For parents who are divorced, the prospect of returning to court to modify custody, visitation, and/or support can be a daunting prospect. Navigating a court order modification can be a stressful process, especially if you and your child’s other parent do not agree with the proposed changes. Nevertheless, as your lives inevitably change following a divorce, your circumstances may change substantially enough that a modification of your original court order may be necessary.
Perhaps you or your ex-spouse has moved or changed jobs, which has impacted existing visitation arrangements. You or your child’s other parent may have experienced a significant change in income and would like to request an increase or decrease in support payments. It may be the case that your child requires additional support because of a change in cost of living, expenses, or insurance. Or perhaps you are concerned for the safety or well-being of your child when they are in the care of their other parent.
Whatever the circumstances, your child custody and support order may no longer fit your family’s lived reality. We at Cynthia Tracy, Attorney at Law, P.C. understand that families’ lives change over time, and that those changes may impact the arrangements that were put in place at the time of your divorce.
Texas regulates court order modifications under Texas Family Code, Chapter 156, and the process for modifying child custody and visitation is a separate action from the process to modify child support.
Requesting a Modification to Custody or Visitation
If you are seeking to change the home in which your child lives or the time afforded in your court order for your or the other parent’s visitation with your child, you will need to petition for modification of child custody.
Texas courts will consider modifying an existing order if they find it is in the best interests of the child and it fulfills one or more of the following requirements:
- The circumstances of the child, parent, or other party affected by the order have materially and substantially changed since the previously agreed upon order.
- The child is at least 12 years of age and has expressed to the court their own preference about their primary caregiver.
- The parent with primary custody has voluntarily relinquished primary care and possession of the child for at least six months (does not apply to military deployments).
Material and substantial changes must have occurred after the date of the original order and may include:
- Changes in either parent’s marital status
- Job relocations
- Medical conditions
- Abuse or neglect by either parent
- Substance abuse
You must generally wait one year before filing a modification request to change the primary residence of the child. This one year waiting period is intended to protect the stability of the child.
If there is a pressing issue that would impact the physical safety or emotional development of the child, however, it is possible for this waiting period to be set aside. If you are concerned that your child is in danger, it is crucial that you consult with a reputable family law attorney to file a temporary restraining order and/or emergency custody order until a hearing to modify the original order can be held.
Requesting a Modification to Child Support
If you are petitioning to change the amount of child support for which you or your child’s other parent is responsible, you will need to apply for modification of child support.
In order file a request to modify a prior order for child support, you must generally wait three years from the date that the previous order was signed. If it has been less than three years, the court will need to determine if a material and substantial change has occurred that warrants an increase or decrease to child support payments. Even if the three-year period has elapsed, you will still need to show material and substantial change if your previous order was not based on the percentages detailed in Texas Family Code.
It is important to note that child support modification is not retroactive in Texas. Therefore, if you become aware, for example, that your spouse received a significant raise, you will only receive increased child support for the period after the new modification order is granted. Therefore, it is wise to hire an experienced attorney as soon as you become aware of a change in circumstances.
How an Attorney Can Help You with Your Court Order Modification
Ideally, parents will be able to reach an amicable agreement about modifying child custody, visitation, and support without the intervention of the courts, but this is not always possible. Even if you and your ex-spouse find yourselves in agreement, you will still need to have a modification order drafted and submitted to the court. If you are petitioning the court for a change in child custody or child support, working with an attorney can help to ensure that you and your child have the best chance of a successful outcome.
At Cynthia Tracy, Attorney at Law, P.C., we know how difficult this process can be and we are committed to advocating for you throughout the court order modification process. We know that each situation is different, and we will tailor our strategy to you and your child’s particular needs. With over 30 years of experience and a Board-Certification in Family Law by the Texas Board of Legal Specialization, we will fight to make sure that you and your child’s future is secure.
Are you planning to request a modification to your existing child support order? Contact Cynthia Tracy, Attorney at Law, P.C. today at (281) 612-5443 to schedule a consultation with one of our experienced and compassionate family law attorneys.