The best interest of the child?
Shouldn’t that be up to you?
Modification of a Child Custody Order in the great State of Texas
When it comes to the custody of your children after a divorce, and you are not able to come to an agreement with your spouse or former spouse, often it falls on the State of Texas to decide what is best. Even the most amicably divorced parents can face coparenting issues that cause one or both of you to want to revisit your custody arrangement.
In a perfect world, you and your ex-spouse would sit down together and happily reach a workable agreement that modifies the current arrangement; a perfect plan that makes parents and kids happy.
But very often, in the real world, such blissful agreements do not happen, and it is necessary to seek legal help to modify the current parenting plan.
Before you jump into what can be the murky pool of modification, let’s look at some important steps to consider.
The Texas Family Code allows for the modification of the parenting plan or child support outlined in your divorce decree if your child’s needs are not being met. Here is what that means to you:
- 1. Has it been a year yet?
Absent extraordinary circumstances, unless there is a material and substantial change in circumstances, parents generally must wait one year from the prior order or mediated settlement agreement to modify their custody arrangement. This is not true if you just wish to modify the possession schedule or terms of possession.
There needs to be a material and substantial change in circumstances regarding the children or a conservator that requires a modification of conservatorship or possession and access. That “material and substantial change” must occur after the date of the last order or mediated settlement agreement.
- The clock is ticking…
The “modification clock” starts ticking on the date of the last order or mediated settlement agreement. Events that occurred prior to the date are not relevant for a custody modification. Prior events that may have happened cannot be brought up now. However, changes in your children or your ex-spouse’s behaviors from that date forward can sometimes provide compelling evidence on which a modification can be based.
So, you can’t say, ‘My wife was an abusive, alcoholic who was unable to care for our children during our marriage’, but you can say, ‘My ex-wife is an abusive, alcoholic who is unable to care for our children now’. But make sure you have the proof you need to prove such allegations.
- My children CANNOT wait one year…
If you want the court to consider a modification of your child’s primary residence within the year of the date of the last order or mediated settlement agreement, you must prove that the children’s present living environment may endanger their physical health or significantly impair their emotional development.
If mom becomes an abusive, alcoholic who is unable to care for your children during her periods of possession, that behavior would very likely be considered an endangerment to your children’s physical health or significantly impair their emotional development. Substance abuse or physical harm to your children are scenarios where one parent has impaired the wellbeing of the child and will likely meet the threshold to modify.
Remarriage, job loss of a parent or a possession schedule that now conflicts with his or her work or life schedule are instances that, standing alone, will not meet the threshold for modification within one year.
- In case of emergency, call the police and your attorney A.S.A.P…
If you find out your child’s life and/or wellbeing are in imminent danger, (child abuse or neglect, drug use in the home, impairment due to mental illness, etc.), you should first call the police if necessary, and then contact an attorney to seek emergency relief form the court. A family law attorney can help you secure a temporary restraining order until a hearing can be held on the issue.
- Your children are growing up, and their needs are changing…
Children’s needs change for a variety of reasons over time. With these changes, a child custody modification may be in order.
Many parents simply want to modify the possession schedule to get more time with their kids. Other parents often seek a change in conservatorship, or a change in the rights and duties of each parent. As children get older, parents can be faced with conflict regarding education or medical arrangements, particularly psychiatric care, issuing of medication and therapy. The older child can also seek to have input into their lives, which can contribute to the conflict between the parents. You can seek to modify those arrangements if the change is material and substantial.
- A change in child support, more or less…
After three years, a parent can request more child support, based on the increasing income of the parent paying child support.
Alternatively, the paying parent may request to pay less child support based on a salary reduction or change in circumstances in their income.
To request such a modification, the monthly support amount under the order must differ by either 20 percent or $100 from the amount that would be awarded in accordance with the child support guidelines.
If you feel that a modification of child support is necessary prior to the end of the three-year period, the circumstances of either parent or your children must have materially or substantially changed. This change may include a salary change or increase for the paying parent or the increasing needs of the children (for example, the need for supplemental tutoring or newly discovered learning disabilities).
- Is it worth the risks?
Keep in mind that modifications don’t always go as planned. You could walk away with a less desirable arrangement than you had previously or end up paying the other party’s attorney’s fees if the case is frivolous, so it’s important to weigh the pros and cons.
If you have a very tailored possession schedule or strict requirements that are very specific to your family dynamic, you run the risk of losing these if you go to court. The court will take your former spouse’s requests into consideration, and you could walk away with less than you had.
Know what the risks are and where you are willing to compromise if necessary. And whose best interest is being considered.
- To Move or Not to Move…
What many people don’t realize is that it’s really hard to change a geographical restriction in Texas following a divorce and custody ruling. If your custody agreement includes a geographical restriction, which is the presumption in Texas, you will need to show extraordinary circumstances in order to change it. Judges are very unlikely to deprive the other parent of the ability to see their child on a frequent and continuing basis.
- Write it down…
Put everything in writing. Emails, texts, letters, pony express. Keep a calendar and/or journal and take pictures. Use them. Save them. Help your attorney do his or her job. Give the judge what they will need to make the changes you are requesting. Nobody knows the life and needs of your and your children like you do. Tell your story, but also prove it. Provide evidence that the parenting plan is not working or show how the other parent is not complying.
Have your children racked up a long list of tardies because your ex-spouse can’t get them to school on time? Have your children racked up a long list of absences because your ex-spouse can’t get them to school at all? Ask the school for the records.
Keep a calendar of missed possession days or issues with the exchanging of the children with the other parent. While those things can be frustrating to you, they can be emotionally troubling to your children.
- The struggle can be real…
Unfortunately, ‘straightforward” is not a term typically used when describing most custody cases. With allegations of alienation, manipulation or lack of co-parenting, comes extensive litigation and an expensive lawsuit. Get ready to have your resilience tested because those cases present many challenges.
Often there are multiple issues involved, and it could be a long process, involving third party evaluators if necessary. But, when your child’s well-being is at stake, it will be worth every dime.