Modification of Child Custody

Modification of Child Custody Attorney Brian McNamara Kingwood Houston Texas

There are many reasons why someone may want or need to make changes to an existing child custody order. In Texas, there are several parts of the court order that may need reconsidering before modification is requested. Texas law allows modifications to court orders concerning a minor, but it should be done with an expert family law attorney to ensure the continued well-being of the child. There are many reasons why someone may want or need to make changes to an existing child custody order. In Texas, there are several parts of the court order that may need reconsidering before modification is requested. Texas law allows modifications to court orders concerning a minor, but it should be done with an expert family law attorney to ensure the continued well-being of the child.

There are several legal terms to know before requesting a change or modification to an existing child custody order.

SAPCR – A SAPCR (‘Sapsur’) is a Suit Affecting the Parent Child Relationship. Most cases involving parents and children will be a SAPCR.

Petition or Motion to Modify SAPCR –  This initiates the legal case and tells the Judge what you want to change in the existing order. You might get everything you ask for, nothing, or some of it. It is interchangeably referred to as a ‘petition’ or ‘motion’ to modify SAPCR.

Counter-Petition or Motion to Modify – When the other parent is served with the petition or motion, a counter-petition to modify SAPCR, or counter-motion, is usually filed. This is where the other parent requests different modifications to the existing court order.

Conservator – A person granted rights regarding a child in a court order is a conservator. In divorce, both parents are designated conservators, usually joint managing conservators.

Possession and Access – visitation. Texas’ legal documents do not use the term “visitation.” When a conservator has the right to “possession” of the children, he or she can pick them up and keep them during the period of possession, like visitation. “Access” allows a person to visit with children but not leave with them.

Child Support – The ongoing, court-ordered periodic payment made by a parent for the financial benefit of a child.

Medical Support – health insurance premiums and unreimbursed medical expenses incurred for the child.


What Must Be Proven:

A Material & Substantial Change in Circumstances

Courts are busy and cannot accommodate every parent who simply does not like the current custody order. Family law litigation is disruptive to the family, and expensive. To keep courts from being more crowded and to reduce litigation imposed on a family, the Texas legislature has created minimum requirements to file a motion or petition to modify a SAPCR.

The most commonly asserted basis to change an existing order is that there has been a material and substantial change in the circumstances of the child or a conservator. This means something material and substantial is different in the life of a parent or the child. “Material and substantial change” is not defined, but courts have found certain things to be sufficient. These are specific to the facts of each case and can be discussed with a lawyer. A change that was anticipated when the prior order was agreed or issued is not acceptable.

If a child 12 years or older expresses a preference about who to live with during a conference with the judge, the case may continue.

Likewise, the case may proceed if the conservator who has the right to designate the child’s primary residence voluntarily relinquishes primary care and possession for at least six months, unless it’s for military deployment.

If a conservator proves one of the above, the requested modification must also be in the children’s best interest.

Modification within a Year

In addition to the requirements above, if a conservator wants to change who has the right to designate the child’s primary residence within a year of the last order, the petition or motion to modify must include an affidavit with facts showing that the child’s present environment may endanger the child’s physical health or significantly impair emotional development, the person who has the exclusive right to designate primary residence agrees with the motion, or the person with the right to designate primary residence has voluntarily relinquished primary care and possession for a least six months and the modification is in the child’s best interest.

Best Interest

If the requirements above are met, the conservator requesting the change to the existing order must prove it is in the children’s best interest.

Important Factors

Factors that can demonstrate a material and substantial change in circumstances or that a modification is in the child’s best interest:

  • Parental illness affects the ability to care for the child;
  • Parental remarriage negatively affects the family relationships of the child;
  • Parental relocation out-of-state affects the child’s relationship with the other parent;
  • The health or well-being of the child is at risk with the current conservator;
  • The parent’s financial circumstances have changed and affect the ability to care for the child;
  • The child is 12 or older and wishes a change to be made (this must be done privately by the child directly to the Judge);
  • The conservator has passed care of the child over to another party for six months or longer.

