Custody Modification
Contact us immediately below:
verification image, type it in the box

Modification of a suit affecting the parent-child relationship is governed by chapter 156 of the Family Code, this includes modifying which parent has the “exclusive right to designate the primary residence of the child.” In essence, the person given this right in the original order or decree has what most people refer to as “custody.” To modify a court’s custody determination you must know why a person can file, which persons can file, where those person file, and when those persons can or should file.

Why File
The most important factor in any child custody determination is what is in “the best interest of the child.” The judge or jury will consider several factors when determining what is in the best interest of the child, including but not limited to, who the child wants to live with, the emotional and physical needs of the child, the emotional and physical danger to the child now and in the future, the parental abilities of the persons seeking custody, the plans the persons seeking custody have for the upbringing of the child, and the stability of the home environment the persons seeking custody can provide the child.

However, before the judge or jury determines what is in the best interest of the child, the person seeking custody must convince the judge that there has been a material and substantial change in the circumstances of the child, parent, or other person affected by the previous order. In other words, the situation is very different than it was when the previous order was made and that things have changed enough to where it is in the child’s best interest that custody change. While not every change in circumstances warrants a change of custody, the following are examples of events that may constitute a material and substantial change: there are allegations of neglect or abuse against the person with custody; the person with custody has a romantic relationship with a person with a history of physical or sexual abuse of a child; family violence; the child is performing poorly in school; or the child’s home environment is unstable or otherwise unsuitable.

It is a myth that Texas law allows or has ever allowed a child 12 years or older to “choose” which parent she wants to live with. The Court will certainly consider the wishes of a child 12 or older but ultimately it is what is in the child’s best interest that prevails.

It is also important to note that the court will not consider the deployment of a military member as a material and significant change in the circumstances.

Who May File
It is not only parents that may ask the Court for custody of a child. Any person who has had actual care, control, and possession of the child for at least six months may file for custody. Again, a person who has gained possession of the child simply because the person with ordered custody was deployed because of military service may not file for custody for that reason.


Where To File
If you are modifying a Texas order, usually you must file in the court that rendered the original order. However, if both parents and the child have moved out of Texas, you may file in the county in the State where the child has resided for the previous six months. If the child has moved out of State but one parent still resides in Texas, you must file in the court that rendered the original order, however, upon request of either party, that case should be transferred to the county in the State where the child has resided for the last six months.

If the child has moved to another county in Texas and has resided in that county for six months, you still must file in the original court, however, upon request of a party, the case must be transferred to the new county.

If you are trying to modify an out of state custody order, you must file in the out of state court that rendered the original order unless both parents and the child now live in Texas, then you may file in the county where the child has resided for six months. It is important to note that a Texas court may enforce an out of state order but may not modify one unless both parents and the child now live in Texas or the out of state court has transferred the case to the Texas court.

When to File
If the circumstances of the child have materially and substantially changed a person may file for modification at anytime, except that if the modification is filed within one year from the original order, the person filing must show that the child’s present environment may endanger the child’s physical health or significantly impair the child’s emotional development, or the person who has ordered custody relinquished the child to someone else for at least six months, or the person who has ordered custody is consenting to the modification. And, of course, you must always show that the modification is in the child’s best interest.

Remember, the court has many subjective factors to consider when determining whether custody should be modified and every case is different; therefore, it is wise to consult an attorney before filing for modification of custody.