How to Modify a Divorce Decree When Children Are Involved

Modifying a Divorce Decree and Child Custody in Texas

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As we have discussed in earlier articles, divorce is a very common occurrence in Texas, with about 75,000 couples in the state ending their marriages each year. That’s an average of almost 290 divorces every weekday. However, the fact that it is a common occurrence does not mean it is uncomplicated. There are always financial issues to be addressed in every divorce proceeding, which experienced family law attorneys can help you navigate. Beyond finances, in many cases, there are also serious questions regarding child custody.

In this article, we will discuss child custody matters related to divorce, as well as how a divorce decree in Texas involving children might eventually be modified. Additional information concerning many other aspects of family law can be found in our extensive online collection of articles, all for your convenience.

Child Custody Mediation

In divorce proceedings involving minor children, the word “custody” is often used in conversations by both parents and attorneys, but “conservatorship” is the word used by the Texas Family Code to describe the responsibilities parents have toward minor children following a divorce. In fact, the word “custody” is never used even one time in the Texas Family Code.

One means of resolving questions of child custody or conservatorship is through child custody mediation. Typically in this situation, a skilled, neutral third-person, preferably an experienced family law attorney, will meet with the parties involved in a divorce to try to arrive at a voluntary agreement satisfactory to both sides. One of the great advantages of this approach is that a potentially contentious court fight can be avoided, hopefully enabling important personal relationships to be maintained.

In situations where mediation is successful, you can find Texas divorce forms with a child here.

The Courts and Conservatorship In A Decree For Divorce

In circumstances where an amicable settlement through mediation proves impossible, the court will make the final decision on conservatorship.

There are basically two types of conservatorship in Texas, managing conservatorship and possessory conservatorship. Managing conservatorship, in turn, is subdivided into two forms: joint managing conservatorship and sole managing conservatorship.

  • Joint managing conservatorship – In most cases, Texas courts prefer to award joint managing conservatorship, which means that the parents will share decision-making on most matters. These include things like the child’s education, medical care and religious instruction and beliefs. The preference for this type of conservatorship is based on the assumption, shared by the courts and the state legislature, that it is in the child’s best interest to have a meaningful and fulfilling relationship with both parents.

Joint managing conservatorship, however, does not mean equal time. In most joint managing conservatorship cases, one parent is named the primary conservator who determines the primary residence of the child, and the other conservator has visitation rights.

Further, under the Texas Family Code, the court may order one joint managing conservator to pay child support to the other joint managing conservator.

  • Sole managing conservatorship – In situations where the court decides that joint managing conservatorship is inappropriate, the alternative is to name one parent as the sole managing conservator. As such, this parent has greater rights, but also greater responsibilities. The managing conservator will determine where the child lives (probably with them), where they go to school, what medical care they receive and what religious instruction they get. The managing conservator will also be entitled to receive child support from the other parent.
  • Possessory conservatorship – If you are not the sole managing conservator of your child, the court will name you the possessory conservator. As such, you have the right to receive from your former spouse information about your child’s activities, schooling, medical care and religious instruction, but you will not have a voice in making decisions about those matters. You will, however, have the right to attend your child’s school events and extracurricular activities. The basis of being named a possessory conservator is that something about your history or the circumstances of your child’s life led a judge to conclude that it is not in your child’s best interests for you to have equal rights and duties in their upbringing. You will have visitation rights with your child and also be required to make monthly or periodic child support payments to the sole managing conservator.

Best Interests of The Child

In making decisions regarding conservatorship, Texas courts are guided by the “best interests of the child” standard found in Section 154.004 of the Texas Family Code. In reaching a decision, the court will consider such things as the home environment offered by each parent, the distance between parents’ homes, the ability of each parent to serve as the child’s caretaker, each parent’s financial and employment situation, whether the parents can work together in raising the child, and finally, the child’s preference, if they are at least 12 years old.

Can You Change a Divorce Settlement?

Any way you approach it, divorce is a complicated issue with many essential points to keep in mind. As important as these matters are, the provisions of divorce settlements are not chiseled in stone — so the answer is yes, the terms can be modified, including those involving conservatorship. A party to a divorce decree can file for a modification as early as a year after the decree has been finalized, and Texas law generally favors granting modifications when a substantial change has occurred either for a spouse or child involved in the decree.

Modifying Child Support

Child support orders in a divorce decree can be modified if the circumstances of the child or any party to the divorce have changed substantially since the order was signed, or three years since the order was last modified. For example, has your former spouse’s income substantially increased, thus allowing them to pay more in child support? Or, have the needs of your child or children changed dramatically, justifying an increase in support payments?

On the other hand, has your former spouse permitted your child to live with you primarily? If so, you have the right to request a modification eliminating the requirement that you pay child support.

Whatever the reason, either parent can petition the court for a modification in child support.

Modifying Child Custody

Texas family law refers to child custody as possession, and you or your former spouse may modify a divorce decree as it relates to possession if the circumstances of your child or either party have substantially changed since the signing of the decree. If your child is at least 12 years old, a motion can be filed to have the child confer with the judge as to whom the child wants to have the right to determine their primary residence.

Finally, whichever parent has the right to determine the child’s primary residence may voluntarily relinquish their right as primary caregiver to the other parent for at least six months. In that case, the parent gaining primary caregiver status may file a motion to modify the divorce decree to have themselves named the child’s primary conservator.

Can You Modify The Original Divorce Decree If You’re Moving ?

Closely related to child custody is the question of moving. Life is filled with uncertainties, and let’s say you find you can no longer afford your current home and have to move into a less expensive residence. If you remain in the same city, school district or even county, you may not need the court’s approval.

But if circumstances require making a long-distance move, that is another matter as your change of residence would make it extremely difficult for the child to spend time with both parents. Hence, a modification of the original divorce decree would probably be required.

The standard for approval of a modification in this situation is that the change be in the best interest of the child. That is a very complex assessment, and a very involved showing may be necessary to demonstrate to the court that the move will actually benefit the child’s best interests.

Get Expert Legal Advice on How To Modify Your Divorce Decree

If you believe that changed circumstances related to you, your former spouse, or children justify a request for a modification of your divorce decree, we believe the wisest course of action is to secure the assistance of an experienced family law attorney. They can assist you in filing the needed forms, such as the Texas child custody modification forms, and secure the necessary court orders to protect your children and your interests.

Family law is one of our specialties at Hammerle Finley Law Firm. We’ve been assisting Texas families since 1984, and would like to have the opportunity to assist you as well. If you believe your circumstances or those of your child necessitate the modification of your original divorce decree, we encourage you to reach out. Contact us today to schedule your initial consultation and give us the opportunity to become a trusted advocate for you and your children.