Originally published by Evan Hochschild.
If you have ever been involved in a child custody or divorce case and the outcome wasn’t what you expected or necessarily wanted you may have already started thinking about changes that you would like to have made. Maybe you weren’t able to get primary custody of your child and now your ex spouse has moved in a person that you think is a bad influence on your little one.
It could be that you’ve seen a decrease in the amount of income that you earn and you believe that a decrease in your child support obligation is due. Whatever the reason you owe it to yourself and your family to consider the positives and negatives of filing for a modification.
The Law Office of Bryan Fagan represents clients across southeast Texas, and many of those cases are modification suits. From our experiences we would like to discuss some of the reasons why it may not be a great idea for you to file a suit to modification either a divorce decree or child custody order.
If you file, a lawsuit may be filed against you by your opposing party
Do you remember the rule that we all learned back in high school science: “Every action has an equal or opposite reaction”? While the laws of physics may be different than the laws contained in the Texas Family Code, the fact remains that if you act as the aggressor in filing a lawsuit against your child’s other parent it is likely that he or she will come back and assert some grievance against you as well. Essentially he or she will piggy back off your lawsuit to file one of their own against you.
Clients are typically shocked to learn that the other parent has filed something against them. This is even after I or another attorney with our office discuss with you what potential “ammunition” the opposing party may have against you.
The reason why these “countersuits” are so common in modification cases in Texas is that the other side doesn’t really have anything to lose by filing, so he or she may as well do it. If it can negate any claims you are making or scare you enough into dropping your lawsuit it was worth the time and money to draft and file the paperwork in the first place. You are paying more money to file your lawsuit and their countersuit costs a fraction of that which you’ve already spent to initiate the case.
If you have to face a counter-suit you will simultaneously be responsible for presenting evidence sufficient to win your own case, while having to wage a defensive battle against the claims and allegations of your child’s other parent. Realistically this means more time, money and effort for you and your attorney and can end up being a double whammy if you are not successful in your case and your child’s other parent is in theirs.
Of course, you can always have your family law attorney call the opposing party’s lawyer and discuss a nonsuit of both cases. This means that a piece of paper is filed stating a request to have the lawsuit you’ve filed dropped from the court’s docket as if it had never been filed. The problem is that now it takes two to tango. You can’t nonsuit both cases- only your own. If the opposing party wants to he or she can maintain their case against you no matter what you decide to do with your own case.
Filing a modification means asking a court to fix a twice broken situation
What I mean by “twice broken” is that you’ve already been in front of this judge before and asked him or her to fix a bad situation for you and your family. The order that came out of that case, either by agreement or by order of the judge, does not work for at least one of the prior litigants.
You’ve now come back to the same court and asked the same judge to fix the broken situation once again. This often proves difficult because the ability to modify a prior order is almost exclusively fact dependent. This means that a judge will have to look at all of the circumstances in your family since the original order was signed and determine if there are sufficient grounds to make yet another change for your family. It often takes a mountain of evidence and facts to support your side in order to get the changes you are asking for.
Modification suits are often anger multipliers
Odds are good that you and your child’s other parent are not getting along all that well if a modification suit has been filed. If there are already small fires surrounding your relationship with this person, the filing of the modification suit will add gasoline and light a match at the same time to those flames.
Anger, hostility and negative words about one another will be shared between the two of you (if you’re even communicating with one another) and possibly even with your children.
When lawsuits get filed, pride becomes an issue and people tend to make bad decisions when they feel like their pride is on the line. We’re all human, so that statement probably applies to you as well. It is sometimes the case where small issues that could have been sorted out in mediation prior to the filing of a lawsuit get brushed over due to the anger that you and your child’s other parent feel towards one another.
Before you reach this point, it may be best to attempt to have a dialogue and see if these issues can be resolved by agreement rather than by hiring attorneys and filing lawsuits against one another
Modification attorneys for southeast Texas families: The Law Office of Bryan Fagan
The point of this blog post was not to dissuade you from wanting to file a modification suit in the areas of child custody, child support or any other family law related dispute. There are certainly instances where a modification attempt is justified as well as necessary. However, sometimes discretion is the better part of valor and the modification should be put on the back burner in favor of an honest and fair discussion with your potential opposing party.
If you believe that your family situation calls for a modification of a court order, please contact the Law Office of Bryan Fagan today. A free of charge consultation is only a phone call away with one of our licensed family law attorneys.
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Other Articles you may be interested in:
- Will a DUI affect my child custody case in Texas?
- What is the purpose of Standing Orders in a Texas Divorce or Child Custody case?
- Modifying a child custody order: A how to guide for Texas parents
- Where will my child’s custody case need to be filed?
- Tips on giving in-court testimony in your divorce or child custody case
- Getting Ready for a Hearing On Temporary Custody Orders
- Child Custody Geographic Restrictions in Texas
- Geographic Restrictions in Child Visitation Orders in Texas
- The Dirty Trick of Moving Out of State with the Kids
- Can a Parent remove My Child from the state of Texas or from the County or Country where I am living?
- Children’s Passports and International Travel after Texas Divorce
- Child Custody Basics for Texas Parents Revisited
- Child Custody Basics in Texas
Law Office of Bryan Fagan | Spring, Texas Child Custody Lawyers
The Law Office of Bryan Fagan routinely handles matters that affect children and families. If you have questions regarding child custody, it’s important to speak with one of our Spring, TX Child Custody Lawyers right away to protect your rights.
Our Child Custody lawyers in Spring TX are skilled at listening to your goals during this trying process and developing a strategy to meet those goals. Contact Law Office of Bryan Fagan by calling (281) 810-9760 or submit your contact information in our online form. The Law Office of Bryan Fagan handles Child Custody cases in Spring, Texas, Cypress, Klein, Humble, Kingwood, Tomball, The Woodlands, the FM 1960 area, or surrounding areas, including Harris County, Montgomery County, Liberty County, Chambers County, Galveston County, Brazoria County, Fort Bend County and Waller County.
Curated by Texas Bar Today. Follow us on Twitter @texasbartoday.
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