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:
1. that the modification is in the best interest of the child;
2. 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.
3. that a child over 12 years of age desires to advise the Court of his/her preference for a different primary managing conservator.
4. that the primary managing conservator has voluntarily given up care and possession of the child to another person for at least 6 months.
If the change is requested within 12 months of the original order, you must also show one of the following:
1. The child’s present environment may endanger the child’s physical health or significantly impair the child’s emotional development;
2. The person entitled to establish the child’s primary residence is consenting to or bringing the motion for the best interest of the child;
3. The person entitled to establish the child’s primary residence has voluntarily given care and possession to another person for at least 6 months and a change would be in the child’s best interest.
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%.
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.
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. 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.