How do I change my current custody order?
Sometimes things change after you’ve gotten a final order in your custody case and you need a modification. Modifications are a very common issue in family law and there are a number of factors that you should consider before you try to change your custody order.
Has there been a “material and substantial change in circumstances?”
A material and substantial change in circumstances is the standard burden for being able to bring a change to your custody lawsuit. The operative date for determining whether a change has taken place is either the date of your last order or the date your mediated or collaborative settlement agreement was signed. If there has been a major change that affects you, your kids, or the other parent. You should be able to come to court and ask for a change in your order.
For example, suppose you reached an agreement in mediation where you agreed to a standard possession order, but then a month later, your kids come to live with you primarily—that would likely be a material and substantial change in circumstances. Or suppose that since your final custody order, your ex-spouse has started a new job and they’re leaving the kids with family members or friends, or they’ve moved too far away for you to exercise your visitation—those would also likely be a material and substantial change in circumstances. The possibilities are endless, but you’ll need sound legal advice on whether you’ve met your burden and how best to proceed.
Changing the “primary” parent within six-months of your order
If you feel that the change that has occurred is potentially harmful to your children, you may think that you should now be the “primary” parent rather than the other parent.
“Primary” parent in Texas means the parent who has the right to designate the primary residence of the child. This is almost always granted to one parent in a final order and changing that designation is challenging. If you are trying to change the primary parent designation (also called “flipping custody”) within six-months of the order being signed, you must prove that the child’s present circumstances would “significantly impair their physical health or emotional development.” This is a very difficult burden to meet. Some examples of “significant impairment” include severe alcohol abuse, serious drug use/abuse, physical abuse, emotional abuse, or neglect.
If you meet this burden, you will likely succeed in flipping custody. These situations are often urgent, so you will need a lawyer who can get you into court as quickly as possible to mitigate the situation and get your family back on track.