One of the most common reasons a parent would want to modify a child custody order is an issue regarding conservatorships or visitation rights. Over time, the court orders in place may no longer suit your family. As a result, you may want to go back and change the visitation structure that your family has with your children. It may even be that your children agree with you and enjoy the change you are requesting. However, the devil is in the details, and it can be challenging to see your desired change come to fruition.
When it comes to visitation changes in child custody orders, we need to break the subject into two parts. The first part discusses what a modification is and how you may be able to get your modification request granted. The other part of the equation is how a modification request regarding Visitation can be given and the steps involved in getting that approved. This is this subject that we will be discussing today in our blog post. If you are considering going back to the family court regarding an issue related to visitation rights, then you should certainly read this blog post first.
What is a modification in the world of Texas family law?
The first step in today's process will be learning a modification case regarding Texas family law. For an order to be modified, there must first be an order in place. This is the essential aspect of a modification case. Without going to court for a divorce or child custody case, you will not get a modification done. I envision a situation where you and your child's mother have an informal agreement on how to split Visitation And costs for your child. If something changes in your family and you do not believe that the current deal works well for any party, you first need to go to court and have an actual order instituted. You cannot simply modify an informal agreement created between you and your child's mother. There needs to be a valid court order first.
Once you have cleared the first hurdle of actually getting a valid court order established, you can consider modifying it in the future. The key to understanding a modification case in Texas is that you cannot simply do so without thinking about why you are requesting the modification case in the 1st place. A judge will not simply apply their rationale to your case, unlike the following modification case. Instead, there is a set standard by which a family court judge will look at your modification case and any other file in their court.
Specifically, a family court judge will look at your case and determine whether a substantial and material change has occurred in the life of your child or your or your co-parent's life since the rendition of the prior family court order. This is the standard contained in the Texas family code and will be the basis of any decision made by a judge should your case make it to the courtroom. Without knowing much more about the subject, the real question is how likely a judge is to find that whatever change in circumstances you are using to justify your modification clears the hurdle and will allow for them to grant your request.
This is the problematic question you and your attorney will have to answer before filing the modification case. I mentioned that you all should answer this question before filing your modification case because the court will not always accept a modification case. What ends up happening is that you will need to include an affidavit with your modification petition going over the specific circumstances I have led to your filing this case. For those who don't know, a testimony is a sworn statement under oath whereby you will write out the specific circumstances in play, sign your name, and then have that statement notarized for it to be filed with your modification petition.
The family court judge who reviews your petition can either allow your case to be filed work or deny you permission to do so. It is not as simple as pointing your divorce or child custody case in the 1st place. It is a higher level of scrutiny to have your modification case heard before a court. As a result, it is highly recommended that you work with an experienced family law attorney before moving forward with your case.
Once you have filed your petition for modification and have the petition okayed by the family court judge, you can move into the face of your case where the matter is served upon your opposing parent, and negotiation can ensue. Keep in mind that even in modification cases, it is unlikely that you and your opposite parent will see the inside of a courtroom. It is much more likely that you all will have your case settled in mediation rather than determined by a family court judge. What a settlement in a modification case looks like as opposed to a divorce can be significant.
Mediation as a solution to your modification problem
So now you find yourself in a position where your family court order no longer suits you, and you seek a modification. You have followed through with the steps that I have listed above and are now close to getting your case in front of a judge. After all, that is where family law cases are decided, right? Don't most family law cases end up going before a judge? This is the belief that most people hold when they begin a claim. However, the reality of most family law cases is that their matter will never go before a judge and will instead settle at some point earlier in the case's lifespan.
The most likely endpoint for your modification case would be in mediation. For those unfamiliar with what mediation is, it is a process whereby you and your spouse mutually agree to a third-party family law attorney to intercede into your case and help you all conclude several related issues to your family law matter. Mediation will typically occur at the mediator's office or can take place via video in this day and age.
There are many benefits to settling your visitation modification case in mediation rather than going to a contested trial. For one, he will likely reach a better result in mediation. Then you would have in practice. Think back to your divorce. Your attorney, in that case, was probably very strongly in favor of you attending mediation than going to a test. The reason for this is that you and your co-parent are typically in a better position than a judge would be to make decisions regarding your case. As such, mediation offers a better chance to get the result you need versus one from a judge where all bets are off as far as how that judge will view your case.
Mediation typically results in a middle ground being found. I will often tell a client that if you walk out of mediation feeling like you left something on the table and your co-parent feels the same way, it is likely that yours was a fair result. That's just the nature of settling your case rather than rolling the dice and seeing what a judge will decide for you in a trial. Not every modification case can relax in mediation, but many, or most are. It would help if you began working with your co-parent on this as early as you can to come to as many middle grounds as possible in your case to avoid a long, protracted and costly modification case.
Having your modification approved by a family court judge
if you cannot settle your modification case, the other option in front of you would be to bring your case to a family court judge and have him or her issue a ruling on whether or not your modification request will be granted. Keep in mind that a family court judge would be looking to see whether or not a material and substantial change has occurred during the midst of your case. If the material and significant change had happened and the modification you are requesting is in your child's best interest, then it is likely to be granted.
You and your attorney have to answer whether or not you are likely to get their request granted that you would like. One requested modification for Visitation that I think is reasonable in most parents' situations is if you, as the non-primary conservator, wish to have more parenting time with your child than initially. You are not necessarily asking to become the primary conservator, but you are asking for something more than just a standard possession order. In the circumstances like these, a judge would likely look to what has happened since your divorce that would allow them to grant your request.
If you have changed jobs and now have employment with a more flexible schedule, have removed yourself from years of battling an addiction, and have shown yourself to be able to live clean and sober, or if your children Have requested that you have more time with them than you will be able to present a strong case as to why your Visitation time needs to be increased. The more reasonable your modification request is, the more likely it will be approved.
On the other end of the spectrum, if you returned to your family court six months after your divorce and asked that you become the primary conservator of your children, then a judge would need to agree more of a reason To grant a more life-changing decision request like this. This should tell you that while the material in substantial change criteria applies to every modification case, the reality is that your particular point may not require as much of a material or significant change to get your request granted as others would. Keep in mind that what is in your child's best interests is primarily based on stability and consistency, at least in the sense of most family court judges. If your request and modification are antithetical to character and strength for your children, then a judge isn't likely to grant your modification request.
Due to the complex and sometimes difficult nature of modification cases, I recommend that you have a licensed attorney by your side to help you sort through the issues in your case. A modification case can resolve itself rather quickly if you have the assistance of a licensed family law attorney by your side to help you negotiate. Keep in mind that hiring an attorney is a short-term investment that can pay long-term dividends for you and your family alike.
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. These consultations are an excellent way for you to learn more about Texas family law and our law office's services to clients of ours. We take a great deal of pride in serving our community and hope to speak to you about how we made it the same for you and your family.