Child Custody Modification

When a divorce involves a child, a custody order issued by the court will determine how legal and physical custody of the child is allocated between the parents. Many people mistakenly believe that the order is not subject to modification. Under the laws of Texas, however, either parent can seek a modification of an existing child custody order under certain circumstances. Any petition for modification must be filed with the court that issued the original order, unless the case has been transferred to a different county due to the relocation of the child. Whether you want to modify an existing order or are facing a modification proposed by your ex-spouse, the Dallas child custody lawyers at the McClure Law Group have the skill and experience to assist you in protecting your custody rights and ensuring that a child custody modification is appropriate and in the best interest of your child.

Texas courts encourage parents to attempt to confer and agree upon all aspects of custody, including an amendment to an existing order. If both parents are willing to modify the existing custody order and agree upon the proposed changes, the modification process is usually simple. A proposed order reflecting the agreed-upon changes is drafted and filed with the court. Courts generally approve agreed modifications, with the caveat that any modification must be in the best interest of the child involved. Once the order is approved, it overrides the existing order and is legally enforceable.

In cases in which there is a dispute as to whether a child custody modification is necessary, the process to obtain a modification becomes more involved. The burden of proof on the parent seeking a modification depends on the age of the child involved. If the child is aged 12 years or older and wishes to live with the non-custodial parent, the court will take the child’s wishes under consideration. Regardless of the child’s wishes, however, the court will not modify the order unless it finds the changes to be in the best interest of the child.

If the child is younger than 12, the parent seeking a modification must show a material and substantial change in either the child or the parent’s circumstances. There are no absolute rules as to what is considered a material and substantial change in circumstances, and each case must be evaluated on its individual facts. Common scenarios that would generally constitute a material and substantial change in circumstances include a change in the employment or marital status of either parent, the conviction of either parent of child abuse or domestic abuse, or a change in the location of the primary residence of either parent. Even if the court finds that the circumstances have materially and substantially changed, however, the court must then evaluate whether the child custody modification sought is in the best interest of the child. In evaluating the child’s best interest, the court weighs factors such as the emotional and physical needs of the child, the abilities of the parents, and the stability of each parent’s home.

Courts may also modify an existing custody order when the parent who has primary custody of the child voluntarily relinquishes care of the child to someone else for a period of six months or longer. It is important to note, however, that military deployment of the primary custodial parent is not considered a voluntary relinquishment of custody and will not be a basis for a permanent modification.

While a petition for modification may be filed at any time, Texas law discourages parents from seeking frequent modifications of custody orders. If a modification is sought within one year of the issuance of the previous custody order, the parent seeking the modification must sign an affidavit stating that either the primary custodial parent consents to the modification, the primary custodial parent voluntarily relinquished primary care of the child for a period of six months or longer, or the child’s current living situation poses a threat to the child’s physical or emotional health. The court will deny a petition for modification if it does not find that the affidavit sets forth facts sufficient to support the allegations. If the court finds the facts to be sufficient, it will hear the petition for modification.

Disagreements regarding the custody of a child can be stressful and emotionally charged. If you are seeking to modify a joint custody arrangement pertaining to your child, or if you need legal guidance in proving that a child custody modification is necessary, you should consult with an attorney who can assist you in protecting your custodial rights. The McClure Law Group is experienced in navigating the unique issues posed by custody cases and can advocate tirelessly on your behalf. To meet with an attorney, contact us at 214.692.8200 or via our online form.