Updated on May 15, 2023
While most states use the term “child custody” when determining the care, control, and maintenance of a child, Texas uses the term “conservatorship.” However, many Texans still refer to conservatorship as child custody.
Child custody arrangements are not always set in stone. It is normal for circumstances to change after the original child custody order is issued. Because life isn’t always predictable, it’s usually possible to request a modification of the custody order.
Child custody orders need to be revisited when the circumstances of a divorced family change or when couples who have children outside of marriage break up. When these situations apply, either parent may request a modification of conservatorship.
While it is possible to request a modification, the court will not grant the request to modify child support unless specific requirements are met. If you are considering modifying your child custody (conservatorship) order in Texas, consult with a Lampasas child custody lawyer.
Child Custody in Texas
Before forging ahead with a child custody modification case, it is important to understand how the State of Texas generally addresses child custody. Child custody in Texas is broken down into both legal and physical custody.
Legal custody relates to the responsibility for making primary decisions on behalf of your children. Such decisions determine the following matters:
The health care they receive
Their religious upbringing
Their participation in extracurriculars
Those decisions that crop up on a daily basis and are not of momentous importance remain the responsibility of the parent who has the children at the time.
You and your ex have options when it comes to assigning legal custody:
Continuing to make these decisions between yourselves
Allowing one of you tie-breaking power for those instances when breaking a tie becomes strictly necessary
Dividing decision-making power between you according to the kind of decision that needs to be made
One of you taking on sole legal custody and making these primary decisions alone
If there has been a material change that affects legal custody since your legal custody terms were set, you can seek a modification.
Physical custody relates to your parenting time schedule. Because courts find that children are best served when they spend time with both parents – barring extraordinary circumstances – both typically share physical custody.
You have plenty of leeway when it comes to hammering out a parenting schedule between yourselves, but if you need the court’s intervention, you are likely to receive one of the state’s standard visitation schedules.
When it comes to physical custody, there are two primary options:
One parent becomes the children’s primary custodial parent, and the children spend the majority of their overnights with this parent. The other parent is awarded a visitation schedule.
Both parents divide parenting time evenly or nearly evenly between themselves.
When the court determines physical custody, a decision is made based on factors related to the children's best interests.
Reaching an Agreement
Your children are growing up, and your and your ex’s lives are evolving, which means that your parenting time schedule may be affected by any of the following circumstances:
Your children are involved in more activities that require considerably more transportation challenges.
Your children have part-time jobs and driver’s licenses, and shuttling back and forth between both parents’ homes no longer serves their best interests.
Your own life and schedule make maintaining your current parenting time schedule difficult.
Your current parenting time schedule is more of a hindrance than a help for everyone involved.
If you and your ex agree about the need for a parenting time modification – regardless of the reason – you can hammer out a schedule that works for all of you, and you will not need the court’s input on the matter. However, if you cannot come to an agreement, the court will make the necessary determinations on your behalf.
A Note about Informal Modifications
If you and your ex are able to negotiate a modification, you are doing well, but you should not stop here. The fact is that your current orders remain in effect until the court rules otherwise. Any agreements that you and your ex make informally between yourselves are not legally binding and do not override the court orders that are currently in place.
This means that, if you and your children’s other parent agree to a scheduling or child support modification and implement it between yourselves without going through the court, you could be found in contempt of court at a later date.
For example, if your ex suddenly decides that the new schedule is not working for them, the court will rule in accordance with the orders that were never officially modified. There is no way to enforce an informal agreement in court.
Once you settle on terms that support your family in the here and now, it is in everyone’s best interests to settle the matter with the court. You can present your mutually agreed upon modification to the court, which is almost certain to sign off on it.
Whether you’re still in the decision-making phase or are ready to present your modification to the court, a dedicated Lampasas family attorney can help. Contact us online today for personalized assistance with your child custody modification case.
What Is a Post-Decree Modification Case?
If you need a modification in relation to your existing parenting time schedule, child support (including child support related to health care), or both, you will file a post-decree modification case in the court that handed down the orders that currently stand.
Modification cases are called Suits Affecting the Parent-Child Relationship (SAPCR).
If you have been living in another Texas County for at least six months, you can use a Motion to Transfer to request that your case be transferred to the county you live in.
When Can a Texas Court Agree to Modify Child Custody?
