of the grounds require a finding by the court that the modification is in the best interests of the child.   There are a variety of factors courts consider in determining best interests.  In my experience, when the modification is based on the agreement of the parties, the court typically approves the agreement based on the parties’ representations that it is in the child’s best interest.  The court has to dig deeper into this inquiry when the parents are do not agree about a modification.

The standard for modifying a custody order is higher if a conservator wishes to flip who has primary custody (change the conservator who has the exclusive right to designate the primary residence) within one year of the prior order.  In that case, the party requesting the change must file an affidavit showing that the child’s present environment may endanger the child’s physical health or emotional development.  If the court does not believe the affidavit meets the burden, the court can dismiss the modification without ever holding a hearing.  This rule exists to try and keep parties from constantly going back to court.

In order to determine whether or not your specific circumstances would warrant a change to your child custody order, speak with an experienced family law attorney.

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