A big question a parent has when there has been a divorce is when can you change a custody or visitation arrangement in Texas?

Under Texas law, there are only limited circumstances in which a parent can modify a child custody or visitation order. Such a change will be made only if it is in the best interests of the child, and:

the circumstances of the child or parent have materially and substantially changed since the original child custody order or agreement

the child is at least 12 years old and has told the court in chambers that the child wants a change, or

the custodial parent has voluntarily given the child’s care and custody to another person.

Material and Substantial Change

Texas family courts have recognized several situations that would qualify as a material and substantial change in the circumstances of a child or parent affected by a custody or visitation order. Examples include a parent’s remarriage, a medical condition that adversely affects a parent’s ability to function and work on a regular basis, a parent’s criminal acts and convictions, or a parent’s changes in residence that make visitation a hardship for the other parent.

Child’s Preference

In any proceeding to determine parental rights, the court will interview children who are at least 12 years old, in chambers (the judge’s private office, rather than in the courtroom). Younger children may also be interviewed.

An older child who expresses a desire to live with the other parent doesn’t have the last word, however. Even if a child asks the court to modify a child custody or visitation order, the court may do so only if that change is in the child’s best interests.

Relinquishment of Custody

The court may also modify a custody order if the custodial parent has voluntarily given up the care and custody of the child to another person for at least six months. However, this provision doesn’t apply if the custodial parent has only temporarily relinquished the care of the child during a period of military deployment, mobilization or duty.

Timing of the Motion

A parent who files a motion to modify a child custody order within one year after that order was made must also submit an affidavit to the court. The affidavit must include at least one of the following allegations, along with the facts that support the parent’s contention:

  • that the child’s current environment may endanger the child’s physical health or significantly impair the child’s emotional development
  • that the custodial parent is seeking the modification, and the modification would be in the child’s best interests, or
  • that the custodial parent has voluntarily relinquished the custody and care of the child, and the modification would be in the child’s best interests.