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When is it time for a change?

Published on 2/8/2019

Is it time for a change in your child custody agreement?

When you divorced, you probably did not anticipate all the possibilities that could make a change in custody necessary.  Like many parents, you may have assumed that once the Judge signed your divorce decree, custody and visitation were set in stone.  However, sometimes arrangements become unsuitable for the parents and the children. It is possible to modify custody orders in Texas, so you do not need to feel stuck with an unworkable order.  However, there are conditions that must be met before the Court can modify your existing arrangement.

Change in Custody

The term “custody” is commonly used to describe the child’s primary residence.  In other words, which parent establishes the child’s primary residence. If a parent wants to change that custody arrangement, he must show a material and substantial change in circumstances of a parent or a child, and that the requested change is in the child’s best interest.  When is there a material and substantial change? It depends on the facts, and often the timing of the request is critical.

Timing Makes a Difference

Generally, if you wish to flip custody, or make a change in which parent establishes the child’s primary residence, you must wait a year from the date of the last order, unless both parties agree to the change.  However, sometimes drastic times call for drastic measures. If circumstances are such that the child’s current environment endangers her physical health or may significantly impair her emotional development, it may be possible to modify even if there has not been a year since the last order.  Examples of situations that may rise to such an immediate danger include child abuse, domestic violence, severe neglect, and or drug or alcohol abuse that endangers the child.

Modification After One Year

The law presumes that parties are going to give an existing order a chance to work.  Not surprisingly, it is only extreme circumstances that justify a flip in custody during the first year.  However, after a year has passed, the party seeking the change in custody must only show a material and substantial change in circumstances of a parent or a child, and that the change is in the child’s best interest.   A material change is not merely a change of heart or a desire to spend more time with your child. It is not a remarriage of one party. It is not a change that was intended at the time of divorce, such as a planned move.  It involves looking at circumstances at the time of divorce and comparing them to the present. Is a parent mentally ill and deteriorating or not taking medication? Is there an ongoing instability that is affecting the child?  Does a parent’s move involve a distance that impacts the quality of the relationship between the child and the non-custodial parent? Is one parent attempting to alienate the child from the other parent? Whether a change is material and substantial varies on a case by case basis.  And, ultimately, the change must also be in the best interest of the child.

Can the Child Choose?

When a child turns 12 years of age, he may express his desire to reside primarily with one parent to the judge.  The child’s preference is not binding on the Court however, and the change must still be in the best interest of the child.  Before you pursue changing custody based on the child’s preference, proceed with caution. Not only is placing the child in the middle of the dispute harmful, courts do not usually favor parties who put children in the middle and recognize that children can be manipulated.   A child’s preference, standing alone, may not be enough to change custody.

Agreement

As with all things in divorce and co-parenting, agreement is preferred.  If you are unable to reach agreement, reach out to an experienced child custody attorney for help.