Filing a request for modification of child custody is no guarantee that the court will grant it. When reviewing your request for modification, the court will have to determine if the proposed changes are in the child’s best interests.
According to the Texas Family Code § 156.101, there are three grounds to modify child conservatorship in Texas:
The Child’s Preference
A custody order may be modified if a child who is 12 years of age or older has expressed his or her preference to live with another parent (when one of the parents has the exclusive right to establish the child’s primary residence).
A Relinquishment of Parental Rights
Child custody orders can be modified when the parent who currently has the exclusive right to determine the child's primary residence has voluntarily relinquished their rights to primary care and possession to the other parent for a minimum of six months.
You cannot modify child custody based on this ground if the conservator had to relinquish their right to primary care and possession of the child because they were ordered to military deployment, mobilization, or duty.
A Change in Circumstances
You can modify the custody order if the circumstances of either parent, the child, or another person affected by the conservatorship order have changed since the current order or settlement agreement was signed. However, the change must be material and substantial to warrant a modification.
What Is a Material and Substantial Change in Circumstances?
The vast majority of child custody modification cases are based on a material or substantial change in circumstances. In order for the change to be considered material or substantial, it must have occurred after the prior orders were implemented. No information or evidence used prior will be considered in the accounting of your current extraordinary circumstances.
In addition, a Texas court may not grant a request for modification if the changes in circumstances are either temporary or not substantial.
For example, a modification request may not be granted if a parent relocates to another location across the city. However, if a parent moves to another city, state, or country with the child, a court is likely to approve a modification request as long as the requested modification is in the child’s best interests.
Consider these examples of a material and substantial change in circumstances to grant a modification:
Remarriage that affects a parent’s ability to adhere to the current custody arrangements
Injury, illness, or disability that affects a parent’s ability to care for the child
Loss of a job
A substantial change in the child’s needs
Either parent’s substance abuse
Relocation to another city, state, or country that affects a parent’s ability to follow the current order
Convictions of child abuse, neglect, or domestic violence
Schedule changes on the part of either parent or on the part of the involved children
Anything that affects a parent’s ability to continue caring for the children
Consult with a lawyer if you are considering requesting a child custody modification. An attorney will review your particular situation to determine whether or not a Texas court will grant a modification in your case.
What Do I Need to Know about Child Custody Modifications?
Child custody modifications are complicated, and while every case follows its own unique course and will affect its own unique outcome, there are some basics that apply across the board.
In order to modify your current child custody arrangements, you will generally have to wait until at least one year has passed since your original orders (or a prior modification) were put in place.
If it has been less than a year from the date of the current child custody order and you wish to modify the order, you can request a modification if any of the following circumstances apply:
The modification case is filed by the parent with primary custody rights, or that parent agrees to the requested changes.
The current arrangement may pose a danger to the child’s physical or mental health or harm their emotional development.
The parent who has primary custody has allowed another person to have primary care and possession for six months or longer unless that parent was away on active military duty.
Extraordinary circumstances apply to the situation.
These extraordinary circumstances mean that you must have experienced material and substantial change in circumstances that supports a modification. For examples of material and substantial changes in circumstances, see the list above.
It is important to understand, however, that the change in question must have occurred after the prior orders were implemented – no information or evidence that applied previously will be considered in relation to current extraordinary circumstances.
When seeking a modification within a year of the date of the current child custody order, the modification request should be supported by concrete facts and evidence. If a judge determines that there are grounds to grant a modification, they will set up a hearing to change the custody order.
In the absence of grounds to modify a child custody order, the judge will dismiss the modification request. In that case, the parties will continue to follow the existing, unchanged custody order.
Depending on the circumstances of your case, a judge may also grant a temporary change in primary conservatorship.
Best Interests of the Child
The court will only grant the modification request if there are grounds for a modification and the request is considered to be in the best interests of the child or children involved. The court bases every decision that it makes on the children’s best interests, which means that every request for a child custody modification is viewed through this lens by the court.
For example, if you are the primary custodial parent and you receive a job offer out of state that would allow you to provide your children with more enriching opportunities, this fact will be balanced against the degree to which the move interferes with your children’s ability to spend time with their other parent (which holds considerable weight with the court).
When Texas courts make child custody determinations and child custody modifications, it always amounts to a balancing act in relation to factors that affect the involved children’s best interests.
