A custody order is written for your family as it was on the day it was signed. Children grow, parents move, jobs change, and sometimes a parent's situation gets worse. Texas law allows custody orders to be modified, but not just because one parent is unhappy. This article explains the legal standard, the special rules in the first year, and how agreed and contested modifications work in Seguin and the rest of Guadalupe County.

What can be modified?

A modification case (a "suit to modify the parent-child relationship") can change:

Conservatorship: who has which decision-making rights.
Primary residence: which parent decides where the child lives.
The geographic restriction.
Possession and access: the visitation schedule, exchange locations, supervision.
Child support and medical support, which have their own standard. See modifying child support in Texas.

The case is usually filed in the same court that made the original order, which for many local families means the Guadalupe County courts in Seguin.

The legal standard

To modify conservatorship or possession, the court must find that the change is in the child's best interest and that at least one of the following is true:

The circumstances of the child, a conservator, or another party affected by the order have materially and substantially changed since the order was signed (or since a mediated or collaborative settlement agreement the order was based on was signed).
A child who is 12 or older has told the judge in chambers which person they prefer to have the right to designate their primary residence. See a child's preference in Texas custody cases.
The conservator with the right to designate primary residence has voluntarily given up primary care and possession of the child to someone else for at least six months.

What counts as "material and substantial"?

There is no fixed list. Courts look at how things have changed compared to when the order was made. Examples that may qualify include:

A parent remarrying or moving in with a partner who poses problems for the child.
A parent's move that makes the current schedule unworkable.
New evidence of abuse, neglect, family violence or substance abuse.
A significant change in a child's needs, such as a new medical, educational or emotional condition.
A parent's work schedule changing dramatically.
Repeated interference with the other parent's visitation.
The child having actually lived with the other parent for an extended time by agreement.

Small problems, normal growing up, or one parent simply wanting more time usually aren't enough by themselves.

The one-year rule

If you want to change who has the right to designate the child's primary residence within one year of the last order, Texas law adds an extra hurdle. You must attach an affidavit (a sworn statement) to your petition with facts supporting at least one of these:

The child's present environment may endanger the child's physical health or significantly impair the child's emotional development.
The parent with the right to designate primary residence is the one asking for the change, or consents to it.
That parent has voluntarily given up primary care and possession of the child for at least six months.

The judge reviews the affidavit first. If it doesn't state enough facts, the court can deny the request without a hearing. This rule is meant to protect children from constant litigation right after a custody order. It doesn't apply in the same way to changes in the visitation schedule or support.

Agreed modifications

Many modifications are agreed. Maybe your teenager has been living with the other parent for a year, or both of you want to switch to a week-on, week-off schedule. If you agree:

One parent files a petition to modify, and the other signs a waiver or answer.
The parents sign an agreed order describing the new arrangement.
A judge reviews and signs it. Sometimes a short hearing (prove-up) is required.

An informal agreement is not a court order. If you change the arrangement without updating the order, the old order is still enforceable, including the old child support amount. Put agreements in writing and get them signed by the judge.

Contested modifications

When parents don't agree, a modification works much like an original custody case:

Filing and service. The petition is filed and the other parent is served.
Temporary orders. If something needs to change immediately, either parent can ask for temporary orders.
Discovery. Each side exchanges information and documents.
Mediation. Many Texas courts require mediation before trial. Most cases settle there.
Final hearing or trial. If no agreement is reached, the judge (or a jury, on certain issues) decides.

The judge may appoint an amicus attorney or order a social study in a contested case. See attorney ad litem vs. amicus attorney.

Emergency changes

If your child is in immediate danger, you can ask the court for emergency relief, such as a temporary restraining order or temporary orders changing possession, often at the same time you file the modification. You'll need sworn evidence of the danger. If family violence is involved, a protective order may also be appropriate.

Building your case

Keep a dated log of important events, missed visits and concerns.
Save texts and emails, and communicate respectfully.
Gather school records, attendance, grades and medical records.
Keep following the current order while the case is pending.
Don't involve your child in the dispute.

Modifications can be quick and simple, or contested and complex. Attorney Jesus R. Lopez offers flat fees and payment plans for many family law matters. Visit the modification and enforcement lawyer page to learn more, or call {{phone}} for a free consultation.

Frequently asked questions

How soon after a divorce can I modify custody in Texas?

You can file any time there is a material and substantial change. But to change primary residence within one year of the order, you must file a sworn affidavit showing a serious reason, such as danger to the child.

Can my 12-year-old decide to live with me?

Not alone. A child 12 or older can tell the judge their preference, which can support a modification, but the judge decides based on the child's best interest.

Do we have to go to court if we both agree to a change?

You need a court order to make the change enforceable, but an agreed modification is usually simple and may require little or no time in court.

Will modifying custody change child support?

Often, yes. If primary residence changes, child support is usually addressed in the same case, and the parent who used to receive support may become the one who pays.

Have questions about your situation? Talk with a Seguin child custody lawyer. Consultations are free, by phone or in person, in English or Spanish.

Child CustodySupervised Visitation in Texas: How It WorksWhen Texas courts order supervised visitation or supervised exchanges, who can supervise, what visits look like, and how a parent can move to unsupervised time.Child CustodyThe Texas Standard Possession Order ExplainedHow the Texas Standard and Expanded Standard Possession Orders work: weekends, Thursdays, holidays, summer, and the schedule for parents over 100 miles apart.Child CustodyMoving With Children After a Texas DivorceHow geographic restrictions work in Texas custody orders, how to relocate with a child or lift a restriction, and how the schedule changes beyond 100 miles.

This article is general information about Texas law, not legal advice for your situation. Laws change, and every case is different.

Modifying Custody in Texas: When and How