Modification of Conservatorship and/or Possession

Under Texas law, conservatorship and possession can be modified if there has been a “material and substantial change” in the circumstances of a child, conservator, or other party affected by the order and the requested change is in the best interest of the child.

The court may also allow for a modification if a primary conservator has voluntarily relinquished care and possession of a child to someone else to be the child’s primary caregiver for a minimum of six months.

In some circumstances, the court may grant a modification of the person with the exclusive right to designate the primary residence of the child if a child 12 years of age or older expresses to the judge in chambers his/her preference for this change; however, this preference does not guarantee the change, and it must still be proven that such change is in the best interest of the child.

Examples of changes in circumstances that may be enough to prove a “material and substantial change” for modifying conservatorship or possession include the following:

• relocation of one party or one party wishes to move out-of-state
• one or both parties remarry
• one parent interferes with another parent’s possession time
• abuse of a child by a parent or step-parent
• family violence
• addiction or mental health issues of one party
• the child’s needs change
• death of a conservator
• imprisonment of one party
• an emergency concerning a child

If you’re unsure as to whether your circumstances may qualify as a “material and substantial change,” speak to an experienced family law attorney to help you determine how a judge might rule in your particular situation.

In order to change the person with the exclusive right to designate the primary residence of the child, you must file a Petition to Modify Parent-Child Relationship and request this change.

However, in order to request this change before the one-year anniversary of (1) the date the last order was signed; or (2) the date the mediated settlement agreement or collaborative law agreement upon which current order is based was signed, whichever the earlier, a supporting affidavit must be filed with the petition to modify containing at least one of the following allegations along with supporting facts:

• the child’s present environment may endanger the child’s physical health or emotional development;
• the person who currently has the exclusive right to designate the primary residence of the child has voluntarily relinquished primary care and possession of the child for at least six months, and the modification is in the best interest of the child; or
• the person who currently has the exclusive right to designate the primary residence of the child is seeking the change or agrees to the change, and the modification is in the best interest of the child.

If you are questioning whether the facts in your case justify a modification of the person with the exclusive right to designate the primary residence of your child, consult an experienced family law attorney to understand your options and potential legal relief.