As life circumstances change, the custody agreement that you and your former spouse established may no longer be effective. If you have never considered modification before, you might wish to know what it takes to amend these orders.
What qualifies as a material and substantial change?
Texas uses specific legal terms that differ from those in many states. Instead of “custody” and “visitation,” the courts refer to these concepts as “conservatorship” and “possession and access.”
In this state, a judge will only modify a possession and access order if there has been a material and substantial change in circumstances since the court issued the original order. The shift must affect you, the other parent or your child.
Judges consider significant shifts in circumstances rather than minor adjustments to daily life. For example, moving across town usually is not enough, while relocating out of state or experiencing a major shift in work hours may meet the standard.
A modification may also be granted if the custodial parent voluntarily gives up primary care of the child for at least six months. In addition, a child who is 12 or older may tell the judge which parent they prefer to live with when the court is determining primary residence.
How to petition for modification?
To begin, you must file a petition with the court that has continuing, exclusive jurisdiction, which is typically the court that issued your most recent final order. If the case was later moved to another county, you must file with that court instead. When a child has lived in a new county for at least six months, you may also request a transfer of the case to that county.
What happens next depends on what you and the other parent decide on. If you reach an agreement, you can submit an agreed order for the judge’s approval. If not, the case will move forward to a hearing or trial where you will need to present evidence and testimony.
In most cases, Texas requires parents to wait at least one year before seeking an adjustment to the party who has the exclusive right to determine a child’s primary residence. An exception applies if the child’s current environment poses a risk to their physical health or significantly harms their emotional well-being.