Top 5 Reasons to Modify a Child Custody Order

Aug 31

Top 5 Reasons to Modify a Child Custody Order

Top 5 Reasons to Modify a Child Custody Order

Modification of Child Custody Order 

A child custody order (such as a divorce decree or an order in a suit affecting parent-child relationship) is not set in stone. It is not uncommon to request modifications to your child custody order. The Texas Family Code states:

Sec. 156.101.  GROUNDS FOR MODIFICATION OF ORDER ESTABLISHING CONSERVATORSHIP OR POSSESSION AND ACCESS.  (a)  The court may modify an order that provides for the appointment of a conservator of a child, that provides the terms and conditions of conservatorship, or that provides for the possession of or access to a child if modification would be in the best interest of the child and:
(1)  the circumstances of the child, a conservator, or other party affected by the order have materially and substantially changed since the earlier of:
(A)  the date of the rendition of the order; or
(B)  the date of the signing of a mediated or collaborative law settlement agreement on which the order is based;
(2)  the child is at least 12 years of age and has expressed to the court in chambers as provided by Section 153.009 the name of the person who is the child’s preference to have the exclusive right to designate the primary residence of the child; or
(3)  the conservator who has the exclusive right to designate the primary residence of the child has voluntarily relinquished the primary care and possession of the child to another person for at least six months.
(b)  Subsection (a)(3) does not apply to a conservator who has the exclusive right to designate the primary residence of the child and who has temporarily relinquished the primary care and possession of the child to another person during the conservator’s military deployment, military mobilization, or temporary military duty, as those terms are defined by Section 153.701.

Most times, child custody orders are modified because there has been a “material  and substantial change in circumstances.” Thus, the petitioner (party asking for the modification) must show two things:

  1. A material and substantial change in the circumstances of the child or a parent; and
  2. The requested modification is in the best interest of the child[ren]. The party seeking the modification has the burden to establish these two elements by a preponderance of the evidence. Zeifman v. Michels, 212 S.W.3d 582, 589 (Tex. App.—Austin, 2007, pet. denied). The best interest of the child[ren] is always the primary consideration. Id. 

Top 5 Reasons to Modify a Child Custody Order

The statutory scheme of Chapter 156 is to address a child’s need for stability and the need to prevent constant litigation in child custody cases. In re V.L.K., 24 S.W.3d 338, 342 (Tex. 2000). However, the need for a modification of a child custody order often arises as the lives of both parents and the children progress overtime. There are many, many reasons why there may be a need to modify a child custody order. The following list in our experience is the Top 5 Reasons to Modify a Child Custody Order.

1. You are Being Alienated From Your Child

Parental Alienation is an attempt by one parent to exclude the other parent from a child’s life. Parental Alienation can take place in all shapes and sizes, but the consistent theme is that the other parent, without justification, is waging a campaign with the child to harm that child’s relationship with the other parent. The ultimate goal of the alienating parent is that the other parent is rejected by the child and/or removed from the child’s life. Parental Alienation can take place before a couple separates, during separation, or after a child custody order has been established. 

Addressing Parental Alienation is a difficult process, but it must be done. There are many different approaches to the problem, but almost all, if not all, involve litigation. If there is a child custody order that gives the alienating parent custody of the child, then that order may, and most likely will, have to be modified to address the alienation. Possession and access (visitation) may also have to be addressed to limit the alienating parent’s access to the child. Finally, the court may need to address therapeutic decisions in the underlying order and may need to make modified orders for mental health intervention for the family.

2. The Other Parent Cannot Co-Parent

Most child custody orders are set up with the parents appointed as joint managing conservators. (NOTE: Joint managing conservatorship does not require equal time. Tex. Fam. Code s. 153.135). Regardless of how decision making is allocated, the goal of a joint managing conservatorship is for parents to co-parent the child[ren] together. In fact, it is the public policy of the State of Texas to “encourage parents to share in the rights and duties of raising their child after the parents have separated or dissolved their marriage.” Tex. Fam. Code s. 153.001(3).

Some parents simply fail at achieving this goal. Because of anger or bitterness from a separation or divorce, a parent may refuse to co-parent. In these situations, the parent in charge of making decisions for the child will refuse to consult the other parent, refuse to take the other parent’s opinions into consideration, and/or refuse to inform the other parent about significant information concerning the child[ren].

In these situations, the court may be inclined to modify the order and re-allocate the rights and duties of the parents, including which parent has the right to establish the primary residence of the child (“custody”) and which parent has the right to determine where the child attends school. The court may also need to modify possession and access to limit the access of the parent who refuses to co-parent.

3. Issues With Drugs and Alcohol

A parent struggling with drugs or alcohol issues can seriously affect a child’s life and child custody arrangements. Sometimes a parent struggles with addiction issues prior to separation. Sometimes the issues do not arise (or do not become known) until after a child custody order is in place. 

If a court is concerned about a parent’s drug or alcohol use, the court may need to modify the underlying child custody order. In a modification suit the court can change which parent has custody, limit a parent’s access to the child, make orders for counseling, and/or make orders for drug and alcohol testing. 

4. A Need or Desire to Move

Most child custody orders provide for a geographic restriction – a certain area in which the parent who has custody must reside. However, circumstances may change that require a parent to seek to have the restriction modified. For example, a parent may have a geographic restriction of Harris and surrounding counties, but may then have a job opportunity that requires that parent to move to Dallas or Austin. 

In the reverse, a custody order may provide for a larger geographic restriction, and a parent may need to seek to restrict the geographic restriction. For example, a parent may have a geographic restriction of the State of Texas, but the non-custodial parent is seeking to shrink the restriction to prevent constant moves throughout the state.

Geographic restriction fights are often high stakes and very determinative of how much access a non-custodial parent will have to the child. The issue of a geographic restriction can be tried to either a judge or a jury

5. Desires of the Child

As shown above, if a child 12 years or older desires to live primarily in the other parent’s household, this is grounds for a modification. Furthermore, a child’s desire to change a possession schedule or primary household may be a material and substantial change in circumstances. 

If requested, according to the Texas Family Code:

Sec. 153.009.  INTERVIEW OF CHILD IN CHAMBERS.  (a)  In a nonjury trial or at a hearing, on the application of a party, the  amicus attorney, or the attorney ad litem for the child, the court shall interview in chambers a child 12 years of age or older and may interview in chambers a child under 12 years of age to determine the child’s wishes as to conservatorship or as to the person who shall have the exclusive right to determine the child’s primary residence.  The court may also interview a child in chambers on the court’s own motion for a purpose specified by this subsection.(b)  In a nonjury trial or at a hearing, on the application of a party, the amicus attorney, or the attorney ad litem for the child or on the court’s own motion, the court may interview the child in chambers to determine the child’s wishes as to possession,  access, or any other issue in the suit affecting the parent-child relationship.

Thus, if a child has expressed desires to change the custody arrangement and/or possession and access arrangement this may be grounds for a modification. If the child is under the age of 12, the child’s desires, assuming the child is of sufficient maturity, could possibly be grounds for a modification. If the child is 12 or older, the child’s desires will almost always be grounds for a modification 

Conclusion

Child custody orders are living documents that may be modified if an appropriate modification lawsuit is brought. Prosecuting or defending against a modification requires care and skill. If a modification is brought and then denied, future modifications are more difficult (see above re: stability of a child). Thus, it is important whether you are bringing a modification or defending against a modification that the lawsuit is taken seriously, and all efforts are used to demonstrate to the judge or the jury what is in the best interest of the child[ren] moving forward.

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