Modifying A Custody Agreement In Texas: When And How To Handle Changes
April 27, 2023
Deciding on the best custody arrangement for you, your children, and their other parent after a divorce can be difficult (and that may be an understatement, depending on the situation!). However, it’s important for you to realize that whatever decisions are made now might not always be the right ones later on. Children grow and change, and their needs change over time. Your relationship with the other parent may change, your finances will almost certainly change, and even where you live might be different 5 or 10 years from now.
When big life changes happen, the custody orders can and likely should change to reflect the reality of your lives. Many parents aren’t familiar with modifications and what the process for making them is like. Whether or not you are currently needing to modify your custody agreement, knowing what your rights and options are is critical to protecting your child’s best interests. Here is a basic guide to modifying a custody agreement in Texas!
What Does An Initial Custody Agreement In Texas Look Like?
Child custody in Texas is legally referred to as “conservatorship”. Parents are often named joint managing conservators by the family court because the state of Texas expects and encourages both parents to be as equally involved in and responsible for their children’s lives after a divorce as is possible.
Children may live with one parent most of the time (the “primary custodial parent”), but in most cases, parents will share authority and have to agree on things like where the children will be educated, what their religious upbringing will be like, what extracurriculars they will participate in, etc. A visitation (“access”) schedule will be set up for the non-custodial parent to ensure that they have ample time with the kids, too. An initial custody agreement will also likely include child support requirements – how much one or both parents contributes to the child’s financial needs.
If you and the children’s other parent can work together (with the help of attorneys or mediators) to agree on the major issues and come up with a plan that is approved by both of you – and that is in the best interests of your children – then a custody agreement can be approved by the court and set in motion much sooner, and with less stress and cost. However, there are obviously situations where this won’t be possible. If one parent is unsafe, or unfit, or if conflict is too intense, then both of you may need to go to court and a judge may end up making the final ruling on a custody agreement.
What Is A Modification?
Even if your case ends up going to court, any ruling or arrangement made isn’t set in stone. Texas family law allows for the possibility of modifications, or legal adjustments, to be made if necessary. To determine if the change really is necessary, the law sets forth certain criteria. Typically, the court will only permit the modification if the change is a) in the child’s best interests and b) if one of the following circumstances apply:
4 Circumstances Where A Modification May Be Necessary
Your circumstances, or the other parent’s, “materially and substantially” change.
Remarriage, bankruptcy, moving across county or state lines, a diagnosis, a new job, or another major life transition will likely mean that the custody agreement needs to be revisited. If anything renders the current visitation schedule unworkable, or affects how much each parent will be able to be involved in and responsible for their children’s lives, then that is considered “material and substantial”.
Your child’s circumstances “materially and substantially” change.
In the same way, if your child suffers an illness or gets a chronic diagnosis, or needs to switch schools due to behavior issues or educational needs, or becomes involved in a new extracurricular activity (a sport, music lessons, etc.) that requires the parents to adjust their schedules, a modification could be in order.
Your child makes a request.
If your child is old enough and mature enough (usually around age 12, is when Texas recognizes this to be true) to express a preference for who they want to live with the majority of the time, or how they want the visitation schedule to work (for example, they no longer want to spend summers with mom, or they want to live with mom full time instead of dad, etc.), then the judge may interview them in order to assess their judgement. If their request is reasonable and lines up with what the court understands to be their best interests, then the court may grant a modification. The court may choose not to honor your child’s request if they don’t believe it is in their best interests.
There is an issue with the other parent’s parenting.
If there is an incident of child abuse or neglect, or domestic violence, or substance abuse, or if the custodial parent has relinquished care of the children to another party (a partner, a grandparent, etc.) for six months, then the court will intervene to modify the arrangement and protect the children. If one parent is accused of or convicted of criminal activity, this could also be cause for modification even if the charge does not directly involve the children.
How To Modify A Custody Agreement In Texas
If you are seeking the modification, you will have to file a written request, a formal motion, to modify custody. It’s known in Texas as a “Petition to Modify the Parent-Child Relationship.” (There is also accompanying documentation you will need to submit as well). If the other parent filed the petition, you will have a certain amount of time to respond.
The simplest, fastest, easiest way to modify a custody agreement in Texas occurs when everyone agrees to the change – when it goes “uncontested”. A judge will review the paperwork and approve the modification.
If one parent fails to respond, the modification can still occur by default, which proceeds much like an uncontested case, but that waiting period will need to be honored.
If both parents disagree, and whichever parent is responding files an objection to the request, then the case will need to go through a court hearing. Both sides will present testimony and evidence, and the judge will determine whether to grant the modification or not.
Feeling Stuck? Our Family Law Firm Can Help.
Custody is hard and change is hard. If you’re feeling confused about whether transitions in your life warrant a modification, or if you want the custody agreement to change but don’t know what to do next, or if you have been served with a petition for modification and want to fight it, our knowledgeable Texas custody and post-divorce modification lawyers can help. Call Hembree Bell Law today to schedule a free case evaluation and learn more!