We often get calls from potential clients requesting that their custody order or possession order be modified for different reasons. Our response is usually the standard response and that being that a custody or possession order once signed by a court is not the easiest order to modify.
We will try to explain to clients in simple terms that the courts required people to jump through some hurdles before a modification of child custody or possession takes place. Generally, a court will modify an order that provides for the appointment of a conservator of a child that contains the terms and conditions or conservatorship, or that provides for the possession of or access to a child if the modification would be in the best interest of the child.
Courts will require that the circumstances of the child, a conservator, or other party affected by the order have materially and substantially changed since the earlier of the date of the rendition of the order; or the date of the signing of a mediated or collaborative law settlement agreement on which the order is based.
If the child is 12 years of age or older, the court shall allow the child to express to the court in chambers as provided by Section 153.009 the name of the person who is the child’s preference to have the exclusive right to designate the primary residence of the child.
Another option for the court is if the conservator who had the exclusive right to designate the primary residence of the child has voluntarily relinquished the primary care and possession of the child to another person for at least six months. This does not apply to a conservator who has the exclusive right to designate the primary possession of the child and who has temporarily relinquished the primary care and possession of the child to another person during the conservator’s military deployment, military mobilization, or temporary military duty, as those terms are defined by the Texas Family Code.
However, a conservator choosing to modify their custody order or possession order must also understand that any modification filed within one year of the order must meet other criteria and requirements and must be offered into evidence in order for the court to entertain such modification.
If a person files a suit to modify the designation of the person having the exclusive right to designate the primary residence of a child is filed within one year from the order or of the date of the rendition of the order or the date of the signing of a mediated or collaborative law settlement agreement on which the order is based, the person filing the suit shall execute and attach an affidavit containing supporting facts.