Custody modification

Custody Orders are Not Final

As time passes and children grow older, your family’s circumstances can change. Parents may change jobs and careers. Children can take on more responsibilities with school, extracurriculars, and sometimes employment of their own. Situations that were unforeseen at the time of your divorce or prior custody order arise.

Fortunately, Texas courts allow custody orders to be modified. Unlike with property division, as circumstances affecting your family change your custody orders can change as well. Modifications can include switching who is the primary parent, moving outside of your geographic restriction1, changing your possession schedule, and increasing or decreasing child support.

The child custody lawyers at Mims Ballew Hollingsworth can help you update your custody orders to address the changes in your life, your child’s life, or even the other parent’s life.

Modifying Custody

Any party affected by the prior order can seek to modify a custody order. Non-parents2, such as grandparents and step-parents may also attempt to modify a custody order if they meet specific requirements.

To modify a child custody order, the requested modification needs to be in the best interest of the child and the person seeking modification must also prove one of the following:

  • The circumstances of the child, a conservator, or other party affected by the prior order have materially and substantially changed since the prior order (or if the prior order was agreed to at mediation or in collaborative law, then the date of that agreement).
  • The child is at least 12 years of age and expresses to the court the name of the person who they want to be primary.
  • The person who is primary has voluntarily relinquished primary care and possession of the child for at least six months (unless this absence is due to military duty).

Material and substantial change can encompass many scenarios and is not always clear. Often what is considered “material and substantial” is left to the court’s discretion. Some examples include changing schools, new employment, remarriage, or parents choosing to operate under a different possession schedule for an extended period. A parent’s desire to spend more time with their child however is generally insufficient to meet the material and substantial standard.

Changing Primary Within One Year or for Temporary Orders

When a child custody suit to modify primary is filed within one year of the prior order or there is a request to change primary at a temporary orders hearing during middle of a case, there are further requirements that must be met in addition to those listed above.

If the case to change primary is filed within one year, the person requesting to become primary must attach an affidavit to their petition. This affidavit must contain at least one of the following allegations along with supporting facts:

  • The child’s present environment may endanger the child’s physical health or significantly impair the child’s emotional development (referred to as the “significant impairment standard”)
  • The primary parent consents to change primary.
  • The primary parent has voluntarily relinquished primary care and possession of the child for at least six months (unless this absence is due to military duty).

Regardless of whether the case is filed within one year or long after one year has passed, if the request to change either primary or a geographic restriction is made at a temporary orders hearing during the middle of a case there are additional requirements.

The person requesting to change primary must show:

  • The change is necessary because the child’s present circumstances would significantly impair the child’s physical health or emotional development. An affidavit specifying facts adequate to support this allegation is necessary for proceeding under this basis.
  • The primary parent has voluntarily relinquished primary care and possession of the child for more than six months (unless this absence is due to military duty).
  • The child is 12 years old and expresses to the court the name of the person who they want to be primary.

When dealing with the significant impairment standard, your request lives and dies by the affidavit. If the facts stated in your affidavit are insufficient to prove that present circumstances would significantly impair the child’s physical health or emotional development, then the court can decline to even have a hearing on the issue. Significant impairment can be an extremely high burden to satisfy, and this is specified in case law from appellate courts as the Texas Legislature’s intent in creating this standard.

If you are seeking to change primary or facing a change in primary, you need an attorney who understands the complexities of the significant impairment standard. The child custody attorneys at Mims Ballew Hollingsworth are experienced in pursing and defending child custody cases involving requests to modify primary.

Modifying Child Support

Child custody orders can be modified under the following scenarios:

  • The circumstances of the child or a person affected by the support order have materially and substantially changed since the prior order (or if the prior order was agreed to at mediation or in collaborative law, then the date of that agreement).
  • Three years have past since the prior order and the monthly amount of child support differs by either 20 percent or $100 from the amount that would be awarded under child support guidelines3.

However, when parties agreed to deviate from child support guidelines in their prior order, this 20 percent or $100 difference does not apply. In this scenario the court can only modify child support if there is material and substantial change in circumstances.

If the paying party gets married, the court cannot add their new spouses income into child support calculations, nor can the court deduct the new spouses needs from the paying party’s income. If the paying party has another child, then different percentages for calculating guideline child support can be applied in modifications. Increases in child support focus on income of the paying party. An increase in the needs, standard of living, or lifestyle of the party receiving child support does not warrant an increase in child support.

Whether you are seeking to increase or decrease child support, the child support attorneys at Mims Ballew Hollingsworth can help with your modification.

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