Many, probably most if we are being honest, people who go through a divorce have regret about one aspect or another about their final orders. It could be that the property division did not turn out exactly as they had planned. Maybe the family home took too long to sell and the equity available after its sale was not what you hoped it would be. We hate to feel like we left money on the table in any situation. However, when you left money on the table that your ex-spouse scooped up then it can be even more painful.
For most parents who go through divorce, however, it is not issues related to the property side of the divorce that causes regret but issues related to your kids. I hope every parent who is reading this blog post would agree that the kids are the most important part of a divorce. You and your spouse may go head to head on a lot of issues, but it is more than likely that you are doing so in relation to your kids because each of you believe that you know what is best for your little ones.
From my experience handling divorce cases for families in southeast Texas, most parents truly do want to be a part of the lives of their children. Most parents want what is best for their kids. It may be hard to tell sometimes during a divorce, but the best interests of the kids can be served when two loving parents put their heads together and attempt to arrive at solutions to parenting problems created by the divorce. It is far from ideal but parents like you can make the process productive if you have the right attitude.
With all that said, even the best divorces can end with regret. You may have looked at your final decree of divorce the day after your case ended and have a dozen things picked out that you wish you could change. The trouble with finding nits to pick is that sometimes you can’t do a darned thing about those problems. You can go back to talk to your attorney and he or she will tell you that the judge simply won’t hear another word about that particular subject.
On the other hand, there are parts of your divorce that can be sent back to court if the situation merits it. Cases like this are called modifications. Most frequently after a divorce, a modification would be filed in relation to issues related to your children. Whether the modification requests a change to the final orders related to child support, child visitation, conservatorship or custody, you need to have your ducks in a row before stepping foot back in the courthouse for a second round with your spouse.
The simple truth is that modification cases are not impossible to win- but they can seem that way if you are unprepared. You may have even done your divorce without the assistance of an attorney but I cannot recommend enough that you hire an experienced family law attorney to represent you in your modification attempts. No longer is your family law case acceptable to a judge simply by virtue of your having filed the lawsuit. Rather, you must meet a legal standard to get your modification attempt approved by the judge.
In today’s blog post from the Law Office of Bryan Fagan I would like to share some thoughts with you on when a modification of your child custody orders may be justified. Like anything else in relation to family law, the answer to this question is incredibly fact specific. However, I think that if we go over this information today you will have a much better idea of how to apply this information to your own case. From there, I hope that you will contact our office to speak to one of our attorneys. We can help give you more information and help you to figure out whether or not it is in your best interests to bring a modification lawsuit of your own.
Life comes at you fast and change is inevitable
It goes without saying that your life is going to change after your divorce. Sometimes those changes are good and sometimes those changes are bad. Change is a part of life and it is a part of your new life as a divorced parent. The divorce itself was a change and then you likely encountered changes on top of that. It is these changes that must form the basis to any modification of child custody lawsuit that you file subsequent to the end of your divorce.
A modification of child custody is possible in Texas. The trick is that you need to bide your time before you attempt to bring the lawsuit. Keep in mind that you need to wait at least a year in most cases in order to modify the custody situation set forth in your final decree of divorce. This may seem like a very long time but you will see in a moment why family courts generally require this sort of waiting period.
The one year waiting period is necessary because to succeed in filing your modification suit you need to show that a substantial change in circumstances has occurred in relation to you, your ex-spouse or your child. This substantial change cannot be something that affects you all on an occasional or sporadic basis. Rather, this change must relate to a central issue of custody as set forth in your divorce decree. An occasional annoyance that you suffer is not a substantial change.
The change must be new- relatively speaking
If the issue that you are attempting to bring your modification based on has been in place since the time of your divorce, I can tell you now that you will face an uphill battle to modify the orders. For example, if you are telling the judge that you have concerns that your spouse’s work schedule prevents her from being the custodial parent then you had better be able to show that the change in her schedule is subsequent to the divorce. If she can come back and show that she has had this work schedule for many years then your case has a giant hole in it.
Imagine that once your final decree of divorce is signed into being by the judge that any evidence that you could have used to influence the court’s decision at that time cannot now be utilized against your ex-spouse in a modification case. I have seen parents attempt to come back and basically relitigate their divorce with evidence that is many years old. Usually in that situation I will have to tell the parent that they do not have a strong case because that evidence was best used at the trial level in their divorce.
You may not have to wait a year to bring your modification lawsuit if…
As with most things in the law, there are exceptions to the rule. In this case, when I told you that you could bring a lawsuit for a modification at the earliest a year after your divorce that is generally true. However, you can bring a modification suit to change your child’s primary residence within one year of the signing of the final decree of divorce if you are able to present evidence that your child’s present home circumstances endanger their physical health, well-being or impair their emotional development.
Be prepared to present cold hard facts in the form of evidence that is admissible into the record of your case. Conjecture and hearsay are not appropriate substitutes for this type of evidence. Suppose that your ex-wife has developed a crippling addiction to alcohol after your divorce was finalized. It is pretty obvious in that case that their alcohol addiction could pose a risk to your child’s health.
Judges look at substance abuse as a strict liability proposition. Meaning, if your ex-spouse is found to be abusing drugs or alcohol there is really no defense to such behavior. She doesn’t have to do the drinking in front of your kids. There doesn’t have to be an arrest for DWI. All that you would need to do is prove to the judge that this abuse of substance is occurring. The rest could take care of itself.
A primary residence modification for about any other reason probably would not cut the mustard if your intent is to file the modification within the year of your divorce being finalized. There may be legitimate reasons to modify the decree but they would need to wait the year to allow the judge to come back and modify the orders. Examples of this would include a change in work schedule (as previously discussed), a move to a new location, changes in the academic performance of the kids or a myriad of other issues such as these.
Do not wait to file a modification if your children are in an emergency situation
Your child’s physical health is at the top of your priority list. The fact that you are considering filing a modification of the custody arrangement in your divorce speaks to that truth. However, if there is an immediate concern that you have regarding their health or well-being it is your duty to contact law enforcement as soon as possible. The simple truth is that an emergency modification can be filed, but not in the time period you need to ensure that your child is safe and sound.
Call the police to alert them to any suspicious activity. If your child reports anything to you that is credible then you need to make a call to law enforcement. It is up to you and your judgment when doing so. Obviously you need to be the adult and make a decision at that point in time. I am not advising you to call the police whenever your child tells you anything you don’t like regarding your ex-spouse. However, if there is a threat to your child’s well being it is then that you need to make a decision to contact law enforcement.
You can then get in touch with an attorney after you make sure that your kids are safe. A temporary orders hearing can be held on an emergency basis that will allow you to present your case for a restraining order to a judge. The judge will allow your ex-spouse and their attorney to present evidence to the contrary as well. Sometimes in an emergency setting a hearing can even be held without the need to first notify your ex-spouse.
Modifications don’t always turn out the way that you hope
It is a proverbial roll of the dice to file a modification case in regard to child custody. For instance, you could wind up with the judge deciding the case against you and making a modification of the child custody orders that is actually worse for you than when you started. If you have a court order that suits your specific needs but are now asking for further modification to make it even better for you, then you may run into trouble. Do not assume that you will at least hold onto the orders that you have. The door swings both ways, as it is said. Your ex-spouse can file a counter petition for modification that can also be heard and considered by the judge.
Questions about modification of child custody orders in Texas? Contact the Law Office of Bryan Fagan
If you have any questions about the material that we presented 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 where you can ask questions and receive direct feedback about your particular circumstances. Thank you for spending some with us today here on our blog.