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Modifying a child custody order: what you need to know

Going through a family law case it would be a normal reaction to hope that you never need to go through another legal matter like this for the rest of your life. From the costs associated with the case to the disruption suffered by your family to the impact that the case has on each of your children, a family law case can be an extremely unpleasant experience. Getting through a case with your family intact and your sanity, in addition, can be a challenge for many families. Fortunately, you can get to the other side of a family law case. You just need to be prepared.

With that said, even people who are extremely prepared to go into a family law case and have a plan to follow through on during the case itself can find themselves staring down a situation after the case has come to an end where the circumstances of your family have changed to a certain extent. Those changes are better to be dealt with directly than by ignoring them or making do with what you have until a breaking point is reached. Once you and your co-parent go through a family law case you all need to abide by those court orders until your children are no longer minors. For some of you reading this blog post that can be a long time.

What are your options when you worked hard to come up with court orders which suit your family during a family law case but now find yourselves looking at a much different landscape as far as your family life is concerned? Should you grit your teeth and make do with what you have or can you do something different? Updating a court order may not be appealing to you at all but considering the different options available to you, it could be the most desirable and least intrusive for your family.

In today’s blog post from the Law Office of Bryan Fagan, we are going to discuss in detail how to modify a child custody order. The steps involved in the process, the documents to file, the mistakes to avoid. We will walk you through everything that you need to know before becoming involved in a child custody modification case. If you have any questions about what we discussed, please do not hesitate to contact the Law Office of Bryan Fagan today. We can offer you a free of charge consultation six days a week in person, over the phone, or via video. Talk with us about your situation and see why thousands of your neighbors here in southeast Texas have chosen us to represent them in various family law cases.

Should you engage with your spouse in informal settlement negotiations?

One of the ways that some people in your situation will choose to go about their need to modify a child custody order is to do so informally with their co-parent. Let’s say that you have a visitation order which worked well for your family for an extended period but no longer does. Something has changed in the past few months as far as those orders are concerned and you and your co-parent both acknowledge that a change needs to be made. Rather than file a formal modification case, the two of you talk through the issues yourselves and have come to a settlement that can accommodate your family much better.

There are plenty of reasons why a family like yours may agree to an informal settlement like this. For one, going to court is unpleasant. Needing to work with attorneys, possibly see a judge and generally open your family to another court case is no fun at all. Couple that with the other responsibilities you have in life and spending time in a court case is not at the top of your wish list, I am guessing. The costs of a formal modification case can be significant as you probably learned through your child custody or divorce case.

So what would many families do in your situation? They may decide to go about informally negotiating a settlement to your situation directly with the other parent. In theory, this may work well. You and your co-parent have hopefully built up a certain level of trust between each other and are now comfortable working with the other person on slight adjustments to your visitation schedule. Everyone will eventually run into a situation where your custody orders do not work well for whatever reason. Or you may find yourself in a position where an illness, injury, or other issue comes up where you are not able to take possession of your children during one of your pre-designated periods.

This is where having a good relationship with you are co-parent can pay dividends for you and your family. Rather than having to go through a lot of trouble and having to beg your child’s other parent to allow you some extra time to come and pick up you’re child when you are running late from work you can simply give him or her a call to talk about this issue directly. Or, if you have an issue where you lost your job or otherwise are not able to pay child support for a month or two you can often work out a payment plan informally with your co-parent and not have to worry about finding yourself facing an enforcement case down the line.

These are good compromises for you and your co-parent to work on together for situations that are temporary and do not require long-standing solutions. However, it is a different situation entirely if you all find yourself in a position where there are problems with your court order that seem to be more long-standing and impactful for your family in the long run. In that kind of circumstance, you need to think long and hard about the risks associated with negotiating directly with your child’s other parent on an informal basis. Here are some of those risks that you should think about before going in this direction regarding an informal modification of your child custody orders.

For one, informal settlement negotiations with your child’s other parent are risky because either one of you can change your mind at any point in time. For example, let’s say that you and your co-parent have agreed to change the weekends when you have visitation with your children to accommodate a new work schedule which you have. You spoke to your child’s mother about the change at work and she is completely on board with modifying the custody orders as they stand. You two went through the changes and what they would mean to your family on a logistical basis. It was your idea to have her sign a document along with you to memorialize the agreement.

This plan seemed to be working well for a couple of months. You both honored the modification that you made informally, and it seemed like this agreement was going to work out well for both sides. Your children were not impacted by the modification, and they ended up seeing you as frequently as they would have under the old plan. However, last week your child’s mother called you out of the blue and told you that she was going to rescind the agreement that you made informally. When you asked her why she was going to do this she simply responded that she no longer wanted to have the kids on the first, 3rd, and 5th weekends of each month. No explanation was given, and no consideration was paid to your employer or the need for you to work on those weekends each month.

