How to Modify Your Texas Possession and Access Order

You may believe possession and access arrangements are set in stone once your divorce is finalized. This is not always the case because, as they say, life happens. Parents move or remarry. A child’s physical and emotional needs can change. One parent might become gravely ill or develop substance abuse issues. When necessary, you can ask the court to modify your Texas possession and access order to fit your current circumstances.

In This Guide

• Understanding SAPCR in Texas Family Law Matters
• How to Modify Your Texas Possession and Access Order

How to Modify Your Texas Possession and Access from Robinson & Henry P.C. on Vimeo.

Understanding SAPCR in Texas Family Law Matters 

A SAPCR (sap-sir) is an acronym for Suit Affecting the Parent-Child Relationship. The term covers legal actions relating to children in family law cases, including modifications of prior orders (such as divorce decrees),  as well as original suits affecting the parent-child relationship, addressing the following issues::

• with which parent the child shall primarily reside;
• the possession and access schedule of the parents;
• which parent will make important decisions about the child(ren),
• the amount of child support that is paid;
• which parent will be carrying medical and dental insurance on the child;
• the establishment of paternity
• child’s name changes;
• the enforcement of child support and orders for access and possession; and
• suits to terminate parental rights.

Some modification requests are easily granted, especially when all affected parties agree upon the change.  If any party to the original orders resists modification, then the court must decide after hearing arguments and examining evidence. This can involve a lengthy legal process.

In all such matters, the best interests of the child(ren) take priority. No modification request can prevail if it undermines a child’s physical, psychological, or emotional well-being.

 Who Can Modify a Texas Possession and Access Order? 

In Texas, either parent or managing conservator can file a suit to modify possession and access orders.

Naturally, there could be times when a non-parent is a managing conservator of a child.  There are situations when grandparents or other relatives have been named as managing conservators, if a parent is deceased, or otherwise unable to care for the child.  Many SAPCRs concern appointing non-parents as a child’s managing conservator.

If you are a non-parent, you may request a modification if:

• You are a party to the existing order.
• you’ve had actual care, control and possession of the child for at least six months, which ended within the last 90 days, and you’re not a foster parent.
• you’ve lived with the child and their parent, guardian, or conservator for at least six months, ending within the last 90 days, and that parent or guardian has passed away, i.e., you are a step-parent..
• you’re the child’s relative and:

• • both parents have died,
  • both parents, the remaining parent, or the managing conservator have given consent, or
  • the child’s current situation risks harming their physical or emotional health.

— source: Texas State Law Library

When Can I Modify a Texas Possession and Access Order? 

You cannot request a modification of orders just because you don’t like them. The family court system is busy enough already. To avoid a backlog and minimize family disruption and costs, Texas requires minimum criteria to file a modification.

A judge will consider changing your order only if it’s in the best interest of the child, and:

• substantial and material changes have occurred in the circumstances of the child, a parent, or another affected person since the last order or mediated settlement agreement,
• the child is 12 or older and asks to talk to the Judge about his/her preference;  or
• the parent with the primary residence right has given up care and possession of the child for six months or longer.**

** This does not apply to parents who’ve given up custody for military service. — Texas Family Code § 156.101 

Substantial and Material Changes 

No bright-line rule exists regarding the qualifications for a “substantial and material change” in circumstances. However, Texas courts will consider various scenarios as “material and substantial” enough to warrant change.

These include:

• Parenting Changes: Life’s unpredictable twists can make existing custody orders difficult to follow. Such changes could be a new job schedule, a move, or a child attending a new school.
• A Child’s Growth: A child’s needs change as they mature. Thus, a custody arrangement suiting a 6-year-old might not fit a 16-year-old’s needs. Courts can review a child’s growth to ensure their orders keep pace.
• The Parent-Child Bond: The bond between child and parent is key to the whole possession and access arrangement. If a child prefers one parent, or has a difficult relationship with one, the court may adjust for the child’s emotional health.
• A Parent’s Relocation: A move over 100 miles in Texas can alter a child’s routine and strain the visitation schedule. A custody order modification can manage the effects of such a move.
• Safety Concerns: The safety of children is all important in these matters. Substance abuse, criminal behavior, or domestic violence by a parent can trigger court action to revise orders and protect the child.
• Financial Shifts: Significant changes in a parent’s finances could affect their ability to meet the child’s needs. For example, if a parent’s financial situation worsens, that could necessitate a review of original orders.
• Co-Parenting Dynamics: Co-parents (or co-conservators) must be able to communicate and cooperate about their children. If persistent conflict prevents cooperation, a custody modification may be necessary.
• Caring for Special Needs: If a child has special care requirements, then custody orders might need to be reevaluated to fit their needs.

