One of the most common situations that people in your shoes run into after a divorce or child custody case is that their situation changes to one degree or another after the family law case concludes. Those changes could come about rather quickly or may take a few months or even a few years to develop. That is the nature of family life and life, in general, these days- things change quickly whether we like it or not. As a result, the structure that you and your co-parent built in your initial family law case may no longer be applicable or workable for your family. Worse yet, those orders may no longer be in the best interests of your family.
The question then arises- what can you do about it? Are you doomed to have to utilize those court orders for the foreseeable future or until your child turns 18? That sounds a lot like having to wear shoes that your foot has outgrown. At best it is uncomfortable and at worst it can create a permanent injury to the foot or toes. You may have been wondering about what your options are in this situation and how you can potentially proceed. In today’s blog post from the Law Office of Bryan Fagan, we are going to cover this situation in depth.
Especially when it comes to custody issues, there is a range of circumstances that could be in play for your family that requires a serious look at what is called a modification in the world of Texas family law. A modification is a change to your initial court order on custody. I am going to use the term “custody” loosely as it is used across family law. Custody could refer to issues related to conservatorship, visitation, possession, or child support. When you have an issue with a court order you will know it immediately. The trouble with a court order is that it was created in the past. When your circumstances change, you will need to figure out if that change is permanent and leaves the prior order unworkable in your eyes. If that is the case, then you will need to be able to decide whether to try and modify the order or just live with the order as best you can and try to make the best of a bad situation.
As with any issue in family law, you will need to examine the facts and circumstances of your life objectively to make a good decision for yourself and your family. Reading through this blog post is a great place to start but this should not be the only resource that you avail yourself of as you begin to figure out what steps to take, if any. Rather, meeting with an experienced family law attorney with the Law Office of Bryan Fagan is the next logical step to take. We can schedule you for a free of charge consultation with one of our licensed family law attorneys six days a week at one of our office locations across Houston. Additionally, we also can meet with you over the phone or via video. Whatever option you choose, know in advance that we know that this is a difficult situation and will be prepared to provide you with information that will allow you to make wise decisions for yourself and your family.
The basics of a modification case
A modification case is not like a divorce. If you have gotten a divorce from a Texas family court previously you should not assume that your modification case would follow the same path as a divorce. For one, in a divorce case, there is almost no possibility that your divorce petition would not be granted by a court so long as that court had jurisdiction and you follow all the steps required of you to get divorced. This makes it simple for a person to get divorced in our state. Some people even choose to not have representation in their divorce and will instead represent themselves on a pro se basis. This is not something that we necessarily recommend but it is your right to pursue a divorce along these lines.
The same cannot be said for a child custody modification case. When you file a child custody modification in Texas you need to know in advance that judges tend to want to maintain stability and consistency in the lives of children. Now, if harm is occurring at home, then this premise will not apply. However, in other situations, you should not be surprised to find out that judges would prefer to leave a prior court order in place rather than modify it. “The Devil you know” is preferable to the “Devil you don’t.” In other words, the grass isn’t always greener on the other side, and it may be best for your family to live under a court order that isn’t the most comfortable but it does provide you all with what you need as far as rights, duties, possession, and support. A modification case is no slam dunk, in other words.
With that said, the law does allow for changes to be made to prior child custody orders but only in limited circumstances. Those limited circumstances begin and end with the requirement that a material and substantial change in circumstances which involve you, your co-parent, or a child must have occurred since the last child custody order was handed down. Material and substantial means important and big if we are going to use regular wording. This cannot be something small that has developed over time. Material means important or something that cuts to the core of your ability to raise your children. This cannot be an issue that only comes up occasionally. Rather, this needs to be an issue or problem which occurs regularly and can be said to seriously disrupt your life as a parent and your child’s life as well.
If you can prove that a material and substantial change in circumstances has occurred since the rendition of your prior court order that is only the first step in the journey toward a modification. The next step is critical. You need to be able to show that the material and substantial change that you are requesting is also in the best interests of your child. The best interest standard is one that Texas family courts will utilize to make decisions on behalf of children. If something proposed is not in the best interests of your children, then it will not be implemented in your case no matter if a material and substantial change have been found to have occurred. If it won’t make the lives of your children better, then your proposal will not move forward.
This is the backdrop of the modification case that I want you to be aware of. It is not so much that these modification cases are difficult, it’s that they are set up to limit your ability to be successful. With that said, if you can prove that a material and substantial change has occurred in the life of your child then you probably owe it to your children to attempt to move forward with a modification so long as you believe that doing so is in the best interests of your children. A judge’s idea of best interests may differ from your own but that is something to be determined later. For now, you can be satisfied in knowing that you have your heart in the right place by attempting to move forward with a case once the best interests and substantial change tests have been passed in your opinion.
