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How Custody Modifications Work
Can I modify my current custody Order? This is a very common question. The short answer is: maybe. Child custody orders are included in a divorce. However, they can be created as stand-alone orders in what is called a Suit Affecting the Parent Child Relationship (commonly called a “SAPCR” – pronounced “sap-sir.” Child custody order pursuant to a divorce or SAPCR orders are subject to modification if one or both parents have experienced a material and substantial changes in circumstances, and the modification is in the best interest of the child (Texas Family Code 156.101). The vast majority of parents put their children's best interests in the forefront of any decisions they make while raising them. Mothers and fathers also naturally guard their parental rights.
Modifications For Change Of Circumstance
If the parents agree on the modification, the process is quick. It is a matter of reducing the agreement to writing and getting the Court’s approval. If the modification is not agreed to, the process is lengthier and more costly. Both parents will need to go in front of a judge or jury to obtain the modified order. Under the law, the parent seeking the modification order must demonstrate:
• The child is 12 years old and wishes to change the primary caregiver (Texas Family Code 156.101(a)(3); or
• There has been a change in circumstances that is material and substantial; and
• The proposed changes to the order would serve the child's best interests.
Texas Courts have interpreted the material and substantial change requirement to include:
• Changes in marital status of the parents
• Job relocations
• Medical conditions
• Abuse or neglect of the child by either parent
• Substance abuse
As discussed in my blog, the Holley Factors or “Best Interest Factors” are as follows:
· the desires of the child
· the emotional and physical needs of the child now and in the future
· the emotional and physical danger (of one parent) to the child now and in the future
· the parental abilities of the individuals seeking custody
· the programs available to assist the parents
· the plans for the child by these individuals
· the stability of both parties’ homes and any acts or omissions of a parent which may indicate that the existing parent-child relationship is not a proper one
· any excuse for the acts or omissions of a parent.
As you can see, courts have numerous factors they are allowed to consider when deciding whether a material and substantial change has occurred, and what is in the best interest of the child. The case law is detail oriented and can be confusing. Hiring an experienced Board Certified Family Law attorney can help ensure you give yourself the best opportunity to be successful. Call me today at 956-501-6565, for a free consultation to discuss custody and visitation modifications.
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