Modifying Custody in Texas

Sometimes a custody order needs to be modified. Children get older, circumstances

change, or one parent is not acting in the best interests of the child. Modification of the
original order is recommended to ensure that the child and the parent is protected under
the law.
If you want to modify your custody order in Texas there are a few requirements you
need to keep in mind. The Texas Family Code lists out the following:
1. The modification must be in the best interests of the child and the circumstances of the
child or parent have materially and substantially changed since the original child custody
order or agreement;
2. the child is at least 12 years old and has told the court that he/she wants to change, or
3. the parent who has the primary physical possession of the child (i.e. the custodial parent)
has voluntarily given the childs care and custody to another person or parent.
If you are attempting to modify an order that is less than one year from when the order
was made, then you must file an affidavit with your modification. The affidavit must
allege one of the following along with the applicable facts:
1. the childs current environment may endanger the childs physical health or significantly
impair the childs emotional development;
2. that the custodial parent is seeking the modification, and the modification would be in the
childs best interests, or
3. that the custodial parent has voluntarily relinquished the custody and care of the child,
and the modification would be in the childs best interests.
Material and Substantial Change
Material and Substantial change could be anything that affects the court ordered
possession period with the child. Examples include:
1. Medical condition that affects the ability of the parent to take care of the child;
2. Criminal acts and convictions of the parent;
3. One parent moved to a different state;
4. Even the use of drugs and alcohol could be viewed as a material and substantial change.
Preference of the Child

After hearing the proper motions, the court may decide to interview children who are at
least 12 years old in cases involving modification of custody orders. The Judge will
interview the child privately to determine where the child wants to live. The Judge may
even decide to interview children younger than 12 years of age. Be forewarned, the court
will always base its decision on the best interest of the child and not necessarily on the
childs interview.
Relinquishment of Possession
Modification of the custody order can also occur if the primary parent voluntarily gives
up care and custody of the child to the other parent for at least six months. This does not
apply to military members who are deployed, mobilized, or called up for training.