Put yourself in the following situation and think about how you would react. You and your co-parent went through a divorce about three years ago during the middle of the pandemic. At the time you had agreed to possession, child support and other custody orders that you believed were in your child’s best that a few years have passed it is becoming clear that some changes are needed.
Your child went from being twelve to fifteen. Now she is on the basketball team at school, has her learner’s permit to drive, and is less interested in being at home on the weekends. In other words- she is a full-fledged teenager. On top of that, she is starting to spend more time with you who is her non-custodial parent. You pay the same amount of child support that you always have even though your daughter spends as much time at your house as her mother’s.
You are happy to see your daughter this much and to be able to spend the time that you do with her. She has even asked her mother to come and spend part of the school week with you since you live so close to her mom’s. All in all, your custody orders need to be updated to reflect the changes seen in your lives since you were in court last.
The major question is- can you change or update court orders? What is the process associated with doing so? This is what we are going to be discussing in today’s blog post from the Law Office of Bryan Fagan. How to request a modification and the circumstances that need to be established to have that modification granted are critical to you being able to move forward with this type of case.
At the end of this blog post if you have any questions about what you have read 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. We are the diligent, experienced, and professional attorneys that you need to speak to about your family’s changing needs. We have what it takes to be able to serve your family and achieve your goals in a family law case.
Assess the need for change
Every family goes through changes over time. To expect that your family dynamics would remain the same from the time that your child custody orders begin to the time that your child graduates from high school and/or turns 18 would be unrealistic. Change is the norm for families of all types. However, just because a change or changes have been experienced by your family does not mean that you would necessarily be successful in filing a modification lawsuit.
A modification lawsuit in Texas requires you to look at your family’s circumstances and determine whether the lawsuit is the best or only way to address the changes that you have seen. Meaning, that if you and your co-parent can manage to work around the changes together without going to court that may be the best option. Remember that child custody cases cost money, take up time, and are stressful. Depending upon your relationship with your co-parent, the two of you may be able to manage an informal child custody modification.
An informal child custody modification would allow for the two of you to agree in principle to changes to your custody orders. For example, the two of you could sit down and assess the situation for yourselves and determine if you can come up with a solution to your custody issues without needing to go to court. There may be a simple change in the custody arrangements that could make the life of your child better. Think about that problem and brainstorm with your co-parent about what you can do.
Of course, the ability to do something like this requires a few different things to be true simultaneously. For one, you and your co-parent would need to have a good relationship. Being able to communicate with one another is the key to an informal child custody modification. If you are not able to communicate with one another none of these types of agreements could ever get off the ground. You would need a judge and some attorneys to help you be able to effectively communicate with your co-parent.
Next, you would need to be able to trust your co-parent. This is important for a child custody case overall but especially if you are going to try and work with your co-parent on an informal modification. Even if the two of you come up with an agreement to modify the court orders without going to court that does not make anything officially changed. To have an official, legal change to your court orders you would need to go to court. A judge would sign off on the modification(s) made and those would be your new court orders.
Instead, when you are informally modifying court orders you are going to take your co-parent at their word that he or she is going to honor your agreement. At any time, either of you could go back on your word and simply revert to the court orders. There is technically nothing wrong with this but it does call into question how viable it is for you to be able to work out an agreement with your co-parent.
The bottom line is that if you need to change your child custody orders then this is nothing out of the ordinary. Families like yours go through changes all the time regularly. So, consider the atmosphere when it comes to co-parenting. If you think that you can manage an informal child custody modification, then go ahead and try that out. However, if you do not have a good relationship with your co-parent or have other hang-ups about this subject then a formal child custody modification is for you.
Beginning the child custody modification process
What we know about your situation if you are considering a child custody modification is that you have already been through a family law case before. Whether your earlier case was a child custody or divorce case you would need to file your modification in the same court which oversaw your earlier case. A Petition to Modify is the name of the document that you would be filing.
Within that Petition to modify you would need to specify the exact type of modification that you are requesting. On top of that, you would need to file an affidavit that tells the court about the circumstances that have changed as well as the modification(s) you are requesting. A Texas family law modification requires a material and substantial circumstance to have occurred in your life, your co-parent’s, or that of your child. Unless this material and substantial change is observed a modification case will not be granted by the court.
You would need to go through the same process you did in the divorce or child custody case initially where your co-parent needs to be provided notice of the lawsuit having been filed. This means hiring a private process server or law enforcement officer to serve your co-parent personally. He or she would then file an Answer to the petition to modify and your case would be off to the races at that point.
You and/or your co-parent can request temporary orders and a hearing to submit evidence of the temporary orders that you are seeking. These temporary orders allow you and your co-parent to live under your proposed changes to work the kinks out and see how things go. Depending on what you are asking the court to modify, these changes can be significant and these temporary orders period can be invaluable as far as providing you all an opportunity to see how everything works out.