Consider the following best interest factors that often affect child custody modification decisions:
Each Child’s Physical and Emotional Needs
Children have important physical and emotional needs that must be met in order to live happy and productive lives. Further, some children have special needs that require more careful attention.
Each child’s age, developmental stage, physical needs, and emotional needs will be assessed and considered in the process of determining if a modification is in order. If one parent is better positioned to address these overall needs, it can affect the court’s final decision.
Each Child’s and Each Parent’s Preference
The court will consider each parent’s preferences regarding child custody. And if a child who is old enough and mature enough to weigh in voices a reasonable preference, the court will also factor this in.
Regarding the child’s preference, the judge will likely interview the child in chambers, which means the judge’s private office, rather than in the courtroom itself. In this way, the judge can get a feel for the child’s level of maturity and capacity to make a decision of this magnitude.
The judge, however, is under absolutely no obligation to grant a child custody modification solely on a child’s preference. The best interest of the child – as interpreted by the judge in question – always guides these decisions.
The Stability of Each Parent
Minor children – regardless of their age – need stability in their lives, and as a result, Texas courts are concerned with factors like the following:
Each parent’s ability and desire to provide the children with a stable home
Each parent’s ability and desire to keep a steady job
Each parent’s ability and desire to ensure the children have safe and dependable childcare
Whether either parent has a history of moving in and out of school systems, being unemployed for long periods, or having a long line of significant others
Each Parent’s Inclination to Support the Other
Texas courts – and prevailing wisdom – finds that children are better off when they continue to have meaningful relationships with both parents unless there is a compelling reason for ruling otherwise. This makes each parent’s ability and inclination to support an ongoing relationship between their ex and each of their shared children an important child custody concern.
Each Parent’s Level of Involvement with the Children
The court will carefully examine the level of involvement each parent has taken on in terms of raising the children to date. If, for example, you have effectively been the primary custodial parent over the last several years – ably guiding your children’s lives – the court is unlikely to make a child custody modification that shifts this focus to your ex.
In other words, your history as a parent can play a significant role in your ability to obtain a child custody modification.
Each Child’s Safety and Well-Being
The court will carefully consider whether or not either parent presents a risk to the children. If there are any concerns related to child endangerment, domestic violence, child abuse, or child neglect, it will significantly affect the court’s decisions.
The court also takes outside support into consideration. For example, if the primary custodial parent is planning on moving out of state, but most of the children’s extended family and support from the community are in the current location, this support can weigh heavily on the court’s decision.
The Status Quo
When the court makes primary decisions about parenting time modifications, it takes a holistic approach that considers their overall health and well-being in relation to myriad important factors.
The court will closely examine how well the children have adjusted to their current living situation, including their schools, primary home, and community. This also extends to the support they receive from their extended family and network of friends and loved ones.
If the children’s current home situation, school, and community are working well for them – and the children are faring well as a result – the court may be loath to disrupt the status quo. It is well established that children respond favorably to consistency, and the court will carefully weigh this factor.
The court can take any factors it deems relevant to the current child custody modification case into consideration. In other words, the court has considerable discretion when it comes to modifications.
Here are several additional factors the court may consider in child custody modification cases:
The matter of keeping siblings together
The overall fitness of each parent (including any reports of abuse or family violence)
Anything else the court deems relevant
A Guide to Modifying a Child Custody (Conservatorship) Order in Texas
A typical custody modification case can take anywhere from a few weeks to several months. If you’ve decided that it’s time to modify your child custody order, it’s best to get started right away. Use the following steps (and a skilled family lawyer) as your guide.
Remember that until you have a modification in place, the original order stands. This means that, even if you and your ex are in agreement (but fail to make it official with the court), you can be found in contempt of court if your ex chooses to renege on your agreement at a later date.
Step 1: Filing a Petition to Modify Child Conservatorship
If you wish to modify a child conservatorship order in Texas, you have to file a Petition to Modify the Parent-Child Relationship with the court that issued the existing order. You will also have to fill out other forms and submit them to the court when requesting a modification.