If Children Live Out-of-State

After a child has lived out of Texas for six months, the UCCJEA might apply. The Uniform Child Custody Jurisdiction and Enforcement Act requires jurisdiction of custody matters to be handled in the new state if the child has lived in another state for six months with the consent of both parents. The UCCJEA is complicated so talk with an experienced family law attorney.

Jurisdiction about child support often remains in the original state under the Uniform Interstate Family Support Act (UIFSA). The new state might decide custody issues and the old state determine child support. It depends on where the child support payer lives and whether the child was moved to the new state with both parent’s consent.

Other Named Parties

All people granted rights about the child in the existing order must be identified in the motion or petition to modify SAPCR, and served with a copy of the motion by a process server. There are alternatives to service by a process server, which a lawyer can explain. In addition to the parents, the order might grant rights to grandparents, aunts, uncles, or adult siblings. Notice might also have to be given to the Office of the Attorney General of Texas if the OAG was previously involved or if the children received food stamps, Medicaid or TANF (temporary assistance for needy families).

When a Parent is Deployed for Military Service

If either parent is deployed for military service, the court may temporarily change the custodial arrangement. When the conservator is being deployed, the court will default to the other parent for temporary custody, but if this is not suitable, the conservator may nominate someone else. They may also apply for other individuals (e.g. grandparents) to be granted visitation rights for the duration of the deployment.

If the non-custodial parent is being deployed, they may request that their visitation rights be carried out by other individuals. They may also apply to the court for additional visitation upon their return, to ‘make up’ the time lost while they were away on military service.

When a Conservator Moves Home

If a custodial parent re-locates a significant distance that the parent with visitation incurs a higher cost to visit their child than in the original location, the parent with visitation may ask the court to modify child support to account for the increased travel expenses.

Having a New Baby

A new baby can affect existing child custody arrangements:

  • Where the Obligor (the person paying child support) has a new child, this is considered a material change in circumstances. Under the Texas guidelines, child support is reduced if the obligor/payer is legally responsible for children in more than one household.
  • Where the recipient of child support has a new child with the same father as other children covered by an existing court order, a new order can be issued increasing the child support.  The new child is not automatically covered by an existing court order, so a new one will be necessary for possession and access. It can include the same possession schedule (visitation) as the old one, and new child support. A revised possession schedule will be necessary for a new baby.
  • A new child with a different father to the other children covered by the existing order has no legal bearing on the existing order. A separate court order will be necessary for the new child.

Cases of Mistaken Paternity

If a man paying child support finds out he is not the child’s biological father, he must continue paying under the existing order and immediately consult a lawyer. This can be complicated depending on the legal relationship of the parties when the child was born (whether they were married) and the length of time an existing court order has been in effect.

If All Conservators Agree

If all conservators (usually the parents) agree to the changes, the process can be simple but should still be completed legally – particularly if financial arrangements or visitation will change. A parent paying child support (known as the Obligor) must keep paying the same amount as previously ordered until a Judge signs a court order to modify it.

In this case, the person affected by the order can become the Petitioner and file for the court order. The other parent becomes the Respondent. Once the legal petition has filed, all named parties within the order must sign a Waiver of Citation in front of a legal notary, legally file an Answer, or be served by a process server with a copy of the petition or motion and a citation issued by the court clerk.

If all parties agree to the changes, a lawyer can prepare an Agreed Order in Suit to Modify the Parent-Child Relationship for everyone to sign. This is much faster, less expensive, and less stressful than when the parents disagree.

When Conservators Do Not Agree

If the conservators do not agree about the changes, litigation is necessary. Mediation will be ordered by the Judge. Most cases are resolved by agreement at mediation. Contested cases involving children can be expensive, time-consuming, and stressful.

Getting the Correct Legal Help

When amending child custody agreements in Texas, it’s important to have good legal representation. Lawyers, Judges and the courts will always put the best interests of the child first but it is possible that the outcomes could affect your child’s development and your rights to access to them. It is essential that appropriate legal help is sought for such cases.

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