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How to Change Custody

Do you feel that the current possession schedule is no longer correct? Is the current possession schedule unfair? Have there been occurrences with the other parent that concern you? Do you feel that your child’s well-being or safety are jeopardized? Have things just changed since the divorce decree and you now need a revision? Do you want sole custody?

If any of these questions sound familiar, you may need to consider filing a custody modification request. The key to winning custody modifications is to understand the circumstances in which a change of a prior custody order can be granted. Trust the experienced attorneys at the Oberheiden Law Group, PLLC, and do what is right for your children.

Why You May Want to Change Prior Orders

Things have changed since the entering of your divorce decree, paternity decree, or since your last modification. The current parent child relationship does not work anymore. Perhaps one parent has moved, you learned something about the other parent you did not know before, alcohol or drug issues have come up, or your children have grown and they now express a desire to be more frequently or exclusively with you. Whatever prompts the need for change at this point, the attorneys at the Oberheiden Law Group will tell you how to change custody.

The Modification Process

Custody modifications follow a multi-part analysis. Initially, when the Court granted its current orders, the Court had to consider the best interest of the child to determine the primary parent and to decide on the possession schedule. Now, when it is time to update this old order, the Court must additionally be convinced that the circumstances since entering the last order have changed so “materially and substantially” that a modification is in the best interest of the children.

The modification process begins with filing a “Petition to Modify the Parent-Child Relationship”with the Court. Typically, one of the parents, called the Petitioner, will file said petition through his or her attorney. The other parent, called Respondent, must respond to the allegations, first in writing and then later in court.

The parent seeking modification often files a sworn statement with the petition that explains why modification is sought. In particular, the petitioner needs to explain how the present environment endangers the child’s physical health or impairs the child’s emotional development. At times, experts, such as social workers, child psychologists, or witnesses are called by the Court to verify or disprove petitioner’s statement. If, for example, you claim that the other parent is addicted to alcohol and that the addiction negatively impacts childcare, then the Court could order the other parent to undergo therapy or pass medical examinations. Depending on the severity of the addiction problem, the court could at least temporarily grant you sole custody, subject to the final examination results.

Grounds for Custody Modification

In Texas, contested modification of custody or visitation must establish that changes to the prior orders are in the best interest of the children and that circumstances have evolved that “materially and substantially” differ from the time the prior order was entered. What exactly constitutes “material and substantial changes” is an open question and subject to the Court’s discretion in each case. Before the Court can grant a modification, it must find:
1.  The modification is in the best interest of the child; AND
2.  The circumstances of the child, a conservator or a party affected by the order have materially and substantially changed since the order was signed by the court; OR
3.  A child over 12 years of age has filed with the court a written preference for a different primary managing conservator; OR
4.  The primary managing conservator has voluntarily given up care and possession of the child to another person for at least 6 months.    
A parent who files a motion to modify a child custody order within one year after that order was made must also submit an affidavit to the court. The affidavit must include at least one of the following allegations, along with the facts that support the parent's contention:
1.  The child’s present environment may endanger the child’s physical health or significantly impair the child’s emotional development;
2.   The person entitled to establish the child’s primary residence is consenting to or bringing the motion for the best interest of the child; or
3.   The person entitled to establish the child’s primary residence has voluntarily given care and possession to another person for at least 6 months and a change would be in the child’s best interest. 

The Role of Experts and Witnesses

Experts and witnesses can play an important part in modification proceedings. Child psychologists, psychiatrists, social workers and other experts bring expertise and objectivity to the proceedings. In more contested cases, a court may appoint, for example, a child psychologist, to observe how the children interact with both parents. If one child shows signs of anxiety or even fear the psychologist could draw important conclusions and report them to the court. The same is true for witnesses. The more independent (and less biased) a witness is, the greater the likelihood of persuasion. For example, the child’s schoolteacher, medical professionals, or social workers often serve as excellent witnesses in helping the court with modification rulings.

Examples for Successful Modifications

Grounds and reasons for modifications vary, and the experienced attorneys at the Oberheiden Law Group should first carefully assess each modification request. We always offer free consultations and we are happy to review your current possession order free of charge.

In general, it can be said that the law singles out child abuse and family violence as the strongest justifications for modifications. By the same token, occurrences of child neglect, abuse of drugs or alcohol, addiction to prescriptions, relocation, irresponsible parenting, and impulsive or aggressive behavior all form bases for serious concerns to the Court.

Texas law specifically says that a conviction or deferred adjudication for family violence or an offense involving abuse of a child constitute a material and substantial change in circumstances that will justify a modification. Even if the Respondent has never been arrested or convicted for family violence or child abuse, Texas courts will consider the allegations to protect the safety and well being of the children. Generally speaking, courts are less lenient when criminal activity is involved. If the children are targets or victims of such criminal activity, courts will do whatever necessary to protect the children against such exposure.

Defending Against Child Custody Modification

If you are thinking about fighting for custody of your children on your own, be careful! A judgment or order from a court will establish the rules that you must live by, maybe for the rest of your life. In a custody dispute, a parent not only risks the relationship with his or her children, but also the structure of the rest of his or her life. This is where a lawyer comes in. An experienced attorney will serve as a trustworthy guide to navigating the complicated and difficult situations that come up in a custody dispute. But in every case, your lawyer will fight for you and for your child’s best interests.

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© 2015 Oberheiden Law Group, PLLC | All Rights Reserved.
Pursuant to TDRPC 7.04(b)(1); Click to view Responsible Attorney. Attorney Advertising. Prior results do not guarantee a similar outcome. Contact

© 2015 Oberheiden Law Group, PLLC | All Rights Reserved.
Pursuant to TDRPC 7.04(b)(1); Click to view Responsible Attorney. Attorney Advertising. Prior results do not guarantee a similar outcome. Contact