Modification
Basics
The court that heard the original case resulting in the final orders you want modified maintains the right to hear your modification case.
In considering the modification the court is still obligated to evaluate the situation using the best interest of the child standard (see our Child Custody page). Additionally, for a court to modify existing orders there has to be either a (1) material and substantial change to the circumstances of the child or a party, (2) a child over 12 has requested to speak to the court and express a preference on parental custody, or (3) a parent has voluntarily given up their rights.
Modifications can be for a variety of reasons including support, custody, safety, health issues, job changes, or any other variety of factors.
Modifications to an order generally cannot be made until after one year from the date the order is put in place.
Modification Requirements
Material and Substantial Change
Parent Voluntarily gives up custody
Material and Substantial Change
A "material and substantial change" is not specifically defined in the Texas Family Code. Historic cases have shown that child abuse and/or family violence definitely count as a material and substantial change.
Other situations that may apply are:
- a conservator relocates despite a court order restricting a relocation,
- the change in residen
A "material and substantial change" is not specifically defined in the Texas Family Code. Historic cases have shown that child abuse and/or family violence definitely count as a material and substantial change.
Other situations that may apply are:
- a conservator relocates despite a court order restricting a relocation,
- the change in residence of a conservator that substantially increased the expense of access to a child,
- a conservator tries to harm the relationship with the other conservator,
- addition of stepparents or siblings,
- an unstable home situation, or
- a conservator passes away.
Child over 12 years old
Parent Voluntarily gives up custody
Material and Substantial Change
A child over the age of 12 may express a preference to the court on which parent the child would like to live with.
The judge may interview the child in chambers to ascertain the child's wishes. The judge is under no obligation to grant the child's request as the judge is still held to the "best interest of the child" standard.
Additional
A child over the age of 12 may express a preference to the court on which parent the child would like to live with.
The judge may interview the child in chambers to ascertain the child's wishes. The judge is under no obligation to grant the child's request as the judge is still held to the "best interest of the child" standard.
Additionally, courts can use an amicus attorney to review the child's wishes and report back to the court on their opinion.
Parent Voluntarily gives up custody
Parent Voluntarily gives up custody
Parent Voluntarily gives up custody
On petition, courts can modify existing orders if a parent with primary custody has given up custody of a child for six-months or more. This includes letting the child live with another person (or the other parent) for the six-month period.
There are exceptions for common situations like a military deployment.