Category Archives: Child Custody

Can I Change My Child Custody Order After Divorce?

Yes – you can seek to modify the child custody (possession) portion of your final decree of divorce after your divorce.

This article provides information on common situations in which a parent may seek to modify their child’s possession schedule as well as the legal requirements to successfully get a modification.

A parent may also seek to modify a prior modification order as well.

Why Parents Seek Modifications

There are almost limitless reasons a parent may seek to modify the possession schedule for their children that was originally established in their final decree of divorce.

Modifications are common after divorce if parents divorce when their children are young because a lot can change in 18 years for both parents and children.

Some common reasons a parent might seek to change their child custody order include:

  1. a change in a parent’s work or work schedule;
  2. a change in the child’s schedule;
  3. the other parent no longer participate’s in the child’s life;
  4. the child’s health or safety is at risk;
  5. there is a change in the environment the child lives in while in either parent’s possession; or
  6. a parent is moving for work or other reasons.

Legal Grounds For Modifying Child Custody

In Texas, there are three different grounds by which a parent can seek to modify their child possession order.

The first is if the circumstances of the child or a parent have materially and substantially changed since the final decree of divorce or a prior modification order was signed.

The second ground is if the child is at least 12 years of age and expresses to the court that the child prefers that a different parent have the exclusive right to determine the child’s residence.

The third ground is if the parent who has the exclusive right to determine the primary residence of the child in the prior order has relinquished primary care and possession of the child for at least six months.

No matter which ground a parent seeks to modify the possession order under, the parent seeking modification must also show to the court that the modification sought is in the best interest of the child.

Does My Child Get To Decide Which Parent They Will Live With?

Child custody is always a contentious issue in any divorce. One of the more common myths I hear from prospective divorce clients is that their child is over the age of 12 and wants to live with them so custody isn’t an issue.

That simply isn’t true as I will explain below.

A Quick Note On Conservatorship Versus Possession and Access

Let’s take a moment to look at the difference between conservatorship as opposed to possession and access under the Texas Family Code.

In simplest terms, conservatorship refers to decision making authority.

Possession and access refers to having physical possession of the children during defined periods of time. This is more of the traditional understanding of custody.

The Significance Of Your Child Being 12 Years Old In A Divorce

So where does that myth I discussed above come from? It comes from a misunderstanding of what the law says.

The Texas Family Code provides that upon application of a parent, the judge shall interview a child age 12 or older in chambers on the issues of conservatorship or which parent should have the right to determine the child’s primary residence.

The Texas Family Code provides that upon application of a parent, the judge may interview a child under the age of 12 in chambers on the issues of conservatorship or which parent should have the right to determine the child’s primary residence.

The law also provides that upon application of a parent, the judge may interview a child in chambers to determine the child’s wishes on the issues of possession, access, or any other issue affecting the parent-child relationship.

But The Judge Still Decides

The judge will still be the ultimate decision maker on the issues of conservatorship, possession, and access. The legal standard for making that decision is what is in the best interests of the child.

The child’s wishes as expressed to the judge during any interview are merely one factor that the judge can consider in making a decision.

When Will The Child’s Wishes Carry More Weight?

There are a number of circumstances in which the child’s wishes will carry more weight.

For example, an older teenager’s wishes will carry more weight for the simple reason that it is difficult for a court to control the child.

If you tell a 17 year old with a car that he has to live with dad but he wants to live with mom – guess whose house he will end up at regardless of what the court says?

The weight of the child’s wishes will also depend on how well thought out the child’s decision making appears to the judge.

A child stating that he or she wants to live with one parent over the other carries more weight if it is supported by well thought reasoning.

The judge will not simply ask which parent the child wishes to live with but also attempt to explore the reason behind that decision.

This leads to another factor – the child’s wishes will carry less weight if it appears to the judge that they are based on inappropriate influence from one parent or the other.

For example – telling a child that you will let him play video games all day if he tells the judge that he wants to live with you is a bad move.

