After a divorce or child custody case, many individuals face the reality of post-divorce custody modifications. It’s common for situations to evolve, whether swiftly or gradually, due to the dynamic nature of family life and general circumstances. As these changes unfold, the initial arrangements made with your co-parent during the family law proceedings may no longer fit your family’s current needs or best interests. You may need to revisit and modify existing custody orders to better reflect evolving dynamics and ensure everyone’s well-being.
The question then arises- what can you do about it? Are you stuck using those court orders until your child turns 18, or is there a way to change them? 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 regarding custody issues, various circumstances may prompt your family to seek a modification under 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.
Navigating post-divorce custody modifications
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. No matter which option you choose, we understand this situation is difficult. We are ready to provide you with the information you need to make informed decisions for yourself and your family.
The basics of a modification case
A modification case is not like a divorce. If you have previously divorced through a Texas family court, do not assume your modification case will follow the same path. In a divorce case, the court almost always grants the divorce petition, provided it has jurisdiction and you follow the required steps. This straightforward process makes it easier for individuals 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.
Criteria for modifying child custody orders in Texas
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. Instead, the issue must occur regularly and significantly disrupt your life as a parent and your child’s life.
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 the proposed change is not in the best interests of your children, the court will not implement it, regardless of any material and substantial changes. If it won’t make the lives of your children better, then your proposal will not move forward.
Legal considerations and steps to take
This is the backdrop of the modification case that I want you to be aware of. These modification cases are not inherently difficult; instead, they are structured to limit your chances of success. 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 may have a different perspective on the best interests of your child than you do, but you will address that later. For now, take comfort in knowing that you are doing the right thing by pursuing a case after you believe you have met the tests for best interests and substantial change.
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 court clerk or check online to find the fees and expenses associated with filing a child custody modification in your county or jurisdiction. Fees differ from county to county.
Steps to file for child custody modification
If you receive public assistance or cannot afford to pay fees and expenses, you can apply to have them waived. You must submit an application and then attend a hearing to present evidence to the judge supporting your request. Demonstrating that you receive public assistance, are unemployed, or have a disability are strong starting points for proving your inability to pay these costs.
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.
After filing the modification, you must serve notice of the lawsuit to your co-parent. A private process server or law enforcement officer typically performs this task, providing a citation that shows the time, date, and location of service. Your co-parent has about twenty days to respond with an Answer, which may include a counterpetition if they seek modifications different from yours.
Hearing and arguments in child custody modification cases
Next, the court will schedule a hearing for both of you to present your cases to the judge. If your co-parent has filed a counterpetition to modify, they will also present evidence and arguments supporting their case for modification. Otherwise, you will present your case, arguing why the modification is necessary and outlining your proposed changes.
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. As we have alluded to throughout this blog post it is not easy to win a petition to modify prior court orders. The judge prefers to maintain the status quo but may feel compelled to consider a change based on the strength of your arguments. Presenting the specific facts and circumstances of your case clearly to the judge is essential. 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.
Importance of mediation in child custody modification cases
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 unique facts make it difficult for a judge to create suitable orders for your family.
This is an important lesson 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, while a family court judge may understand the law, you and your co-parent know your family’s needs best. 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.
Mediation and strategic approaches
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 trying to lift a geographic restriction, you cannot settle that matter 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.
In conclusion, navigating post-divorce custody modifications requires a proactive approach to adapt to changing family dynamics. As circumstances evolve over time, it’s crucial to prioritize the best interests of the children and maintain effective co-parenting communication. Seeking legal guidance when considering modifications helps you handle changes to custody arrangements with clarity and adherence to legal requirements. By staying informed and responsive to evolving needs, parents can foster a supportive environment that promotes stability and happiness for their children post-divorce.
Ebook
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Other Articles you may be interested in:
- Mastering Texas Custody Modification Evidence: Key Strategies for Success
- Custody Modification Texas: How to Successfully Change Your Custody Agreement
- Factors Considered In Child Custody Modification
- Reasons to not file a Child Custody Modification Suit in Texas
- Seeking A Modification for Full Custody? Evidence Is Key
- Average costs associated with hiring a senior attorney with the Law Office of Bryan Fagan for your child custody modification case
- Average costs associated with hiring a junior attorney with the Law Office of Bryan Fagan for your child custody modification case
- Clarification of standard custody for temporary orders in a modification suit
- How Child Custody Modification Works
- The Basics of Divorce Decree Modification
- How to Build Your Case for a Parenting Time Modification
- How can health issues lead to custody modification?
- What are some examples where you can request a child custody modification?
Bryan Fagan, a native of Atascocita, Texas, is a dedicated family law attorney inspired by John Grisham’s “The Pelican Brief.” He is the first lawyer in his family, which includes two adopted brothers. Bryan’s commitment to family is personal and professional; he cared for his grandmother with Alzheimer’s while completing his degree and attended the South Texas College of Law at night.
Married with three children, Bryan’s personal experiences enrich his understanding of family dynamics, which is central to his legal practice. He specializes in family law, offering innovative and efficient legal services. A certified member of the College of the State Bar of Texas, Bryan is part of an elite group of legal professionals committed to ongoing education and high-level expertise.
His legal practice covers divorce, custody disputes, property disputes, adoption, paternity, and mediation. Bryan is also experienced in drafting marital property agreements. He leads a team dedicated to complex family law cases and protecting families from false CPS allegations.
Based in Houston, Bryan is active in the Houston Family Law Sector of the Houston Bar Association and various family law groups in Texas. His deep understanding of family values and his professional dedication make him a compassionate advocate for families navigating Texas family law.
