Texas Child Custody Modification

Attorney Explains Laws for Modifying Child Custody

Video Transcript:

Erin Leake:

Going to trial is when you would go to mediation, and I would say about 90% of our cases are going to settle in mediation before we move to final trial.

Rob Rosenthal:

If you've already got your child custody agreement all worked out, what if you need a modification? What do you do? Well, that's what we're going to find out today when we ask the lawyer.

Hi again, everybody, I'm Rob Rosenthal with askthelawyers.com, and I welcome my guest, Austin attorney Erin Leake with the Vaught Law Firm here to answer all our questions. Erin, thank you. Good to see you again.

Erin Leake:

Thank you. Good to see you too.

Rob Rosenthal:

So let's see. Let's say someone's gone through divorce, they've got their child custody agreement all worked out, and then let's say they need a modification. Is there a certain period of time that has to go by before they can do that modification?

Erin Leake:

It depends on what they're asking to modify in that custody order or possession schedule. If they're asking for a change in the conservator who has the primary residence of the child, then they would need to wait one year before they could ask the court to modify that provision. Now, if they have extenuating circumstances such that the child's present circumstances are going to significantly impair the child's physical health or emotional well-being, then they can ask the court within that one year timeline to go ahead and change the primary person.

Rob Rosenthal:

Can you give us some examples of what circumstances might justify a modification?

Erin Leake:

Yeah, so on a normal modification, those outside of one year, the circumstances that the person would need to show would be that there was a material and substantial change in circumstances. That's pretty specific to everyone's individual circumstances, but typically it can be one party wants to move or has moved; someone has been married; sometimes the virtue of the child getting older and the needs that they have as they age might warrant that material and substantial change in circumstances.

Rob Rosenthal:

Let's talk about moving a little bit. I'm thinking you're going to say it depends, but let's say one person wants to move. Let's say the divorce was in Texas and they want to move within the state. Does that require a modification?

Erin Leake:

Usually it does, because when the initial order is rendered by the judge, they put in a geographic restriction which says that the child must live within a certain geographic area. It's typically the county that they live in, and then the counties that surround that county. So if they're planning to move outside of that geographic restriction, then they will need a modification.

Rob Rosenthal:

So, obviously for moving outside the state, does that create extra headaches and cause more issues?

Erin Leake:

Yes, yes, it does. Relocation cases are probably the most difficult cases that family lawyers have, because there isn't a way to split that. One party wants to move and one party doesn't want them to move, and there's really no way to find middle ground. It's not like we can just say, “You want to move to Dallas, and you’re still in Austin, so, okay, you can move to Waco.” It doesn't work like that.

Rob Rosenthal:

So what can be done?

Erin Leake:

So you would need to file a modification and ask the court to change your geographic restriction so that you can move where you would like to go.

Rob Rosenthal:

So is this the kind of thing that can be done through mediation, or is it more complicated than that?

Erin Leake:

All child custody disputes are going to typically go through mediation. Any child custody dispute is going to end up in mediation before it goes to a trial.

Rob Rosenthal:

Okay, but you do need to have your attorney involved in the whole process, I'm guessing.

Erin Leake:

Yes, yes. So, to get to mediation you would have to file a modification with your attorney and then go through the normal steps of the case. Then before going to trial is when you would go to mediation. I would say about 90% of our cases are going to settle in mediation before we move to final trial.

Rob Rosenthal:

Is it the kind of thing that most people, if they say, like in your example, “I’m in Austin, but I want to move to Dallas.” Do they go through the modification first, or are there cases where people just up and move to Dallas, and now they’re going to work on the modification.

Erin Leake:

So you need to file for modification first. If you move to Dallas and it is prohibited by your order, you're in violation of the court order. The judge is not going to be very happy with you if you moved in violation of that court order.

Rob Rosenthal:

Well, we want the judges to be happy with us.

Erin Leake:

Yes we do.

Rob Rosenthal:

Erin, thank you so much for helping us. I think you probably helped a lot of people today. I appreciate your time.

Erin Leake:

Thank you.

Rob Rosenthal:

Well, that's going to do it for this episode of Ask the Lawyer. My guest has been Austin attorney Erin Leake with the Vaught Law Firm. Remember, if you want the best information or you want to make sure you can choose a lawyer that lawyers choose, go to askthelawyers.com. Thanks for watching. I'm Rob Rosenthal with AskTheLawyers™.

Disclaimer: This video is for informational purposes only. In some states, this video may be deemed Attorney Advertising. The choice of lawyer is an important decision that should not be based solely on advertisements.