Can I Change my Child Custody Order?

Feb 18, 2024 | Child Custody

So, you have a child custody (or conservatorship) order. It was arrived at either by initial agreement of the parties, informal negotiation, mediation, or after a trial. And now, one of the parties wants to change it. Can that be done?

It is widely reported that each of the United States, and each territory of the United States of America, provides for modification of child custody orders under certain circumstances, such as a substantial change in the circumstances of a child, parent or other relevant party. The requirements for doing so vary from state to state. I am licensed to practice law in the State of Texas, and in no other. Accordingly, my comments will focus on, and be limited to, Family Law proceedings within the Texas court system. While these comments may or may not also apply to another state or territory, it is important for a party who is considering this issue to be advised by an attorney who is properly licensed within the relevant state.

In Texas a final “custody”[1] order may be changed under a few different conditions which may have arisen since the last custody order was entered[2]

The most common reason that a child custody order is changed is because of changed circumstances of a child, parent, or other party. The change(s) must be material and substantial, to the extent that the current order is no longer in the child’s best interest. Further, case law provides that the change must be something not anticipated by the current order. So, for example, the mere fact that a child has aged, and/or is in a different grade or school is not, by itself, a sufficient change to warrant a modification of custody. An example might by the child’s development of a learning disability or emotional condition that negatively affects the child; and, further, which is unacknowledged, or unaddressed, by the parent currently having “custody.” The types of changes that may be material and substantial vary from family to family. The question is whether that change is something that should be addressed by the court, because the current orders do not properly address it.

Another reason why a custody order can be changed is the designation of a child who is twelve (12) years or older. A child of that age may express his or her wish regarding custody. Importantly, because the best interest of the child is still the required finding for the custody change to be made, the court does not have to follow the wishes of the child. A child might prefer a parent who does not ensure that school assignments are completed; or, one who allows the child to abuse drugs or alcohol. It is unlikely the court would find the child’s desire to be in his or her best interest in those circumstances.

Finally, custody may be changed if the parent with custody voluntarily relinquishes possession to another, for six (6) months or more, unless that relinquishment was due to the parent’s military service. Of course, the child’s best interest is still paramount.

Child custody matters can be emotionally fraught. Having a good emotional support system, along with wise legal advice, can be helpful in getting though that minefield.

Until next time, take care of each other, and love those kiddos!

 

[1] ”Custody” in not a formal term used within the Texas Family Code. Arther the term “conservatorship” (a Trust term) is used to describe those entrusted with the care of a child or children. And, the right to designate the Primary Residence of a child is awarded to one of the conservators. Being a conservator who has that exclusive right is the equivalent of what most people think of when they used the term “custody.” So, for ease of understanding, it will be used herein.

[2] If the change of “custody” is sought within one year of the entry of the effective order, then there are additional circumstances that must be shown, besides what is discussed herein today, This is a topic for a future post, so stay tuned!

What are the Different Types of Child Custody? (Part 2)

Sep 18, 2022 | Child Custody, Family Law

This is the second installment in this series. We previously discussed the allocation of parental rights, in Part 1. If you have not read that one already, or if you have, but need a refresher, please check-out that post.

Today, we will discuss the ways that possession of a child may be allocated between parents.[1] The presumption is that one parent should have “Standard Possession” of the child(ren) who are 3 years of age, or older; and, that the other parent should have possession during the balance of the time.[2] Many of us are already familiar with the concept of parents sharing weekend possession, with Mom having one weekend, and Dad having the next one.[3] Similarly, it is fairly common for folks to be familiar with the idea of splitting the Summer between the two parents. What may be unknown is the allocation of time on each child’s birthday; the allocation of holidays and Spring Break. All of those are covered by the Standard Possession Order.

