What are some reasons to modify a possession order or custody?

Perhaps routines have changed or there is a new development for the child. If you and the co-parent have a stable relationship and communication, then you can make changes based on mutual agreement. In most Final Order, there is a statement: “in the absence of mutual agreement, the parties shall…”
In other words, if the parents do not have an agreement, then they must follow the court order.

But, not all co-parents get along. In fact, there are more co-parents who clash on parenting methods, time, support, and discipline. You want to modify a possession order.

Under section 156.101 of the Texas Family Code Title 5, the court may modify (change) an order that addresses custody if the change is in the best interest of the child.

In addition to this consideration, there must be:

1. A change in the circumstances of the child, conservator (co-parent), or other party affected by the order.
   1. This change must be material and substantial [sec. 156.101(a)(1)];
   2. The change must have occurred since either the date the court rendered the Order OR the date that the parties signed a mediated settlement agreement on which the order is based – whichever is earlier.
2. The child is 12 years old and have told the Judge in chambers (privately) his or her preference; Or
3. The primary parent (the parent with the right to decide where the child lives or child’s primary residence is) has relinquished the child for at least 6 months.
   1. This section does not apply to parents who temporarily left a child in someone else’s care because of their military duty.

One of the key words are: “material and substantial change.” 

The second key word and point is: timing. The change must not have existed at the time of the order that needs to be changed. In other words, the change must be new and occur after the court had signed the order. In some few instances, the change may be a behavior that a party established in the original proceeding, and the behavior continued after the order (see In Re JRP).

Examples of Grounds for Changing a Custody Order

In In re VLK (Tex. 2000), the Court ruled that the parental presumption does not apply to modification suits.

What is a parental presumption?

A parental presumption says: “A natural parent has the benefit of the parental presumption – he or she is presumed to be a better fit for a child than a nonparent – in an original proceeding; while the non-parent has a high burden.”

Hiding a Child. In Townsend v. Vasquez (Houston, Tex. App. 2018), the Court ruled that when a parent intentionally and repeatedly alienates a child from his father, it strongly suggests that custody should be modified.”

Passport Issues. In Smith vs. Karanja (2018), the court ruled that Mother’s desire for child to be able to visit family abroad as she had done before cannot be considered a change in the family’s circumstances three months earlier – when the parties’ divorce decree was entered. But, a death in the family or a change in the health condition of a party’s parents (that is, the child’s grandparents) may be a change in circumstance.” The court noted that there was not enough record or testimony; the court wanted to know what the health or state of the grandparent was during the divorce.

Lastly, and in our professional experience, a common reason: “I want to spend more time with my child.” 

In In re C.H.C. (Tex. App. 2013), the Court ruled that “Father’s desire to spend more time with [child] is not a material and substantial change in circumstances.” The court reasoned that by allowing such ‘change’, it would go against the significant hurdles that Texas law imposed in order to modify a possession order.

What about an example of a case that required modification?

Changed Behavior.  In In re J.R.P (Tex. App., 2017), the court noted that since the entry of the trial court’s order, mom had tested positive for using drugs. Although Mom was positive for using drugs at the original proceeding, she continued the behavior after the court signed an order. Also, Mom refused to participate in CPS services and she became more erratic. Therefore, the court concluded that these facts were sufficient for the court to find a material and substantial change in the parents’ circumstances.

I Need to Move (Factors for relcation).

In In re P.M.G (Tex. App. 2013), the court looked at relocation as reasons to change a custody order. Deciding whether relocation is a material and substantial change requires intensive examination of the facts of the case. The court listed factors to consider:

• The distance;
• Quality of the relationship between the noncustodial parent (non-primary parent) and the child;
• Would relocation deprive the noncustodial parent regular and meaningful access to the child?
• The impact of the move on the quality and quantity of the child’s contact with the noncustodial parent;
• Motive for the move;
• How feasible it is to preserve the relationship between the noncustodial parent and the child through suitable visitation arrangements;
• The proximity, available, and safety of travel arrangements;

Can I Move if there is a Geographic Restriction?

Remember, when a primary parent who moves in violation of a geographic restriction (In re C.H.C, 2013), there is material and substantial change. But, courts favor modifying residency restrictions to allow a custodial parent to relocate when the proposed relocation will significantly improve the custodial parent’s economic circumstances to the child’s benefit.

What if I Remarry?

One final note: remarriage is a ground for modification. But, the modification has to be in the best interest of child; on its own, remarriage is not sufficient standing. Does the remarriage affect the circumstance of a child such as reduced time for noncustodial parent or relocation? Does the remarriage affect the circumstance of a noncustodial parent who now has another biological child to financially support – thus, modification of child support?

If you need help figuring out if your circumstances have changed – and if this change is sufficient enough to modify a possession order, give us a call. (832) 529-1255.

Also, you can send us an email, office@aminulaw.com. We want to hear from you and get you to one of our experienced attorney right away.