Motion to Modify Custody and Visitation Order in Texas

In Texas, child custody is referred to as “conservatorship.” A person’s relationship with their child, when established by a court order, is described as “custody” and “conservatorship.” An individual to whom a court grants custody of a child in a court order is called a “conservator.”

Texas child custody decisions may result in any of 3 kinds of conservatorships:

• A joint managing conservatorship
• A sole managing conservatorship
• A possessory conservatorship.

Texas law provides that in most child custody decisions, parents should be made “joint managing conservators.” In this type of conservatorship, the parents share decision-making about most issues concerning the child, including their education and healthcare. This does not mean the child’s time is divided more or less equally between the parents. A possession order specifies the schedule for how the child’s time is divided between the parents.

A joint managing conservatorship is not ordered in cases in which one parent has a history of domestic violence.

Courts usually give one parent the right to determine where the child lives. The child usually lives mostly with this parent, and the other is the non-custodial parent. In some joint conservatorship orders, neither parent will have the exclusive right to decide where the child lives, but the child’s residence is restricted to a certain geographic area, such as a school attendance zone or county.

In cases in which it is justified, one parent may be declared the sole managing conservator. Most decisions about the rearing of a child may be made by a sole managing conservator.

A court might declare one parent as the sole managing conservator for any of the following reasons:

• The other parent has perpetrated family violence
• The other parent has engaged in child abuse or neglected the child
• One parent has suffered from alcohol or drug abuse
• The other parent has been absent from the child’s life.

An individual may get a court to modify an existing order regarding custody and visitation in Texas, or “conservatorship” and “possession” in that state’s special terminology if they are able to show a “material and substantial change in circumstances” since the time the order was first issued. Texas law lists some of the changes that would serve as justification for changing a custody or visitation order. Texas courts have also found changes other than those listed in Texas statutes that justify modification as well.

In addition, someone who wants to modify an existing custody or visitation order must show the court that changing the orders meets the child’s best interest standard in Texas and that at least one of the following is true:

• The parents agree to the proposed changes. For example, the custodial parent may agree to give up custody to the other parent.
• The circumstances of the child or the parents have changed in a substantial and material way.
• The child is at least 12 years old and tells the judge in the judge’s chambers outside the presence of their parents that they want to live with the other parent.
• The parent who has primary custody (who is not on active military duty) has allowed someone else to have primary care and custody of the child for at least 6 months.

A parent’s suit to modify custody or visitation may be done by agreement if the 2 parents agree about all of the issues involved, i.e., custody, a visitation schedule, and child support. In addition, both parents must be willing to sign the forms required for Texas child custody modifications. A modification can also be achieved if one parent is served with a modification lawsuit by the other and does not respond or appear in court.

If one parent files a modification lawsuit and the other parent files an answer and refuses to sign an order to modify custody or visitation, then the lawsuit is contested. In a contested case, the parent who has filed the lawsuit must set the case for a court hearing, giving the other parent notice of the hearing at least 45 days before it is set to take place.

A parent who is facing a contested modification hearing would want to have a legal consultation with a local attorney in Texas attorney well before the hearing date to help them prepare for it.

When Can You Modify a Custody or Visitation Order?

In Texas, a parent may seek to modify a custody or visitation order any time they believe that there has been a material and substantial change in their circumstances that affects the parents or the child and would justify a change.

If a parent’s order is from another state or country, a parent may register it with the appropriate court in Texas. This process may be referred to as “domesticating a foreign order” or “registering a foreign order.” The process of “domesticating” or “registering” allows a Texas court to both enforce the order if necessary or modify it per Texas law.

How to File a Petition for Modification of Child Custody or Visitation Order

A parent must file a modification lawsuit in the court in the county where the child lives. A court may modify an existing custody, visitation, child support, or medical support order at the request of either parent if they file a modification case, the change is justified, and it would serve the best interests of the child.

Even a person who is not a child’s parent may file a modification case if one of the following is true:

• The current order lists them as a party.
• They have had actual possession of the child for at least a 6-month period that ended not more than 90 days before the date on which they file the modification case, and they are not a foster parent.
• They have lived with the child and the child’s parent, guardian, or conservator for at least 6 months, ending not more than 90 days before the date they file the modification case, and the parent, guardian, or conservator has passed away.
• They are the child’s grandparent, great-grandparent, sister, brother, aunt, uncle, niece, or nephew, and one of the following is true:
  • Both parents are deceased.
  • Both parents, a sole surviving parent or a managing conservator, agree.
  • The present circumstances in which the child lives could lead to significant harm to their physical health or emotional development.

What Are Temporary Child Custody Modifications?

In Texas, a parent who seeks a court order regarding child custody, visitation, and/or child support would file a Suit Affecting the Parent-Child Relationship (SAPCR). In deciding an SAPCR, a judge makes an order regarding the issues presented by the case, i.e., custody, visitation, child support, medical support, and dental support.

These cases may take quite a bit of time to come to a conclusion. While a parent’s case is in process and the parties are waiting for a final decision and order, they may need temporary orders about child custody, visitation, and child support. In this case, one or both parents may ask for temporary orders.

Either parent in a family law case may seek temporary orders with a motion for temporary orders. If a motion or motions are filed, the judge holds a hearing which both parents have a right to attend. Both parents may present evidence and arguments. The judge then issues temporary orders that remain in effect until final orders are issued. Of course, temporary orders may be modified, as may final orders.

Do I Need a Lawyer To Modify a Child Custody or Visitation Order?

If you live in Texas and need to modify your child custody or visitation, you want to contact a Texas child custody lawyer. LegalMatch.com can connect you to a local Texas lawyer who is familiar with the special terminology and laws that apply to custody and visitation in that state. You will get the best possible outcome if you have a Texas child custody lawyer on your side.