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How can health issues lead to custody modification?

Health issues that are either faced by you or your child can impact future custody arrangements for your family. If we assume that you have already been through a child custody or divorce case in Texas, and have valid court orders dealing with custody, then the next consideration we would need to give is in regard to whether or not a modification would be necessary for your family. However, we should not simply consider what health issues are central to modifications, but we should rather think about what a modification is, how a court would grant a modification request in what scenarios may play out in your life that justify a modification in the future. 

That is what I would like to discuss with you all today in our blog post. First, we will discuss what a modification is in a Texas family law case. Next, we will talk about how a court is able to grant or approve a modification request. After that, we will get into custody circumstances for you and your family and how health issues can impact future modification requests in regard to these custody related topics for your family. 

What does it mean to request a modification in a Texas family law case? 

Sometimes, after a certain period of time has passed, the family court orders that you have regarding custody of your child no longer work for you, your Co parent or your child. The thing about life is that it is always changing. Just when we think that we have reached a point in our lives where stability and consistency will be the norm, we find ourselves staring at change. It is, as they say, inevitable. We encountered change with great frequency and are forced to either evolve with those changes or be left behind. I guess you could say that change is about the only constant that we have in our world today. 

I think it is pretty obvious that the coronavirus pandemic has proven to be the most significant period of change that most of us have seen in any of our lifetimes. As we are now firmly in month #7 of the pandemic, we have seen some things change on a temporary basis and slowly start to work back to what they were prior to the pandemic. Furthermore, it is yet to be seen how long lasting the health consequences of this virus will be. A lot of that depends on how quickly a safe and trustworthy vaccine can be developed and distributed to people around the world. Until then, I doubt that people will feel overly confident about returning to the way life used to be. 

However, I don't really see most people being able to use the coronavirus pandemic as the basis for a child custody modification. However, in some circumstances I can foresee people being put in a position where their child custody orders no longer work for them. We will discuss this issue towards the end of the blog post but I did want to touch on it here to make sure that you knew that I was thinking about the same thing that you were. 

A child custody modification involves one parent filing a request with the judge to modify some aspect of the child custody orders that are in place. A material and substantial change must have occurred in the life of a parent or of one of the children and your family to justify a modification. this means that you cannot simply base a modification on any particular set of circumstances having changed or by any minute difference of opinion on how custody should work between you and your co-parent. A family court judge will use their experience in working with families to determine if a material and substantial change has occurred and if the requested modification is in the best interest of your child. 

This is an important aspect to note which I think does not get enough attention when it comes to discussing this topic. The reality of the situation is that even if a material in substantial change is ruled to have occurred by a judge you must still show the court that whatever change is being requested are you or your co-parent is in your child's best interests. This means that the emotional, physical educational in psychological benefits of the proposed modification must be in that child's favor. If a judge does not rule that the proposed modification is in his or her best interests, then the request will be denied. 

This can sometimes be a high hurdle to clear. The reason for this is that judges are typically very conservative when it comes to granting modification requests. The reason for this isn't that judges don't like change what they have previously ruled on but has more to do with maintaining consistency and stability in the life of your child. If it has been shown that your child has adjusted to their life as it is then a proposed change must really need to benefit your child in regard to their daily life. It is not enough to state that they proposed modification is good or bad. You must be able to show that not only is the proposed modification good, but it is in that child's best interests. 

A judge would hear evidence from both parents in a hearing regarding the modification request. At the conclusion of that hearing the judge would be able to issue a ruling on whether or not a material in substantial change has occurred and whether the proposed modification is in the best interest of your child. His or her ruling will take into account the circumstances of your case and allow for counterevidence to be heard by the responding parent. 

What ends up happening in many modification cases is that the parent who files the modification case and the parent who responds to the modification case will attend mediation and arrive at a settlement of their issues. This means that a middle ground will be struck that helps the filing parent bill feel that his or her issues are being addressed while the responding parent does not have to go to a trial only to have a judge rule completely against his or her wishes. So, I would tell you that you are less likely to have a judge rule in your case then you would have a mediator help you and your co-parent to settle your case. 

How health issues can influence a modification case in Texas 

The reality is that for a modification case to be approved by a judge the health circumstances in question will need to be expected to last for a somewhat extended period time in order to be approved in my opinion. This means that temporary concerns over the coronavirus pandemic will likely not be grounds for approval of a modification request. I can, however, envision a scenario where a parent and child have to facilitate Visitation via international or long domestic travel in an airplane that may present problems for the near future because of the coronavirus. 

I am envisioning a scenario where flying domestically or internationally become so tedious and cumbersome because of requirements that the airlines and individual nations are implementing that it is no longer feasible for your child to travel by him or herself safely. A person would only need to watch the news in order to see that checking in to various health terminals at airports in order to verify your recent history of travel to combat spreading the virus. While it could be argued that people's hearts are in the right place and their intent is only to protect the public, I think it is possible that parents will not want their children to travel abroad if they have to provide private health information in order to do so. 

On top of that, some airlines may not even allow children to travel by themselves due to an inability to check into flights properly. Of course, I am speculating in this regard since we have no real idea of what kind of restrictions and changes will occur with flying due to the coronavirus in the near future. Taking a glass half full approach to the question it is possible that with the passage of time and the possible creation of a vaccine in the near future that the coronavirus may drift to the back of our minds and be no more of an issue than the common cold. However, only time will tell and for now we have to consider the near and long-term effects of the virus on custody determinations. 

So, if you file a modification request to prevent your child from having to travel internationally by him or herself then a judge would need to consider whether a material change in circumstances has occurred for your family. I would argue that if the is she's regarding traveling abroad via the airplane persist that some judges would believe that the health concerns and overall unpleasant nature of international travel may lend itself towards believing that a material or substantial change has occurred. 

Of course, the second part to this equation is whether or not the proposed modification is in the best interest of your child. If the proposed change means that your child will not be able to spend as much time with his or her other parents due to travel problems, then I believe that your modification court request would not be granted. However, I could see some sort of middle ground being struck where your child would be able to travel with an adult or to do so during times of the year where it is less likely that the coronavirus will be as prevalent. 

Again, I am completely speculating on this front. I have no specialized knowledge of the virus and I am not trying to predict the future of the pandemic. What I am trying to do is illustrate how the current environment regarding the most important health issue of our day may impact child custody modification cases in the future. The most important difference between the coronavirus pandemic and individual health concerns for your family is that the coronavirus, hopefully, will be a temporary and unwanted guest in our lives. 

If your family is facing health concerns that are expected to be more permanent, then any proposed modifications to your child custody order maybe more likely to be granted. For instance, if your child has suffered some sort of disabling injury where he or she is not able to travel frequently then a custody schedule that allows for him or her to remain with one parent for longer stretches of time may be warranted. This would not limit either parent as far as time is concerned but would allow both parents to be able to spend time with your child while not encumbering him or her with frequent travel back and forth in between homes. 

Finally, if it becomes important for you to be able to take the lead on making decisions for your child in regard to health or education then that may be a consideration your family needs to make. Sharing rights and duties in relation to your child is typical for joint managing conservators but the reality is that special consideration may be needed for your child if he or she suffers from health problems. If it is unreasonable for you and your co-parent to confer on every single decision regarding their lives and one of you is better equipped to make decisions, then a modification may be warranted. 

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. Thank you for joining us today on our blog and we hope to see you again tomorrow as we continue to share unique content about the world of Texas family law. 


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