Modification – When it is Time to Change the Status Quo

Modifying Court Orders

Modification of Child Custody

A common question is when and under what circumstances a parent or conservator should modify an existing child custody order.  The answer is fairly simple on its face – when the old orders are no longer workable for some reason.  These reasons, however, are not so simple.  The most common reasons are that the child’s needs have changed (he/she needs greater financial support), the child support needs to be adjusted (the parent paying support has gotten a promotion or new job, and equally important, the parent paying support has lost a job or taken a substantial pay decrease), one parent has had a change that requires consideration by the court (involvement in drugs or criminal prosecution, or has begun co-habitating with a registered sex offender for example).

The Modification Process

The process to modify a current court order affecting custody, visitation or support begins with a petition to the court asking for the modification.    Simply stated, it starts like any other lawsuit, you or your attorney have to file a written request for the change with the court having jurisdiction over the child.  Once the petition is filed and served, the court can enter temporary orders if properly requested.  If the modification is agreed to by the other party, the process can be completed relatively quick.  If the other party wants to contest the modification then the court will have to schedule the case for trial.

Jurisdiction to hear the modification

Once a Texas court assumes authority over the best interest of a child, that court retains the right to make any future decision about the child until another court acquires the right to make such decisions.     In other words, if you got divorced in Dallas County, your child modification has to be filed in Dallas County even if you live somewhere else.  Though you would file commensurate with the Petition to Modify a Motion to Transfer.  Once the child has lived in a different Texas county for at least six months, the right to make decisions about the child can, and should, be transferred to the court serving that county.

Grounds to Modify the Custody/Visitation Order

Any person who is affected by the order can ask the court to modify or enforce the order.  Before the court can grant a modification, it must find that the modification is in the best interest of the child AND at least one of the following –

1.  that the circumstances of the child, a conservator or a party affected by the order have materially and substantially changed since the order was signed by the court;

2.  that a child over 12 years of age desires to advise the Court of his/her preference for a different primary managing conservator; or

3.  that the primary managing conservator has voluntarily given up care and possession of the child to another person for at least 6 months.

Grounds to Modify the Child Support Order

The court can change or modify the current child support order if the circumstances of the child or a person affected by the order have materially and substantially changed.  The order can also be changed if it has been in effect for over three years and applying the above guidelines would increase or decrease the support obligation by $100 or 20%.

NOTE:  The court cannot change a child support obligation in the past.  It can only change future support obligations.  If you need a change, you must file your petition immediately and make sure it is served on the other person.   This is very important for parents paying child support who loose a job or take a pay cut, if you wait until you are behind on child support to ask for help from the court, you waited too long.  This does require a certain balancing act.  No one wants to take a final paycheck to the attorney, but it is best to get help or even file a Motion on your own to preserve the issue than to let it sit idle while the child support accrues.

The Modification Process

The process to modify a current court order affecting custody, visitation or support begins with a petition to the court asking for the modification.  You will probably need the assistance of a lawyer to file a proper petition because there are several things that must be in the petition and you will need to make sure that the petition is properly served on the other party.  That said, I will repeat myself, if a party obligated to pay child support becomes unemployed, filing a do-it-yourself petition to adjust child support is better than sitting and doing nothing.

Once the petition is filed and served, the court can enter temporary orders if properly requested.  If the modification is agreed to by the other party, the process can be completed relatively quick.  If the other party wants to contest the modification then the court will have to schedule the case for trial and like any other custody fight or for that matter a divorce action, the two parties involved are in control of how long this process will take.  Make agreements, the case moves faster and cost less in attorney’s fees.  However, if you or the other party decided to fight over hurt feelings or a desire to win for the sake of being in control, there is literally no limit to the cost or time it will take to finish the case.

Assuming there are no agreements, or only a few, a typical modification case can be submitted for temporary orders (if necessary) within a few weeks, the parties then conduct discovery, mediation is likely to follow on that and finally, if the parents are unable or unwilling to agree what is best for the kids, the matter is set for trial.  The timing of the trial is highly dependent on the court’s docket and whether or not the case is set for a trial by judge or jury  Yes, Texas allows a jury to determine several issues in a custody trial and we are one of only a handful of states that have this procedure.

Whether or not you should consider a jury trial for your custody fight or modification is strictly a matter of fact that needs to be carefully discussed with a skilled family law attorney.  If you feel like you have a modification of child custody or child support, schedule an appointment.

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