The circumstances of a child or parent will often change after entry of a final decree of divorce.
This article provides a discussion of when a court might modify the possession order regarding child custody after a divorce.
You can follow this link to learn more about the General Rules for Child Custody.
I previously wrote about Modifying Child Support.
Grounds For Modifying Child Custody
The Texas Family Code provides three different grounds for modifying a prior possession order on child custody:
- The circumstances of the child, parent, or other party have materially and substantially changed since the earlier order;
- The child is at least 12 years of age and has expressed his or her desire for a parent to have primary custody; or
- The parent with primary custody has voluntarily relinquished the primary care and possession of the child to another person for at least six months.
In Texas “primary custody” means the parent with the exclusive right to designate the primary residence of the child.
Best Interests Standard Still Controls
In addition to proving one of the grounds above, you must show that any requested modification would be in the best interests of the child.
Even if circumstances have changed for a parent, a court can deny a requested modification if the modification would not be in the best interests of a child.
A common example of this problem is a parent whose possession order includes a geographic restriction and that parent receives a better job offer in another geographic area.
Showing an increase in income for the parent through new employment would likely satisfy the substantial and material change standard.
However, the parent would also have to show that lifting the geographic restriction and relocating the child away from the other parent would be in the child’s best interest. That is not easy.
Restrictions on Modification of Child Custody
The Texas Family Code provides additional restrictions on anyone seeking to modify child custody under one of the grounds discussed above.
For example, if a parent serving in the military who is called to duty that is not a substantial and material change in circumstances by law.
If a parent seeks to modify who has primary custody of the children within one-year of a prior order, then that parent must prove additional circumstances warrant the modification such as family violence or the wishes of the child.
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