Texas Family Law: How to Modify a Temporary Order

Can the petitioner modify a temporary order before it is signed?

First, it is important to understand how modification works. The purpose of a temporary order is to create a sense of stability before final order. Also, in a case where parents have filed for divorce, the court wants to avoid moving the children back and forth before trial ends; therefore, keep in mind, it is temporary – not permanent.

Judges are reluctant to modify a temporary child custody order unless there is a compelling reason that cannot wait to be resolved at trial-  such as when a custodial parent is endangering the lives of the children (harmful environment) or plans to move and take the kids far away, or a parent violates the terms of an existing temporary visitation order.

When can you modify a temporary order?

If the temporary order is the still in the “drafting phase” and not yet signed by a judge, you may revise it. With the assistance of your Counsel, you can edit the agreed order (if both parents can agree); in the alternative, you can request a revision of your drafted order.

Once a judge signs the temporary order, you need to file a motion to modify at the courthouse. Affidavits as to why the temporary order should be changed including your own statement are required.

Also, it is essential to have affidavits from teachers, counselors, and other individuals that can support your reason for requesting a change. Talk to your family attorney about the legal process and what you want because it can be stressful.

If you wish to modify a court order, start by filing your petition. Who can file this petition? Either parent or anyone with standing can file for modification.

If you are NOT the child’s parent, you can file to modify an order if:

  • You are listed as a party in the current order. OR
  • You have had actual care, control and possession of the child for at least 6 months ending not more than 90 days before the date you file the modification case and you are not a foster parent. OR
  • You have lived with the child and the child’s parent, guardian or conservator for at least 6 months ending not more than 90 days before filing for modification, and the child’s parent, guardian or conservator has died. OR
  • You are the child’s grandparent, great-grandparent, sister, brother, aunt, uncle, niece or nephew and:
    • Both parents are dead. OR
    • Both parents, the surviving parent or managing conservator agree. OR
    • The child’s present circumstances will significantly harm the child’s physical health or emotional development.

See Texas Family Code, Sec. 156 addressing TEMPORARY ORDERS.

After confirming you are eligible, file a Petition to Modify Temporary Orders. You must file in the county where the current order was made. If your child lives in another state or you live in a different state from where the order was signed, contact our office and speak with one of our attorneys. We will be able tell you whether Texas has jurisdiction over your case; also, we can assist with ensuring you file your case in the right county and your paperwork are complete.

In addition to filing your petition for modification, you must pay a filing fee. If you cannot afford a filing fee and you qualify, ask the judge for a waiver. Simply file a Statement of Inability to Afford Payment of Court Costs with the Court along with your petition.

Do not delay. Speak with an attorney right away. Consult with one of our family attorneys about modifying a child custody order. (832) 529-1255.

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