Reasons for Modification of Child Custody Court Orders

In Texas, a court will hear a motion to modify an order establishing conservatorship or possession and access of a child if the modification will be in the best interest of the child, and in the following circumstances:

1. There has been a material and substantial change in circumstances of the child, conservator, or other party affected by the court order;

2. The child, who must be at least 12 years old, has filed with the court, in writing, the name of the person whom they prefer to have the exclusive right to designate their primary residence; or

3. The conservator who has the exclusive right to designate the child’s primary residence as set out in the order, has voluntarily relinquished the primary care and possession of the child to another person for at least six months.

Examples of material and substantial change in circumstances vary from case to case. However, courts have concluded that the following incidences may constitute a material and substantial change:

1.  A change in residence of the conservator,

2.  A change in income,

3.  Family violence,

4.  Incarceration of one of the parties,

5.  Remarriage by a parent,

6.  Poisoning the child’s mind against a parent,

7.  Mistreatment of the child by a parent or step-parent, and

8.  Voluntary relinquishment of the conservator’s right to possession and access to the child.

Case law suggests that voluntary relinquishment is not the same as abandonment, and at least one court has suggested that voluntary relinquishment occurs when the conservator’s actions are contrary to the court’s possession and access order.

Of course, certain other factors are also to be considered when looking at the above situations, and it is always best to contact an attorney for a proper evaluation of the facts of your case. The main thing to remember is that the court will always take into consideration the best interest of the child when reviewing any motion to modify before rendering a decision.

Once the Motion to Modify is filed with the court, a hearing date will be set. That's when you will have the opportunity to explain to the judge why you believe the existing court order should be modified. Of course, the judge will not hear your case until the opposing party has been served with notice of the hearing date. At the hearing, both sides will have the opportunity to present their versions of the facts. Then the judge will enter a ruling based on the testimony, the evidence submitted, and the argument of each party’s attorney.

If you have questions regarding child support, visitation, enforcement or modification of court orders, or any other family law matters, please call our office. We want to help you.