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Changing a Custody or Visitation Order

Child Custody & Visitation

This article addresses the specific requirements for changing an order for child custody or visitation.

Here, learn the specific requirements for changing an order for child custody or visitation in Texas. Find out what counts as changed circumstances, how a child's preference is considered, and what happens if one parent voluntarily gives up custody. Find out what to do if the custodial parent is deployed with the military or if a nonparent is caring for the child. Get tips on finding legal help and learn about the role of the Texas Attorney General in modifying child custody orders.

What is the legal standard to change custody or visitation?

A Texas court can make changes to child custody or visitation in several situations. In any case, the court must find that the changes will be in the child’s best interests. Judges must determine what a child’s “best interests” are on a case-by-case basis. The court must also find that one of the following has happened: 

  • Changed circumstances 
  • Preference of a child age 12 or over 
  • Relinquishment of custody 

Changed Circumstances

A court can make changes to a custody order based on “material and substantial changes in circumstances.” These changes must affect the child, either parent, or another person affected by the custody order. 

State law does not provide a definition of “material and substantial changes.” Much like the “best interests of the child,” courts have to look at each individual case. You can find more details about what may count as changed circumstances further down in this article. 

Preference of a Child Age 12 or Over

A child who is at least 12 years old can state a preference for which parent should have primary custody. The judge can interview the child in their chambers about what they would like. 

The judge does not have to grant the child’s wishes regarding custody. The custody order must always be in the child’s best interest. Sometimes, what a child wants is not in their own best interest. The judge must decide if the child’s wishes would be suitable for them. For example, a child might want to live with one parent because that parent never enforces bedtimes and lets them watch R-rate movies. 

Relinquishment of Custody

A court can modify custody if the parent who has primary custody has voluntarily given up custody for at least six months. This could include letting the child live with the other parent or another person. This does not apply if the parent with primary custody had to let the child live somewhere else because they are deployed with the military. 

What counts as a material and substantial change in circumstances? 

The Texas Family Code does not define the term “material and substantial change in circumstances.” Court decisions provide an idea of what judges might consider material and substantial. An experienced family attorney can advise you about whether your situation meets this legal standard. Read Material and Substantial Changes in Circumstances for Custody Modification Suits

Changes to a custody or visitation order can be fairly minor. For example, a parent might want to change how they communicate with the other parent about decisions affecting their child. Sometimes, a parent wants to make major changes to an order, such as by changing which parent has primary custody. The bigger the changes to the order, the more evidence a parent will have to present to show that the change will be in the child’s best interest. 

The law states that certain criminal offenses involving family violence or child abuse count as substantial and material changes. A conviction or order of deferred adjudication, by itself, can support the modification of a custody order. Without a conviction or arrest, you can still argue for modification based on family violence. 

If you need help, call one of the organizations listed below for more information: 

What if the parent is active in the military and is deployed? 

A court cannot make permanent changes to a custody order just because a parent is deployed with the military. The parents can agree to changes, but military deployment is not a material and substantial change in circumstances. 

If the custodial parent is about to deploy, they will have to make arrangements for the care of the child. The court can make temporary changes to the custody order if the parents cannot agree on where the child should stay. The other parent is likely to be the court’s top choice unless it would not be in the child’s best interest to stay with that parent. The military parent’s choice would be next, followed by the court’s choice. When the deployment ends, so do the temporary orders. 

Temporary changes to visitation are also possible during deployment. For example, a temporary order could state that the child’s grandparents have specific visitation rights. 

Can I ask that custody be changed within one year of the current order? 

In most cases, you cannot ask the court to modify a custody or visitation order for at least one year after the court issues the current order. You can find more information on exceptions to this rule in the article Child Custody Modification within One Year of Current Order

Can I stop the custodial parent from moving our child far away or out of state?

Some child custody orders include a geographic restriction on where the child may live. It might state that the child must remain within the county or in their current school district. 

Review your order to see if it includes any restrictions. If it does not, you can ask the judge to add a geographic restriction as part of a modification case. You can read more about this issue in our article on Geographic Restrictions.  

Do I need to modify an existing custody order to allow a nonparent to take my child to the doctor and enroll them in school?

You might not need to do a modification in this situation. If the other parent agrees to allow the nonparent to care for the child temporarily, you can ask them to sign an Authorization for Nonparent Care of a Child. You will need temporary court authorization if you already have a custody order in place. 

The forms bank at the Texas Department of Family and Protective Services website has an Authorization Agreement that you and the other parent can sign. A toolkit is also available to guide you through the process of seeking temporary court authorization: Temporary Authorization for Care of Minor Child (Texas Family Code 35)

What happens if a fit parent dies, and the other parent is unfit? 

The death of a parent is grounds for modifying a custody and visitation order. Primary custody tends to go to the surviving parent unless they are already subject to restrictions on access to the child. The court will consider whether the reasons for those restrictions still exist. If so, it might consider other people who could care for the child. Another family member, such as a grandparent or sibling, might be able to make a case to the court. 

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