Step 2: Serving Your Ex
If you are seeking a child custody modification that does not reflect an agreement that you and your ex have negotiated between yourselves, you will file your modification papers with the court and will have your ex served with the following documents:
A Citation that informs them of your child custody modification case
A copy of the Petition to Modify the Parent-Child Relationship, which instigates the legal process
You can have your ex served in any of the following ways:
In person by a sheriff, private process server, or constable
By certified mail, which must be signed upon receipt, or by registered mail with return receipt requested
By posting or publication at the courthouse, in a local newspaper, or in Texas’s Citation by Publication website – if your ex cannot be located
Official service can also be waived by your spouse if they accept the documents from you personally.
Step 3: Proceeding with the Modification
What happens once you file a petition to modify child support depends on whether the other parent (the Respondent) agrees to the proposed modification.
The Respondent Agrees with the Modification Request
If the Respondent agrees, he or she will have to sign documents agreeing to the proposed changes to the current conservatorship order within the allotted time. Then, the court will hold a hearing to review the modification request and ensure that the proposed changes are in the child’s best interests before approving the modification.
The Respondent Does Not Agree with the Modification Request
If the Respondent does not agree, he or she can object to the petition by filing a response within the allotted time, along with a counter-petition for modification that specifies his or her own requests regarding the modification.
By filing their answer, the Respondent protects his or her right to participate in the modification case. The Respondent’s Original Answer ensures that the modification case can only be resolved by the two parents reaching an agreement or by turning to the court for its ruling.
From here, the Petitioner will need to answer and will likely file a counter-petition.
The Respondent Does Not Respond to the Modification Request
If the Respondent does not respond to the modification case within the allotted time, the Petitioner can pursue a default judgment that will proceed without the Respondent’s input.
Step 4: Waiting for the Respondent’s Response to Object the Modification
The Respondent has a specific number of days to file an objection to the modification. Once the court receives the Respondent’s response, it will schedule a hearing to hear testimony from the Petitioner and Respondent to approve or reject the modification.
However, if the Respondent fails to file an objection within the applicable timeframe, the court will schedule a hearing to review your modification case without the Respondent.
It is advisable to be represented by an experienced child custody lawyer when filing a petition to modify the current conservatorship order. You need a skilled attorney on your side to convince the judge that the modification should be granted.
What If the Child Is in Urgent Danger?
If your situation is urgent, the court may issue a temporary custody order. You may be able to obtain a temporary custody order while your modification case is pending.
You can ask the court to issue an emergency custody order and temporary restraining order if you believe that your child is at risk of immediate danger. For example, if your child has been abused or neglected by the other parent, you may be justified in requesting a temporary custody order.
A temporary order will be effective until the judge holds a hearing and decides on the permanent custody order.
How to Modify Child Support in Texas?
When parents get divorced, one of the parents is usually ordered to pay child support to the parent who lives with the children. Child support payments are intended to cover the child’s reasonable expenses and needs.
In addition to modifying child custody (conservatorship), divorced parents in Texas may wish to change child support. A child support order can only be changed through a formal court order. Any informal agreements between the parents regarding the change in child support are not legally binding.
According to Texas Family Code § 156.401, there are two grounds to grant a modification of child support:
The circumstances of the parents, child, or other persons affected by the existing order have changed materially and significantly since the date the order or divorce settlement agreement was reached.
More than three years have passed since the date of the original child support order, and changing the order would alter the monthly payments by over $100 or 20% per month compared to the original obligation.
If you wish to modify your existing child support obligation, it is essential to act quickly because child support orders cannot be modified retroactively in Texas. Consult with an attorney to determine how you can change your child support obligation in your particular case.
Material and Substantial Changes for Child Support Modifications
Generally, Texas courts grant the petitioner’s motion to modify child support on the basis of a “material and substantial change in circumstances.” In order for your situation to meet the requirement of material and substantial changes, one of the following circumstances must apply:
The paying parent (the obligor) lost his or her job.
The paying parent’s income has either increased or decreased substantially.
The paying parent has assumed legal responsibility for an additional child or children since the order was put in place.
The cost of your children’s medical coverage has changed substantially.
Your children’s living situation or needs have changed substantially.
The amount of time the children live with either parent has increased or decreased significantly.
What counts as a material and substantial change in circumstances is a fact-specific issue, which is why it is advisable to talk to a family attorney to determine if you have grounds to modify child support in your specific situation.
In many cases, parents need to attend a hearing or trial to determine whether there has been a substantial change in circumstances. The burden of proof to establish a material and substantial change in circumstances is on the petitioner (the parent seeking to modify the support order).
