Modifying Child Custody Orders and Visitation Rights

Texas family law states that a court may modify a child custody order if the change is in the best interest of the child and one of the following applies:

1. The circumstances of the child or parent have materially or substantially changed since the date of the original child custody order or order to be modified.

2. The child is at least 12 years of age and will tell the court in private chambers with the judge that he/she would like a change.

3. The custodial parent has voluntarily given the child’s care and custody to another person for at least 6 months.
Material or Substantial Change

What could be acceptable as a change for the Texas family courts? Some examples could be a parent’s remarriage, a medical condition the affects a parent’s ability take care of the child, a parent’s criminal acts or convictions, a parent’s change in residence that makes visitation a hardship for the other parent, family violence, drug or alcohol related issues, absence of supervision, and other material changes concerning adequate care and supervision of the child.

Child Wants Change

The child must be at least 12years of age and maybe interviewed in the judge’s chambers. The court will consider the child’s desire but only make a change if it is in the child’s best interest.

Custody Relinquishment

This happens when the custodial parent has voluntarily given up custody of the child to another person for at least six months. This does not apply to a period of military deployment or duty.
After finding one of the three prerequisites, the court must still consider whether the change will be in the child’s best interest. The court will consider factors affecting the child’s physical, emotional, mental, education, social, moral or disciplinary welfare and development. The factors considered for this evaluation are:
1. Child’s emotional and physical needs.
2. Parenting ability of the conservators or potential conservators
3. Plans and outside resources available to persons seeking the modification
4. Value to the child of having a relationship with both parents
5. Visitation schedule that requires excessive traveling or prevents the child from engaging in school or social activities
6. Stability of the person’s home seeking the modification
7. The child’s desires
8. Child’s need for stability and need to limit additional litigation in child custody cases.

Modification within one year of prior court order

A parent who files a motion to modify a child custody order within one year after a prior order was entered must also submit an affidavit to the court. The affidavit must contain, along with supporting facts, at least one of the following allegations:
1. The child’s present environment may be endanger the child’s physical health or significantly impair the child’s emotional development.

2. The person who has the exclusive right to designate the child’s primacy residence is the person seeking or consenting to the modification and the modification is in the child’s best interest.

3. The person who has the exclusive right to designate the child’s primary residence has voluntarily relinquished the primacy care and possession of the child for at least six months and the modification is in the child’s best interest.

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