Originally published by The Law Office of Bryan Fagan, PLLC Blog.
One of the most common reasons why a parent would want to modify a child custody order is because of an issue regarding conservatorships or visitation rights. over the course of time the court orders in place may no longer suit your family and as a result you may want to go back and change the visitation structure that your family has with your children. It may even be the case that your children agree with you and want the change that you are requesting. However, the devil is in the details and it can be difficult sometimes to see your desired change come to fruition.
When it comes to visitation changes in child custody orders, we really need to break the subject up into two parts. The first part is discussing what a modification is and how you may be able to get your modification request granted. The other part of the equation is how can a modification request regarding visitation be granted and what are the steps involved in getting that approved. This is this subject that we will be discussing today in our blog post. If you are considering going back to family court regarding an issue related to visitation rights, then you should certainly read this blog post first.
What is a modification in the world of Texas family law?
The first step in today’s process will be learning what a modification case is in regard to Texas family law. For an order to be modified there must first be an order in place. This is the most essential aspect of a modification case. Without having gone to court for a divorce or child custody case you will not be able to get a modification done. I am envisioning a situation where you and your child’s mother have an informal agreement together on how to split Visitation And costs for your child. If something changes in your family and you do not believe that the current agreement works well for any party, then you would first need to go to court and have an actual order instituted. You cannot simply modify an informal agreement created between you and your child’s mother. There needs to be a valid court order first.
Once you have cleared the first hurdle of actually getting a valid court order established you can consider modifying it in the future. The key to understand a modification case in Texas is that you cannot simply do so without considering the reasons why you are requesting the modification case in the 1st place. A judge will not simply apply his or her own rationale to your case and is different one to the next modification case. rather, there is a set standard by which a family court judge will look at your modification case and any other that is filed in his or her court.
Specifically, a family court judge will look at your case and make a determination about whether a substantial and material change has occurred in the life of your child or in your or your co-parent’s life since the rendition of the prior family court order. This is the standard contained in the Texas family code and will be the basis of any decision made by a judge should your case make it all the way to the courtroom. Without knowing much more about the subject the real question is how likely a judge is to find that whatever change in circumstances you are using to justify your modification clear the hurdle and will allow for him or her to grant your request.
This is the difficult question That you and your attorney will have to answer prior to filing the modification case. The reason why I mentioned that you all should answer this question prior to filing your modification case is that a modification case will not always be accepted by the court. What ends up happening is that you will need to include an affidavit with your modification petition going over the specific circumstances I have led to your filing this case. An affidavit, for those who don’t know, is a sworn statement under oath whereby you will write out the specific circumstances in play, sign your name and then have that statement notarized for it is filed with your modification petition.
The family court judge who reviews your petition can either choose to allow your case to be filed work and deny you permission to do so. It is not as simple as filing your divorce or child custody case in the 1st place. It is a higher level of scrutiny to have your modification case heard before a court. As a result, it is highly recommended that you work with an experienced family law attorney before moving forward with your case.
Once you have filed your petition for modification and have the petition okayed by the family court judge you can then move into the face of your case where the matter is served upon your opposing parent and negotiation can ensue. Keep in mind that even in modification cases it is unlikely that you and your opposing parent will actually see the inside of a courtroom. It is much more likely that you all will have your case settled in mediation rather than determined by a family court judge. What a settlement in a modification case looks like as opposed to a divorce can be significant.
Mediation as a solution to your modification problem
So now you find yourself in a position where your family court order no longer suits you and you are seeking a modification. You have followed through with the steps that I have listed above and are now close to being able to get your case in front of a judge. After all, that is where family law cases are actually decided, right? Don’t most family law cases end up going before a judge? This is the belief that most people hold when they begin a case. However, the reality of most family law cases is that their matter will never go before a judge and will instead settle at some point earlier in the case’s lifespan.
The most likely endpoint for your modification case would be in mediation. For those of you who are unfamiliar with what mediation is, it is a process whereby you and your spouse mutually agree to a third party family law attorney to intercede into your case and help you all reach a conclusion on a number of issues related to your family law matter. Mediation will typically occur at the mediator’s office or in this day and age can take place via video.
There are many benefits to settling your visitation modification case in mediation rather than going to a contested trial. For one, he will likely reach a better result in mediation Then you would have in a trial. Think back to your divorce. Your attorney in that case was probably very strongly in favor of you attending mediation than going to a trial. The reason for this is that you and your co-parent are typically in a better position than a judge would be to make decisions regarding your case. As such mediation offers a better chance to get the result you need versus one from a judge where all bets are off as far as how that judge will view your case.
Mediation typically results in a middle ground being found. I will often tell a client that if you walk out of mediation feeling like you left something on the table and your co-parent feels the same way then it is likely that yours was a fair result. That’s just the nature of settling your case rather than rolling the dice and seeing what a judge will decide for you in a trial. Not every modification case is able to settle in mediation but many or most are. You should begin working with your co-parent on this as early as you can to come to as many middle grounds is possible in your case to avoid a long, protracted and costly modification case.
Having your modification approved by a family court judge
if you are not able to settle your modification case then the other option in front of you would be too bring your case to a family court judge and have him or her issue a ruling on whether or not your modification request will be granted. Keep in mind that a family court judge would be looking to see whether or not a material and substantial change has occurred during the midst of your case. If a material and substantial change has occurred and the modification that you are requesting is in the best interest of your child, then it is likely to be granted.
The question that you and your attorney have to answer is whether or not you are likely to get their request granted that you would like. One requested modification for Visitation that I think is reasonable in most parents’ situations as if you, as the non-primary conservator, wish to have more parenting time with your child then you did initially. You are not necessarily asking to become the primary conservator, but you are asking for something more than just a standard possession order. In circumstances like these a judge would likely look to what has happened since your divorce that would allow him or her to grant your request.
In the event that you have changed jobs and now have employment with a more flexible schedule, have removed yourself from years of battling an addiction and have showed yourself to be able to live clean and sober or if your children Have requested that you have more time with them than you will be able to present a strong case as to why your Visitation time needs to be increased. Basically, the more reasonable your modification request is the more likely it will be approved.
On the other end of the spectrum, if you returned to your family court six months after your divorce and asked that you become the primary conservator of your children than a judge would need to see agree more of a reason To grant a more life changing request like this. What this should tell you is that while the material in substantial change criteria applies to every modification case the reality is that your particular case may not require as much of a material or substantial change in order to get your request granted than others would. Keep in mind that what is in the best interests of your child is largely based on stability and consistency, at least in the mind of most family court judges. As such, if your request and modification are antithetical to consistency and stability for your children Then A judge isn’t likely to grant your modification request.
Due to the complex and sometimes difficult nature of modification cases I recommend that you have a licensed attorney by your side to help you sort through the issues in your case. A modification case can actually resolve itself rather quickly if you have the assistance of a licensed family law attorney by your side to help you negotiate. Keep in mind that hiring an attorney is a short-term investment that can pay long-term dividends for you and your family alike.
Questions about the material contained in today’s blog post? Contact the Law Office of Bryan Fagan
If you have any questions about the material contained in today’s blog post, please do not hesitate to contact the Law Office of Bryan Fagan. Our licensed family law attorneys offer free of charge consultations six days a week in person, over the phone and via video. these consultations are a great way for you to learn more about Texas family law and about the services that our law office provides to clients of ours. we take a great deal of pride in serving our community and hope to be able to speak to you about how we made it the same for you and your family.
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