If your circumstances do not meet the level of a material and substantial change, you will have to wait the requisite three years before seeking a child support modification.
How Will the Judge Handle My Child Support Case?
When reviewing your request to modify your original child support order, the judge will take the following steps:
The judge will calculate the child support amount the obligor would pay based on their current income under the child support guidelines to see if there has been a material and substantial change in circumstances.
The judge will use the child support guidelines to determine the appropriate amount the obligor would pay going forward.
The judge will consider whether the proposed modification of child support would be in the child’s best interests.
Why You Need a Child Custody Lawyer for a Modification Case
If you or your former spouse is attempting to modify child custody, do not hesitate to speak with a lawyer to discuss your options. An experienced lawyer will help you obtain a favorable outcome and protect the best interests of your child when handling your modification case.
When asking a Texas court to modify the existing child custody agreement, you must be able to present clear and convincing evidence supporting the modification. Your lawyer will help you strengthen your case and convince the judge to grant your modification request.
If you are opposing the other parent’s attempts to change a child custody order, it is equally important to contact a knowledgeable lawyer to prove that the requested modification is not appropriate or would not be in the best interests of the child.
What If My Children and I Live in a Different Texas County?
Generally, modification cases involving children are filed in the same counties where the divorces were originally obtained.
If, however, you and your children (or your children and their other parent) have lived in another county in Texas for the last six months, you can request that the court transfer the case to your children’s new home county (via a motion to transfer) prior to either your answer deadline or your hearing (whichever comes first).
What If My Children and I Live in Another State?
In order to change the current child support order, you must file a petition to modify the order in the county where the original order was issued. But what happens if your child has lived in another state?
If your child has lived in another state for the past six months, it is advisable to consult with a child support attorney to find out where to file a petition in your specific situation.
Why Are Post-Decree Modification Requests So Common?
Our lives are continually evolving, and no one undergoes as many changes in a relatively short amount of time as children do. The court recognizes that your child’s needs when he or she is a baby is different than they are when he or she is a toddler, is a school-age child, or is a high school student, and legal modifications are the law’s response to this inevitability.
For example, by the time your child is driving, has a part-time job of his or her own, and is very involved in extracurricular activities, his or her circumstances are vastly different than they were when he or she required childcare services. In other words, modifications can fill many important roles.
How Often Can I Modify Child Support in Texas?
You can modify child support in Texas as many times as you want as long as you have grounds to request a modification. You can file a modification case in Texas if either of the following circumstances apply to your case:
The original support order was made more than three years ago.
A material or substantial change in circumstances has occurred since the last support order was put in place.
How Much Does It Cost to Request a Modification?
When filing a petition to modify child support, you will pay the filing fee. If the other parent is served, you will also pay a service fee. Filing fees vary from one county to another. In Coryell County, you need to pay $51 to file a Motion to Modify.
Can I Modify Back Child Support?
Contrary to popular belief, modification of child support is never retroactive in Texas. It means that if you were behind on child support payments before the modification was approved, you would still have to pay the past-due support amount.
For example, if you lose your job in May but your motion to modify child support is not approved until August, you will still have to pay the amount ordered in the original order for May, June, July, and probably even August.
It is vital to contact a family law attorney as soon as you experience a substantial change in circumstances. Your attorney will help you take proactive steps to file a modification case and modify your child support order in a timely manner.
Can I Deny Visitation If My Spouse Doesn’t Pay Child Support?
Many parents think that if the other parent does not live up to his or her child custody orders, refusing to pay child support is a reasonable response. On the flip side, many parents who do not receive the child support they are owed believe it is reasonable to withhold visitation in response. This is not, however, how the law works.
Child support and child custody orders are separate from one another, and the only way to enforce either is through the court that issued the order in the first place. Child custody and child support are predicated on the best interests of the children, and retaliation of this kind only serves to work against their best interests – as established by the court.
Trying to resolve your child custody or child support concern by taking matters into your own hands can land you in contempt of court.
Consult with a Lampasas Child Custody Lawyer
If you wish to modify your existing child conservatorship order, it is best to contact a skilled attorney to fight for your rights and convince the judge to grant the modification request.
Schedule a consultation with our Lampasas child custody lawyers at The Law Office of Brett H. Pritchard to discuss how you can modify a conservatorship order in your particular case. Call (254) 781-4222 or contact us online to book a case review.