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Child Custody Modification

Child custody is established in either a final decree of divorce or a suit affecting a parent-child relationship. Custody must not be confused with visitation. That is, “custody” is normally how people refer to conservatorship. Visitation is the possession of and access to a child. Both can be modified. The standard for doing so is that you must be able to prove that the circumstances of the conservators or the child have substantially and materially changed since the rendition of the first order. That is, something has happened since the previous orders that would cause alarm or would change the dynamics of things if the court knew these facts. For instance, if one parent ends up going to jail, commits child abuse, is on drugs, picks up a criminal case, starts dating someone who is a criminal offender, etc.

The default in Texas family law for conservatorship is joint managing conservatorship. This means that the parents can generally manage to amicably co-parent and so both parents have independent equal rights and duties with respect to the child. The only right that would differ in most cases is which parent has the exclusive right to designate the primary residence of the child. This means—with who will the child live with primarily of the time? Sole conservatorship is ordered in those cases where one parent is not suited for joint managing conservatorship. That is, to appoint that parent as a joint managing conservator would not be in the best interest of the child. Rather, it would actually cause physical damage or emotional harm to the child. Basically, the other parent has screwed up so much they have lost their opportunity to be a joint managing conservator. This parent would be the possessory conservator who would have a right to visitation—whether that possession is by supervision, a limited possession schedule, or the standard possession order in the Texas Family Code, Chapter 153.

To modify child custody, in some cases the non-primary parent is seeking to become to be appointed as the conservator who has the exclusive right to designate the primary residence of the child. This can happen for numerous different reasons. In Texas, a child twelve years of age or older can designate where they would like to primarily reside and as long as this is not against the child’s best interest, the court will honor that election by the child. The child will meet with the judge in chambers without any attorneys present (maybe just the court reporter, judge, and child in most circumstances) and will let the judge know what, if any, issues are going on and where they would like to live. Also, in some instances, the primary parent can have some of the previous issues mentioned arise—drug addiction, criminal activity, dating person who arguably should not be around children. That is, the primary parent is arguably no longer the best parent for this and this is no longer in the child’s best interest.

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