When A Child Wants To Change Custody

Reading Time: 8 minutes
Sad girl holding his father before leaving, while mother watches from the couch.
A child’s preference plays a role in the ultimate decision of the court over custody.

When the courts decide which parent will gain custody of the children, a judge will often consider which parent the children prefer. Over time, those preferences can change. There is a myriad of circumstances that may lead a child to want to change homes and live with the other parent. This ranges from serious conflict in the home to a desire for a different lifestyle or a more attractive school option. In addition to the emotional toll such a change in the parenting time schedule may trigger, there’s also a deluge of legal procedures you may encounter when a child wants to change custody. The important –– and easiest –– way to make sure the transition goes smoothly is to stay in communication.

Talk To Your Children

Discussing custody with your children is important for understanding a change.

Before making such a life-altering decision, it’s important to talk to your children and take their concerns seriously, even if it’s a painful conversation to have. Short of abuse or neglect, your children need to understand that their opinions matter to you. You should also establish some ground rules for this important discussion.

Find out if your children are making an emotional, split-second decision or if they’ve had a custody change on their minds for a long time. Parents should consider how they would perceive the situation through the eyes of their children, especially in the wake of a divorce.

Sometimes your children may have gotten into a disagreement with one parent. They might have got disciplined in a way that they did not like. Their friends might be attending another school that your child wants to attend as well, and staying with the other parent will allow them to do so. Your children may feel they do not have enough parenting time with you under the current agreement and want to live with you. Other times, there can be abuse or neglect in their home.

Discuss With The Other Parent

People who have a positive co-parenting relationship with the other parent may be able to work out the situation as a family. In some cases, they may opt for mediation or counseling to improve the situation. In other families, of course, discussing this with the other parent may mean contacting an attorney and letting the courts step in. A family law attorney can work with a parent to reach a fair settlement on custody issues and pursue changes to the parenting plan that is in the best interests of the child.

Communicating with your spouse is important to providing the best life for your child.

If you can agree on the change in custody with the other parent, you will need the judge to approve the modification. However, it will be a much smoother process. If both of you cannot agree, you will have to file a case. You will have to have an attorney plead your case for you in court so that the judge can decide whether to modify the order. It’s possible for you to change a child custody order even if the other parent doesn’t agree. It will be much more difficult to do so.

Problems With Not Making A Modification Order

It might be tempting to agree on a new child custody arrangement without the trouble of going to court. This comes up often if you and your ex are amicable co-parents. However, if your child lives with you without the approval of the courts, both of you might be found in contempt and be penalized.

The new plan that you and your ex have would also not be enforceable by the court. If your ex reneges on the agreement, you would not be able to hold them accountable for it if you did not get a legal modification. It is within your ex’s rights to take you to court for contempt when you have the child live with you without the approval of the courts.

You must request for legal modifications to your child custody orders and schedule to protect your rights.

How To Change A Child Custody Agreement

Here are the factors you need to consider when seeking to change a child custody agreement.

Time Passed Since The Original Custody Order

The court will typically not allow any changes to the child custody order within one year of the current order. However, you can ask for a modification within one year if:

  • The child’s physical and emotional health is in danger in their current environment
  • The parent who has primary custody allowed someone else to have primary possession and care of the child for at least 6 months, except if the parent is on active military deployment
  • The parent with primary custody is agreeable to the change

If the other parent does not agree to modify the custody arrangement, you must wait until a year has passed from the current order unless you can prove one of the other conditions above. You can consult with your legal advisors for specific help and advice.

Reason For Changing Child Custody

A child custody change requires court approval and will always be decided in the best interest of the child.

The court will only approve a change to the current child custody order if there is a material change in circumstances for the child or the parent. Without a compelling reason, the courts will not relook at the case to determine the outcome that will be in the best interests of the children.

If you want to change your child custody order, you will need to prove that it is in the best interests of your child and that one of the conditions below is valid:

  • A child wants to change custody and is at least 12 years old
  • The custodial parent allowed someone else to take over primary care and possession of the child for at least six months. The only exception is if they were on active military deployment
  • A major change in circumstances for the parents of the child

Below are the major changes in circumstances that the court will consider when deciding whether to modify a child custody order.

