When a couple with children in Texas gets divorced, one of the most important roles of the family court is to create a custody arrangement that works to ensure the best interests of the child. The person who has primary custody of a child has the sole right to determine the primary residence of the child. Those who have primary custody of a child are referred to as the custodial parent.
The goal is always to provide the best and safest environment for the kids. Of course, circumstances may shift or other knowledge might come to light that would indicate a need to file for a change of custody. In Texas, the process and grounds for modifying orders of custody, access, and support are found under Texas Family Code, Chapter 156.
How Do Changes in Custody Work in Texas?
Only a judge can change a court order. It can’t simply be an agreement made between parents. To request the change, you need to file a Petition to Modify the Parent-Child Relationship in the court that has jurisdiction over the child.
What Does the Form Entail?
The Petition to Modify form is relatively easy to fill out and will require the full name of the petitioner, their driver’s license number if they have one, and the last three numbers of their Social Security Number if they have an SSN.
The name(s) of the children, their date of birth, and the county and state where the child currently lives will need to be included, and the title of the current order. The current order title will typically be found on the first page of the order under the case information box. You will also need to add the date the current order was signed.
The form requires that you indicate your standing in the case, meaning your relationship with the children. While it may be the children’s mother or father who is filing the petition, this is not always the case. The form also has boxes that can be checked for other parties listed in the current order, or a person who has had actual care, control, and possession of the child for at least six months ending not more than 90 days before the date the petition is filed (and who is not a foster parent).
Others who may have to stand in the case and who may try to obtain custody include grandparents, great-grandparents, siblings, aunts, uncles, nieces, or nephews of the children. To have standing, though, certain requirements must be met.
The form has boxes that could apply to those particular cases. For example, if both parents are dead, or both parents (or the surviving parent or managing conservator) agree to the filing of the petition, or the child’s current circumstances could harm their physical well-being or emotional development, these individuals may be granted custody.
You will also need to list all respondents in the case who are required to get legal notice. This could be the other parent or others who have a relationship with the children and who would be affected by a modification to the agreement. There may be more than one respondent.
If anyone in the case, whether the petitioner or the respondent, lives outside of Texas, you will need to attach a completed Out-of-State Party Affidavit to the petition as an exhibit.
You also need to indicate the legal reason for changing the current order and ensure they are in the best interests of the child. The form also has a section for conservatorship, which will determine where the children live.
Additionally, there are sections for geographic restriction, visitation, support, insurance, public benefits, children’s passports, protective orders, and family information. These sections are not applicable in all cases and can be skipped if they do not pertain to your case.
Finally, there is the request for judgment section where the petitioner will add their printed name, signature, address, phone number, email address, and date.
One other major element, discussed below, could affect certain cases.
Can You Modify the Custody Agreement Within the First Year in Texas?
The form has a section asking whether you are changing custody within a year of the original order.
In most cases, parents will have to wait at least one year before going back to the courts to attempt to change the primary custody of a child. The reason for the year-long waiting period is to help create a sense of stability for the child. If they just get settled with one parent and then have to uproot a couple of months later, it can be emotionally damaging.
You can only file a modification case to change the primary custody within a year under certain circumstances. If one or more of the following applies, it will typically be possible to file for a custody change within a year of the original order.
- When the person with primary custody asks for or agrees to make the change.
- The child’s current environment or living situation could endanger their health or harm their emotional development.
- The person with primary custody has allowed another person to have possession and primary care of the child for at least six months.
It is important to keep in mind that the third bullet point on that list does not apply to someone on active duty in the military who has been deployed.
Examples of the types of circumstances considered material and substantial include changes in the marital status of parents, job relocations, unemployment, medical conditions, substance abuse, and abuse or neglect of the child by either parent.
Additionally, a person who alleges that one or more of the above is true needs to provide facts and evidence that supports their position. They need to be written in a declaration form and are made under the penalty of perjury. This declaration form needs to be attached to the Petition to Modify the Parent-Child Relationship form used to start the modification case.
After the judge receives and reviews the Petition to Modify, they will review the Declaration in Support of Changing Primary Custody within One Year. They will determine whether the facts that you have alleged in the declaration would warrant a modification if they are found to be true. If they are, then the judge will schedule a hearing.
If the judge feels that the facts in the case aren’t enough to support modification, even if they are true, the case will be dismissed.
Will the Change Be Allowed in Texas?
The judge may or may not grant the changes to custody. The evidence provided to request a change needs to meet the legal standard. If, after providing the evidence, the judge agrees to make the change, you can’t simply stop following the current order. You need to wait for them to sign a new order before it will go into effect.
Of course, not all requests to change custody will be granted. The courts will again look into the best interests of the child to determine whether a change is needed based on the current circumstances and evidence provided. If the child is at least 12 years old and has said they have an interest in staying with the other parent, the judge may grant the custody change. However, they will still look into whether all needs of the child will be met with the new arrangement.
If you do not have good evidence that supports your case, the judge will not grant the change. They want to ensure the children have stability in their lives, and will only modify custody in cases where it is necessary and beneficial to the kids.
What If Both Parents Agree to the Custody Change?
Sometimes, a parent will realize they are struggling to provide everything their child needs. They realize that perhaps having the child live with the other parent is the better decision. When the other parent agrees, they will want to modify the order. Fortunately, when both parties are in agreement, the process tends to be much smoother.
The parents can submit a proposed custody order that reflects the changes they want, which will then be reviewed by the judge. In most cases, they will approve the change, as long as it is in the best interest of the children. Once it has been approved, it will be legally enforceable.
Even if both parents believe that a change in custody is the best option for the children, they still need to have the order modified and signed by a judge. They can’t simply do it on their own and have it be legally binding.
For a free legal consultation, call (855) 593-1497
Never File a Frivolous Modification Suit in Texas
Sometimes, one party feels angry at the other and wants to seek “revenge” and complicate the lives of the primary custody holder. They file a petition to modify custody simply to cause problems and harass the other party. In cases where you file frivolously, the judge can order you to pay attorneys’ fees. Naturally, this can make it more difficult to file again if you feel the custody order truly needs to be changed down the line.
Get Help from a Reputable Attorney in Texas
Child custody can be complex and fraught with worry. It’s not something people often do, and most don’t know how to properly navigate the legal system. You need to make sure you handle everything properly from the start, including gathering any evidence needed to help strengthen your case. The best option is to find and work with a reputable firm that has plenty of experience in this area of family law.
The Aberdeen Law Firm has offices in Plano and Dallas. Call (855) 453-0232 and get in touch today to learn more about the custody laws in Texas and what you need to do to file for a modification.
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