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Child Custody Modification Process Decoded

On Behalf of | Feb 23, 2017 | Family Law related issues

The process for modifying your child custody order is going to be different depending on whether the modification will be contested or uncontested. If the parties are going to come to an agreement regarding the modification they will need to agree on provisions for conservatorship, possession, access and visitation and/ or child support.

Where Custody Modification Should be Filed

The place where a modification suit should be filed is a complicated issue. The first question to answer is where was the original order? If the original order was in a state other than Texas, then you need to register the foreign order in the Texas County where the children reside.

The registration process is not to complicated, but should only be done after a consultation with an experienced child custody lawyer. If the original child custody order was rendered within Texas then the case should be filed in that county with continuing exclusive jurisdiction. However, the key to both cases is where the children have resided for the 6 months preceding the filing of the modification.

If the previous order was rendered in Travis County, but the children have resided in Williamson County for 6 months or longer, the petition should be filed in Travis County concurrently with a motion to transfer the case to Williamson County. There are a multitude of reasons why a child custody case should be heard in the county where the children reside. The most important reason being that the majority of the witnesses to the child’s best interest are likely located near the place where the child resides. This includes doctors, teachers, therapist, and other fact witnesses.

Petitioning the Court for Custody

A child custody petition is going to be a more complex document than an original petition affecting the parent-child relationship or an original divorce petition. The first step will be to evaluate and determine the requirements for modifying the original order.

For instance, if a person wants to file a modification of a previous order within one year, there are specific requirements that have to be stated in the petition to modify the order. If modifying who has the exclusive right to determine the primary residence of the child — within one year of the previous order or mediated settlement agreement — an affidavit must be attached. The attached affidavit must contain, along with supporting facts, at least one of the following allegations:

  1. The child’s present environment may endanger the child’s physical health or significantly impair the child’s emotional development;
  2. The person with exclusive rights to designate the primary residence of the child is the person seeking or consenting to the modification, and the modification is in the best interest of the child; or
  3. That the person who has the exclusive right to designate the primary residence of the child has voluntarily relinquished the primary care and possession of the child for at least six months, and the modification is in the best interest of the child.

Steps in a Contested Modification of Custody or Visitation

Once a party has filed the petition to modify the parent-child relationship the next step is to decide whether it is in your best interest to have a temporary orders hearing, temporary restraining order filed, or to move toward a final hearing. In a contested modification — of child custody, possession, access, and visitation or child support — the person seeking the modification will first have to convince the court that it’s in the best interest of the child. Once the party convinces the court the modification is in the best interest of the child, the next step is to show the court that circumstances have materially and substantially changed, or the child of 12 years or older, has told the judge he or she wants to reside primarily with a particular parent.

Material and Substantial Change

The Texas Legislature has made it clear that “the best interest of the child shall always be the primary consideration of the court in determining the issues of conservatorship and possession of and access to the child.” As stated above, once the court has found that the modification is in the best interest of the child the court will examine whether a change is a material and substantial change. To determine whether a change is material and substantial will require the court to intensively examine the facts of a particular case, or that some other provision of the family code specifically enumerates that the facts of this case constitute material and substantial change.

One example of a situation where the Texas Family Code specifically states that a given set of facts is material and substantial is where one party has been convicted of an offense involving family violence. The Texas Family Code specifically states that “The conviction, or an order deferring adjudication, of a person who is a possessory conservator or a sole or joint managing conservator for an offense involving family violence is a material and substantial change of circumstances sufficient to justify a temporary order and modification of an existing court order or portion of a decree that provides for the appointment of a conservator or that sets the terms and conditions of conservatorship or for the possession of or access to a child…”.

The Child Custody Modification Order

The judge has a wide degree of discretion in cases dealing with child custody and visitation. It is important to discuss your case with an experienced child custody lawyer who has specific experience dealing with child custody modifications. The lawyer will need to advise you, gather evidence, draft pleadings, and present your case to the court in a manner that illustrates to the court the material and substantial change and how this modification is necessary and in the child’s best interest. If the court determines that the suit for modification is filed frivolously or is designed to harass a party, the court shall tax attorney’s fees as costs against the offending party.

Consult With an Attorney

If you have questions about child custody modification in Williamson County, call the Round Rock Law Office of Clifford Swayze at 512-920-5080. We serve Cedar Park, Round Rock, Leander, Georgetown, Liberty Hill, Hutto, Taylor and Austin.