Upon divorce, your parenting plan represents the best possible arrangement for your child in that moment of time. But for the parent who no longer gets to share the same roof as their child, too often visitation feels like a consolation prize, and the thought brings little comfort.
On the bright side, Texas courts understand that life isn’t stagnant, and while you can’t immediately jump into revisions, they have provided a way for parents to pursue visitation modification, in some situations.
Here’s more about that process, and how Neal Ashmore can help you pursue the alterations that are best for your family.
What is Visitation?
Visitation refers to the physical, in-person face time a non-custodial parent gets with their child, post-divorce. This fundamental parental right is often referred to as “access,” and is governed under one of the two branches of custody known as “physical custody.”
The other branch of custody is called “legal custody,” and it deals with the right a parent has to make decisions for their child, and determine how they will be raised. Both legal and physical custody (including visitation rights) will need to be divided between parents, upon divorce.
To this end, a judge can assign powers to either one parent in sole custody, or between both as joint custodians.
Joint Versus Sole Custody
Not many relationships can rival the importance of that between a parent and child, and because of this, Texas courts tend to favor joint custody whenever possible.
Unfortunately, outside factors like school, work, and extracurricular activities make it nearly impossible to divide a child’s time exactly equal between parents. As a result, judges will usually make one parent the custodial parent (or, “primary residence parent”), while awarding the other ample visitation.
These assignments are situational-based, and each decision is made with your child’s best interest at heart.
Life isn’t a self-contained bubble, though. The needs of children and parents evolve over time, which is why lawmakers have provided a way for parents to modify visitation.
What is Visitation Modification?
In Texas, visitation modification is the process of making a legal change to the allocation of a child’s time, from what was originally outlined in a previous custody order.
Similar to child support modifications, any changes you wish to make to your visitation arraignment must be approved by a judge, before they are enforceable.
Who Can Modify Visitation?
In Texas, either parent can request a custody modification.
Furthermore, a non-parent (such as a grandparent) may also request changes, if:
- They are listed as a party on the current order;
- The child was abandoned in their care for more than six months;
- They’ve been living with parent and child for longer than six months, and that parent dies; or,
- The person is a grandparent, sibling, aunt, uncle, cousin, niece or nephew, and:
- Both parents are dead; or,
- Both parents agree; or,
- The current arrangement is causing the child harm.
If domestic violence is an issue, it’s also possible for an outside state official to initiate a suit of modification, in order to protect your child.
Temporary, Non-Parent Caregivers
No child spends every second in their parent’s care. With the need to balance work and school needs against a child’s free time, more kids than ever before are spending at least some of their time with a non-parent caretaker—especially grandparents.
Generally, you do not need to modify visitation to accommodate for an outside caregiver. That being said, depending on the terms of your custody agreement, you may still need to get your ex’s approval on decisions about nannies and babysitters. If you disagree, it’s likely things will remain how they are, until you agree.
When Can Visitation be Modified?
Divorce is a tremendously grueling process for the whole family, but it can be particularly difficult for children, who often feel vulnerable, confused, angry, and, in some situations, even guilty over the breakup. It will take time for them to adjust to the family’s new normal (maybe even a lot of time), but that can’t happen if parents immediately jump back into the ring together.
In certain circumstances, you may qualify for an exception to this time-out, if:
- The child’s present environment is causing them harm;
- The custodial parent consents to the change; or,
- The custodial parent has abandoned the child for more than six months.
For all of these special circumstances, you will be expected to include an affidavit and ample evidence to support your argument. If these criteria are not met, the court will not hear your claims.
After the Waiting Period
If you’ve passed the one-year mark, and you’re still unhappy with your parenting plan, you can pursue visitation modification, if it’s in your child’s best interest, and:
- Your child is over twelve, and wants to change the current arrangement; or,
- Either parent or child has experienced a material life change, necessitating a revision.
There are no specific qualifications for what constitutes a “material change.” However, in the past, courts have considered changes in marital status, career, income, health, and relocation to be sufficient.
How to Modify Custody
Just like with mediation and divorce, the easiest way to modify visitation is if you and the child’s other parent can come to an agreement outside of court. Not only does this save time and money, but it also significantly decreases the emotional strain on your child.
When an uncontested resolution isn’t possible, you will need to initiate a formal case with the court. This process requires you to:
- File a petition to modify with your county clerk;
- Pay the corresponding filing fee (the amount of which varies by county);
- Execute proper service to the child’s other parent; and,
- Attend your hearing.
If the child’s other parent fails to respond to proper service, they may be in danger of default, and could lose custody rights, altogether.
The Inherent Risks of Modification
While you might be unsatisfied with your current visitation schedule, it’s important to remember that appealing this arrangement isn’t always the best option.
Often, parents who appeal end up getting less time than they were originally granted, and end up having to pay their ex’s attorney’s fees, too. Because remember: judges aren’t concerned with what you want. They’re focused on your child’s best interest. And these two things don’t always coincide.
In addition, retroactive arguments are not allowed. Any evidence you present in support of modification must have occurred after your original order was finalized. Proof from before won’t be considered.
If you have questions whether or not it would be worth it to pursue visitation modification in your situation, it’s best to speak to an experienced family law attorney about your options.
Visitation Modification Attorneys in Texas
In the end, it doesn’t matter whether you are the custodial, or non-custodial parent, learning to share your child is an emotionally draining ordeal—one no parent ever expects to go through. And if your current visitation truly isn’t working for your family, there may be a way to modify it.
For more questions about how Neal Ashmore can help you with visitation modifications in Texas, call our offices today at (972) 436-8000, or schedule a consultation online, and together, we can help you pursue the best arrangement for your family.