Tommy hung up the phone with his ex-girlfriend Charlene just as his mom Lucy walked in the restaurant to meet him for their weekly breakfast. Lucy could tell her son was upset when she sat at the table.
Lucy: What's wrong my son?
Tommy: Charlene is playing fast and loose again with my scheduled visit with our son Jr.
Lucy: Again with her non-sense.
Tommy: Every time she gets a new boyfriend, she puts my rights and access to Jr. on the back burner. Its been two months now since I seen Jr. I know he's not happy.
Lucy: I don't know how a judge trusted that woman with a child. What's going on with my grandson? Why is he unhappy?
Tommy: Charlene's new man and he have gotten in some confrontations.
Tommy: I know Jr is twelve and shouts off at the mouth at times but a grown man has no business threatening to knock his lights out. If that joker lays a hand on my son, he is gonna need more than the cops to get away from me.
Lucy: Violence is not the way to handle this Tommy.
Tommy: Now Charlene and Jr. lives with this fool. After she told me they lived together, I checked his record. Typical Charlene, she fell hook line and sinker for a bad boy. Her new guy has a rap sheet as long as the Rio Grande and this is who she feels our son should live with and learn from.
Lucy: Son, I know the last time you and Charlene were in court was not easy but now her living situation is a danger to Jr. In the last five years since the judge signed the custody orders, Charlene tried multiple times to turn Jr. against you by keeping him away or outright trying to alienate him from you. Thankfully her attempts were unsuccessful. Jr. told me several times he wants to live with you because his mother is always drunk and never around. Maybe its time to change the custody orders.
Tommy: Mom, maybe you're right.
Grounds to Modify Custody
In the fictional narrative above, Tommy considers his grounds to modify a prior Texas custody order. A Texas Family Court may change a prior custody order if modification would be in the child's best interests and:
The circumstances of a conservator, child or other party has materially and substantially changed since the earlier of
a. rendition of the last order; or
b. signing of a mediated settlement agreement or collaborative law settlement on which the order is based.
A child at least twelve years of age or older in the court's chambers expresses their preference as to whom should have the exclusive right to designate the primary residence of the child; or
The conservator with the exclusive right to designate the primary residence of a child voluntarily relinquishes primary care and possession of the child to another person for at least six months.1
A Child's Best Interests
The court's decision will focus on the child's best interests. The best interests of a child shall always be the primary consideration of a court in determining conservatorship, possession of and access to a child.2 The court has a list of factors it will look at to determine the child's best interests. The court will examine:
the desires of the child;
the emotional and physical needs of the child now and in the future;
the emotional and physical danger to the child now and in the future;
the parental abilities of the individuals seeking custody;
the programs available to assist these individuals to promote the best interest of the child;
the plans for the child by these individuals or by the agency seeking custody;
the stability of the home or proposed placement;
the acts or omissions of the parent that may indicate that the existing parent-child relationship is not a proper one; and
any excuse for the acts or omissions of the parent.3
These factors, known as the Holley factors, are used to examine a child's physical, emotional, social, mental, educational, moral, disciplinary welfare and development. The Holley factors are not exclusive. Rather, the courts determination of a child's best interests will be fact driven.
A Material and Substantial Change
A material and substantial change in circumstances is not defined. Prior Texas courts found a material and substantial change in circumstance occurred when the following occurred:
a party's marriage;
change in home surroundings;
mistreatment of a child by a parent; or
a parent becoming an inappropriate conservator for the child.
However, a court will look at the specific facts involved to determine if a material and substantial change in circumstance occurred.4
A Twelve Year Old's Preference
The Texas Family Code gives children twelve years of age or older a say in expressing their preference as to which parent or conservator they wish to live with. It is a factor the court will consider. However, parties mistakenly believe that once a child expresses their preference on whom they desire to live with, that equals an automatic change in custody modification. That belief is incorrect. Interviewing a child, will not diminish a court's discretion to determine the best interests of the child.5 A court will consider not only the child's preference, but will also look at the totality of the facts and circumstances to determine if custodial modification will serve the child's best interests. Examples of factors the court may consider are the child's maturity, life with either conservator, testimony from teachers, physicians, and/or therapists, and the impact other siblings.
If a parent or conservator gave up the primary care and custody of a child to another and the relinquishment is for six months or greater, then grounds for modification exist. However, if this is not applicable where a party does this due to military deployment or duty.
If you are interested in modifying a prior court order to change custody, possession, and or access you may find our attorney's information below to schedule a consultation.
Author's Information: Attorney Tracey A. Beecher is a family law practitioner. She represents clients with divorce, child support, child custody, property division in relation to divorce proceedings, and child protective services cases. She appears in courts within Brazoria, Fort Bend, Galveston, Harris, Liberty, Montgomery, and Waller counties.
Legal Disclaimer: Each person's situation and circumstances are unique. As such, this article is given to provide general information only. It is not legal advice nor is it intended as a substitute for legal counsel. Should the reader need legal advice or counsel, it is appropriate to seek the assistance of a licensed attorney.
Sources and Citations
1 Texas Family Code 156.101
2 Texas Family Code 153.002; see also Len v. Len, 79 S.W. 3D 10, 14 (Tex. 2002).
3 Holley v. Adams, 544 S.W. 2d 367 (Tex. 1976)
4 In Re A.L.E., 279 S.W. 3d 424, 428 (Tex. App. – Houston, [14th Dist.] 2009, no pet.)
5 Texas Family Code 153.009 (c)