Child Custody Modification Under Texas Family Law

Why you may want to file for a Child Custody Modification

In the legal world, “child custody modification” can mean a number of different things. It might mean that you want to change the rights and duties that each parent has, according to a previous order. It can also mean that you wish to change which parent has “possession” of the children most of the time. Or it can mean restructuring the visitation schedule.

In order to make any changes to your previous order regarding child custody, you must file a Petition for Modification.  In Texas Family Law, this is a new lawsuit but it must be filed in the same court that rendered the order you are seeking to change. If your most recent custody order was granted in connection with a divorce, the child custody and visitation provisions will be a part of your final decree of divorce.

If the custody order in that final decree of divorce has already been modified, then the most recent order of modification will be the order that will need to be modified.

Court location where you will need to file

Once you have identified the order you intend to modify, you must now determine if the case should remain in the same county in which the most recent order was issued. Provided the child or children still live in that same county, the case will remain in the original court. If the children have been living in another county, in Texas, for more than six months, then either party to the lawsuit can request that the case be transferred to a court in that county, and the court must transfer the case.

Regardless of whether the children have moved out of the county, the modification case must be filed in the court that issued the most recent custody order. That court is called the court of continuing jurisdiction. Since a transfer to another county can sometimes take a couple of months, the court of continuing jurisdiction still has the power to make temporary orders in an emergency situation, while the transfer is being processed.

Burden of proof courts require to justify a modification

Now you know which order to modify and the correct court that will hear your case. At this point, you must consider the burden of proof to meet in order to get the changes you want.

In order for the court to even consider a child custody modification, you must prove that there has been a material and substantial change in circumstances of the children or a party to the lawsuit since the time of the most recent order, and that the change you are requesting would be in the best interest of the child.

In Texas Family Law, the appellate courts and the Texas Supreme Court have considered on many occasions what constitutes a “material and substantial change in circumstances” and the courts have made it fairly clear what will and will not satisfy the burden of proof necessary.

Not all life changes are deemed “material and substantial”

There are a number of life changes that are not sufficient by themselves to prove a material and substantial change in circumstances.

One is that the children are now older. The courts have found that it was entirely foreseeable that the children would age and presume that was taken into account at the time of the last order.

If the aging of the children were sufficient, then the necessity of proving a material and substantial change in circumstances would be meaningless since the children will always have aged.

Five key reasons why a court may grant your modification

In a case called Wright vs. Wright, an appellate court in Houston established some of the changes that may be sufficient to prove “material and substantial change in circumstances”:

1. Marriage of one of the parties,
2. Poisoning of the child’s mind by one of the parties,
3. Change in the home surroundings,
4. Mistreatment of the child by a parent or step-parent, or
5. A parent becoming an improper person to exercise custody.

We say “may be sufficient” because it is always uncertain what a judge or jury may do in any one situation. An attorney with experience in Texas Family Law can advise you on whether or not your claim of substantial changes, and proof of those changes, is likely to be successful in seeking a modification of child custody.

The fact that a parent has remarried may be a material and substantial change. However, that alone may not be sufficient to result in a change in custody.

If it is the custodial parent that remarried and the new spouse is a positive influence on the children, a judge or jury will likely not make a change. If that new parent is a negative influence, that can be an entirely different story.

Many factors are considered before choosing to move forward with a suit to modify custody. A legal expert will be able to sift through all the issues and advise you on your best course of action.

For more insight, read Child Custody Changes in the 85th Texas Legislature