Making the Argument

The Hard Truth: Child Custody Modification in Texas is Difficult, But Not Impossible

By Michelle Fulton

November 6, 2004

The information in this column is not intended as legal advice but to provide a general understanding of the law. Any readers with legal problems, including those whose questions are addressed here, should consult attorneys for advice on their particular circumstances.

Q: I have a young daughter with my ex-wife. When we divorced, she was awarded primary custody. At the time, they lived in a nice home, she had a job, and my daughter enjoyed a stable and healthy lifestyle. Since that time, my ex-wife has married an alcoholic and while I do not know all of the details, I do know that there has been some domestic violence.

As far as I know, my daughter has never been the target of this violence, but it has resulted in my ex-wife quitting her job, moving at least six times in the last year (several of them without even informing me). Also, she has dropped my daughter off with various friends and relatives for up to three months at a time and gone as long as two months without even calling. I’ve paid my child support every month as required, even during the months where my daughter was living in my home.

While my daughter is in the care of others for months at a time, her mother does not call for weeks, and then calls to say she’d like to have my daughter for the weekend. She will come pick my daughter up, saying she will return her, and then never comes back. She will disappear for weeks before either I hunt her down or she finally calls. I’m tired of seeing my daughter bounced back and forth like a rag doll. Is there anything I can do?

A: Yes, absolutely. In Texas, there are three reasons why custody can be modified. The first is a material and substantial change in the child’s circumstances. The second is that the child has reached the age of twelve and has executed a document stating who they wish to have as their primary managing conservator, and the third is when the primary managing conservator has voluntarily relinquished custody for more than six months.

In your case, and I am assuming that your daughter is under the age of twelve, the proper argument would be that there has been a material and substantial change in circumstances based on the fact that your daughter’s residence has been changed at least six times in the last year. Texas courts historically favor stability, and moving a child six times in a year is arguably not stable. If you can substantiate that the home environment is dangerous to your daughter’s well-being (for example, police reports regarding the domestic violence), then that will help to bolster your case.

That being said, however, I must issue the standard disclaimer that there is no guarantee that the judge will reverse custody even if there is substantial evidence in your favor. I have seen cases go both ways. Now, if your daughter is twelve years old and she wants to live with you, she can sign and have notarized a Preference for Appointment of Parent as Managing Conservator, and the court usually will give deference to the child’s wishes unless there a compelling reason not to do so can be shown.

If you really feel that your daughter’s well-being is in jeopardy, then your first step should be to sit down and write down every single incident that you can think of that would support your claim and keep a journal of any and all conversations, altercations, and happenings that occur regarding your daughter and your ex-wife. Then, take your journal and go see a Family Law attorney, who will look over the evidence and give you an honest assessment as to whether they think your case has merit. The more documentation you have to back up your position, the stronger your case will be. I wish you the best of luck!

Michelle Fulton is an attorney at The Fulton Law Firm, PLLC. If you have a legal problem you would like her to address, you may e-mail your request to michelle@fultonlawfirm.com or mail your request to her at 806 Hwy. 3, Houston, Texas 77058.

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