Child Custody Modification Within One Year of Current Order

Unless you meet certain legal requirements, you must wait at least a year before going back to court to change primary custody of a child. This article tells you about those legal requirements. LINK TO FORMS INCLUDED.

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

You can file a modification case to change primary custody within one year of the current custody order only if:

the person with primary custody is asking for or agrees to the change; or
the child’s present environment may endanger the child’s physical health or significantly harm the child’s emotional development, or
the person with primary custody has allowed someone else to have primary care and possession of the child for at least 6 months. (Number 3 does not apply, if the person with primary custody is on active duty military deployment.)

Your allegation (that one of the above is true) must be supported by specific facts. You must write those specific facts in a declaration form (made under penalty of perjury). You must attach the declaration form to your Petition To Modify The Parent-Child Relationship (the form you file to start a modification case.)

Get the declaration form here: Declaration in Support of Changing Primary Custody within One Year [2].

Get modification instructions and forms here: I need to change a custody, visitation or support order. [3]

What happens after I file my Petition (if I’m asking to change primary custody within one year of the current order)?

After you file your Petition to Modify the Parent-Child Relationship, the judge will review your attached Declaration in Support of Changing Primary Custody within One Year [4].

If the judge decides that the facts alleged in your declaration (if true) would be enough to support a modification, the judge will schedule a hearing.

If the judge decides that the facts alleged in your declaration (even if true) would not be enough to support a modification, the judge will refuse to have a hearing and your modification case will be dismissed.

See Texas Family Code Section 156.102 [5].

Warning: Do not file a frivolous modification suit. You can be assessed attorney’s fees if the court finds that the modification suit was filed frivolously or to harass the other side. See Texas Family Code chapter 156.005 [6].

What does “primary custody” mean?

The person with “primary custody” of a child is the person who has the exclusive right to designate the primary residence of the child.

What date do I use to calculate the one year period for changing primary custody?

If the current custody order is based on a judge’s decision after a hearing or trial, use the date the judge made the decision to calculate the one year period. That date may be different from the date the judge signed the order.

If the current custody order is based on a mediated or collaborative law settlement agreement, use the date the settlement agreement was signed by the parties to calculate the one year period. That date may be different from the date the judge signed the order.

What if the parent with primary custody is active in the military and is deployed?

The court can’t permanently change custody just because a military parent has been deployed. However, either parent can ask the court for temporary orders that temporarily change custody during the deployment.

In this case, the court’s first choice for temporary custody must be the other parent. If living with the other parent would not be in the child’s best interest, the court’s second choice must be a person designated by the military parent. The court’s third choice would be a person chosen by the court.

The court may also make temporary changes to child support and visitation. For example, the court may temporarily change who pays child support. Or the military parent may ask the court to allow a designated person, such as a grandparent or step-parent, to visit the child while the military parent is deployed.

When the military deployment ends, the temporary orders end. Custody returns to the military parent and the original child support and visitation orders resume.

See Texas Family Code chapters 153.701 [7] through 153.709 [8].