Immediately, your mind turned to what options you have to hold your co-parent to the bargain that she had agreed to with you previously. You were under the impression that if your co-parent signed their name to a document then she would be bound to follow what she had signed her name to. This is how contracts work in other areas and it is what you thought would happen regarding a child custody modification, as well. Would a document like this even qualify as a contract for a family law case?

The only court orders which have to be followed by both parties to a family law case are those orders signed by a judge and the parties themselves. While it makes sense for you to go to the lengths that you did to get your informal agreement with your child’s mother in writing that does not mean that it takes the place of a formal court order. The truth of the matter is that either you or your child’s mother could have gone back on your word at any point during this informal agreement. This doesn’t necessarily make it right to do so and certainly wouldn’t make you the most trustworthy person in the world but nothing is compelling you to follow an informal settlement agreement with your spouse other than you voluntarily doing so.

Where does this leave you when your child’s mother decides to no longer honor your informal child custody settlement agreement? It puts you right back where you started. Until a judge signs their name to a new order you are bound to the prior version which does not suit you very well. This means that even if you negotiate with your child’s mother in good faith there is no guarantee that the agreement will have any staying power. For that reason, it is better to engage in a different path toward accomplishing your goals when it comes to modifying a child custody order.

Filing a modification in family court

The other direction that you can and probably should go in when you need a modification of your child custody orders would be to file a modification petition in the same court which issued your child custody order, to begin with. Filing a modification petition means that you are seeking the approval of a court on any modification that you and your child’s mother reach together to negotiate. Keep in mind that most child custody cases resolved themselves through mediation. It is not a foregone conclusion that your case will be heard by a judge at the trial court level. As a result, you need to be prepared to still negotiate with your co-parent even after a modification has been filed in the family court.

The most direct way to do this is to maintain an open line of communication with your child’s other parent. So often in a child custody or modification case, parents simply lose touch with one another. Especially in a modification case, it is assumed that eventually, the parties will need to attend a court hearing and that there is no point in negotiating the case the week or so before the hearing. As attorneys who see the value in negotiating throughout a family law case, we would argue that you should maintain an open line of communication with your co-parent from the very beginning of your modification case. This way he or she can see that you are committed to negotiation and are not going to be headstrong about pushing your case to a trial.

A lot of this has to do with you being willing to discuss with your attorney ahead of time what your goals are and how you see your case progressing. Many well-meaning parents enter a modification case with goals that are outsized and not realistic. A good and experienced family law attorney will help you manage your expectations and create a game plan for you to go out and execute the most important objectives as you see them for your case. However, before you can develop a strategy and a game plan to execute you need to be able to speak with your experienced attorney to better shape that game plan in the first place.

Next, you need to select an attorney who is equally comfortable in the courtroom as he is at the negotiating table. In most cases, you can expect to spend one day in court for a trial. This leaves many more days where negotiations can take place. Your attorney should be willing to make settlement offers, respond to counteroffers, and then communicate those counteroffers to you. Ideally, your attorney will have the heart of a teacher who can help you better understand the circumstances of your case to help you make better decisions along the way.

Once you have filed a modification petition it is recommended that you and your opposing party attend mediation. Mediation involves formalized settlement negotiations between you and your co-parent. These settlement negotiations take place at the office of an experienced family law mediator. This mediator is usually an attorney himself or one who practices family law. The mediator will convey settlement offers and help you and your opposing party come up with solutions to the problems you are facing. All the while, your attorney will be present advising you and helping you to understand the landscape you are facing.

Attending mediation means that you can potentially avoid a modification trial with your child’s other parent. This could potentially save you a great deal of time and money. However, you need to treat mediation with a great deal of respect and come prepared to negotiate on the points that are most important to your case. The more prepared you can be the more likely you are to settle your case and avoid a trial. Where mediation differs from informal settlement negotiations with your co-parent is that after mediation your mediator will create a mediated settlement agreement which contains the terms agreed to by you and your co-parent. Unlike the informal agreement created by you and your child’s other parent at the beginning of our blog post, this document is signed by all parties, their attorneys, and the mediator. In most circumstances, this agreement cannot be changed or backed out of in the future.

Finally, if you and your child’s other parent are not able to successfully settle your case before a trial then the other option before you would be to attend a modification trial in front of the judge. Evidence would be offered and admitted regarding the proposed modification. A judge would look to the best interest of your child as well as whether the proposed modification is based on a substantial and material change in circumstances on the part of you, your child’s other parent, or your child.

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