Post-Decree Child-Custody Modifications: FAQ

Custody

You have made it through the challenging process that is divorce, and while it was not easy, you have your divorce terms in hand and can move forward into your post-divorce reality. It is important to recognize, however, that – while the terms you and your spouse hammered out (or that the court handed down) in your divorce may have applied at the time – our lives have a way of evolving and rendering such terms obsolete over time. This is where post-decree modifications related to child custody terms come in, and a better understanding of the process can help answer your modification-related questions.

What Is a Post-Decree Modification Case?

A post-decree modification case involves filing a case that asks the judge in your original divorce to alter an existing order related to your child custody arrangements or child support (including support related to health care).

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What if My Children and I Live in a Different Texas County?

Generally, modification cases involving children (Suits Affecting the Parent-Child Relationship) are filed in the same counties where the divorces were originally obtained. If, however, you and your children (or your children along with their other parent) have lived in another county in Texas for the last six months, you have the option of requesting 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).

Will My Ex Be Served with Modification Papers?

When it comes to post-decree modifications, you and your ex can come to an agreement regarding the changes you are looking for and present them to the court. In these instances, the court is almost certain to sign off on them. If you are not in agreement and one of you chooses to request a modification through the court, the other will be served with the initial court modification papers. It is important to keep in mind 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.

How Does Service Work?

If you are having your ex served with modification papers, they will include the following:

  • A Citation, which is a form that the court issues to officially inform the other involved party (your ex) about the case in question

  • A copy of the Petition to Modify the Parent-Child Relationship, which is the form you filed to begin the modification case

Service can include any of the following forms:

  • Your ex can be served in person – by either a sheriff, a constable, or a private process server.

  • Your ex can be served by certified or registered mail with the return receipt requested. Service by certified mail is only considered valid if your ex signs upon receipt.

  • If you cannot locate your ex, service can be achieved via either posting or publication, which means that the citation in question will be posted at the courthouse, published in a relevant newspaper, or published on the state’s Citation by Publication website.

What Happens Next?

Once your children’s other parent is served, he or she must respond within the allotment of time provided, and he or she has the following options in terms of a response:

Filing an Answer

If your ex intends to participate in the modification case, he or she must file (or turn in) a Respondent’s Original Answer form with the court within the prescribed time period. Otherwise, you may proceed with the modification request on your own.

Filing an Answer and a Counter-Petition for Modification

If your ex responds and files a counter-petition for modification that lays out his or her requests regarding modification, the ball is lobbed back in your court, and you can respond with an answer and counter-petition form of your own.

Failing to Respond

If your ex fails to respond to your modification papers, you can move forward without his or her input with what is called a default judgment, and your ex will have no say in the matter.

What Is a Legal Answer?

An answer in this context refers to a legal form that is filed by the other party in response to the modification request. By filing an answer, your children’s other parent ensures that his or her right to participate in the case is protected. If your ex answers your filing, the case cannot be resolved until one of the following occurs:

  • You and your ex come to a mutually acceptable agreement regarding the matter in question.

  • The matter is resolved at a hearing date.

How Do Child Support Modifications Work?

A common form of modifications related to child custody concerns involve child support, and the legal requirements for such changes are exacting, including:

  • The child support order that is currently in place was either established or modified at least three years ago.

  • If a modification were to be granted, the change in the monthly support would amount to at least a 20 percent (or $100) differential (in accordance with child support guidelines).

Alternatively, there must have been a material and substantial change in circumstances in order for a child support modification to be set.

How Do I Know if a Change in Circumstances Reaches the Level of Material and Substantial?

In order for the change that drives your request for a child support modification to reach the level of a material and substantial change, one of the following must apply:

  • The income of the parent paying child support must have increased or decreased significantly.

  • The parent paying child support must have become legally responsible for one or more additional children.

  • The medical insurance coverage of the involved children must have changed.

  • Your children’s living situation must have changed (for example, they now live primarily with you).

If none of these apply, you will need to wait the requisite three years before applying for a child support modification.

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.

One-Year Wait

In order to modify your current child custody arrangements, you will generally have to wait at least one year from your original orders (or a prior modification) – unless extraordinary circumstances apply. Again, these extraordinary circumstances mean that you must have experienced material and substantial change in circumstances (regarding yourself and/or your children) that supports a modification.

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. Finally, if you believe that your current child custody arrangements endanger your child’s physical health and/or emotional development, the one-year wait period does not apply. Examples of extraordinary circumstances include:

  • A significant change in the custodial parent’s health

  • The custodial parent’s remarriage (and the marriage’s significant effects on the children)

  • A parent’s move that renders the current access schedule unworkable

  • Any incidents of child abuse or domestic violence

Best Interests of the Child

Ultimately, the court will only grant a child custody modification if it is considered to be in the best interests of the child or children involved and one or more of the following apply in the situation at hand (barring extraordinary circumstances):

  • The child is at least 12 years old and expresses his or her preference in the matter to the court.

  • The primary custodial parent relinquished his or her primary custody to someone else for at least six months (for any reason other than military service).

Regarding the child’s preference, the judge will likely interview him or her 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.

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/or 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.

Your Child Custody Arrangements

Child custody modifications are in response to your original child custody arrangements, which makes taking a closer look at these original arrangements an excellent idea. In Texas, child custody is now called conservatorship and possession of and access to the child, but the underlying meanings have not changed. At its core, child custody in Texas is broken down into both legal and physical custody.

Legal Custody

Legal custody refers to who will be making the overarching parenting decisions moving forward. These are the kinds of decisions that affect the following:

  • Your children’s health care

  • Your children’s education

  • Your children’s religious upbringing

  • Your children’s extracurricular activities

You and your ex can make these decisions together (one of you may be awarded tie-breaking authority for those decisions that lead to an impasse); one of you can make them on your own, or you can divide them between you according to the category of decision that is being made. 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.

Physical Custody

Physical Custody concerns itself with visitation – when your children are with you and when they are with their other parent. 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 that include:

  • One of you 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.

  • You and your ex divide your parenting time evenly or nearly evenly between the two of you.

When physical custody is determined by the court, a wide variety of factors are taken into consideration (underneath the umbrella of the children’s best interests), including:

  • The children’s ages

  • The physical and emotional needs of the children

  • The stability of the home in question

  • The level of cooperation between both parents

  • Each parent’s level of parenting skills

  • The parent who has been the children’s primary caregiver

  • The children’s preferences (for those who are at least 12 years old and are mature enough to weigh in)

  • The matter of keeping siblings together

  • The overall fitness of each parent (including any reports of abuse or family violence)

  • Any false reports of child abuse

You Need an Experienced Killeen Divorce Lawyer on Your Side

Brett Pritchard at The Law Office of Brett H. Pritchard – proudly serving Killeen, Texas – is a well-respected divorce lawyer who recognizes the immense significance of post-divorce modifications and has the experience, legal insight, and skill to help. We are on your side, so please do not hesitate to contact us online or call us at 254-501-4040 for more information today.

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