Can the terms of a divorce decree regarding children be changed?
Yes, through a process called modification.
What terms of a final divorce decree can be modified?
A court can modify provisions for custody (conservatorship), visitation (possession and access), child support and medical support.
Can I file a motion to modify an order regarding children in any court or county I wish?
No. Usually, a request to modify custody, visitation or child support must be filed in the court that last entered an order regarding the children. This is referred to as the Court of Continuing Jurisdiction. For example, if your final decree was entered by the District Court in Brazoria County, any motion for modification must also be filed in that county.
Who has the right to file a motion to modify an order regarding children?
Under most circumstances, any person who is affected by the court order can request a modification.
Can I file a motion to modify custody of a child simply because I no longer agree with the last order?
Perhaps, but that depends on the reasons you no longer agree with the order. The grounds for a change of custody are complex and should be discussed with an attorney. The court may consider whether there has been a significant change in the circumstances of the parties or of the child, or whether a person with visitation has been convicted of child abuse or family violence.
Do I have to wait a certain amount of time before I can file a motion to modify custody?
Not necessarily. However, if you are seeking to change custody less than one year after the original order was signed, then the court has special requirements that you must show in a sworn affidavit before the suit can go forward. In the case of an emergency, the timing of the suit is usually not an issue. But in other circumstances, it is probably wise to wait at least one year before you attempt to change custody.
I have always heard that children over 12 can live with whatever parent they choose, is this true?
It’s not as simple as that. A child 12 years or older may file a document with the court naming the parent with whom the child wishes to live; however, this choice is not binding on the court because the court must also consider what is in the child’s best interests. Changes to possession and access in a divorce or modification can be complex and should be discussed with a lawyer at Kersh Law Firm, P.C.
Is there any way I can get legal custody (conservatorship) of my child if he or she is living with me but the other parent has court-ordered custody even if I have a final order in a divorce?
If the person having custody of the child under the last court order voluntarily leaves the child in the possession of another for a period of more than six months and the court finds that this arrangement is in the best interest of the child, the court may modify custody upon the filing of the proper motion with the court.
What are the reasons (grounds) that a court will modify the periods of possession of a child?
All divorces and modifications have different circumstances. The grounds for a change in visitation can be complex and should be discussed with a lawyer at Kersh Law Firm, P.C. The court may consider whether there has been a significant change in circumstances of the parties or the child, whether the visitation order is unworkable or inappropriate, whether the person with custody moved out of state or moved without giving proper notice, whether a person with visitation rights repeatedly fails to exercise them or whether a person with visitation rights has a significant history of alcohol or drug abuse.
Based on a final order in a divorce what reasons (grounds) will a court modify child support?
All divorces and modifications have different circumstances. The grounds for a change in child support can be complex and should be discussed with a lawyer at Kersh Law Firm, P.C. Child support may be increased or decreased if there has been a substantial change in circumstances of the parties or the needs of the child. Child support can also be modified if it has been at least three years since the last child support order and the new amount calculated under the child support guidelines differs by either 20% or $100 from the amount of support currently ordered. Child support in a divorce can be complex and should be discussed with a lawyer at the Kersh Law Firm, P.C.
If I am being deployed on military duty, may I designate someone to exercise my possession periods?
Yes. If you are being deployed outside the country, you may petition the court to allow you to designate another person who will be able to have possession of the child for some portion of your regular possession periods. This designation will end upon the termination of your overseas deployment.