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Modification of Custody

  • Wade Christiansen
  • Sun, 04/22/2018 - 12:19pm

Parents who live under the terms of a custody order often face the question of whether the terms of the order can be changed.  This question usually arises due to the changing circumstances that life inevitably brings.  Today's blog post will address the legal basis for a Court to change custody after an initial custody order is rendered.

What Court has authority to change custody?

The Court that rendered the prior order is the court of continuing, exclusive jurisdiction, so the modification case must be filed in that same Court.  However, if the child's residence has been in a different county or state for the preceding six months, the Court that rendered the prior order is required to transfer the case to the county of the child's residence, upon proper request by either party.

What are the grounds for changing custody?

The Court can modify custody if it believes that the change of custody is in the best interest of the child, and one or more of the following additional requirements are met:

(a) the circumstances of the child, a conservator or other party affected by the order have materially and substantially changed since rendition of the prior order;

(b) the child is at least 12 years old and has expressed to the Court the name of the parent he/she prefers to reside with; OR

(c)  the conservator who has the right to establish the residence of the child under the prior order has voluntarily relinquished the primary care and possession of the child to another person for at least six months.

How soon can the Court change custody?

Typically, a trial occurs within 8 to 12 months from the time the modification case is filed, although the actual timeframe depends on a wide variety of factors.  However, there are some circumstances that allow the Court to render a temporary order changing custody while the case is pending.  This temporary order can be sought immediately at the time the suit is filed, and the Court can conduct a hearing within a matter of two weeks to determine a change of custody as a temporary order. Circumstances that permit the Court to change custody as a temporary order in a modification case include:

(a) the order is necessary because the child's present circumstances would significantly impair the child's physical health or emotional development;

(b) the person designated in the final order has voluntarily relinquished the primary care and possession of the child for more than six months; OR

(c) the child is at least 12 years old and has expressed to the Court  the name of the parent he/she prefers to reside with.

If you believe that your current custody order is unworkable or that a change is needed to protect the best interest of your child, you should seek immediate legal assistance.  Christiansen Law Firm has extensive experience with custody modification cases.  Contact the family law attorneys at Christiansen Law Firm in San Antonio or Houston to arrange a free case evaluation.


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