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 | Family Law 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.
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:
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.
When a child custody suit to modify the primary is filed within one year of the prior order or there is a request to change the primary at temporary orders hearing during the 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:
Regardless of whether the case is filed within one year or longer after one year has passed if the request to change either primary or geographic restriction is made at a temporary order hearing during the middle of a case there are additional requirements.
The person requesting to change primary must show:
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 the case of law from appellate courts as the Texas Legislature’s intent in creating this standard.
If you are seeking to change your 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 | Family Law are experienced in pursuing and defending child custody cases involving requests to modify primary.
Child custody orders can be modified under the following scenarios:
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 a 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 the income of the paying party. An increase in the needs, the 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 | Family Law can help with your modification.