Modifying Child Custody and Visitation Rights In Texas (2022)

Learn about modifying a custody or visitation arrangement in Texas.

Modifying Child Custody in Texas

In discussing "child custody" and "visitation" in Texas, it's important to know that the state no longer uses those terms. What was once custody is now called "conservatorship," and visitation is now referred to as "possession and access." The purpose is to try to move away from the winner-take-all mindset often associated with the word "custody," a connotation that isn't beneficial to children or parents.

There are limited circumstances under which Texas courts will grant a request for modification of a child conservatorship or possession and access order. A court will only permit a modification if the change is in the best interests of the child, and the request is based on one or more of the following:

  • the circumstances of the child, a conservator (usually one or both parents), or other person affected by the order have materially and substantially changed since the earlier of: the date of the current order; or, the date of signing of a settlement agreement which the current order is based on
  • the child is at least 12 years of age and has expressed a preference to the court as to the person who should have the exclusive right to designate the child's primary residence (basically referring to the person the child primarily lives with), or
  • the conservator who currently has the exclusive right to designate the child's primary residence has voluntarily relinquished the primary care and possession of the child to another person for at least six months. (Tex. Fam. Code – Ch. 156 §156.101 (a).)

Note that the last item on the above list doesn't apply if the conservator relinquished primary care and possession due to military service. (Tex. Fam. Code – Ch. 156 §156.101 (b).)

(Video) Texas Child Custody Modification: Attorney Explains the Laws

When it comes to determining whether a change in circumstances has been "material and substantial", Texas family courts have recognized several situations that would qualify. For example, perhaps one of the parents has remarried and that has negatively affected the existing arrangement. Or maybe a medical condition has hampered a parent's ability to care for a child.

A parent's change in residence could render a current possession and access schedule unworkable, particularly if it involves moving out of state. And incidents of child abuse or domestic violence can have a major impact on an existing conservatorship or possession and access order.

As to a child's preference, the judge will interview children who are at least 12 years old, in chambers (the judge's private office, rather than in the courtroom). This gives the judge an opportunity to assess a child's level of maturity and ability to make a sound, well-reasoned judgment. But it's important to understand that a judge is under no obligation to grant a modification just because a child asks for it. If the court believes the request isn't in the child's best interest, it will deny it.

As referenced in the first bullet point above, other people who are affected by the current conservatorship or possession and access order can request a modification. So, depending on the circumstances of the case, you may see grandparents or other relatives become involved in these matters. (Tex. Fam. Code – Ch. 153 §153.431 and following.)

(Video) Modification of Texas Child Custody Orders

How to Request a Custody Modification in Texas

To request a change to an existing conservatorship or possession and access order, you have to file a written request ("motion") to modify custody. Texas refers to this as a "Petition to Modify the Parent-Child Relationship." The person filing the motion or request is called the "petitioner" and will file that accompanying forms with the clerk of the county district court which issued the current order. The parent who receives the motions is known as the "respondent."

How the case proceeds from there will depend on whether the other individuals affected by the order (such as the other parent or conservator) agree to the changes you're seeking.

Obviously, if everyone agrees to the proposed change, it makes for much smoother sailing. The respondent can sign forms agreeing to the modification. As an uncontested case, it will involve a brief court appearance so the judge can review the paperwork and determine whether the request is in the child's best interest.

If the respondent won't agree to the modification, but fails to file any papers objecting to the motion, you can proceed by "default." This means the case can continue without the respondent's participation. This takes a little longer than an uncontested case, because you have to give the respondent a certain period of time in which to reply. When that period elapses, you can notify the court clerk's office and have them schedule a date for your court appearance. Barring any last-minute issues, there will be a brief hearing similar to what you'd see if the case were uncontested.

(Video) Modification to a final order child custody, possession & access, and rights and duties in Texas

In cases where the respondent files papers objecting to the request, the court considers the case contested, and will set a date to hear testimony from both sides. At the end of the hearing, the judge will decide whether or not to grant the modification.

You can find the necessary modification forms and instructions on the TexasLawHelp.org website.

If your modification request relates to the exclusive right to designate the child's primary residence, you should know that there are special rules if you make your request within one year of the earlier of: the date of the current order; or, the date of signing of a settlement agreement which the current order is based on. (Tex. Fam. Code – Ch. 156 §156.102 (a).)

