Here in Texas, it’s not a simple thing to modify an existing custody agreement. The courts agreed to the original custody order or laid one down according to what they believed was in the best interests of the child involved. This means that you will need to show definitively why the change you’re requesting is in the child’s best interests. A custody attorney in San Antonio, TX can help you understand how the courts will view your request and present it in a way that shows why it is in your child’s best interest.

What Are the Criteria for Modifying a Custody Agreement?

The first step in requesting a modification is to determine with the help of your lawyer whether this will be an uncontested or contested modification suit. Uncontested means that you and the other parent agree about all the issues that need to be changed and are willing to sign the modification forms. It’s also uncontested if the other parent just doesn’t care, and even after you file and serve them the papers, they’re not going to answer or appear in court to object to the modification.

A contested modification becomes more difficult, obviously; that happens if the other parent refuses to sign the order or files an answer against it. In that case, you will have to not only show in the modification request why it’s in the best interest of your child, but will also have to prove it in a final hearing at which the other parent has a chance to present their side and why they believe your modification should not be allowed. In all situations it’s important to have a lawyer’s help, but especially so if this is a contested modification.

Eligibility to File and Timing

The first criterion is that you be eligible to file, and either parent is free to do so at any time after a year has passed. The only way to bring a modification before a year is if you have primary custody, if you and the other parent agree to the changes, or if the environment the child is in with the other parent is dangerous. 

If you are not the primary custodian of your child, and if the parent who does have primary custody has let someone else have that custody and possession for at least six months, you can also bring action before a year has passed, unless the other parent is in the military and on active duty.

Best Interests of the Child

The court is very interested in the best interests of the child, and this is even reflected in the terminology that Texas uses to discuss issues of custody. Texas uses the terms “conservator” and “conservatorship” rather than “custody” and “custodian” because it wishes to emphasize the responsibilities of the parent rather than the rights of the parent. In other words, it’s about the parents’ duty to care for their child rather than their right to have control over their child’s life. The managing conservator is the parent who has the right and responsibility to make decisions about the child’s life, while the possessory conservator is a parent who has the right to spend time with a child but not to make decisions for them.

It cannot be emphasized enough that your modification order must be presented in a way that shows why it is in your child’s best interests to make a change. Sometimes this is simple. For example, one parent may have been awarded primary custody at the time of a divorce, but since that time has struggled in dealing with the divorce emotionally and is now having trouble with alcohol or drug addiction. In this situation, it is clearly in the child’s best interests to be with the parent who has a more stable home environment. 

Other times, it’s not simple at all to show that the proposed change is in the child’s best interests. For example, if you and the other parent share custody, but the other parent has just gotten a new job that requires a fair amount of night work, you might assume that it’s in the child’s best interests to spend more time with you. The courts may not see it that way. If the other parent can show that, despite the change in their schedule, they can still care for the child in the same way they have been and spend the same amount of time with them, the court may not grant a request to give you sole primary custody. In that case, the court may be more inclined to accept a proposal from the other parent to change the parenting schedule, instead.

Common Reasons for Changing a Custody Order

Although it is not simple to change a custody order, and the courts will expect to see clear proof of why the change is necessary, the courts do fully understand that situations change and sometimes a modification is important. According to the Texas Family Code, you can request a modification if there’s been a change in circumstances significant enough to have made a big difference in either the child’s life or the lives of one of the parents. The sort of changes that tend to meet this criteria include changes in jobs, remarriage, the development of a disability or other medical condition, loss of a job, or one of the parents moving a significant distance away.

Once a child turns 12 years old, the court also allows them to express their preference for which parent they would like to live with. The child’s preference in this matter is never the final determining factor, no matter how old they are, but it is considered. The older the child is and the better able they are to express maturely why they want a change, the more likely the court is to grant it. For example, if a child would rather live with one parent because that parent is more permissive, the court is unlikely to pay attention to this. But if the child wants to live with one parent because they feel safer there, or because it’s closer to other relatives and friends they have important relationships with, the court may give a lot of weight to this preference.

And, of course, a request can also always be made if you believe your child’s emotional or physical safety is being compromised. You can ask for emergency orders that can go into effect quickly while the court looks into the situation more deeply, and a lawyer can help you with this. It’s worth bearing in mind that you don’t have to show there’s been physical or emotional abuse directly aimed at the child. Unsafe situations can also manifest as neglect, as abuse towards a person in the household other than the child, or when the other parent develops a substance abuse problem, even if they are not in any way violent.

Talk to a Custody Attorney in San Antonio, TX

To find out whether your request for modification is likely to be accepted and to get help in positioning yourself well with the court, talk to us today at the Aida Rojas Law Firm in San Antonio. We have many years of experience helping families in South Texas find a path forward through difficult situations.