June 10, 2022
When it comes to child custody issues, family law judges value stability. The problem is that life is a process of constant change whether we like it or not. If a change in circumstances requires you to modify child custody arrangements, you need to persuade the judge to allow it.
Persuading a judge to modify an existing custody order could be a challenge, since the other parent may oppose the change you are asking for. In any case, the judge will apply the “best interests of the child” standard. Following is a list of justifications for the modification of child custody.
The “best interest of the child” standard prioritizes the child’s best interests above the best interest of either parent. It obligates the judge to do what is best for the child, which doesn’t necessarily mean giving the child whatever they ask for. Common forms of danger that justify modifying child custody orders include:
These are all just examples. There are many other ways that a child can suffer from a dangerous environment.
Can a custodial parent relocate? It depends. Some child custody agreements prevent the custodial parent from moving out of state or require advance notification. In other cases, the nature of the move raises difficulties such as these:
A move does not automatically result in the modification of child custody arrangements—it all depends on the circumstances. Talk with your lawyer about whether you need to seek a court order.
It is not uncommon for one parent to ignore the terms of a custody order by, for example, consistently failing to return the child to the other parent on time. If this happens to you, you can seek to modify the terms of the custody order. You will need evidence to convince the judge that the other parent is violating the custody order. Try to frame the other parent’s offense as a threat to the best interests of the child, not a threat to your interests as a parent.
Willful violation of a court order is an offense known as contempt of court, and it can carry jail time. If the other parent is consistently violating the court custody order, talk to your lawyer about seeking a contempt of court charge against your spouse, in addition to custody modification. Sometimes this is a good idea, and sometimes it isn’t.
Children change over the years far more than adults do. The needs of a 6-year-old are very different from the needs of an infant, and the needs of a teenager are very different from the needs of a 6-year-old. Child custody modification is one way of responding to these changing needs.
One common situation occurs when the child wants (or needs) to attend a school near the home of the noncustodial parent but far from the home of the custodial parent. Switching custody could allow the child to attend a better school.
As a child gets older, a court gives more and more weight to the child’s preferences (although this might never be a decisive consideration). Even the simple fact that the child is unhappy might justify changing their living arrangements.
What do judges look for in child custody cases? If one of the parents is seeking a modification of existing custody arrangements, the judge will look for a “substantial change” that will affect the child’s well-being. This change can be negative or positive. One parent might have developed a substance abuse problem, for example, or a parent may have fully rehabilitated from prior substance abuse.
Another common change that courts react to is when one parent loses their job. The court will assume that the child needs stability, and it will ask whether the proposed change will benefit the child enough to justify the change. Sometimes a change in custody is exactly what the child needs to preserve stability.
Modification of child custody in Texas is not something that a court takes lightly. Nevertheless, a court can approve a request for a temporary change in primary custody under any of the following circumstances:
You may seek an emergency custody order if the child’s need to leave the custodial parent’s home is urgent.
Death is the ultimate changing circumstance. Naturally, it is one of the reasons a judge will change custody in Texas. If the non-custodial parent dies, a court will probably award the other parent full custody. If the custodial parent dies, the court will not necessarily grant full custody to the non-custodial parent. It all depends on the court’s assessment of the best interests of the child. A court might grant custody to a grandparent, for example.
If the parents were still married when one parent died, Texas courts normally grant full custody to the other parent. Moreover, you cannot absolutely determine in your will who will gain custody of your child upon your death. Again, the court will prioritize the “best interests of the child” standard, which takes precedence over your wishes. That doesn’t mean a court won’t take your wishes into consideration, however.
If you need to modify an existing child support order, it’s not a good idea to “go it alone.” You need to do this right because your child’s well-being could depend on it.
The family law attorneys at Brooks & Radchenko are here to help. Mr. Brooks, for example, has resolved many complex family law issues for his clients, including a multitude of child custody cases.
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