In that situation, you'll have to provide the court with an affidavit (sworn written statement). In addition to setting out the facts supporting the request, the affidavit must contain at least one of the following contentions:

(Video) Modifying Custody, Visitation, and Child Support

  • the child's present environment may endanger the child's physical health or significantly impair the child's emotional development
  • the person who has the exclusive right to designate the primary residence of the child is the person seeking or consenting to the modification, and the modification is in the best interest of the child, or
  • the person who has the exclusive right to designate the primary residence of the child has voluntarily relinquished the primary care and possession of the child for at least six months (unless due to military service), and the modification is in the best interest of the child. (Tex. Fam. Code – Chapter 156 §156.102 (b).)

If the court finds that the affidavit doesn't provide sufficient facts to support the above list, it must deny the motion and refuse to schedule a modification hearing. (Tex. Fam. Code – Ch. 156 §156.102 (c).)

What if a Situation Is Urgent?

That all depends on the degree of urgency. In Texas, family courts can issue temporary custody orders, even while a modification action is pending.

State law addresses the type of relief a court can order and the circumstances under which the court will order it. (Tex. Fam. Code – Chapter 156 §156.006.) If you believe there's possible danger to a child, such as from child abuse or neglect, you can ask the court for an emergency custody order and/or temporary restraining order (TRO). This is meant to get you into court quickly, and can result in a judge modifying an existing order so as to protect the child from potential harm. A TRO will usually remain in effect until the court can hold a full hearing on the facts and make a permanent order.

Of course, if you witness an incident endangering a child, you can call 911 to seek immediate help. In situations where time is of the essence, you'd be well-advised to retain a family law attorney who's familiar with the ins-and-outs of navigating your local court system under these types of circumstances.

(Video) JURISDICTION TO MODIFY CHILD CUSTODY DETERMINATION UNDER THE UNIFORM CHILD CUSTODY & ENFORCEMENT ACT

FAQs

How do I modify a custody agreement in Texas? ›

You must file a Motion to Transfer at the same time you file your Petition to Modify the Parent-Child Relationship. Talk to a lawyer about whether this makes sense for your case. If your child has lived in another state for the last 6 months, talk with a lawyer about where to file your case.

How long do you have to wait to modify custody in Texas? ›

Understanding the Law

In most cases, you must wait a year before requesting that the court change your custody order. This page from Texas Law Help explains the circumstances in which you may be able to have custody changed sooner than one year.

Can you change custody agreement without going to court Texas? ›

In Texas, the answer to the question “can I modify custody or visitation without going to court” is “no.” So, if you have a child custody agreement in place and your situation has changed, contact the child custody lawyers at Evans & Herlihy today at (512) 732-2727.

When can you deny visitation to the non custodial parent Texas? ›

The court can restrict or deny a noncustodial parent visitation grounds on the flowing grounds: If the parent has a history of molesting the child. If the court believes that the parent can kidnap the child. If the parent is likely to abuse drugs while taking care of the child.

How long does a father have to be absent to lose his rights in Texas? ›

“voluntarily left the child alone or in the possession of another without providing adequate support of the child and remained away for a period of at least six months

Can a child choose to live with the non custodial parent in Texas? ›

That is why Texas does not allow children to make custody decisions, including choosing where they want to live after divorce or upon modification of a prior order. The Texas Family Code section that deals with a child being able to choose a parent to live with is found in §153.009.

How long does child support modification take in Texas? ›

For most parents obtaining a new order that modifies your support may take at least 6 months. Please review the modification steps below and quickly respond to any requested information from our office to help speed up the process.

What is the minimum child support in Texas? ›

Texas child support laws provide the following Guideline calculations: one child= 20% of Net Monthly Income (discussed further below); two children = 25% of Net Monthly Income; three children = 30% of Net Monthly Income; four children = 35% of Net Monthly Income; five children = 40% of Net Monthly Income; and six ...

How do you win a child support modification case? ›

How to Win a Child Support Modification Case
  1. 1 Take advantage of the rights you already have.
  2. 2 Reach out to your ex-partner if you think they'll be amicable.
  3. 3 Solicit free legal help if you can't hire an attorney.
  4. 4 Do it on your own only if you can't get help.
  5. 5 Determine what has changed to justify a modification.

Who has custody of a child if there is no court order in Texas? ›

Laws on child custody in Texas for not married parents dictate that the mother has automatic custody of the child, both legally and physically, unless the father has legally established his paternity. Even if the father's name is on the child's birth certificate, they have very limited rights over the child.

How long does a child custody case take in Texas? ›

In Texas, parents have six to 12 months from the date of filing to reach an agreement for shared child custody. If the parents fail to reach such an agreement, or if certain circumstances render the agreement inappropriate, then the custody case will be taken to a family law court.

