In many cases, the original child custody order parents may have agreed to or that was decreed by a judge may no longer fit their children’s circumstances. Over time, things may change for the children or the parents such that the court order needs to be modified. This would require a formalized process that is not necessarily easy to navigate. A parent should seek the help of an experienced family law attorney to either negotiate a child custody modification or petition the court to grant one.
The circumstances affecting a child custody order can change in several ways. As a child grows older, their situation may evolve. In addition, one or both of the parents could have their own changed circumstances. One may wish to relocate for work or remarriage. However, the other parent has custodial rights as granted by the agreement. Still, what is best for a child is the most important consideration when addressing a potential modification.
Reasons why parents may want to modify a child custody order:
- One parent needs to relocate
- There’s a change in the job status of the parents
- There’s a change in a child’s schedule
- Abuse or neglect by one parent
- Substance abuse
- The changing needs of a child
- There’s a change in a parent’s marital status
Parents Must Obtain Court Approval To Modify a Child Custody Order
A modification to a custody order is not as simple as merely changing the order. The court must be involved in the process, with a judge ultimately signing off on any changes. This is a formalized legal process from the start. A modification must be entered through the court system. Even if two parties agree on changing their child custody agreement, the revised order must be filed with the court and a judge must sign off on it. Parents are always better off putting such changes in writing because courts may not enforce oral agreements if they are in dispute. Parents should not rely on oral agreements regarding child custody.
Of course, like any child custody issue in Texas, a court will first consider whether the requested modification is in the best interest of the child or children. The custody decision must be made with the child’s physical, psychological, and emotional needs in mind. There are many factors that a judge may consider as part of this “best interests” analysis. A judge has wide latitude and discretion in determining which factors could drive the decision. It is entirely possible that two judges could look at the same modification request in two entirely different ways, depending on which factors they focus on as part of their analysis.
To persuade the court to grant a modification to child custody, a parent would need to show the circumstances have materially and substantially changed since the last order was entered. There is no legal definition of “materially and substantially.” Instead, the court would review the circumstances at the time of the last order and compare them to what they are now to see if they are materially and substantially different. A judge has a fair amount of discretion in deciding whether to grant a requested child custody modification.
Changing Physical Custody of the Child
In some cases, one parent may seek to modify the custody order to gain physical custody of the child or children. In that case:
- If the child is over the age of 12, that child would have a say in which parent has primary physical custody
- If the child is under the age of 12, the parent must show that the change in custody is in the best interests of the child and that there has been a material and substantial change in circumstances
Modifications Could Happen Through Negotiation or Litigation
Modifications can happen in two ways. Parents could negotiate among themselves and agree on a child custody modification. Parents should work together to arrive at a compromise, but it is not always possible. For example, one parent may be making a request that would make it difficult for the other parent to exercise their custodial rights. While there is nothing that says a parent must compromise when they have an existing child custody order, it is usually better to stay out of court for many reasons.
If the parents can reach an agreement, they would draft it and send the proposed order to the court for its approval. In some cases, the parent who wants the modification may not try to negotiate with the other parent first, and they may file it directly with the court. In other cases, the parent may go to court if the two are unable to reach an agreement.
A modification is like any other contested court case in the family law system. A parent must file a modification case in the Texas county where the original order was entered. If the child has lived in another county for six or more months, they may be able to transfer the case to that county where the child has been living and now resides.
How to Handle Child Custody Modifications
Parents must be careful about their existing rights under an agreement. If a parent is deemed to have waived some provisions of a child custody order, a court may consider that when the other parent filed a motion to modify.
If you are a parent seeking to modify a custody agreement, you should speak with a child custody lawyer to discuss your legal options. Your family law attorney can help you attempt to negotiate the desired modification and/or represent you in court. You should not take any chances in trying to handle such an important matter on your own because you may not be able to modify the agreement again if the result is not satisfactory.