Helping Texas Parents Get Post-Decree Modifications
All family legal cases culminate in a final order from the court. Divorces, child custody and child support cases are no exceptions. Orders do not have to remain final forever. Under the right circumstances, all final orders are subject to modification by someone who may want to tweak or wholly rewrite a final order.
It is important to seek the advice of a knowledgeable and assertive lawyer to evaluate your modification claim. At Sralla Family Law PLLC, we have helped Bexar County-area clients modify court orders since 2006. Our family law attorneys pride themselves in the ability to counsel clients, determine the existence of changed circumstances and craft a strategy geared for success in the courtroom and beyond.
When Can I Modify A Custody Order?
When considering a request to modify a prior custody order, the court will consider many factors. In the areas of custody, visitation and child support, the primary consideration is the best interests of the children involved. The basic threshold for modifying a final order is a showing of a material and substantial change in circumstances. Common examples of changed circumstances can include:
- The need to move to a different city due to a job promotion
- Change in employment
- The need to be closer to a family support system
Other times, a child may have changing or special needs or express a desire to change where they live. In certain circumstances, the party trying to change the order may have a heavier burden. For example, where a parent wants to modify an order that is less than a year old or change primary custody on a temporary basis. Then, they must show the court that the child’s present circumstances will significantly impair the child’s physical health or emotional development.
These are typically cases where the child is being exposed to:
- Drug use
- Alcohol use
- A registered sex offender
- Domestic violence
- An abusive or controlling stepparent
Sometimes, the court will modify an order based upon a child age 12 or older who expresses to the judge in chambers a preference for where he or she wants to live. The court will then consider the child’s preference when deciding whether to grant the modification. However, it is important to understand that the child’s stated preference does not necessarily carry the day. The child’s preference is merely one such aspect.
What Is The Standard For Modifying Child Support Orders?
Where child support is concerned, the court will always entertain motions to modify a prior order where there is a change in the income level of the parent paying monthly child support. Like any other modification scenario, there must be a material and substantial change in circumstances. These could include an income change or the addition of other children to the family that warrants a change in a child support order.
Courts will typically assess child support based on the child support guidelines set forth in the Texas Family Code. If the paying party’s net earnings change or more children are added to the calculation, the child support can be adjusted accordingly.
Spousal Maintenance Orders Can Also Change
Another area where modifications are common is spousal maintenance. Depending on how long the parties were married and whether there has been a conviction for domestic violence, the court may order one spouse to pay spousal maintenance. If a party can show a material and substantial change in circumstances, they can reduce or eliminate previously ordered spousal maintenance.
Examples include living with a new romantic partner or a circumstance where they no longer need to care for a disabled child.
Read Our Post-Decree Modifications FAQ
Do I need a lawyer to modify custody?
It is always a good idea to hire a lawyer when presenting your case to the court or a jury. A lawyer will ensure that all the proper procedures are followed and that all legal standards are properly met to enable your case to go forward. A lawyer will also make sure to present the facts of your case to the court in a way that ensures your best shot at achieving the requested relief.
How can I modify custody?
The best way to modify custody is to hire a child custody lawyer and demonstrate a material and substantial change in circumstances to justify the modification. You may have to show to the court that the present circumstances of the child would significantly impair their physical health or emotional development. You may also request that your child speak to the judge about his or her custody preference. Then, it is up to your lawyer to present the facts of your case.
Is it hard to modify custody?
Modifications of custody can be difficult depending on the facts of your individual case. The more compelling your facts, the greater your chances of success are. A good lawyer will present your facts in the best possible light and give you the most excellent chance possible of achieving the desired relief. Any problems that exist in your personal history or background – such as a history with Child Protective Services or a criminal record – can lessen your chances of success and make modification more difficult.
How long does a custody modification take?
Modifications typically take anywhere from two months to a year or more to complete. This timeline depends on the nature of your case, the individual facts, the complexity of the legal issues and whether the other parent hires a lawyer, and the aggressiveness of that lawyer.
What is considered a change in circumstances?
A change in circumstances is a relatively easy burden to meet. It can be anything that makes the situation different from the way it was before that would justify the change you are asking the court to make.
Why would a judge change a custody order?
A judge will change custody when he or she believes all legal standards to warrant a custody change have been met and that the change is in the best interest of the child.
How often can you modify child custody?
Custody can be modified anytime you can show a material and substantial change in the circumstances surrounding your custody situation. It is more challenging to modify custody within the first year or on a temporary basis.
Do judges modify custody easily?
Judges do not take these decisions lightly. Particularly in close-call cases where the facts are compelling on both sides, judges may struggle to ensure they are making the right decision and that their decision serves the best interests of the child.
What happens at a custody modification hearing?
Both sides present their case to the court through testimony and evidence and then make arguments to the court as to why the court should decide issues in their favor.
What happens if a parent does not follow a custody agreement?
This depends on whether a prior order is in place. A parent who does not follow a custody agreement may be subject to a motion to hold them in contempt. On the other hand, if the agreement for custody is informal or verbal, the violating party may not suffer any consequences for failure to follow the agreement. In these cases, it is best to consult a lawyer about putting an order in place to protect your rights and ensure the best interests of the child.
What triggers a change of circumstance?
A change in circumstances is triggered by anything that makes the situation different from the way it was before that would justify the change you are asking the court to make.
How does a mother or father lose custody?
Either party can lose custody when the judge comes to believe a change is warranted to protect the best interests of the child. This could involve:
- A criminal history
- A history of involvement with Child Protective Services
- Close association with a convicted criminal or a registered sex offender
- Extensive use of illegal drugs
- Child neglect
- Child abandonment
These can all induce a judge to change custody or terminate parental rights.
Schedule Your Initial Consultation To Ask About Modifications
We can determine whether filing a motion to modify a prior order is the right approach for your case. Contact our knowledgeable modification team today for an initial consultation to assess your claim. Please call our San Antonio office at 210-600-9565 or send us an email.