Many people who go through a custody battle think the matter is set in stone once you sign the original custody agreement papers. But what if circumstances change? Or you feel that the agreement doesn’t meet your child’s needs? Under Texas law, you can seek a child custody modification.
Keep in mind that only a few situations are sufficient cause to modify a prior custody ruling of the court. If you want a modification just because you’ve changed your mind or want to deny the other parent custody, expect to fight an uphill legal battle.
Which Circumstances Allow for a Child Custody Modification?
Your options are limited. You’ll only be able to get a custody or visitation modification if it’s in the child’s best interests (according to the court’s determination, not yours or an expert’s). Possibilities include:
- Material and substantial changes of circumstance since the original child custody agreement or order.
- The child’s request for a change, if they are 12 years old or older.
- The custodial parent’s voluntary relinquishment of the child’s care to someone else.
What Counts as “Material and Substantial Change”?
This can vary according to the court. Material and substantial changes may include:
- The custodial parent’s remarriage.
- Criminal acts or convictions by the custodial parent.
- Child abuse.
- Drug or alcohol abuse by the custodial parent.
- A change in residence that makes it difficult or impossible to exercise your visitation rights.
- A medical condition or illness that makes it difficult or impossible for the custodial parent to support your child.
What If My Child Wants to Live With Me?
The court must take the child’s best interest at heart, no matter what their preferences may be. However, if the child is at least 12 years old, the judge may interview him or her in their private office (chambers) to determine the child’s living preference. In some cases, the judge may also interview younger children. If, and only if, the judge believes living with you is beneficial to the child will they consider a child custody modification.
What If the Custodial Parent Relinquishes Custody?
The law obligates the custodial parent to support your child, and they may not legally shirk this duty. However, that parent’s own actions may, in time, prove the judge made a mistake in assigning custodial rights to him or her.
If you discover that your child’s other parent has voluntarily handed custody of your child over to to someone else for six months or more, you can sue for relinquishment of custody, so you can take care of your child yourself. Even if the child has been left with close friends or relatives, including grandparents, older siblings, aunts or uncles, or extended family, you have to right to ask the court for a child custody modification. In this situation, it’s clear the custodial parent has failed to take their parental duties seriously.
Note: This does not include periods during which the other parent temporarily relinquished custody because they were called up for military duty or deployment. It may, however, include periods when the custodial parent is suffering an illness or injury that requires long-term care, during which they cannot fully care for the child, unless alternate child custody arrangements have been made with and agreed to by the court.
What Else Should I Do to Ensure My Child’s Safety?
If you file a motion for a child custody modification within a year after the original child custody order or agreement, you’ll also need to file an affidavit with the court including and supporting one of three allegations:
- The child’s current environment has changed such that it endangers him or her physically and/or emotionally.
- The custodial parent also wants the requested modification, and it is in the child’s best interests.
- The child’s custodial parent has relinquished the child voluntarily and illegally to someone else. Also, the requested modification is in the child’s best interests.
We Can Help Your With a Child Custody Modification Order
Sometimes, the best thing for your child is to remove them from their custodial parent’s care. If that parent agrees with your assessment, then it’s fairly easy to modify your custodial or visitation rights. Otherwise, it’s time to seek the expertise of a Texas family lawyer. Call Angela Faye Brown & Associates today at (512) 842-6649 in Austin or (713) 597-8371 in Houston for a consultation.