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:
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).)
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.)
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.
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:
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).)
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.