How can a father lose visitation rights? ›

file an application before the regular court & express the actual position and their behaviour, where child is resisting to meet them and convince the court then automatically court may cancell the visitation rights.

At what age can a child decide visitation in Texas? ›

When the child reaches the age of 12, upon motion, the court can consider the child's wishes when it comes to who they will live with. Primarily, the court uses the following factors to make a child custody decision: The age of the children. Each parent's wishes.

What happens if custodial parent violates visitation order in Texas? ›

Consequences of Violating a Custody Order

Issue a writ of habeas corpus ordering the violating parent to return the child. Find the non-compliant parent in contempt of court. Impose criminal penalties. Hold the parent civilly liable for interfering with the other parent's visitation or possessory rights.

What legally makes a parent unfit in Texas? ›

Family violence - The court can rule out an unfit parent due to their violent nature. The other party will need to produce evidence showing acts of violence in the home from the co-parent. The court may also request medical records, emails, phone logs, text messages, witness statements, and police reports.

What happens if the non custodial parent misses visitation in Texas? ›

You can be held in contempt of court, and jailed, if you do not allow the other parent access to the children during their visitation time. This can be very difficult when the child does not want to go to the other parent's home.

What are grounds for termination of parental rights in Texas? ›

Grounds for termination of parental rights in Texas

abandonment of the child. the failure to provide support for the child (financial and/or emotional) the parent is incarcerated. child abuse has been present in the home.

What is considered an unstable home for a child? ›

The child may reside in a home that is not physically safe or supportive; it may have no heat, electricity, water, sewer disposal. The house may be in general ill repair. The second physical instability comes from the physical interactions that occur between family members.

What do judges look for in child custody cases? ›

The most basic part of the "best interests" standard is that custody decisions should serve the children's health, safety, and welfare. Judges will look at whether one or both parents are able to handle a child's special educational, medical, mental health, and other needs.

Can my ex dictate who is around my child? ›

Controlling Who Is Around Your Child

In general, you do not have the power to dictate which adults are around your child when they are with the other parent. When you have your child, you can decide who is present. You can decide whether to introduce them to a romantic partner or not.

Can a judge deny child support modification? ›

Can A Judge Deny Child Support Modification And Why? Yes! A judge is at liberty to allow or deny child support modifications.

What is the max child support in Texas? ›

One child: 20% of the non-custodial parent's net resources. Two children: 25% of the non-custodial parent's net resources. Three children: 30% of the non-custodial parent's net resources. Four children: 35% of the non-custodial parent's net resources.

How often can child support be modified in Texas? ›

One of the most common questions we are asked regarding child support modification in Texas is, “When can you modify a child support order in Texas?” Child support in Texas can be modified either every three years or when there has been a material and substantial change in circumstances.

How does child support work if the father has no job in Texas? ›

If you are unemployed and have no source of income when our office reviews your child support order, we generally will calculate a modified child support amount that considers your past employment, your ability to work and earn an income, and the current federal minimum wage.

Who pays child support if father is a minor in Texas? ›

Minor parents are subject to the same financial responsibilities as adults. Even though they are a minor parent, they will still be responsible for the payment of child support.

Do you have to pay child support if you have 50/50 custody in Texas? ›

It's incredibly rare that a 50/50 agreement doesn't involve child support in Texas because both parents rarely earn the same income. Most likely, there will be some disparity (often a big one) in earnings.

How do you win a child support modification case in Texas? ›

You would need to provide substantial proof that the circumstances surrounding the child, the other party, or yourself have materially and substantially changed since the original order was established to initiate a change to the order.

What's the most child support can take? ›

Is there a limit to the amount of money that can be taken from my paycheck for child support?
  • 50 percent of disposable income if an obligated parent has a second family.
  • 60 percent if there is no second family.
20 Jul 2016

Does child support go down if the father has another baby Texas? ›

In most states, including Texas, having additional children constitutes a substantial change justifying a modification of a parent's child support obligation. Texas recognizes the fact that the parent paying child support now has another child to support, and the monthly child support amount should be lowered.

How many miles can a custodial parent move in Texas? ›

The following procedures usually take place:

Under Texas law, the Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA) protects the rights of non-custodial parents in case the other parent intends to take the child and move out of the state (or more than 100 miles away from the current location).

