Life is unpredictable. It has the tendency to veer off course, and—like an unruly toddler—doesn’t always go where you want it to. Unfortunately, these sudden course changes don’t just affect you. They can impact your parenting plan, as well.
Luckily, child custody isn’t written in stone.
Texas courts understand that life is unpredictable (after all, they’re human, too), which is why they’ve provided a way to modify child custody agreements, under certain circumstances.
Here’s how child custody modifications work in Texas, and what the team at Neal Ashmore can do to help you find a solution that works.
What is Child Custody?
- Legal Custody is the right of a parent to make decisions on behalf of their child, including the power to give permission to medical procedures, make educational choices, and determine what kinds of social and religious practices they are exposed to.
- Physical Custody, on the other hand, refers to a parent’s right to have access, and in-person face time with their child. This involves both the right to have time, and also the responsibility of meeting the child’s physical needs, while the child is in their care.
When you become a parent (either biologically, or through adoption) you automatically assume all of these rights, which you share equally with the child’s other parent—a dynamic that works well, so long as the parents are together.
Child Custody and Divorce
Disputes revolving around custody most often arise during divorce or separation, when parents are no longer living under the same roof (though, they can also be relevant to unmarried parents). When this happens, parental powers must be rearranged between parents.
To this end, judges can either distribute custody between both parents, as joint custodians, or to one parent, in sole custody. (Spoiler alert: they favor joint custody whenever possible.)
Once finalized, your custody arrangements—including visitation schedules and child support—will be compiled in a parenting plan as a part of your final divorce order. This makes the agreement enforceable under the law, and isn’t something courts look kindly on when you break.
But what about those pesky life changes we mentioned earlier?
Enter: child custody modification.
What is a Child Custody Modification?
A child custody modification is a legally enforceable alteration to the original parenting plan you were assigned upon divorce.
Both spouses can mutually agree to change child custody whenever they want (so long as they make it official—more on that below). However, if one spouse is against the modification, there’s a few more steps.
According to the Texas Family Code, child custody can be modified, if it’s in the child’s best interest, and:
- The child is over twelve, and wants to change their primary residence; or,
- Life circumstances for either ex (or the child) have materially changed, warranting revisions.
What qualifies as material change likely depends on your circumstances. In the past, courts have ruled that some of these apply, including:
- A change in marital status;
- Career shift, or job relocation;
- A significant increase or decrease of income;
- Death or serious injury;
- Other medical conditions;
- A change in health insurance;
- Abuse or neglect from either parent; or,
- Incarceration of either parent.
This list isn’t exhaustive, and not all will even result in a change in every situation. When it comes to modification, your judge will review your arguments against the backdrop of your own life, to see if alterations are appropriate. The ultimate outcome will hinge on that analysis.
Who Can Modify?
Either parent can file for modification.
As a non-parent, you may still be able to file for modification, IF:
- You are a party to the current order;
- The child was abandoned in your care for more than six months;
- You’ve been living with parent and child for longer than six months, and that parent dies; or,
- You are a grandparent, great-grandparent, sibling, aunt, uncle, niece, or nephew, and:
- Both parents are dead; or,
- Both parents agree; or,
- The current arrangement is causing the child harm.
If you are a relative or grandparent, and notice the child being subjected to significant harm, a change in child custody might not be enough. Instead, you may want to consider filing for guardianship or adoption. An experienced family law attorney can help you decide if this is the right choice for you.
Casual Agreements Won’t Cut It
If you and your ex have a good working relationship, that’s awesome. However, simply talking to your spouse about a modification isn’t going to cut it—even if you both agree.
In Texas, changes to custody are not valid or enforceable without going to court. All mutually approved agreements must be validated by a judge. (Though, on the bright side, the process moves a lot faster when you’re both simpatico.)
For your agreement to be proper, the Texas Family Code requires you to file a written request with the court, called a “Petition to Modify the Parent-Child Relationship.” This should be filed with your county clerk, with the accompanying filing fee (which varies by county).
When Can I File a Child Custody Modification?
After divorce, there is typically a one year waiting period before you can file for child custody modification. However, you may be permitted to file earlier, IF:
- Both parents agree; or,
- There are circumstances which are causing the child harm.
In case of the later, you’ll be expected to present facts to support your claim.
Failure to Properly Modify
Think of child custody as a law that is catered specifically to you. Just like traffic laws aren’t optional, neither are your obligations under your parenting plan.
Failure to uphold your child custody agreement can result in garnished wages, fines, and in some cases, even jail time (this, of course, in addition to having to compensate for missed payments, as well).
Difficulties such as a loss of job, or moving to a different state won’t automatically excuse you from obligations. You will still be held to the same terms—which won’t change—until you go through the proper channels to modify your child custody agreement.
If you have had a significant life change that’s making it difficult for you to meet your obligations, talk to an attorney as soon as possible. While child custody can be modified, alterations usually can’t be applied retroactively, so it’s important not to delay.
Child Custody Modification Attorneys in Texas
Child custody was stressful the first time around, but it doesn’t have to be a fight the second time, too. If you have more questions about child custody modification, and want to know how to make the process run smoothly, we want to hear from you. Call the Neal Ashmore team at (972) 436-8000, or schedule a consultation online, and let us help you find the arrangement that works best for everyone.