Modifying a child custody order in Texas is no small matter. Indeed, the circumstances surrounding child custody modification cases are quite complex. These cases seek to build upon the foundation laid in the initial family law case. Whether yours was a modification for visitation, possession, or child support, the information contained in today’s blog post will be especially helpful. You may even learn information that could stand to benefit you and your family a great deal.
In today’s blog post from the Law Office of Bryan Fagan, we are discussing child custody modifications. Specifically, how these modifications may become necessary in your life. Without a doubt, nobody would like to go back to family court unless necessary. The time, stress, and financial commitment of a family law case is no laughing matter. As a result, avoiding this case until it becomes necessary is a reasonable desire to have. We can learn a great deal about the modification process by examining the factors involved in a case.
The best interest of your child
It is critical to understand what the best interests of your child are concerning the modification case. The desire to change some aspect of your child custody orders is not rare. Many parents find themselves in a position where modifying a court order becomes desirable. However, the desire to modify a child custody order is not the only reason why the order may be modified. Instead, the first factor you need to be aware of is the best interests of your child.
The best interests of your child seek to take into consideration several different issues in your child’s life. Without a doubt, all children are different. The needs of my children are different than the needs of your children. The needs of each of my children are different from their siblings. The same can be said of your children.
When a court seeks to do is to look at your children to consider what is in their best interest. The emotional well-being of your child matters. Their physical health and safety are of the utmost importance to the state of Texas. As is their academic performance and their prospects for growth. Finally, the ability of your children to maintain a strong relationship with their extended family is important as well. These are the basic factors that a court will use when determining the best interest of your child.
A material and substantial change
The other major component of a modification case is to convince the court that a material and substantial change has occurred in the life of a party. This could be your child, you, or your co-parent. A material and substantial change is a major change in your life. As in any family law case, the facts and circumstances of your modification case are incredibly important. Your circumstances may be unique or rather common. In any event, the issues in your case must be presented straightforwardly.
Wanting to modify your child custody orders is not an uncommon situation to find yourself in. Many families go through dramatic changes over time. Wanting to formally modify court orders is a major step to take. Many families struggle with trying to make their court orders work. Putting yourself in a position where you are attempting to build your life around an unworkable court order is difficult. Certainly, the motivation to change those orders is understandable.
Being able to justify a material and substantial change is no small matter. Families like yours go through changes all the time. That does not necessarily make the change a material and substantial one. Rather, there are relevant considerations for courts to look to when determining whether yours is a material and substantial change. Courts are hesitant to change court orders under any circumstances. As I’m sure you can imagine there are reasons why a court may not want to alter an existing court order.
Why a modification may be difficult in your situation
Simply put, the default response to a modification request is to say “no.” Courts understand that children do best in circumstances where they have stability and consistency. By attempting to modify an existing court order you are necessarily asking the court to change and part of your child’s life. This requested modification may be in your child’s best interest. However, being able to prove a material and substantial change is difficult by design.
One of the challenging aspects of a Texas modification case is that the modification you are asking for needs to be in your child’s best interests. Sometimes, we can lose sight of this. Many times, we as parents get so caught up in what we think is in our own best interests that we confuse that for what is in our child’s best Interests. This could be a major problem for your family. As a parent, it is presumed that we make decisions that are in the best interest of our children. Many times, this comes through in our desire to spend time with our kids.
However, you also need to consider the possibility that your child is better served by being able to spend a balance of time with both parents. So, arguing to a court that the primary conservator of your child needs to be you may not be as straightforward as you thought at first. By becoming the primary conservator of your child, you would be taking away time for your children to spend with your co-parent. In many situations, this is a difficult request to make to a court. When it comes to the best interest of your child being objective is important.
Informal child custody modifications
Reaching out to your co-parent in a situation that merits a modification is one solution to your problems. Many parents work together well to solve problems when it comes to child custody. For many reasons, communication with your co-parent is important. Being able to work together to solve problems is a key part of co-parenting. Your child’s life is improved greatly when there are opportunities to work together. Many times, parents will focus on their differences to the detriment of their child.
You should expect that your co-parent is hesitant to modify your court orders. The issue may be of great importance to you, but your co-parent may not agree. First, bringing up the issue and how it impacts your child is wise. This way your co-parent will see the problem from the perspective of your child. Parents are more likely to be sympathetic to an idea when it impacts their child. This is true even when you are the person proposing the change.
Informal child custody modifications happen when parents agree to make a change but do not go through the courts. This is done for many reasons. First, it allows for the change to go into effect faster. Going through the courts for an agreed modification takes months. It also costs money for parents to get this accomplished. Instead of going through the courts, it is tempting to just keep the orders the way they are on paper. However, you and your co-parent would have an agreement to modify the order.
Why informal child custody modifications are not a good idea
While an informal child custody modification may make sense on some levels, overall, it is not a great idea. An informal child custody modification is subject to change at the discretion of either you or your co-parent at any time. This means that when one of you wants to change the agreement you may. Informal child custody modification is essentially A handshake agreement. These handshake agreements cannot be enforced in court. Rather, you are relying upon the goodwill of your parents when creating them.
Informal child custody modifications are attractive because you and your co-parent can achieve certain goals quickly. Not having to go to court and pay the expenses that come with a formal modification is an attractive prospect. However, a court and the judge oftentimes stop people from engaging in practices that are not in a child’s best interest. By agreeing to an informal modification, you may be agreeing to an order that inadvertently harms your child. Not having the benefit of another set of eyes to place on the order there’s another downside.