How can a father win full custody in Texas? ›

Full Custody As A Father
  1. Speak to an attorney who has experience with custody issues in divorce. ...
  2. Respond to any legal actions. ...
  3. Continue taking care of your parental duties despite any conflict or tensions. ...
  4. Do not sign a settlement agreement that you don't agree with. ...
  5. Don't leave the marital home without the children.

What is the standard visitation schedule in Texas? ›

The presumption in Texas is the Standard Possession Order. For parents who live within 100 miles of each other, the noncustodial parent has visitation: • First, third and fifth weekends of every month. Thursday evenings of each week. Alternating holidays (such as Thanksgiving every other year).

How does a judge determine custody in Texas? ›

Generally, the way custody is decided in Texas is that the court will look at which parent has been doing those things most of the time, and unless there is a good reason to do otherwise, that parent will be made the primary conservator of the child.

How can a mother get full custody in Texas? ›

There are two ways you can win full custody in a family court: You can file for sole custody or. You can file to terminate the other parent's rights.

Are child custody cases public record in Texas? ›

Typically, child custody orders are in the public record, which means anybody can access them through the court.

How do you win a custody battle against a narcissist? ›

The process of securing child custody against a narcissist is essentially the same as with anybody else. Both parents must either agree on a custody plan during mediation and take it to court to be approved, or they must fight over the specifics of their arrangement during litigation.

What are the 4 types of child neglect? ›

Answer
  • Physical Neglect. The failure to provide necessary food, clothing, and shelter; inappropriate or lack of supervision.
  • Medical Neglect. The failure to provide necessary medical or mental health treatment.
  • Educational Neglect. ...
  • Emotional Neglect.
27 Dec 2018

What is poor co parenting? ›

Bad-mouthing the other parent in front of your child or in their hearing. Directing negative non-verbal communication at the other parent in front of your child. Exposing your child to conflict between you and their other parent, whether in-person or on the phone.

Can a good mom lose custody? ›

Even after winning legal custody of the child after the divorce, it's still possible for the mother to lose her custodial rights based on strong grounds of violence, substance abuse, addiction and violations of court orders.

Can a custodial parent stop visitation? ›

Yes. If the custodial parent files a complaint or an injunction to the court, in order to deny the noncustodial parent, their visitation rights, the court may grant so, on the basis of the complaint.

What reasons can you stop a father from seeing his child? ›

What are valid reasons to stop a father's access to a child?
  • criminal activity.
  • domestic abuse.
  • drug/alcohol misuse.
  • any other inappropriate behaviour that puts your child at risk.

When can you deny visitation to the non custodial parent Texas? ›

The court can restrict or deny a noncustodial parent visitation grounds on the flowing grounds: If the parent has a history of molesting the child. If the court believes that the parent can kidnap the child. If the parent is likely to abuse drugs while taking care of the child.

What age can a child refuse to see a parent in Texas? ›

At What Age Can a Child Refuse Visitation in Texas? In Texas, there is no age under 18 that allows for a child to refuse visitation. Visitation is the right of the parent, and it cannot be taken away by the custodial parent or child. The only option would be for the custodial parent to request a modification of orders.

How long does a father have to be absent to lose his rights in Texas? ›

“voluntarily left the child alone or in the possession of another without providing adequate support of the child and remained away for a period of at least six months

Is interfering with child custody a felony in Texas? ›

Interference with child custody in Texas is not just a family or civil matter, it is a crime. In fact, it is a felony to take or keep your child against visitation or custody orders. Interfering between a parent and child bond is detrimental and often leads to alienating behaviors.

How do I press charges for custodial interference in Texas? ›

Your Legal Options During Custodial Interference
  1. Enforcement of the Order. Each party must comply with the original order for child custody. ...
  2. File a Police Report or Lawsuit. If the custodial interference is severe, you can file a police report or file a civil or criminal lawsuit.
21 Feb 2022

What happens if one parent does not follow a court order in Texas? ›

Texas courts can make a person comply with a custody order through contempt proceedings. When a court finds a person in contempt, it can force the person to pay a fine or, in some cases, go to jail.

Can I change a child arrangement order? ›

Change or enforce an order. You can change an existing court order or consent order. You can also ask a court to enforce an order if your ex-partner is not following it. If you ask the court to change or enforce an order, you'll probably have to go to a court hearing.

How long does child support modification take in Texas? ›

For most parents obtaining a new order that modifies your support may take at least 6 months. Please review the modification steps below and quickly respond to any requested information from our office to help speed up the process.

