Can a Child Custody Order be Modified Before One Year?
To minimize disruption to a child, the majority of child custody agreements must remain in place for a minimum of one year before a modification can be requested. However, there are some circumstances where a modification can be secured sooner.
Circumstances that could justify an early modification of the child’s primary residence include:
- There is evidence that the child’s safety is at risk
- Someone other than the primary custodian has been the primary caregiver for six months or more
- The person with primary custody is requesting the change or agrees to it
Who Can File For A Child Custody Modification?
In most cases, either parent can file for a modification. In some circumstances, there are people other than the child’s parents who can file, such as:
- Any individual who is listed on the current child custody order
- A family member of the child, such as a sibling, grandparent, great-grandparent, aunt, uncle, niece, or nephew. This is only permissible in cases where both parents are dead, there is a risk to the child’s physical or mental health, or if the managing conservator or both parents agree.
- A person who has had actual care and possession of the child for six months or more, within 90 days of filing, and who is not a foster parent
- Someone who has lived with the child’s parent or guardian for six months or more within 90 days of filing if the child’s parent or guardian has died
How Do I File For Child Custody Modification?
In order to file for a child custody modification, you will need to file in the same county where the current order was made. A family law attorney can help you fill out the necessary paperwork and evidence your grounds for modification.
If your child has lived in a different county for six months or more, then you can ask for your case to be transferred to the current county after initially filing with the county where the order was made. If you are filing across state lines, or if your original order was not filed in Texas, then this can further complicate things. Family law is largely dictated by state law, and so you will be moving your case to a new jurisdiction. An attorney can help you navigate the legal system to minimize the stress involved.
Different Types Of Child Custody Modifications
Before you file for a child custody modification, you will need to know what type of modification you are applying for. In Texas, there are three types of modification, contested, default, and agreement.
Legal representation can be beneficial regardless of the type of modification you are seeking. However, if you are filing for a contested modification, then representation is even more important as you will be fighting against another party who disagrees with you.
Contested Modification
It is common for separated parents to disagree on key issues such as child custody. If parents do not agree that a modification needs to be made or what it should look like, then after one party files a modification, the other could refuse to sign it.
When a modification is contested, a hearing will be scheduled so that the court can make a final ruling. The party contesting the modification must be given at least 45 days’ notice of the hearing. This gives them time to prepare for the hearing. Often, they will also have legal representation. Whether you are the fling party or the person contesting a modification, a family law attorney at Skillern Firm Divorce & Child Custody Lawyers can help you prepare for the hearing and give you the best chance at a favorable outcome.
If your case is contested, then an attorney will prove invaluable. You will need strong evidence to support your case, and you may be up against the other party’s legal representation.
Modification By Agreement
If both parents agree to the modification, then securing a modification is a little easier. The Judge will review the proposal, and so long as the change is in the child’s best interests, it is likely to be approved.
Modification By Default
When one party wants to modify a child custody order, the other will receive the proposed change. They will then have 20 days to respond either by agreeing to the terms or contesting them.
However, if the other party fails to respond within 20 days, the Judge will review the modification to determine whether it is in line with the Texas Family Code. If it is, then they are likely to approve the modification by default.
If you have been served modification papers, then it is important to respond so that your voice can be heard. If you are unsure about whether to accept or contest a modification, then you should contact a family law attorney. It is important to take the matter seriously, as any modifications will be legally binding and cannot easily be changed.
What Are The Grounds For Modification In Texas?
In Texas, a modification suit may be approved under the following circumstances:
- There has been a substantial change in the circumstances of one of the individuals involved in the order, such as an illness or relocation
- If the child is over 12 years old and wishes to change their primary custodial parent, then the court may consider a modification (the change still needs to be in their best interest)
- Both parties agree to the modification
- The child’s present circumstances could negatively impact their physical health or emotional development
- The individual with primary custody has voluntarily relinquished caregiving responsibilities to another adult for six months or more
Substantial Change In Circumstances
The most common justification is a substantial change in circumstances. The court will look at each case individually to determine whether this requirement is met. It is a broad term, but some common justifications include remarriage, parental conflict, a change in the child’s physical health, relocation, or interference with parenting time.
Interference With Parenting Time
Sometimes the custodial parent may try to interfere with allocated parenting time as a way to get back at the other parent. For example, perhaps one parent has missed child support payments, and the other responds by refusing parenting time. This is never acceptable; visitation is a court order and should be adhered to.
If one parent tries to interfere with the parenting schedule, then it could be grounds for a custody modification. The parents will be expected to review the schedule and try to come to an agreement. If they cannot, then they will need to file for a contested modification.
If you are being refused parenting time, then you should speak to a family law attorney as soon as possible. You have parental rights toward your children, and it is important to protect the parent-child relationship.
Parent Relocation
If either party named in the child custody arrangement is planning to relocate a fair distance from where they currently reside, then this could make a current order unmanageable.
As a result, relocation could justify a child custody modification. However, the court will first consider whether both parties have tried to communicate to make the current order work. The court will also consider the motivation for moving and how it will impact the child. For example, if the child has close relationships with extended family and friends, then relocation may not be in their best interests.
If you are hoping to relocate, then you should seek help from an attorney who can help you secure the modification you need. Alternatively, if your partner is hoping to relocate and you are concerned about your continued relationship with your children, then you should also seek representation to ensure that your parental rights are protected.