Filing a modification petition with the court means bringing this lawsuit to the same court that granted your divorce or child custody case in the first place. You can contact the clerk of that court or look up online the fees and expenses that are associated with bringing a child custody modification in your county or jurisdiction. Fees differ from county to county. You may also be able to apply to have fees and expenses waived if you are on public assistance or otherwise unable to afford to pay those expenses. You need to apply for this, however. A hearing will be held where you need to present evidence to the judge as to why you deserve to have your fees and expenses waived. Showing that you are on public assistance, are not working, or are disabled are all good places to start as far as proving your inability to pay expenses and fees.
Next, once you have determined your status as far as paying for the filing fees you can start to draft your petition. The petition to modify a child custody order must include an affidavit that states the reason(s) why the modification is necessary. In that statement, you should state the issues as you see them and how they rise to the level of material and substantial. It is wise to include how those changes have impacted your children negatively and what the modification seeks to accomplish. This is the basis for your modification lawsuit. If you cannot muster enough evidence to submit to a judge in a brief, then you would almost certainly lack of strength to be able to present this case in court. Keep that in mind as you walk through your modification case before filing.
The next step after filing the modification would be to serve notice of the lawsuit having been filed upon your co-parent. This is typically done with a private process server or via a law enforcement officer who can serve notice of lawsuits. A citation will be included in the service of the documents to show the court the specific time, date, and location of service. Your co-parent would have twenty days (and then some, in most cases) to respond to the petition with their Answer. The Answer amounts to a general denial and perhaps would be in addition to a counterpetition wherein your co-parent would ask the court to grant their requests for a modification. This occurs on a somewhat frequent basis if both parents identify that a change needs to be made but disagree on the proposed changes.
From there, a hearing would be scheduled for both of you to be able to present your cases to the judge. If your co-parent has filed a counterpetition to modify then he would be able to present evidence and make arguments as to why a modification would be needed, as well. Otherwise, you would present your case and argue why the modification is necessary and your proposed modifications need to be implemented. It is a good idea to couch your arguments in terms of how the changes are in the best interests of the children. It is tempting to start to voice your case from your perspective, but it is not necessarily the most effective means of presenting your case. Rather, if you look at the case from the perspective of your children you will be better off. Judges need to make a decision ultimately based on what is in their best interests, so it is useful to be able to look at the case from that vantage point from the very beginning. ,
The judge can make decisions about whether to grant the modification or not. Like we have alluded to throughout this blog post it is not easy to win a petition to modify prior court orders. The judge would like to leave well enough alone but may be pressed to consider a change depending upon the strength of your arguments. The specific facts and circumstances of your case should be brought out into the open and clearly explained to the judge. From there the judge can choose to implement your proposed changes, choose to do nothing, or issue their orders based on their interpretation of what is in the best interests of the children.
However, before you even get to a hearing on this subject you and your co-parent will have the ability to attend mediation to see if the two of you can resolve your issues before a court appearance. Mediation may be something that you are familiar with given your prior divorce or child custody case. Family judges across Texas are not shy about ordering mediation for parents who go through their courtrooms. Not only is mediation effective at resolving issues for parents but it keeps their docketed cases to a minimum as a result. I have seen judges order that parties continually return to mediation rather than proceed into the courtroom for a contested hearing. This is especially true in situations where the facts are so unique that a judge would not be well-suited to come up with orders for a family.
This is an important less to remember when it comes to your modification case. You and your co-parent know the circumstances of your family better than anyone else involved. This is crucial because a family court judge may be well versed in the law but is not as well acclimated to the needs of your family as you and your co-parent are. This is true even if the two of you are not seeing eye to eye much these days. The desire to do what is in the best interests of your child is a strong motivating factor even for parents who do not agree on much these days. Therefore, coming to mediation with a plan and a willingness to set your ego aside and do what is best for your children is a great motivator for even the most adverse of parents.
Sometimes mediation works out well for the circumstances of your case. For example, if you are seeking a modification due to your wanting more visitation time with your children there is almost always a way for the two of you to modify your current schedule to give you an additional one or two visits per month with your child. On the other hand, there may also be situations that do not lend themselves as well to settlements. If you are attempting to lift a geographic restriction, then that is not something that can be settled upon as easily. Needing to move to Nebraska for a new job opportunity is not something that you can negotiate much. Either you get to move up there or you stay put. Not a lot of middle ground, right? Therefore, you need to be able to assess your situation for what it is when it comes to the likelihood of success in mediation.
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 a great way for you to learn more about the world of Texas family law as well as about how your family’s circumstances may be impacted by the filing of a divorce or child custody case.