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©2019 by Beal Law Firm, PLLC. The Attorney responsible for this site is Eric Beal. 

Modification of Custody

Generally, in order to modify a custody order, one of the following three circumstances must exist:   

 

A.    The circumstances of the child or one of the conservators or another party must have materially and substantially changed;   

 

B.    A child over the age of 12 has told the judge in chambers that the child desires a change to the parent with the exclusive right to designate the primary residence; or    

 

C.    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, in which there is a heightened standard. The first of these is when a change to primary is sought within one year of the date of the earlier order. The second of these is when a change to primary is sought at the temporary order stage of the case.

 

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” and at least one of the following three circumstances exist:

 

A.    The present circumstances would significantly impair the child's physical health or emotional development;

 

B.    The Primary has voluntarily relinquished the primary care and possession of the child for six months; or

 

C.     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 in order to change the primary designation within one year of the last order, one of the following circumstances must exist:

 

A.    The child's present environment may endanger the child's physical health or significantly impair the child's emotional development;

 

B.    The primary is the person filing the case or has consented to the filing of the case; or

 

C.    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 setting forth facts showing that one of these more serious fact patterns exists. 

 

It is important to note that in any modification, in addition to the threshold question that must be answered in the affirmative, the question of whether the change is in the “best interest of the child” must be answered in the affirmative.

 

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 not in and of itself sufficient. The court must find that the change sought is in the best interest of the child.