Often, a modification of a SAPCR filing is used to resolve disputes between divorced parents. Let’s look at the following real-life case as an example.

How to Modify Your Texas Possession and Access Order 

There is a legal process to get the ball rolling on a modification request. However, your first step should always be to discuss the matter with affected family members. They’re part of the process whether they agree with  the change or not.

To begin the legal process, you’ll file a written request to modify possession. This is called a “Petition to Modify the Parent-Child Relationship.”  You must make your request in the same county where the original order is filed.

For example: If you got divorced in Tarrant County and original orders are filed there, that’s where you file the modification request. No other Texas county will take jurisdiction over your matter. If you have moved with the child, and the child has resided in another county for at least 6 months, you will also file a Motion to Transfer Venue in the original county.  If there is no objection, the case will be transferred to the county in which the child presently resides.

A family law attorney can assist you with filling out and filing the modification petition.

Uncontested and Contested Modification Suits 

Uncontested 

If parents/conservators agree to the changes, the process is quicker and easier. Even if you and the child’s other parent agrees to the modification, you must still make the changes legally, especially if child support or visitation schedules change. The parent responsible for child support must continue paying the ordered amount until a new order is issued.

The parent seeking the modification files as the Petitioner. The other parent is referred to as the Respondent. All parties must legally acknowledge the newly-filed petition. If all agree to it, a lawyer drafts an Agreed Order for signatures. After all parties sign the order, and the Judge signs, it’s done.  Judges generally sign agreed orders upon being presented with them.

Contested 

When agreement is not possible or safe for the child(ren), the courts must get more involved. However, before a case goes to trial,  the judge will mandate mediation first. Many possession and access disputes settle during mediation, as most people prefer to avoid a prolonged, expensive legal fight.

Even if you believe your matter will settle, we recommend that you collect evidence as if you’’ll have to go to court.  Gather any documentation which supports a claim of substantial and material change in circumstances, such as:

• New work schedules,
• Change in address or schools,
• New marriage, or a new baby,
• Medical records,
• Recent criminal records,
• Death certificates of parents, grandparents, or conservators,
• Pay stubs and/or financial statements, and
• Testimony that supports your request for modification

Initiating Litigation 

If court action is imminent, you’ll  file the “Petition to Modify the Parent-Child Relationship” in the county that issued original orders. The petition will provide detailed information about the existing order, and it explains why you are requesting modification.

You then serve the other parent/party with a copy of your petition and a citation notifying them of legal action. You can have the papers served by:

• Registered or certified mail,
• A constable, sheriff, or process server in person, or
• By public posting or publication (if an in-person server cannot find the other party).

If the other party responds by filing an Answer, along with a Counterpetition, then get ready for a litigious battle.

You will usually go to a “Temporary Orders hearing” within a few weeks of the case being filed and the opposing party being served with your Petition.

If necessary, the court will set a final hearing date (trial)  with at least 45 days’ advance notice.

Default Modifications 

Once served with your petition, the other party has 20 days plus the following Monday by 10 a.m. to reply.

For example: Your petition is served on the fifth day of the month. The other party has until the 25^th day to reply. However, let’s say the 25^th is a Thursday. The petitioner would still have until the following Monday, the 29^th, to reply by 10 a.m.

If the other parent does not reply by then, your modification request can proceed to approval by default.  However, if they reply at any time before the case concludes, then it becomes either a contested or uncontested suit.

Filing a SAPCR Too Soon 

Either parent may seek a modification anytime. However, If you seek to change the parent who determines the primary residence of the child within a year of the last order, you must submit an affidavit detailing how the child is significantly impaired, either emotionally or physically.  The court will decide if the facts sworn to in the affidavit warrant a hearing on modification of the prior orders.

Speak with a Texas Family Law Attorney Today 

If you believe a modification to your possession and access order would benefit your child, speak with an experienced family law attorney. Our team can discuss whether your circumstances give rise to a modification request or if there may be another solution. Call 214- 884-3775 today to begin your case assessment.