Changing child’s primary residence within one year of prior Order

If a parent is trying to go back to court to change primary custody within a year of the last order they better have a good reason. When there is a Court Order that designates the primary residence for a child, and a parent wants to quickly go back to court to change who designates that primary residence, there is a high threshold to get into court if the modification is filed within 12 months of the last Order. This is to prevent a party from jumping back into court quickly after prior agreements or rulings and costing everyone more time and money. Sometimes these immediate modifications are done out of spite, so a law was created to sift out the harassing re-litigation but allow truly needed quick changes if new problems arise after the last Order.

In Texas, if a suit seeking to modify who has the exclusive right to designate the primary residence of a child within one year after the earlier of the date of the rendition of the order (when the Judge signed the Order) or when the parties signed their mediated settlement agreement, then an affidavit alleging certain facts must be included with the filing. See Texas Family Code 156.102

If a parent is wanting to swap who is the primary parent, i.e., where the child primarily lives, soon after the last Order/Agreement then they have to comply with this section of the Texas Family Code. The law says the parent wanting the change/modification of the primary residence designation must include in their filing an affidavit stating (1) the facts the parent believes show the child’s living with the other parent is endangering the child’s physical health or is significantly impairing the child’s emotional development; (2) that the other parent who has the right to designate the primary residence in the old Order agrees with the change in primary custody; OR (3) that the person who has the exclusive right to designate the primary residence has voluntarily relinquished the primary care and possession of the child for at least six months and the modification is in the child’s best interest. Tex. Fam. Code 156.102(b)

Failure to include an affidavit with these facts might result in the court denying to schedule the case for a hearing (or a party to object to the scheduling). Courts have dismissed cases after finding affidavits insufficient. The other parent can request a hearing on the sufficiency of the affidavit to meet these requirements. The affidavit is the focus of that hearing so it needs to meet the requirements of the statute.

What constitutes an environment that would endanger a child’s physical health or impair their emotional development? The easy answer is: physical abuse, usually shown with a parent or other household members getting arrested or CPS is involved; drug or alcohol use by the primary parent that is having a detrimental effect on the child (marijuana is still illegal in Texas and many Judges have a zero tolerance policy while others are more lenient. Best to consult local counsel who knows your Judge’s tendencies.); or significant emotional abuse that’s affecting the child to an extent where they’re suffering in school or showing sever signs of depression that can be tied back to that primary parent’s actions/inaction. Other situations might be enough, but they are fact dependent. You should consult a local attorney who can review these with you and give an opinion on sufficiency to meet the statute.

Keep in mind that the relevant facts need to have occurred AFTER the last Order/Agreement. This is not a chance to re-litigate a case on evidence/facts already considered.

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