But, what about when the child(ren) may not be safe, or properly taken care of, if they are with one parent for a weekend, or even, overnight? If sufficient evidence is presented to the court demonstrating that Standard Possession is NOT in the best interest of the child(ren), then the court can enter whatever possession times, terms, and conditions, that the court finds to be in the kiddos’ best interest. Sometimes, that will mean (as in the case of young children, or a parent who s unable to properly supervise a child during an extended period of time) that the parent’s possession periods will be shorter; perhaps, not overnight, for example. In other cases, such as when a parent is using illegal drugs, abusing alcohol in the possession of kids, or abusing and/or neglecting children, the possession may be supervised by someone, or some organization, appointed by the court.[4]

There are other terms that the court may impose on the visitation. The court may, e.g., require the parent to confirm that (s)he intends to actually use the allocated visitation period (this requirement may be imposed when a parent has routinely failed to use allocated visitation). Or, the court may require the parent to pass a drug test, or use an Intoxylizer device, or Sober Link service, to prove sobriety. If the child is unsafe in the presence of a person other than a relative (such as a girlfriend, boyfriend, or uncle), then the court may impose the condition that the children not be taken into, nor allowed to remain within the presence of that person.

The court is charged with making orders in the best interest of the children coming before it. It has broad discretion to craft such orders that will keep those children safe and properly cared for.

Until next time, keep loving those kiddos!

 

[1] Since I am licensed to practice law in Texas, that is the jurisdiction that I will discuss.

[2] The presumptions regarding Standard Possession recently changed. We will not discuss those changes in detail here, but it is discussed here.

[3] Technically, this is accurate during the eight (8) months of the year in which there are only four weekends. On those four (4) months per year having five (5) weekends, the parent having Standard Possession is awarded the fifth weekend.

[4] Ideally, the Supervisor would be a safe relative, so that the visitation is not awkward nor “weird” for the kids. If not, then a professional Child Supervisor, such as an off-duty Sheriff’s Deputy, may be hired to monitor the visits.

Copyright © 2024Heiman Law Firm. All Rights Reserved. Website by Butler I. T. and Higher ADvantage

When to Consider Divorce (Part 2)

May 14, 2018 | Divorce

Committed relationships, such as marriages, are bedrock institutions of our society. When these relationships are healthy, they provide us with joy, contentment, stability, connection, and opportunities for personal growth. But, unfortunately, not all such intimate relationships become, and remain, healthy for both partners. Continuing with our series, we will discuss today some additional warning signs, or bad omens, for marriages.

According to Sonja Lyubomirsky, Ph.D., Social Psychologist at the University of California, Riverside, and author of “The How of Happiness: A Scientific Approach to Getting the Life You Want,” being married is correlated with being happy: married people are more happy than unmarried people are1. And so, trouble in a marriage may manifest in the early stages as a state of uneasiness, dissatisfaction, or chronic unhappiness. This may or may not be accompanied by the feeling that there is no value in the marriage.

These feelings may result from something as benign as a gradual drifting apart of the parties, or, something more malignant, such as some form of abuse2. Or, the feelings may arise in other ways that are instrumental in a spouse’s coming to feel unvalued, unappreciated, untrusted, constantly questioned or criticized. In any of those cases, the lack of an underlying happiness and satisfaction is a signal that the marriage is in trouble.

When one or both partners begin to feel dissatisfied with the marriage, then it is important for those feelings to be addressed. If the spouses’ talking-out the causes of the unhappiness or dissatisfaction does not seem to resolve the problem(s), then enlisting the help of a professional may be beneficial. While it might feel pointless or hopeless to try to further work on the lack of meaningful connection at this point, it is worth noting that if the partners can look back and remember good times, then, according to Susan Heitler Ph.D., the marriage, or other committed relationship, can be saved and strengthened.

Importantly, the American Association for Marriage and Family Therapy reports that most couples who have attended marriage counseling report high levels of satisfaction with the process. While marriage counseling requires each partner to work on himself or herself (rather than just blame the other spouse, and wish for his or her change), the end result can be the satisfaction, fulfillment, and happiness that flow from a happy, healthy marriage. Given as much marriage counseling is often worth doing, for those spouses who have not already given-up on their marriage.

Previously, I wrote about When to Consider Divorce (part 1), and noted that “[m]arriages are worth fighting for when they support us and our spouses…. If the spouses are committed enough to address [their] issues, then the marriage is worth fighting for.” You will find a discussion of some bad omens for a marriage in that earlier writing, so you might want to check it out.

1 It is also true that happy people tend to attract the types of partners with whom they might build a long-term, satisfying relationship

2 Abuse is not always physical; and, other forms of abuse can be just as damaging, or more so, than physical abuse is.

Copyright © 2024 Heiman Law Firm. All Rights Reserved. Website by Butler I. T. and Higher ADvantage