Mediation as a means to arrive at a settlement
Thinking back to your earlier child custody or divorce case you probably remember going to mediation. For most of you, mediation was where your case effectively came to an end. Mediation involves hiring a third-party family law mediator to help you and your co-parent agree on any of the issues that are still outstanding in your case. This could mean that you all have agreed on settlements for some or most of your issues before mediation. Or you all could disagree on all of the issues of your case.
Whatever the circumstances are, the court your case is assigned to will likely require that the two of you attend mediation before a temporary order hearing or trial. This is good for many reasons. First, you and your co-parent want to be in a situation where the two of you have the final say on matters related to your child’s custody arrangements. Do not punt the decision to a judge unless it is necessary. Instead, take the initiative yourselves and try to work out an agreement together as a team.
The mediator can help you to come up with different solutions to the problems that you and your co-parent need to solve. What makes mediation in a modification case different than in a divorce is that you have more possibilities for settlement opportunities in a modification case. In a divorce, you know that the one way to get a divorce is to end the marriage and be divorced. However, in a child custody modification case, the two of you can work through your issues in any number of ways.
Remember to go into mediation with an open mind. It is difficult for you to set aside past issues and problems depending on how trustworthy your co-parent has been. You may feel like that because you have been burned by your co-parent before and you are likely going to be burned again. Although you may be justified in feeling this way that still does not change the reality of your current circumstance. The two of you are in a modification case and have an opportunity to settle your case. Take advantage of the opportunity and make the best of the situation.
If you are considering a modification case or are even involved in a modification currently then you can serve your family by having the best representation possible. The attorneys with the Law Office of Bryan Fagan are experienced in helping clients in mediation. We would be honored to be able to assist you through whatever circumstances are important to you and your family. Preparing for mediation has all sorts of advantages. We can help you to learn how to prepare and then execute those plans once you get to mediation day.
Modifying child custody and possession orders
In the hypothetical situation that we laid out earlier in this blog post, your daughter wanted to see you more often. As a result, she has spent more time with you at your home as opposed to your co-parents. This gave you the idea that a modification of the custody orders should be considered. For example, you thought that perhaps creating a custody order where your daughter spent one week with you and then one week with your co-parent would work out well.
This way, your daughter would not have to go back and forth between houses every few days. Less travel, less logistics, and more quality time for your daughter would be the result. This sounds like a reasonable goal to have. However, a material and substantial change would need to be found for your requested modification to be approved by a judge. This means that you cannot simply show that it would be nice to have this change go into effect. Rather, you would need to show that the requested modification is necessary based on a major change in your life.
Whether your daughter growing up and wanting to spend more time with you is a material and substantial change in the eyes of your judge is anyone’s guess. Different judges interpret the Texas Family Code, relevant appeals court cases, and their own experiences differently. This means that a modification case becomes an incredibly fact-dependent circumstance. Working with an experienced family law attorney can allow you to assess the strengths and weaknesses of your case.
Modifying child support orders
Next, you may be interested in having your child support adjusted based on the changing dynamics within your family. Child support is straightforward in the sense that the Texas Family Code contains guidelines for support. These guidelines are presumed to be in the best interests of your child. However, due to the changing circumstances of your family that may no longer be true.
If you are taking care of your daughter on a more regular basis then you should consider whether the amount of child support that you are paying is appropriate. Child support is based on the idea that you and your co-parent should be shouldering the financial burdens of parenting on a near-equal basis. Since you see your child less it makes sense that you also pay for fewer things associated with her care.
Child support reflects this reality and helps keep the non-custodial parent involved in the day-to-day care of a child. Seeing your child on a nearly even basis compared to your co-parent means that you may be seeking a reduction in child support. It is up to you and your co-parent how to do this. She may be less excited about receiving less child support than she currently does. However, if a mediator and her attorney can help show her that this is the likely result in a hearing then she may be more agreeable to negotiate the subject with you in mediation.
Final thoughts on modification of custody issues in Texas
Ultimately, a modification case is a great opportunity for you and your co-parent to work together to try and improve the life of your child. If you can keep your focus on your children, then you will be able to process information more clearly in your case. Avoid thinking about the modification case as a way for you and your co-parent to compete with one another.
The Law Office of Bryan Fagan helps clients from across the state of Texas to achieve their goals in child custody modification cases. We put the interests of you the client first, just as you put the interests of your child first and foremost. If you are interested in hiring an attorney who will be prepared, diligent, professional, and put your interests above their own then please reach out to us today for a free-of-charge consultation.
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 how your family’s circumstances can change in the event a modification case is filed.
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.
