Deciding whether to pursue a modification of your custody arrangement is one of the most emotional and complex decisions a divorced father can make. Even though this situation is one where emotions can run high, the ultimate decision should be guided by the most important variable – what is best for your child.
Legal Standard for Modification of Custody or Access
As a Texas family law attorney, I am only an expert in Texas family law. What follows is the legal standard for modifying a Texas custody arrangement. While state laws vary, every state has some mechanism that allows for modifying custody. If you are considering pursuing a modification case I would strongly recommend that you do a consultation with a good local family law attorney about the specifics of your case.
In most cases in order for a Texas court to modify a custody arrangement it must find that the modification is:
- In the child’s best interest; AND at least one of the following –
- There has been a material and substantial change in the circumstances since the last order; OR
- A child at least 12 years old has indicated to the court the child’s desire to live primarily with the moving party; OR
- The custodial parent has relinquished primary care to another person for at least six months.
Does Your Situation Require Modification
I frequently do consultations with prospective clients who are considering pursuing primary custody through a modification case. Their reasons vary from those that are very serious and require immediate action (“I believe my ex is using cocaine and my kids are in danger” or “My ex just let her convicted sex offender boyfriend move in”), to the legitimate but not requiring an emergency response (“I think my kids would get better grades and behave better if they lived with me” or “My 14 year-old son keeps telling me that he wants to live with me”), to others that are simply immature (“my ex is a b**** and I can’t stand dealing with her”). Every situation is different but it is important before proceeding with litigation to determine whether your situation is one that is worthy of the costs involved.
Consider Specifically What Will Be Different if You Win
In the old days (in most states, circa 1980-1990 or before), visitation for the non-custodial parent (usually this meant dad) was roughly a couple of weekends a month and some extended period (maybe a few weeks or a month) in the summer. Currently, under the expanded version of the Texas Standard Possession Order, the overall time split between the custodial parent and the non-custodial parent is roughly 60/40. So for the parent who already has extended visitation a custody modification often boils down to who gets 60 and who gets 40. Clearly there are some other key elements that can come into play (exclusive decision making rights, right to determine where the child will live, who will pay child support and how much, etc.), but the person who is considering whether to pursue custody simply because they want to have more parenting time often doesn’t realize just how small the difference will be if they succeed in the modification.
Costs Involved With Custody Modification
Another key variable to consider before pursuing a modification case is the cost involved, both financial and emotional. Custody cases are the most emotionally-driven, gut-wrenchingly painful kind of cases to experience as a litigant and consequently the type of case most likely to actually to go to trial. As anyone who has ever been a party in a contested custody case can attest, this can get enormously expensive. And some would say the financial cost is nothing compared to the emotional cost in terms of your time, energy, and resulting stress.
Effect of a Custody Battle on Your Child
The final and most important variable I will mention is the effect the case can have on your children. However bad your relationship might be with your ex, it is guaranteed to get worse during and after a custody battle. Part of the job of each family law attorney is to show the court just how bad a parent the other party is. So each party’s history as a parent and failings as a human get dissected and analyzed during the trial. No one leaves the courthouse after a custody hearing with warm and fuzzy feelings for the other parent. Obviously, this can have a long-lasting negative impact on any co-parenting relationship that exists.
Another more direct impact is the involvement of your child in the case. In Texas, by statute (depending on their age) the child’s wishes as to who they want to primarily live with is a key piece of evidence in the case and often the deciding factor. This obviously puts the child in the uncomfortable and sometimes emotionally damaging position of choosing between parents.
While there are certainly situations that call for pursuing primary custody in order to protect your child’s best interest, it is a situation that requires careful evaluation beforehand. The unfortunate reality of a lot of custody litigation is that it can make a bad situation worse.