You may believe possession and access arrangements are set in stone once the ink dries on your divorce papers. However, this is not always the case. Parents move or remarry, or your child’s physical and emotional needs may change. If this happens, you can ask the court to modify your Texas possession and access so that it better suits your current circumstances.
Who Can Modify a Texas Possession and Access Order?
In Texas, either parent can file a modification request. There are times, though, when someone who is not the child’s parent may ask to modify possession and access. For instance, there may be the need for a relative to ask to change a possession and access order.
If you’re a non-parent, you may request a modification if:
- you are listed as a party in the current order,
- you have had actual care, control, and possession of the child for at least six months ending not more than 90 days before the date you file the modification case with the court and you are not a foster parent.
- you have lived with the child and the child’s parent, guardian, or conservator for at least six months ending not more than 90 days before the date you file the modification case, and the child’s parent, guardian or conservator has died.
- you are the child’s grandparent, great-grandparent, sister, brother, aunt, uncle, niece or nephew and:
- both parents are dead,
- both parents, the surviving parent or managing conservator agree,
- the child’s present circumstances will significantly harm the child’s physical health or emotional development.
source: Texas State Law Library
When Can I Modify a Texas Possession and Access Order?
There are limited circumstances under which a judge will modify your Texas possession and access order. Courts will only change a possession and access order if doing so would be in the best interest of the child and the request is based on one or more of the following:
- the circumstances of the child, a parent, or other person affected by the order have materially and substantially changed since the earlier of: the date of the current order or the date of signing of a settlement agreement on which the order is based.
- the child is at least 12 years old and has expressed a preference to the court as to which parent he or she should live with, or
- the parent who currently has the exclusive right to designate the primary residence of the child has voluntarily relinquished the primary care and possession of the child to another person for at least six months.
Note that the last one does not apply to a parent who has temporarily relinquished custody of the child due to military service.
Texas Family Code § 156.101
Substantial and Material Changes
As with most family law issues, no bright-line rule exists regarding the qualifications for a “substantial and material change” in circumstances. Even so, certain events can indicate a substantial and material change. One example is a parent attempting to impair or interfere with a child’s relationship with the other parent. Epps v. Deboise, 537 S.W.3d 238, 241 (Tex. App. 2017)
A Texas Possession and Access Case
In the above-cited case, the mother filed a petition in a Harris County court requesting a change in child support and visitation requirements. The father then filed a counterpetition requesting a change in possession rights.
The court found that the mother had withheld her son’s medical and school records from his father, failed to notify him of the boy’s doctor’s appointments, and enrolled the child in pre-K without his father’s knowledge.
Based on those findings, the court concluded that the mother’s behavior constituted a substantial and material change in circumstances. Therefore, the modification was warranted. Epps v. Deboise, 537 S.W.3d 238, 241 (Tex. App. 2017)
How to Modify Your Texas Possession and Access Order
To request a change to an existing conservatorship or possession and access order, you must file a written request to modify custody in the Texas county where the original order was filed. Texas refers to this as a “Petition to Modify the Parent-Child Relationship.” A family law attorney can help you fill out this paperwork and file it in the correct jurisdiction.
Speak with a Texas Family Law Attorney Today
When circumstances arise that complicate co-parenting, you may be tempted to ask the court to modify your possession and access order. However, doing so may not be in your child’s best interests. An experienced family law attorney can advise you on how to proceed. Call 214- 884-3775 today to begin your free case assessment.