If you have a custody order in place, and it’s been finalized, it’s not a simple matter to get the Katy, TX courts to permit a modification. It is possible under the right circumstances, however, and a custody attorney can help you present the best possible case for why modification is justified in your case.
Can Katy, TX Parents Modify a Finalized Custody Agreement?
Before a Year Is Up
In most cases, you have to wait a year before you can make any change to a custody agreement. There are, however, a few exceptions to this rule. If the person with primary custody is either the one asking for the change or agrees to the change, the court will consider a modification request before a year is up. The court will also consider it if you don’t have primary custody and the parent with primary custody doesn’t agree, if either of the following are true:
- The parent with primary custody let someone else have custody of the child for at least six months (unless they were on active duty military employment)
- The child’s physical or emotional health is in danger because of the environment the child is living in with the primary custodian
To prove either of the above allegations, you will need a lot of clear and convincing evidence. You must be able to write out clearly the specific facts you’re alleging in a declaration that you will have to sign, and you sign this under penalty of perjury. If the other parent has been deployed on active duty, you can request temporary orders giving you primary custody for the time of their deployment, but you cannot make a change to the permanent orders. If you are about to be deployed yourself, and you do not believe the child’s other parent would make a fit custodian for the child while you’re gone, you can designate another person but may need to prove to the court why they are a better choice for your child then the child’s other parent.
The Texas court take threats to your child’s health and welfare very seriously and will investigate a situation like this; they also take false allegations very seriously and the consequences can be quite serious. Once the court has your document, they will review it and decide if the facts you are asserting, assuming they are true, are serious enough to support a modification to the orders. If not, the judge will dismiss it.
After a Year Has Passed
After a year has passed, it gets a little easier to request a modification for other reasons. There are generally three acceptable grounds for modifying a custody agreement after a year has gone by. The most common grounds for requesting a change is a “material or substantial change” either in the child’s circumstances or in the parents’. An example of a big change in a child’s circumstances might be the development of a serious health condition. A major change in the life of either parent could include a healthcare issue, a change in job, job loss, remarriage, and more.
The second grounds for modification is if a child has turned 12, or is already older than 12, and has a strong preference they wish to express to the court, and this preference would make a change in their living situation. Just because a child has a preference does not guarantee it will be honored, but once a child turns 12, the court will seriously consider the child’s wishes. The more mature the child and the better able they are to articulate good reasons for wanting to make a change, the more likely it is the court will consider it. Finally, if the parent who has primary custody wishes voluntarily to relinquish the child, this would be grounds for a modification.
What the Court Will Consider
The court does not lightly change finalized custody orders, so it’s important to talk with a lawyer about exactly why you want to make the change and how you’re going to show the court that it’s in the child’s best interests. The child’s best interests is always the most important point for the court.
If, for example, one parent wishes to move to another part of town, the court may not consider this enough grounds for a modification, even if it would make the current custody and visitation schedule less convenient for both parents. But if a parent wants to move to another state, this would be a more serious consideration. The court will want to know whether this move is in the best interest of the child. The question will be whether the child will move or not and whether the child will be able to continue to have a relationship with both parents, if that is appropriate.
Emotional Wellbeing of the Child
If your child is in physical danger with the other parent, or if there has been a major change like a job loss or health issue, proof is required before a change can be made, but it is fairly straightforward to show that these issues require a modification. Things can be a little murkier when you’re talking about the emotional well-being of a child.
Many parents feel that there is no recourse if the other parent is undermining them in front of the children and trying to damage the parent-child relationship they have. Texas law does not specifically have anything in it addressing the idea of parental alienation, but it is a reality in many divorces, and the Texas courts will consider it as a possible threat to the emotional health of your child.
To prove parental alienation, you will need to show evidence that your child is reluctant to be around you and that this can be connected to statements that the other parent is making about you. Other helpful evidence here could include threats that the other parent may have made to you about this in text messages or emails or witness statements from mutual friends or other family who witnessed the child’s other parent speaking badly about you regularly. Talk to your lawyer if you need help in showing that your relationship with your child is being undermined.
Emergencies
While emergencies are rare, sometimes it is essential to get a child removed from a home immediately in order to safeguard their physical health. Talk to your lawyer about the possibility of getting an emergency custody order filed if your child is in an abusive situation.
Working With a Custody Attorney
Whether you want to modify a child custody order yourself or the other parent is trying to make a modification, it’s very important to have the advice and help of an experienced family law attorney. You want an attorney who understands the custody laws in our state and knows what the courts will find acceptable and see as in the child’s best interests.
A lawyer can advise you about whether it’s a good idea to bring a modification request at all and represent you, using the evidence to show why your request is best for your child. If you need help with modifying custody orders, reach out to us at KGK Family Law for help in Katy, TX.
