Child Custody - Modification

 

The term “Custody Modification” is basically a misnomer. The things that are actually established by a final order and for which a modification is generally sought are Conservatorship, Possession of, and/or Access to a child.

Any order involving the Conservatorship, Possession of, or Access to a child is subject to modification by the court. Because of a concept known as Continuing Jurisdiction, unless the child’s residency has been changed since the order, the court that entered the prior order is the only court with jurisdiction to hear the modification. As with any matters involving children, the standard to be used by the court is that known as the Best Interest of the Child.

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Any order involving the Conservatorship, Possession of, or Access to a child is subject to modification by the court. Because of a concept known as Continuing Jurisdiction, unless the child’s residency has been changed since the order, the court that entered the prior order is the only court with jurisdiction to hear the modification. As with any matters involving children, the standard to be used by the court is that known as the Best Interest of the Child.

Unless the parent with the right to determine residency voluntarily relinquishes the primary care and possession of a child to another person for over six months, or the child is over 12 years of age, in order to be eligible to maintain a modification action, the petitioner needs to plead and prove that the circumstances of the child, a conservator, or other party affected by the order have materially and substantially changed since the prior order or mediated or collaborative settlement agreement.

 

If a child is 12 years of age or over, the child can be allowed to voice his/her choice of parent who they wish to reside with and the prior order can be modified without the necessity of a ‘substantial and material change” in circumstances.

Once a modification action is filed, the court may render temporary orders, however, there are limits. While a suit for modification is pending, the court may not render a temporary order that has the effect of changing the designation of the person who has the exclusive right to designate the primary residence of the child under the final order unless:

 

One

The order is necessary because the child’s present living environment may endanger the child’s physical health or significantly impair the child’s emotional development;

Two

The person designated in the final order has voluntarily relinquished the primary care and possession of the child for more than six months and the temporary order is in the best interest of the child; or

Three

The child is 12 years of age or older and notified the court of the person who is the child’s preference to have the exclusive right to designate the primary residence of the child and the temporary order designating that person is in the best interest of the child.


 

If the final order sought to be modified was based upon a mediated or collaborative law settlement agreement, there are special rules which govern the situation. If the motion to modify is filed prior to one year after the signing of the settlement agreement, the petitioner must execute and attach an affidavit either:

(1) that the child’s present environment may endanger the child’s physical health or significantly impair the child’s emotional development;

(2) that the person who has the exclusive right to designate the primary residence of the child is the person seeking or consenting to the modification and the modification is in the best interest of the child; or

(3) that the person who has the exclusive right to designate the primary residence of the child has voluntarily relinquished the primary care and possession of the child for at least six months and the modification is in the best interest of the child.

Seeking or defending a modification of Conservatorship, Possession, or Access can be a complicated and involved process. Conducted properly, it generally involves at least the contemplation of an enormous amount of discovery. Competent and creative legal assistance is necessary in order to successfully navigate through a modification action.

As with any case, it is also important to have an attorney familiar with the court and judge for whom you we be before, so whether it is Tarrant County, Hood County, Johnson County, Somervell County, Erath County, or Parker County you can have confidence to know that our office handles a multitude of cases in these courts.