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.

CPS

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Generally, a suit to modify the parent-child relationship can be brought at any time as long as a prior order is in effect.  However, if one party seeks to change the primary conservator within one year of the prior order, that party carries an additional burden.

Under the Texas Family Code, a party seeking to change the primary conservator within one year must file an affidavit in support of the change.  The affidavit must show one of the following:  (1) the primary conservator is seeking or consenting to the modification and the modification is in the child’s best interest; (2) the primary conservator has voluntarily relinquished primary care of the child for at least six months and the modification is in the child’s best interest; or (3) the child’s present environment may endanger the child’s physical health or significantly impair the child’s emotional development.

This additional burden is designed to keep people from running back to the courthouse constantly to change custody arrangements.  After a year has past, the affidavit is not necessary and either party can file for any reason or no reason at all.

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In many situations, it is not necessary to obtain a new court order if the parties are getting along and agreeing on things.  For example, if the parties agree to change one party’s visitation from Wednesday to Thursday, there is usually no need to have a formal modification.  However, when it comes to child support, it is critical to have a court-ordered modification if you make an agreed change.

I have seen several instances where one party stopped paying child support because the children started living primarily with that parent.  Even if the other party is in agreement and has no intention of enforcing the child support order, it is very dangerous not to change the order.  As far as the state is concerned, you are continuing to accrue an arrearage.

Having an arrearage on the books with the state can be problematic for several reasons.  First, the state can report your arrearage to the federal government, who may take your tax return and apply it to the arrearage.  Next, the arrearage can be reported to credit agencies, negatively affecting your credit.  Finally, the state may start an enforcement action against you in an attempt to collect the arrearage.

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Child Support

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