Life can change after a custody order is entered. Texas law permits modification in qualifying circumstances, but the order does not change automatically when parents begin following a different routine.
 

Until a court signs a modified order, the existing order generally remains enforceable.
 

The General Modification Standard

In many modification cases, the person requesting a change must establish that:

1. The requested modification would be in the child’s best interest; and

2. The circumstances of the child, a conservator, or another affected party have materially and substantially changed since the prior order or the agreement on which it was based.

Other grounds and additional requirements may apply depending on the requested relief.

What May Be a Material and Substantial Change?

Texas law does not provide one universal checklist.

Depending on the facts, relevant changes may include:

• Significant relocation

• A major change in employment or schedule

• A child’s changing educational or medical needs

• Family violence

• Abuse or neglect

• Serious substance abuse

• Significant changes in living conditions

• Repeated interference with possession

• Criminal conduct affecting the child

• A sustained change in the child’s residence

• A parent becoming unable to perform assigned responsibilities

• Changes arising as the child matures

A temporary inconvenience or ordinary parental disagreement may not be enough.

Special Requirements Within One Year

Additional requirements apply when a party seeks to modify the person who has the exclusive right to determine the child’s primary residence within one year after the earlier order or agreement.

The filing must generally be supported by an affidavit containing facts supporting at least one statutory ground, which may include:

• The child’s present environment may endanger the child’s physical health or significantly impair emotional development;

• The person holding the exclusive right to determine the primary residence is seeking or consenting to the modification, and the change is in the child’s best interest; or

• That person has voluntarily relinquished primary care and possession for at least six months, subject to the statutory military-deployment exception.

Calling this only a “serious threat” rule is incomplete. The statute contains multiple possible grounds and requires careful pleading.

Can a Child Choose?

A child does not independently decide which parent should determine the primary residence.

Under qualifying circumstances, the judge may interview a child in chambers. The child’s wishes may be considered, but the court must still determine what serves the child’s best interest.

What If Both Parents Agree?

Parents may agree to a change, but the agreement should be submitted to the court and incorporated into a signed order.

A text message, email, or verbal agreement may not provide enforceable protection if a dispute develops later.

Modification and Enforcement Are Different

An enforcement action asks the court to address violations of the current order.

A modification asks the court to change the order going forward.

A case may involve one or both remedies depending on the circumstances.

What Evidence May Be Relevant?

Evidence may include:

• School records

• Medical or counseling records

• Police reports

• Drug or alcohol testing

• Co-parenting communications

• Text messages and emails

• Possession calendars

• Employment schedules

• Relocation information

• Witness testimony

• Evidence of missed or denied possession

• Evidence concerning the child’s current environment

The evidence should connect the requested change to the child’s best interest.

Avoid Self-Help

Do not assume that changed circumstances allow you to disregard the existing order.

Withholding possession, relocating the child, changing schools, or altering established rights without legal authority can create serious problems.
 

When circumstances change, determine whether modification, enforcement, temporary relief, or another legal remedy is appropriate before acting.