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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