What are the general reasons a Texas Court would modify a custody order?
Generally speaking, there are three grounds for modifying a custody order in Texas:
- There has been a substantial change in the circumstance of the party or child since the last order.
- The child is at least 12 and has expressed a preference to change the parent who they live with primarily.
- One parent has voluntarily relinquished primary care and possession of the child for at least six months. Parents can also agree to modify the prior order to something that works better for the family. Whatever the basis, the court must always find a modification to be in the best interest of the child.
What evidence will the court consider?
Absent agreement of the parties, most modification cases we encounter are based upon a claim that there has been a change in circumstances of either the parties or the child since the prior order. This makes sense because children are constantly growing and changing. In these cases, the party seeking modification must establish that a change has occurred since the prior order, either for the parents or the child, that is both material and substantial, essentially making the order no longer a good fit. To do this, we must put forth evidence of the circumstances as they existed at the time the prior order was entered (for example location of residence, child’s performance in school and adjustment, work hours of the parties, etc.) and evidence of the way things currently are (for example, the child has special needs, one party moved further away, someone remarried, someone has a new job with better hours, or someone developed a substance abuse problem or has a hard time co-parenting with the other party).
If a party can establish one of the ground for modification, the best interest of the child will be the court’s primary focus. In 1976 the Texas Supreme Court decided the case of Holley v. Adams, 544 S.W.2d 367, and set out what have come to be known as the “Holley factors,” a non-exclusive list that courts use to determine the best interest of a child. Holley factors can include the desires of the child; the emotional and physical needs of the child now and in the future; the emotional and physical danger (of one parent) to the child now and in the future; the parental abilities of the individuals seeking custody; the programs available to assist the parents; the plans for the child by these individuals; the stability of both parties’ homes acts or omissions of a parent which may indicate that the existing parent-child relationship is not a proper one; and any excuse for the acts or omissions of a parent.
A parent seeking primary conservatorship might also consider providing the court evidence of the following: Which parent will best provide for the child’s physical, psychological, or emotional needs and development now and in the future? Who makes meals for the child, does the laundry, helps with homework, attends parent-teacher meetings, doctor’s visits, etc.? Also considered are the parent’s plan for the child, both short-term and long-term; the parent’s ability to cooperate with the other parent, encourage the relationship with the other parent, and reach shared decisions; the geographic proximity of the parties to each other as well as to the child’s school, extracurricular activities, healthcare providers, and other daily needs; whether one parent is asking to divide the siblings affecting the child’s relationship with half- and step-siblings; recent past conduct, such as voluntarily leaving the children with others that does not indicate a willingness of the parent to consider the child’s needs first; as a predictor of future parental fitness.
Can my child tell the court where he or she wants to live?
Yes, any child 12 or older can express a preference as to the parent who is the child’s preference to designate their primary residence. However, while this can weigh heavily on the outcome of a case, a child’s preference is not controlling on a judge’s decision. As with any modification case, the judge will still evaluate the child’s best interest, including the reasons for the child’s preference. If a 13-year-old wants to move in with one parent because he or she imposes no curfew, does not make them do homework, and leaves for the weekend without securing appropriate childcare, this request would no doubt be denied provided the other parent is a suitable choice.
Are parties obligated to mediate?
Usually. Courts encourage parents to settle differences regarding their children amicably whenever possible. If the prior order is agreed upon, it will more than likely contain a “mediation clause” requiring the parties to attend mediation prior to even filing a modification action. If one party requests mediation and the other refuses to comply, the court can order it. Even in the absence of a mediation clause, the court will often refer the parties to mediation prior to setting a final trial in the case. As the majority of cases do settle in mediation, this could be a good opportunity to resolve pending issues without the necessity of court intervention.
What is my burden of proof?
The length of time since the entry of the last order plays a big role in modification procedures. Courts do not like children (or parties) to be in constant litigation. If a party is trying to modify conservatorship or possession and access within a year of entry of the most recent order, the moving party must file an affidavit with their modification stating a material and substantial change so great to suggest that not ordering the modification would cause serious or imminent harm to the physical and/or emotional well-being of the child. This is a significant burden of proof.
After the most recent order has been in place for more than one year, the standard for modification on final trial becomes best interest.
About Michael D. Wysocki
Michael D. Wysocki, managing partner of O’Neil Wysocki – Family Law, believes a family law attorney must possess the skills of a counselor, mentor, negotiator, and litigator. He knows that no two families, children, or cases are alike, and he finds unique and creative ways to solve the current problems while preventing future issues. He states his personal philosophy, “A short-term victory is not good enough. I strive to build solid and lasting results.” He accomplishes this through a results-oriented strategy focused on the client’s goals.
Having tried cases in over 60 Texas counties, countless bench trials and jury trials, Wysocki’s experience in the courtroom is unmatched. He focuses on family law litigation across the state of Texas, representing men and women in divorce, child custody, and complex property division cases. He also has training in collaborative law, mediation, and other forms of alternative dispute resolution.
Wysocki has been named one of D Magazine’s Best Lawyers in Dallas. Board Certified in Family Law by the Texas Board of Legal Specialization, he has also been selected as a Texas Super Lawyer in 2014-2017 and a Texas Rising Star in 2010 and 2012-2013. These honors are bestowed by a peer-vote to only a very small percentage of Texas attorneys each year.
A summa cum laude graduate of The University of Texas at Tyler, Wysocki later earned his law degree from Texas Tech University School of Law, where he graduated magna cum laude. While in law school, he was a member of the Texas Tech Law Review. In 2014, he received the Distinguished Young Alumnus award from The University of Texas at Tyler.