When circumstances change within your family it is time to consider a modification of your child custody orders. In today’s blog post from the Law Office of Bryan Fagan, we are going to discuss what a modification is and how one may impact your child custody orders. Most important is how the modification would potentially impact your child. When the best interests of your child are on the line, you need to be able to work towards favorable outcomes for your family. This blog post will help you do that.
What should you do when you are ready to decide to modify your child custody orders? Reach out to the Law Office of Bryan Fagan without delay. Our experienced family law attorneys know how to guide your family toward a workable solution to whatever problem you are facing. We offer free-of-charge consultations six days a week with our experienced family law attorneys.
Prioritize the best interests of your children
As you notice a situational change in your family life do not despair. Your existing court orders are not set in stone. They can be changed by you or your co-parent. However, it is not enough to simply ask a court to modify the order. Rather, you must file a petition supporting the modification you ask for. This petition includes an affidavit stating the circumstances you are basing your modification on. As a judge reviews the modification affidavit your chances of success hinge on what the judge sees.
First, you must allege a material and substantial change in circumstances. In other words- the circumstances on which you are basing your modification must be significant. Courts do not want to change a child’s custody orders unless necessary. Rather, a major change must have happened since the last time that you were in court. If the circumstance was in place the last time you were in court, then your petition will be denied.
Next, you need to show that the proposed modification is in the best interests of your child. The best interests of the child standard is one that guides family courts throughout the state of Texas. Your child’s safety, educational development, and emotional well-being are all considered- among other factors. Laying out these factors in a line allows you to see exactly what the challenge is before you.
A change in living circumstances leads to a modification being filed
Let’s consider how the following hypothetical situation may lead to a modification of child custody orders. Suppose that you are a mother of two elementary school-aged children. Since your divorce three years ago you have been the primary conservator of your children. This means that you have been their primary caretaker. Getting them off to school, helping with home, and taking them to the doctor. These are all roles that you have played in your children’s lives. As such, you won primary conservatorship rights in your divorce.
What being the primary conservator of your children allows you to do is play a more active and involved role in their lives. You will live with your children during the school week. Holidays are divided evenly between conservators. However, during the school year, a primary conservator has custody time more often than a non-primary conservator. The role a parent plays in the life of their child often determines custody roles moving forward.
Since you had been the child’s primary conservator to this point it makes sense to keep you in this role. You know what it takes to raise your children on a day-in and day-out basis. Additionally, you work and have a schedule that allows you to care for your children. In all, the circumstances have lined up well for you to take on this responsibility of raising your children. That begins to change a few years after the divorce. Now, you begin to see that those circumstances may no longer be the case.
Changing circumstances lead to questions about conservatorship
As you begin your fourth year since the divorce there are a lot of changes in your life. For one, you lost your job. Working as an accountant in the oil and gas sector has always provided you with an above-average salary. On top of that, you have flexibility in terms of working remotely. You tend to work most of the year from home. Which is great since you are the primary conservator of your children. This flexibility allows you to be at home when the kids get home from school.
The loss of your job has been challenging. You have to spend time looking for a replacement job throughout the week. Money that you had been saving to put braces on your eldest daughter has now changed into an emergency fund. Living off these savings has been made easier by the receipt of child support. Your ex-husband pays you child support religiously. That has been one thing that you have not had to worry about. He pays you the child support on time and in full each month.
What the child support does not allow you to do is to pay your mortgage in full each month. You have been barely scraping by as it was when it came to paying the mortgage. However, now that you have lost your job you are certainly not able to pay the mortgage any longer. With no sign that you will quickly find a comparable job, it may be time to sell your home. This may be a painful step to take in the short term, but it makes sense in the long term.
What does this situation mean for your ex-spouse and a modification?
This is the situation as it finds you today. It is not a dire situation, but it certainly is troubling. The loss of your income source has been more debilitating than you would like. Again- you have child support to buoy your family for now. Additionally, you have been taking on part-time and contract jobs to keep your head above water. Eventually, however, all these steps are going to stop working. The bills at home are just too much for you to keep paying them.
What does this mean? Remember that it is the best interests of your children that matter the most here. Even though you are doing your best that does not mean that your ex-spouse has to give you an infinite amount of time to get your income and household in order. Rather, he may be thinking about a modification of your court order. After all, he is a good dad who has also been there for your children. He has also made a range of changes to his own life to help facilitate his parenting.
Most notably, you are in a better position with your employment situation to act as a primary conservator. As a nurse, you used to work night shifts at the local emergency room. However, now you have taken a job at a local pediatrician’s office. Instead of working nights, you work a more standard set of daytime hours. This allows you to be at home when the kids get home from school. There are no more phone calls late a night asking you to come in to cover anyone else’s shift, either.
Reacting to your ex-spouse filing a petition to modify your child custody orders
When your life starts to change it is time for you and your ex-spouse to evaluate. Hopefully, you two have been in communication with one another. A hallmark of an effective co-parenting relationship is an open line of communication. Even if the two of you do not see eye to eye on every subject that does not mean that you two cannot try to work through your differences. Simple phone calls periodically keep those lines of communication open. This helps you to maintain consistency and stability across the board as parents.
