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Motion to Modify Court Orders
After going through a divorce or dealing with child custody issues, there are times when orders need to be modified. Although court orders may be in place, certain circumstances can be reason enough to change them, especially when it’s in the child’s best interest. These rules also apply to noncustodial parents and those in domestic partnerships.
Modification of Court Orders, Decrees, and Judgments
If you are considering changing court orders regarding your divorce or issues involving your child, it’s essential to know your rights.
What type of orders can be modified in family law cases?
There are several motions to modify used in family court. They include:
- Primary conservatorship
- Custody or Visitation
- Child support order
- Spousal maintenance
- Parental relocation
- Divorce decrees
A modification of a parenting plan, child visitation, or child custody order typically looks to limit, widen, establish or deny one parent’s responsibilities. Modifying orders are often requested because the current plan is no longer in the child’s best interest or circumstances have significantly changed.
When material changes affecting the child’s life occur, child custody and child support orders can usually be modified. However, changing orders involving divorce can often be more complicated and difficult to alter.
Modifying Child Custody in Texas courts: Do I Have a Case?
If you are looking to modify a child custody case, there needs to be a material and substantial change in circumstances for the child or the parent who has primary custody. Typically, petitioners have to wait one year from the prior order unless there are extraordinary circumstances such as child abuse, violence, drug use, or homelessness.
Suppose a parent is looking for a modification of orders when it comes to custody and the year time frame has not expired. In that case, the parent will need to show evidence or proof that the child is in physical or emotional danger if they stay in their current situation.
An instance where one parent loses a job gets remarried, or decides the current schedule doesn’t work likely won’t qualify for a modification if the one-year time frame has not been completed.
Modification of a Prior Order Affecting Children
There are several reasons why one parent may request a modification of a prior order. Many modifications don’t involve a hearing as they can be resolved through informal settlement negotiations or mediation.
Material and Substantial Change in Circumstances
To request a modification of orders, there has to be a material and substantial change in circumstances. These changes include:
- One parent moving out of the geographic area where the divorce order was finalized
- Change in employment status
- Health insurance may no longer be available to a child due to a parent’s work status
- The current custody or visitation arrangement is not in the child’s best interest
- There are issues involving drug abuse, domestic violence, or other problems
- The child has requested a change in living arrangements
- A parent may not be able to control their child
There may also be a change of circumstance if a visitation agreement no longer fits both parties because the child has gotten older.
Best Interests of the Child
Any time a modification of orders is being requested, and there has been a material or substantial change to circumstances, the child’s best interest is always a priority. This is defined as the most desirable or favorable effect on the child. The child’s physical, emotional, and mental health is looked at as their education and social development.
Child Custody Modification Reasons
There are reasons where a change in child custody may be requested and perhaps granted. A court may change where the child resides if one of the following applies:
- The child or custodial parent’s circumstances have materially or substantially changed since the initial order was put in place.
- The child is at least 12 years old and has expressed a change in the parent who has custody.
- The conservator who has the exclusive rights to designate the child’s primary residence has voluntarily handed over care to another person for at least six months.
Again, the child’s best interest is always considered first.
Child Support Modification Process
Several circumstances support modifications in child support orders. These include:
- When three years have passed since the initial order was released.
- When the monthly amount of child support initially awarded differs by either 20% or $100 from the amount awarded under the child support guidelines.
- The order was not an agreed order provided for an amount different from the guideline amount.
There are cases where even when the criteria are not met, a modification of orders may be granted if it’s in the child’s best interest. When a decrease in child support is requested, the court will look at the parent’s income, health problems, and whether there have been any children born since the original order.
You can also request a motion to modify child support before the three years is up if the parents’ or child’s circumstances have materially or substantially changed. This can include a change in salary or the needs of the child.
How does a family law lawyer determine whether an order can be modified?
A family law attorney will determine whether an order can be modified if it falls under the criteria of those that can be changed. These include child custody, visitation, and child support orders. An attorney will also look at whether the terms of the original judgment are modifiable. Some orders strictly state that no changes can be made even if there is a change in circumstances.
What if there was a missing or “omitted” asset in our divorce – can we modify the judgment?
If an asset was missing or omitted during a divorce, there is no need to modify the divorce decree. If you find yourself in this situation, the judge may be able to adjudicate the asset omitted from the original judgment.
Hiring an attorney – Do I need legal representation to modify a family court order?
It is in your best interest to have legal representation to petition the court and modify a family court order. Contact the Jimenez Law Firm if you find yourself in this situation. Our experienced staff can help with a motion to modify child visitation, child support order, child custody issues, suspected child abuse or violence issues, domestic partnership, temporary restraining orders, parenting plans, and guardianship. Call us toll-free at 800-219-3779 to make an appointment at one of our three locations or reach out to us online if you seek a modification of order.