TEXAS DIVORCE ATTORNEYS

How Do I Modify a Child Custody Order?

There are two types of child custody orders that are modifiable by a court: i) a final Decree of Divorce if you were married when you had children; or ii) a final order in Suit Affecting Parent-Child Relationship if you were not married when you had children. And to modify that order, you must plead and prove that a material and substantial change has occurred. So, not only must the modification be in the best interest of the child, the circumstances of the child, conservator, or other party to the case have materially and substantially changed since the prior order was signed into place by the court. The Texas Family Code allows for either parent of a child to file for a modification of a previous custody order.

Modification Of Child Custody Order Less Than a Year Old

A party seeking to modify the designation of the person having the exclusive right to designate the primary residence of a child within a year of the last order must file an affidavit attesting in reasonable detail to the material and substantial change of the circumstances of the child, conservator or other party.   Re-litigation of custody cases that are less than a year old have a heightened review standard and are discouraged by the court unless there is a good reason. 

What Is A Material & Substantial Change In Child Custody Cases?

First, the material and substantial change must have occurred after the date of the prior order sought to be modified. A court will not find a "material and substantial change" using information or events that existed prior to the court order being signed. This concept is called "Res Judicata," or a "matter already judged." A circumstance that existed at the time of the prior order will not support a finding of a material change in circumstances. Although not exclusive, the court may consider the following in making its determination that a material and substantial change has occurred: 

• Family violence, or a change in parents' physical, mental, or emotional health;

• Change in the child's physical, mental or emotional health;

• Deficits in the child's educational and social development; 

• A parents ability or inability to care for and supervise a child;

• Employment changes; and

• Change in residence or need to relocate . 

Things that generally do not justify a material and substantial change would include events like remarriage (except to a registered sexual offender), or the religious preference of the other parent that is not otherwise illegal or immoral,  or injuries to a child. The court may modify an order designating a sole managing conservator of a child of any age if: (i) the circumstances of the child, sole managing conservator, possessory conservator, or other party affected by the order have materially and substantially changed since the date the order was rendered; and, (ii) such appointment would be a positive improvement for the child.

Resolving Family Disputes Before They Become A Problem

Our family law attorneys understand that often the best way to resolve a dispute is before it happens or outside of a courtroom; however, when necessary, we know it is important to protect the interests of you and your family. Our attorneys are seasoned trial litigators and will work closely with you to protect your interests and the interests of your family.