Family law courts are always concerned with the best interests of the children when children are involved in litigation between parents or other parties. Built into their concern is the law behind parents and children designated in the Texas Family Code. The courts generally do want to see some stability when it comes to putting orders in place involving children, and have laid out certain waiting periods when it comes to modifying those orders.
When it comes to custody cases, a decision to give one parent custody over another parent can create an emotionally charged environment for the parent not given custody, particularly when they fought for primary conservatorship during a case. Sometimes, the parent not given custody will want to come back into court and attempt to modify the court’s order granting primary custody to the other parent.
When this happens, the family code has a general waiting period of one year for a change in custody to happen unless certain criteria can be met. Those criteria require an affidavit or sworn statement to be attached to a lawsuit seeking such modification that states either the child’s present environment may endanger the child’s health or significantly impair the child’s development, that the other parent consents to the change in custody, or that the parent with custody has voluntarily given up primary care and possession of the child for at least six months. The court may refuse to set a hearing on a change in custody if this affidavit is not attached or the court determines that none of these criteria have been met.
In addition to the above, if a court is to change custody of a child at a temporary hearing which takes place before a final trial, the court must find that either the child’s present circumstances would significantly impair the child’s health and development, the parent with custody has voluntarily given up possession for six months, or a child 12 years of age or older expresses to the court who they want to live with on a full time basis. If a parent cannot meet these requirements, then they are going to be left with trying to change custody on a permanent basis at a final trial.
Before considering changing custody of a child, a parent should consider these waiting periods instituted by the legislature for the protection of a child. As stated before, they are mainly designed to give some stability to children by having them know that where they are living will be home for the foreseeable future. The barrier provided by these waiting periods is of course counteracted by the fulfillment of their requirements, which are further designed to protect the best interests of the children in family law cases.