Your Child’s Wishes

The judge will consider some of the following factors:

  • Age and maturity of your child
  • The consideration that your child has put into their decision when a child wants to change custody and live with the other parent
  • The reasons they provide on why they want to make a modification to the current orders

Depending on your child’s age, your child may not attend the hearing itself. Instead, the court will gather testimony from their counselors or guardians as evidence.

Moving Out Of State

Your child might want to change the custody arrangement if the custodial parent is moving out of state, and your child is keen to live with you to continue going to his or her current school and see their friends. Other times, your child might want to follow a non-custodial parent moving out of state because they can change schools.

The court will only consider modifying custody orders on grounds of moving under certain conditions. The conditions include if the child will experience a significant benefit from changing custody or if the move would make the existing custody and visitation schedule impractical.

One Parent Does Not Follow Custody Terms

Your child might want to get a change of custody and live with you if they’re not seeing you as much as they should. The other parent might not be on time when returning your child or not be keeping you informed on key decisions about your children. They might be extending their parenting time without your approval.

You will need to provide notice to the other parent. Furthermore, you should show that their failure to comply with custody terms is not in the child’s best interests. An experienced family law attorney can help you to build your legal case based on the failure to comply with the existing agreement.

Your Child’s Needs Have Significantly Changed

Your child may be asking for a change in custody as their needs change. They might want a change in environment. As your children get older, the court will put greater weight on their wishes about which parent they want to live with. You will need to prove that your child’s needs have changed or that they are unhappy at the other parent’s house.

In some cases, your child may have developed a medical condition that one parent is better suited to care for. The court might consider it as a valid reason to change custody when a child wants to do so.

Parents Change in Circumstances

If one parent changed jobs and the change in schedule is affecting their parenting time with the children, the child might request for a change in the custody arrangement.

Sometimes there could be changes such as the non-custodial parent moving back to town. A parent who formerly struggled with alcohol addiction might have been sober for a few years and held down a stable job for two years. The parent may request a modification to increase their parenting time with their child.

The Child Is in Danger

There could have been a change in circumstances for the custodial parent that causes them to become abusive or neglect the child. They could have started abusing alcohol or drugs. Alternatively, they could have put the child in danger by displaying erratic behavior, having psychotic breaks, or be hospitalized frequently due to their actions.

If your child wants to change custody because of their concerns, you should file a motion with the court. This is given that you have a case to show that the child’s best interest is being compromised. If your child is presently in danger while remaining in the custodial parent’s home, call the police for help.

How Do You Ask The Court For Custody Order Modifications?

You will need to file a motion with the family law court. While you don’t have to hire a lawyer to modify custody orders according to Texas law, you might still want to engage one. An attorney can provide you legal advice and help you prepare your case. They can also explain your rights to you and plan the next steps.

Next, you must ensure that the other parent is served the motion. Sometimes a social worker evaluation is required. Otherwise, you will be told that you must attend mediation to help you come to an amicable resolution. If both parents cannot come to an agreement, the social worker or mediator will help to write a report to the judge about whether they recommend the judge to modify the custody order.

Both parents must attend the scheduled hearing. You can present your evidence and case before the judge would make the final decision.

How Easy Is It To Change A Custody Agreement?

If you and the other parent agree on the change in the child custody agreement, it can be very easy to modify the custody agreement. This is provided that it is in the child’s best interest.

It can get more complicated with the other parent does not agree with the modification. You will need to gather evidence and information on significant changes in circumstances. In most cases, you would also engage an attorney to help fight your case for you.

Implications Of Modification On Child Support

If you change a custody order and your child support payments were based on parenting time, the court will adjust the payment upon the issue of new parenting time orders.

There might also be changes in child support obligations when primary custody switches from one parent to the other. The parent taking over custody could have a lower child support obligation.

It’s easy to request modifications from the court if both parents agree on the new arrangements. This is as long as the plan is in the child’s best interests. Changing custody arrangements and parenting time can become more than a simple matter when both parents don’t agree on the new arrangement. You will have to present evidence to the court during a hearing to show the change in circumstances and why the court should modify the agreement.

It can be complicated to file a motion and prepare a legal case. The new arrangements will have an implication on child support and the daily routines of the parents and the child. Let the award-winning Family Law experts at Sean Lynch + Associates help you prepare your legal case. We can provide you with information about your rights.

Contact us today for a no-cost case review.