Understanding Child Custody Modifications

silhouette of man and woman holding hands with a child held in cupped hands

Your child custody arrangements are a cornerstone of your divorce terms if you have children. Child custody terms also need to be determined when couples who have children outside of marriage break up.

The original child custody arrangements that you hammer out with your ex or that the court orders upon your divorce or breakup may address your circumstances at that time, but over the years, your own, your ex’s, and your children’s scheduling needs can change dramatically, and a child custody modification may be necessary.

If the terms of your child custody arrangements are no longer working for you and your kids, an experienced Killeen child custody attorney can help.

Child Custody Modifications

Child custody modifications can be made in relation to physical custody (how your children divide their time between you and their other parent), legal custody (how you and your children’s other parent address the matter of decision-making responsibility), or child support.

Child custody modifications are only made when there has been a material – or significant – change in the circumstances that guided your original child custody orders.

Common Reasons for Child Custody Modifications

Substantial changes in the circumstances of a parent or child are the most common reason for child custody modifications in Texas. While a move across town is not likely to require a child custody modification, a move out of state very likely would warrant a change in your custody order.

The court bases every decision that it makes in relation to children on their 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 with whom your children spend the majority of their overnights and you receive a job offer out of state that would allow you the resources 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.

Moves and schedule changes on the part of either parent or on the part of the involved children are often the motivation for child custody modifications.

Here are several other common factors that warrant a modification to the custody order:

  • A parent’s inability to continue caring for the children

  • A child –¬†who is deemed only enough and mature enough to voice a reasonable preference – expressing his or her preference to the court

  • Voluntary relinquishment of primary custody by the parent to whom it was originally awarded

  • A significant change in the health of either parent

  • Either parent’s remarriage (and the effects this new marriage has on the children)

  • Any incident of child abuse, neglect, or domestic violence

Common Reasons for Child Support Modifications

Child support modifications in Texas are based on substantial changes in either parent’s financial situation – or in the needs of the children. Such changes generally fall into one of two categories.

Three Years Have Elapsed

If it has been at least three years since the order that you currently have was established or last modified, and the difference in the resulting child support amount would be at least $100 (or a 20 percent change) – in accordance with the state’s child support guidelines, you may file for a child custody modification.

An Ensuing Change

If, since your child support was last set, there has been a substantial change in circumstances that directly affects child support, you may file for a child custody modification.

Some of the most common examples of substantial changes that result in child support modifications include the following situations:

  • The income of the parent who pays child support has either increased or decreased significantly.

  • The parent who pays child support has become legally responsible for additional children.

  • The cost of the children’s medical insurance coverage has changed.

  • The amount of time the children live with either parent has increased or decreased significantly.

A Note about Informal Modifications

Ultimately, if you need a child custody or child support modification, it is important to address the matter officially with the court. Any agreements that you and your ex make informally between you are not legally binding and do not override the court orders that are currently in place.

You can present your mutually agreed upon modification to the court, however, and it is almost certain to sign off on it. If you fail to make it official, however, you could be found in contempt of court if your ex changes his or her mind about your agreement.

Further, there is no way to enforce an informal agreement in court. If you need a child custody modification of any kind, it is in your own best interest to pursue one with the court, and you’re well advised to have a dedicated child custody attorney in your corner.

Best Interest Factors

As mentioned, when the court makes decisions that affect children, it always prioritizes the best interests of the children. As such, it turns to a series of best interest factors when making its determinations.

Each Child’s Needs

The court will carefully consider each child’s unique physical and emotional needs in relation to the child custody arrangements. This includes any special needs any of the children might have. Additionally, each child’s age and developmental stage 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 Parent’s Ability to Provide a Stable Home

The court recognizes every child’s need for a stable living environment, and it carefully assesses each parent’s ability to provide his or her children with a stable home. Other aspects of a stable home include the parent’s ability to maintain a reliable job and to hire dependable childcare providers.

Moving constantly, having a string of relationships, or being unable to keep a job can affect the court’s child custody decisions.

Each Parent’s Inclination to Foster the Other’s Relationship with the Kids

The court believes that it is to everyone’s advantage for children to maintain close relationships with both parents, and if one parent is more inclined to support the other’s ongoing close relationship with the children, it can influence the court’s ruling.

Risk to the Children

The court will carefully consider whether or not either parent presents a risk to the children. For example, if child abuse, child negligence, or domestic violence is a concern, the court will adjust its child custody modification ruling accordingly.

Each Parent’s Involvement with the Children

If a parent who has not had much contact with the children in the past requests a modification that allows him or her considerably more time with the children, the court is unlikely to be moved. If, however, the same parent has demonstrated his or her commitment to spending as much time with the children as possible, the court may be more amenable to the request.

Your history as a parent, in other words, can play a significant role in your ability to obtain a child custody modification.

Outside Support

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

It is important to note that if the children’s current home situation, school, and community are working well for them – and they 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.

Additional Factors

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.

Child Custody and Child Support Are Separate Matters

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.

Modification of Legal Custody

In addition to your parenting time schedule, a child custody modification can also address the matter of your legal custody. Legal custody determines who will be making the important parenting decisions going forward, such as those that determine the following:

  • Where your children go to school

  • The medical care your children receive

  • The extracurricular activities your children participate in

  • The religious education your children receive

Sometimes, one parent makes all these primary parenting decisions on his or her own, which means that he or she has sole legal custody. Parents, however, can also share joint legal custody in any of the following ways:

  • They can make the necessary decisions via mutual agreement.

  • They can make the necessary decisions via mutual agreement, but one parent can take on tie-breaking authority for those instances in which an agreement cannot be reached after putting in the necessary effort.

  • The decision-making responsibility can be divided between both parents according to the category of decision that needs to be made.

If there has been a material change that affects legal custody – since your legal custody terms were set – you can seek a modification.

At Least a One-Year Wait

In order to seek a modification of your child custody terms – that is based on a material change in circumstances – you will very likely need to wait at least one year since your original orders were handed down or since a prior modification was made.

The only exception is if extraordinary circumstances apply, such as a material and substantial change that affects either child custody or child support and that supports a modification. This change must have happened after the last order was implemented and cannot be a concern that existed prior to your current orders being implemented.

In other words, the court will not be moved by the evidence and information that formed the basis for your current orders – the material change must have occurred since those orders went into effect.

The Modification Process

The basic steps that go into a child custody modification include the following:

  • The parent who is seeking the modification must file the modification case in the Texas county in which the present order was handed down.

  • The parent who is seeking the modification must have the other parent served with the Petition to Modify the Parent-Child Relationship (unless you have come to a mutual agreement on the matter).

  • The parent who is served must respond to the service in a timely fashion, which is generally a very brief period.

Whether you are the parent who files the modification case or you are the parent who is served, you are well-advised to work closely with professional legal counsel from the outset.

Seek the Legal Guidance of an Experienced Killeen Child Custody Attorney

Brett Pritchard at The Law Office of Brett H. Pritchard – proudly serving Killeen, Texas – is a well-respected child custody attorney who dedicates his practice to helping clients like you resolve their child custody concerns favorably. To learn more, please do not wait to contact us online or call us at (254) 781-4222 today.