Understanding When a Texas Court Will Grant a Request to Modify Child Custody

Our Texas divorce lawyers always explain to clients that custody orders must be constructed to provide effective co-parenting during the divorce process because changing the arrangements later constitutes a much more difficult challenge.

Many parents embroiled in the divorce process consider child custody the most important issue to be resolved in their family law dispute. If you are in the process of divorce, you might experience intense stress. Because parents must deal with complex emotions and uncertainty about the future, they often agree to child custody arrangements that provide an acceptable short-term arrangement without considering the need for future changes. While the court has wide discretion to grant many types of custody orders during a divorce, this discretion is more limited after custody orders have been put in place through a divorce decree.

A fair number of parents attempt to obtain a modification of custody orders without the advice and representation of an experienced family law attorney. When parents pursue this approach, they face an uphill battle because modifying a custody order typically is more difficult than establishing an initial custody arrangement. The reason that changing a custody order can be more difficult is that custody orders in the judgment of a divorce or paternity action are considered to be “final.” Although child custody orders in a divorce (or paternity) judgment can be modified, a preliminary test must be satisfied, which requires a material change in the facts upon which the judgment was based. This means parents should never simply agree to the custody arrangement requested by the other side based on the assumption that it can be changed later.

Texas courts like other courts throughout the state use the best interest of the child standard to establish child custody orders. While this standard still applies to modification hearings aimed at changing custody orders in a divorce decree, the judge must first determine that a “material change in circumstances” has occurred before weighing the evidence related to the long list of factors that define the best interest of the child standard. The types of changes that are substantial and material enough to justify a modification can be difficult to identify and prove sufficiently to persuade the court to change the child custody arrangements in the divorce judgment.

In short, the modification of child custody in a judgment involves a two-step analysis:

(1) Has a significant change in circumstances occurred; and
(2) Would modification of custody orders be in the best interest of the child given the change?

The hesitancy of courts to modify the custody arrangements in a divorce decree is based on several considerations. First, judgments are intended to provide a “final resolution” of contested issues, so disputes do not drag on indefinitely without the predictability that a final judgment provides to parents. Second, the children face an enormous amount of change, instability, and upheaval during a divorce, so courts would like to maintain a status quo that is functioning reasonably well to provide children with some degree of stability and consistency. Third, parents have a motivation to diligently pursue workable and effective parenting arrangements during a divorce when they know that post-judgment changes to the orders might be difficult to pursue.

Because the court must find facts exist that satisfy the material change of circumstances standard, parents have much to gain by seeking legal representation prior to filing for a modification. Depending on your situation, an experienced Texas child custody attorney might determine that you lack sufficient facts to have a reasonable chance at success. While this opinion might not be what you want to hear, you can avoid squandering valuable financial resources pursuing a custody change that never had a reasonable possibility of success. Legal advice and representation can facilitate putting together the most compelling presentation of evidence to establish that a sufficient change has occurred and that modification of the custody arrangements would be in the best interest of the child.

While every case is different, some examples of facts or scenarios that might justify a change include:

  • The decision of the custodial parent to relocate
  • Remarriage of a parent
  • Violations of the custody orders by a parent
  • Child abuse or neglect
  • Disability or serious illness of the custodial parent
  • Intentional alienation of the child’s relationship with the non-custodial parent

If you are considering seeking a modification of custody in Houston or the surrounding areas, an experienced Texas child custody attorney can review your situation and advise you regarding your legal options.

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