Modification of Custody
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Generally, the modification of custody requires one of the following three circumstances:
The circumstances of the child or one of the conservators or another party must have materially and substantially changed
An age 12+ child told or will tell the judge in chambers that they desire a change to the parent with the exclusive right to designate the primary residence
The primary conservator has relinquished the care and possession of the child to another person for at least six months
There are two situations, however, where there is a heightened standard for the modification of custody. The first is when seeking a change to primary within one year of the date of the earlier order. The second is when seeking a change to primary at the temporary order stage of the case.
Modification of Child Custody in Texas
Regarding the modification of child custody in Texas, the Texas Family Code § 156.006 provides that, "the court may not render a temporary order that has the effect of changing the designation of the person who has the exclusive right to designate the primary residence of the child under the final order unless the temporary orders in the best interest of the child." In addition, at least one of the following three circumstances exists:
The present circumstances would significantly impair the child's physical health or emotional development
The primary has voluntarily relinquished the immediate care and possession of the child for six months
A child aged 12 or older expresses to the judge in chambers that the child would like a change to the primary
Texas Family Code § 156.102 provides that to change the primary designation within one year of the last order, one of the following circumstances must exist:
The child's present environment may endanger the child's physical health or significantly impair the child's emotional development
The primary is the person filing the case or has consented to the filing of the case
The primary has relinquished the primary care and possession of the child for at least six months
Additionally, in either of these heightened standard situations, the Code provides that the petition must have attached an affidavit stating that one of these more severe fact patterns exists.
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It is important to note that in any modification of custody, the question of whether the change is in the "best interest of the child" must be answered in the affirmative. In addition, they must receive an affirmative answer to the threshold question.
Contrary to what many people believe, simply having one of the circumstances detailed above, for example, a child over the age of 12 wanting to "live in the other parent's house," is insufficient. The court must find that the change sought is in the child's best interest.
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