Texas law bases child custody decisions on the best interest of the child. A custody order is meant to provide stability and consistency for your child and make it easier for you to co-parent.
As your child grows older and/or your life circumstances change, you may need to change the terms of your custody order. Perhaps your child becomes involved in new activities or you receive a new job. Any number or scenarios could make the terms of your current custody order no longer feasible.
Modification by agreement
Ideally, you and your co-parent can agree on terms for a new custody order. If you do, it is still best to put the new terms in writing and file the agreement with the court to make it a legally binding order.
This prevents future conflict. Your co-parent might verbally agree to change the custody schedule but then change their mind, insisting you go back to the old schedule. With the old schedule still being legally binding, you will be forced to follow it or face being in contempt of court.
The situation becomes even more complicated when your co-parent does not agree to your proposed changes. You must then seek a court order granting the modification.
This is accomplished through filing a petition to modify custody. However, before you file your petition, it is important to know your chances of it being granted.
Substantial change in circumstances
Texas law requires you to prove a substantial change in circumstances to justify your proposed modification. A court will carefully examine the reasons you want the modification and determine if they are substantial enough to warrant a change and if the modifications requested will continue to be in the best interest of your child.
There is no clear answer about what qualifies as a substantial change in circumstances, but there are some general themes to keep in mind.
Reasons such as a new job or promotion requiring a change in schedule or evidence that a child is in danger or faces harm from a co-parent are generally considered substantial. Being upset that your co-parent has started letting your child go to bed later than usual is not likely to be considered substantial.
Even if your reason is substantial, you have the burden of proving it in court. In the example above, if you believe your child’s health or safety is in danger around your co-parent, you must prove it.
For example, your co-parent may have a history of drug addiction and you might believe they are using drugs again. You must do more than assert this in your petition. You must prove it through evidence such as witness testimony or a failed drug test.
Your proposed modification could be granted by default. When you file your petition to modify custody, you must serve it on your co-parent. They can then file a response to the petition.
If they do not file a response or appear in court, your modification petition will likely be granted. If they do file a response, your case will be set for a hearing on the petition. Your co-parent must have at least 45 days’ notice of the hearing.