One More Note Of Caution

Children tend to be a lot smarter than parents give them credit for both intellectually and emotionally.

Children know when a divorce is happening. They see the discord and conflict between parents. They see the emotional toll it takes on mom and dad.

Most of them have friends with divorced parents so they know at some point they will end up living with mom or dad.

It is not uncommon for a child to try to cheer up a parent by telling them that they want to live with them – even while telling the other parent the exact same thing. The child is merely trying to keep their parents happy.

So even if your child assures you that you are the parent they want to live with – be careful asking for them to testify as you do not know what they will say to the judge.

You should evaluate the child custody issues objectively understanding that the child’s opinion is one factor and the the ultimate decision will be based on what is in the child’s best interests.

Can I Revoke The Other Parent’s Visitation Rights If They Do Not Pay Child Support?

The short answer is no, you may not revoke the other parent’s custody rights with the child if do not pay child support in Texas.

I’ll explain in more detail below but note first that this issue is not limited to divorce cases in Texas.

For example, child support and custody may be determined through the Attorney General’s office without filing for divorce or those issues may be determined among unmarried parents.

In divorce cases, this issue may arise during the divorce proceeding when the parties are operating under temporary orders or after the court issues a final decree of divorce.

In any of these situations, the answer remains the same: one parent cannot prohibit the other parent from custody of a child because the other parent failed to make child support payments.

Texas’s Public Policy On Custody

Texas public policy for child custody, whether related to a divorce or independent of a divorce, is as follows:

  1. to assure that children will have frequent and continuing contact with parents who have shown the ability to act in the best interest of the child;
  2. to provide a safe, stable, and nonviolent environment for the child; and
  3. to encourage parents to share in the rights and responsibilities of raising their children after the parents have separated or dissolved their marriage.

These public policies are independent from and in addition to a parent’s rights and duties under Texas law.

A Parent’s Duty and Rights Under Texas Law

I wrote previously discussing all of a parent’s rights and duties under Texas law.

In answering the question posed above, there are two particularly relevant rights and duties:

(1) the right to have physical possession, to direct the moral and religious training, and to designate the residence of the child;
….
(3) the duty to support the child, including providing the child with clothing, food, shelter, medical and dental care, and education;

Texas Family Code section 151.001(a)

As you can see, the duty to support his or her child and the right to possession and access of that child are separate under the law.

Texas Law Prohibits Conditioning Visitation On Payment Of Child Support

Texas law specifically provides as follows:

A court may not render an order that conditions the right of a conservator to possession of or access to a child on the payment of child support.

Texas Family Code Section 153.001(b)

The rights of visitation and child support belong to the child and are independent rights.

This means that an order in a divorce or child custody case cannot condition a parent’s visitation rights on whether or not that parent pays child support.

This also prohibits conditioning the payment of child support on the child’s consent to visitation with the other parent.

It also prohibits an order conditioning child support on whether the primary custodial parent allows visitation with the other parent.

What This All Means

In summary, a parent’s duty to provide child support as ordered by a court is a separate legal issue from that parent’s right to possession and access of the child.

This means that even if a parent is violating their duty to provide child support, that parent still has an independent right to visitation with the child that cannot be revoked or limited by the failure to pay support. The parent’s visitation right may not be limited by court order or by the other parent.

This also means that if a parent tries to revoke or limit the other parent’s visitation rights as ordered by the court, then that parent will find his or herself in violation of the court order as well.

General Rules of Child Custody in a Texas Divorce

This article is intended to provide a broad overview of the general rules governing child custody decisions in a Texas divorce. I will note that the law doesn’t use the term “custody” in a Texas divorce. Instead, the law uses terms such as “conservatorship,” “possession,” and “access.” Let’s begin by looking at the different types… Continue Reading

Key Child Custody Terms in Texas

The legal terms used in child custody proceedings are different from the every day terms such as “custody” and “visitation.”  This article provides definitions for some of the more common terms you will likely encounter during a divorce proceeding with children in Texas. If you would like more information on how child custody decisions are… Continue Reading