How do you win a child support modification case? ›

How to Win a Child Support Modification Case
  1. 1 Take advantage of the rights you already have.
  2. 2 Reach out to your ex-partner if you think they'll be amicable.
  3. 3 Solicit free legal help if you can't hire an attorney.
  4. 4 Do it on your own only if you can't get help.
  5. 5 Determine what has changed to justify a modification.

How long does a child custody case take in Texas? ›

In Texas, parents have six to 12 months from the date of filing to reach an agreement for shared child custody. If the parents fail to reach such an agreement, or if certain circumstances render the agreement inappropriate, then the custody case will be taken to a family law court.

Can my ex stop my child meeting my new partner? ›

The short answer is (generally): No.

You and your Ex both have the right to form new relationships; unless there is a court order in place that expressly prohibits your Ex from exposing your children to any new romantic partners (which, frankly, is rare) then there may be little that you can do.

Can you overturn a Family Court order? ›

The court's decision is usually final. In certain circumstances you may be able to appeal the court's decision. You can only appeal in very limited circumstances, for example if the judge made a very serious mistake or because the judge did not follow the proper legal procedure.

Can my ex dictate who is around my child? ›

Controlling Who Is Around Your Child

In general, you do not have the power to dictate which adults are around your child when they are with the other parent. When you have your child, you can decide who is present. You can decide whether to introduce them to a romantic partner or not.

Can a judge deny child support modification? ›

Can A Judge Deny Child Support Modification And Why? Yes! A judge is at liberty to allow or deny child support modifications.

What is the minimum child support in Texas? ›

Texas child support laws provide the following Guideline calculations: one child= 20% of Net Monthly Income (discussed further below); two children = 25% of Net Monthly Income; three children = 30% of Net Monthly Income; four children = 35% of Net Monthly Income; five children = 40% of Net Monthly Income; and six ...

What is the max child support in Texas? ›

One child: 20% of the non-custodial parent's net resources. Two children: 25% of the non-custodial parent's net resources. Three children: 30% of the non-custodial parent's net resources. Four children: 35% of the non-custodial parent's net resources.

How do you win a child support modification case in Texas? ›

You would need to provide substantial proof that the circumstances surrounding the child, the other party, or yourself have materially and substantially changed since the original order was established to initiate a change to the order.

What's the most child support can take? ›

Is there a limit to the amount of money that can be taken from my paycheck for child support?
  • 50 percent of disposable income if an obligated parent has a second family.
  • 60 percent if there is no second family.
20 Jul 2016

Does child support go down if the father has another baby Texas? ›

In most states, including Texas, having additional children constitutes a substantial change justifying a modification of a parent's child support obligation. Texas recognizes the fact that the parent paying child support now has another child to support, and the monthly child support amount should be lowered.

What do judges look for in child custody cases? ›

The most basic part of the "best interests" standard is that custody decisions should serve the children's health, safety, and welfare. Judges will look at whether one or both parents are able to handle a child's special educational, medical, mental health, and other needs.

What is considered an unstable home for a child? ›

The child may reside in a home that is not physically safe or supportive; it may have no heat, electricity, water, sewer disposal. The house may be in general ill repair. The second physical instability comes from the physical interactions that occur between family members.

How does a judge determine custody in Texas? ›

Generally, the way custody is decided in Texas is that the court will look at which parent has been doing those things most of the time, and unless there is a good reason to do otherwise, that parent will be made the primary conservator of the child.

Videos

1. What You Need to Know About Child Custody Modifications
(Command the Courtroom)
2. Modifying Child Custody Order
(KidsvoiceIndy)
3. Petition to Modify Custody or Parenting Time - Avoid This Mistake!
(Command the Courtroom)
4. How To Change Child Custody
(Part As Friends)
5. How To Modify Your Child Custody And Visitation
(Goosmann Law Firm, PLC)
6. Child Custody Laws: A Guide to Texas Custody Laws
(Scott M. Brown)

Top Articles

Latest Posts

Article information

Author: Prof. An Powlowski

Last Updated: 07/12/2022

Views: 6397

Rating: 4.3 / 5 (64 voted)

Reviews: 87% of readers found this page helpful

Author information

Name: Prof. An Powlowski

Birthday: 1992-09-29

Address: Apt. 994 8891 Orval Hill, Brittnyburgh, AZ 41023-0398

Phone: +26417467956738

Job: District Marketing Strategist

Hobby: Embroidery, Bodybuilding, Motor sports, Amateur radio, Wood carving, Whittling, Air sports

Introduction: My name is Prof. An Powlowski, I am a charming, helpful, attractive, good, graceful, thoughtful, vast person who loves writing and wants to share my knowledge and understanding with you.