In a previous post, I have written about what a modification is and what it does. But recently a reader asked me to write about how the process works and what is required to change primary custody. Changing primary custody is not something that the courts will do lightly and it requires clearing certain hurdles. This week, we’ll explore the essential steps and considerations involved in pursuing this type of modification action.
1. Material and Substantial Change in Circumstances:
First and foremost, to modify conservatorship the Texas Family Code requires a showing of a material and substantial change in circumstances of the child, a conservator, or other party affected by the order. What qualifies as a material and substantial change in circumstances varies and depends on the facts of the case. This change could include a parent’s relocation, a change in the child’s needs, or a shift in the parent’s ability to provide a stable environment, or the current primary conservator causing significant impairment to the child.
As with any case documentation is a must. Anyone can take the witness stand and say things are happening that are impairing their child. But if they cannot provide evidence to prove it, the likelihood of success diminishes rapidly. Photos, text messages, audio, and video recordings will all go a long way in proving your case to the Court.
Another way to help establish your case is to have a solid list of witnesses. You want people who will speak highly of you as a parent and/or people who will speak on the negative aspects of the other party. Additionally there may be situations where you may need expert testimony such as the child’s doctor, a psychiatrist, a police officer, or cps worker. The better the testimony of your witnesses the better your chances of success.
4. Best Interests of the Child:
As with any case involving a child, the primary factor the court will consider is the best interests of the child. This is why documentation and good testimony are so important. You will need to put on a good enough case to convince the judge to flip the previous ruling. Your case for a modification must convincingly demonstrate that the proposed change will better serve the child’s physical, emotional, and developmental needs. This could include evidence of a more stable living environment, improved quality of life for the child, or enhanced parental involvement.
5. Filing a Suit for Modification:
After you have your evidence documented and your witnesses ready to go, you will need to initiate the process of changing primary custody. You will be best served in hiring an experienced family law attorney who to draft and file a petition for modification with the appropriate family court. While it is possible to represent yourself in these matters, it is highly inadvisable. The vast majority of people do not understand each element of putting on a case, and choosing to proceed pro se greatly reduces the chance of success.
Getting the suit underway is just the beginning of the process. Next week we will discuss temporary orders, discovery, and everything else that comes after the modification has begun.