Typically, the Law Office of Bryan Fagan presents this issue with you as the parent making the change to your court order. However, today we are going to approach the subject as the parent having to play “defense.” As your ex-spouse is the parent who wants to modify your court order. This puts the pressure on you to be able to do something about it. Approaching the situation without a plan is a major mistake. You can develop a game plan now to anticipate the moves made by your co-parent.
When you are served with notice of the modification petition it is not time to lose control. Keep calm and develop a plan. Do your best to read through the court documents. However, you should not stop there. Rather, reach out to the Law Office of Bryan Fagan. We can help guide you better than you can on your own. Our attorneys have served parents in your position many times before.
Modifying a child custody order based on loss of income
An issue that comes up as a concern for many mothers is the likelihood of losing custody because of a job loss. This one ranks up there with many other myths regarding child custody in Texas. As you may have guessed, a mother typically would not lose custody of her child just because of a job loss. However, job loss can be among the factors that lead to a change in the child custody orders. This tells us that a court will consider several different factors when determining whether to grant a modification request.
You need to be able to provide your child with a safe place to live. More than any other factor this one matters to courts as you begin to consider a family law case. If you cannot keep your child safe, then everything else just sort of fades into the background. That would be a legitimate reason why your child custody orders may be modified. In truth, you need to think about where you live and whether you need to move.
We covered your housing situation. Living in your current home may be untenable moving forward. The reason is that if you cannot afford to live in the house then it is of no benefit to you or your children. Moving is not a fun process, but it may be necessary. That brings up another issue which may lead to a legitimate reason to modify your court orders. Namely, whether you can modify your child custody orders based on lifting a geographic restriction.
Lifting a geographic restriction- a reason to modify a child custody order?
Consider how important it would be to lift a geographic restriction in the event you need to move. A geographic restriction requires that a child’s primary residence be within a certain geographically defined area. What that area is depends upon your specific court order. It may be that the area is large- such as your home county and all contiguous counties. Or, the geographic area may be small. I have seen parents limit the primary residence of their child to a specific school district.
A child cannot live beyond that geographically defined area. However, now you are in a situation where you need to move. The home where you are living is too expensive based on your current income. You have some money in an emergency fund but not enough to survive long-term. With that said, what can you do to move away from your current area? The housing prices in your area are too high for the most part. The homes you could afford to move into are in bad areas with poorly performing schools.
This is a great reason to consider modifying your child custody orders. Specifically, if you need to move and have no options in your current area. You may talk to your co-parent about lifting the geographic restriction. This does not mean abolishing the geographic restriction altogether. Rather, it could mean negotiating a new geographic restriction that would allow you to live elsewhere. Talk to your co-parent about this before moving, however.
Modifying primary custody of your child
The most significant modification a parent can request in Texas is to modify the primary conservatorship of their child. This modification is a significant one. It would mean changing where your children live throughout most of the year. Just because your ex-spouse asks the court to modify primary conservatorship does not mean that the court will grant this request, however. Instead, it would still need to go through the same analysis that we discussed generally at the beginning of today’s blog post.
First, the proposed modification must be based on a material and substantial change in circumstances. A judge would need to look at your circumstances and determine whether they justify the requested modification. Losing your job. Not having any suitable housing in your area. Asking for a geographic restriction to be lifted. Moving a certain distance from your current home. These are the specific issues a court would concern itself with when determining this issue.
Finally, is the requested modification in the best interests of your child? If you clear hurdle number one you still need to show the court that the modification is in the best interests of your children. Here, it seemingly would be. The geographic restriction is preventing you from finding a place to raise your children. Forcing them into an unsafe environment is the net result of not lifting the restriction. Instead, giving you more options for housing is a best interests determination that would seem to be in your favor.
Final thoughts on having reasons to modify your custody order
As we saw in today’s blog post from the Law Office of Bryan Fagan both parents can have reasons to modify a child custody order. What matters is being able to prove the elements of a modification case. First, the modification must be based on a material and substantial change in circumstances. This means a major change must have occurred since the last time you were in court.
Next, the modification requested must be in the best interests of your child. Does the change you or your co-parent ask for suit the needs of your child now and in the future? How does it impact your child’s health and safety? What about their educational development? If you can answer these questions, then you will be off to a favorable start.
When a judge finds both conditions to be in place then you are in a favorable position. To maximize your chances of success in a family law case please reach out to the Law Office of Bryan Fagan. Our experienced family law attorneys offer free of charge consultations six days a week to the community. We want you to know that our attorneys are here to help you.
Questions about the material contained in today’s blog post? Contact the Law Office of Bryan Fagan
The attorneys with the Law Office of Bryan Fagan 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. Before signing a document or negotiating on a subject you do not know well, contact our office. We look forward to the opportunity of serving you during an important part of your life. The Law Office of Bryan Fagan is on your side.
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.
