Child custody orders are not set in stone. As life changes so do the circumstances that make an original custody order no longer workable or make sense. With this understanding, child custody orders can be changed in Texas under certain circumstances. Read below for more information about modifying a custody arrangement in Bedford, Texas.
When Can a Child Custody Be Changed in Texas?
First, remember any change to a child custody order in Texas must be approved by the court. Since it is an order, you will need to have the court grant the new order or the old one is still in force. Whether the court will simply grant your request to change your child custody agreement depends in part on whether both parents agree to the change often legally referred to as modification.
If both parties agree to the change and are willing to sign the modification forms, the court will generally approve the request for modification as long as the child’s best interests remain safeguarded.
Not all changes come about because parents both agree. Sometimes a parent may object to a change and will need evidence that the change is needed. If a parent contests the change, the court will only grant the order modification if it is in the child’s best interest and at least one of the following are true:
1. The circumstances of the child or caregiver have materially and substantially changed;
2. The child is 12 or older and wants to change their primary caregiver;
3. The person with primary custody has allowed someone else to have primary care and possession of the child for at least six months. (This does not apply to primary caregivers on active-duty military deployment.)
What Is Considered a Material and Substantial Change in Circumstances?
Whether a change is “material and substantial” is a determination made by the judge based on each case’s unique facts and circumstances. Material for this purpose basically means meaningful or significant and substantial refers to the size of the impact on the situation. For example, a temporary change of parent pick up time from 5 to 5:30 because your job made a change in job hours for 4 weeks would generally not be considered substantial while a permanent change in job hours that make you unable to exercise your ordered time with your child would likely be considered material and substantial.
Family violence or child abuse is a major reason for a consideration of a change or modification. Texas law specifically states that a conviction or even an order of deferred adjudication (a special type of probation) for family violence and child abuse are a material and substantial change in circumstances. A parent may bring a request for modification, even if the other party has never been arrested or convicted, as it still can be considered a material and substantial change that justifies a modification of the custody order.
In addition to abuse, other common examples of circumstances that may be considered material and substantial include:
• Job relocations forcing a parent to move;
• Changes in the marital status of a parent;
• Unemployment;
• Medical conditions;
• Changes in the child’s age and needs; and
• Substance abuse.
You can begin to see how some of these factors can cause a couple or an individual parent to want a modification. For example if you are relocating a long distance away and you can no longer have your child stay with you on the days designated by the current order, you would want a change in how you will spend time with your child. For example you may want one or two weekends every month and or 4 weeks in the summer when your child is out of school. Unfortunately the other parent may have objections and then you will need the court to weigh in on situation if the parents cannot agree on a new plan.
An experienced family law lawyer, like Craig Michalk, can analyze your situation and help you determine whether your circumstances will likely be seen by the court as a material and substantial change.
How Do You Change a Custody Order in Texas?
Again if both parents agree to the change, the process should be relatively quick and smooth. The parties must both sign the modification forms which outlines the new agreement as to timeshare and/or changes to child support as applicable and submit the request for modification to the court. The judge will review it and grant the request as long as the best interests of the child are considered. Parents are always encouraged to work out any issues between themselves or with the help of their attorneys if necessary. Often cooperating parents want to work it out with each other but have trouble figuring out the details of new scheduling and child support and rely on their attorney to help with the calculations of timeshare, child support, and decision making responsibilities.
If the change in custody is contested, the parent requesting the change must sue for modification with the court. The court will schedule a hearing date to review the evidence and hear testimony from both sides. It is beneficial to have an attorney help you gather the evidence and witnesses you will need to present your case. After listening to the arguments from both sides, the judge will make a decision.
If the other parent is served notice for a modification suit and they do not file an answer or appear in court, the judge can grant the order by default.
So whether you are the parent wanting a change due to material and substantial circumstances or the parent who is contesting the need for a change, it is usually best to have a family law attorney to help represent you.
How Long Do You Have to Wait to Change a Child Custody Order in Texas?
In general, you must wait at least one year to change a child custody order in Texas. This rule is in place to help maintain stability for the child. Since the custody order was developed with time and thoughtfulness at the time a couple with children was ending their personal relationship, whether through divorce or an unmarried couple ending their cohabitation, the court would like the order to be used for at least a year. This is generally not a problem but occasionally after a year a couple may find some major problem with how they structured their custody and will consider the need for a change.
There are certain exceptions to the one-year waiting period. You can file a modification case to change primary custody under the following circumstances:
• The child’s present environment endangers their physical health or significantly impairs their emotional development.
• The person with primary custody is asking for or agrees to the change.
• The person with primary custody has allowed someone else to have primary care and possession of the child for at least six months.
Again think about the terms material and substantial. If a parent suddenly acquired a problematic drinking problem and because of that put their child at risk (doesn’t provide food/meals, drives drunk with the child in the car, physically abuses the child), you wouldn’t want the court to wait a year before addressing a request for a change in a child custody order.
Your Tarrant County Family Law Attorney
As you see, changes in child custody orders are necessary for big things. If you are unsure whether a change is warranted, reach out to a qualified family law attorney. The Law Office of Craig S. Michalk has helped the residents of Tarrant County navigate divorce, custody, and other family law matters for over 24 years. Your initial consultation is free, so call us today at 817-282-9895 to schedule an appointment at our Bedford, Texas office.
We represent clients in the Tarrant County, Texas communities of Arlington, Azle, Bedford, Colleyville, Euless, Fort Worth, Grand Prairie, Grapevine, Haltom City, Haslet, Hurst, Keller, Lake Worth, Mansfield, North Richland Hills, Richland Hills, Roanoke, Saginaw, Southlake, and Watauga.