Ultimately, modifications done informally put you in a position where you cannot trust the decisions made for your family. As we are about to see, many requested modifications relate to major changes in the life of your family. Trusting that your co-parent will not go back on their word is a difficult position to be in. Instead of choosing an option of uncertainty, it is more prudent to go through a court to modify your court orders. Informal modifications are at best temporary fixes and at worst have the potential to harm your family.
Modifying child custody orders due to a child’s preference
The preference of your child arguably becomes more important as he or she ages. The thought here is that an older child has more of an ability to assess their circumstances than a younger child. This is due to an increased level of life experience and maturity. Younger children are more prone to making decisions and holding opinions that change from moment to moment. Something as simple as having one parent extend their bedtime may allow for a preference change for conservatorship.
Part of this discussion involves a child being able to talk to a family court judge about their preference for primary conservatorship. A conservator is a person who can make decisions on behalf of another person. In this instance, you are the conservator of your child. The primary conservator of a child is allowed to determine the primary residence of that child. The children reside with their primary conservator.
Children twelve years and older are allowed to speak to the judge about their preference for primary conservatorship. This is possible after a party files a motion with the court to have the child confer with the judge. Younger children may have the same opportunity. However, it is at the discretion of a court for children under the age of twelve.
Some parents presume that all that is needed to change primary conservatorship is the opinion of a child. However, this is not the case. Rather, judges assess living circumstances based on several factors including the preference of the child. In other words, your child speaking to the judge is not the silver bullet that you need to win your case. Consider the preference of your child as part of the evidence which becomes useful in a modification case.
Relocation and child custody modification
There are so many circumstances under which relocation may be attractive. In an age where remote work is fast becoming the norm in many areas of the economy relocation is possible. You are no longer tied down to living in an area that is close in geographic proximity to your employer. Rather, you were able to live wherever you would like. This has allowed for greater mobility it has expanded where many people can live.
At the same time, employers have needed to expand their search radius for potential candidates for their open positions. Whereas a Houston-based employer may have only targeted applicants in Southeast Texas previously that search may have expanded to greater Texas currently. As a result, for certain jobs, the need to relocate has become a reality.
It is stressful to move under any circumstances. No one sits around and says that the process of moving is fun in and of itself. However, in some circumstances moving for work, a relationship or something different becomes reasonable. Having a child custody order in place means dealing with the limitations contained in that order. Specifically, you may have a geographic restriction or other component that makes moving difficult or untenable.
Applying the elements of a modification case to a potential relocation
You may have the job opportunity of a lifetime waiting for you in another city. Or the man or woman of your dreams may be residing across the state of Texas. All that you would need to do to seize the opportunity in either situation would be to move. Bear in mind, however, that your court order may not allow for such a move. In that case, understanding the limitations of your order and devising a plan to modify the order is sensible.
A geographic restriction determines where your child may reside. Many child custody orders contain geographic restrictions. The restriction itself varies from case to case. It is up to the parents involved in the case to determine their geographic restrictions. Some families go as “wide” as listing the entire state of Texas as their geographically restricted area. On the other hand, I have seen parents list specific school districts as their geographic restriction.
In any event, considering the limitations you have is important as you are weighing your options as far as relocation. No matter how great the opportunity is in another area the court would still apply the same factors to your proposed move. First, a material and substantial change must be found. There is reason to believe that finding a new job or being able to move closer to family or a love interest can be classified as a material and substantial change. However, that needs to be based on the specific circumstances you are facing. These are not always foolproof justifications for potential moves.
Final thoughts on child custody modifications
Additionally, the relocation attempt needs to be in the best interest of your child. Again, we go back to our discussion on how your best interests are not necessarily the same as your child’s. Just because the move is in your best interests does not necessarily mean that it is also in the best interests of your child. Examining this issue closely and objectively provides you with a window into how a court would ultimately rule on the subject.
When you are faced with the proposition of a move of your family a great deal of caution needs to be applied. This does not mean that you need to rule out a move altogether. However, you need to think hard about the circumstances of your child. The same is true for any proposed modification. Having the ability to discuss the subject openly and honestly with your children and co-parents is essential.
Working with an experienced family law attorney increases your likelihood of success in a modification case. Thank you for joining us at the Law Office of Bryan Fagan today on our blog.
Questions about the material contained in today’s blog post? Contact the Law Office of Bryan Fagan
If you have any questions about the material contained in today’s blog post, please do not hesitate to contact the Law Office of Bryan Fagan. Our licensed family law attorneys offer free-of-charge consultations six days a week in person, over the phone, and via video. Interested in learning more about how your family is impacted by the material in this blog post? Contact us today.
Evan Hochschild was raised in Houston, TX and graduated from Cypress Creek High School. He went on to graduate from Southwestern University in Georgetown, TX with an undergraduate degree in Political Science. While in college, Evan was a four-year letterman on the Cross Country team.
Following in the footsteps of his grandfather and uncle before him, Evan attended law school after he completed in his undergraduate studies. He graduated from St. Mary’s University School of Law and has practiced in a variety of areas in the law- including family law.
Mr. Hochschild is guided by principles which place the interests of clients first. Additionally, Evan seeks to provide information and support for his clients with the heart of a teacher.
Evan and his wife have four small children together. He enjoys afternoons out and about with his family, teaching Sunday school at his church and exercising. A veteran attorney of fourteen years, Mr. Hochschild excels in communicating complex ideas in family law simply and directly.
