MODIFICATIONS - RELOCATIONS

Modifications

       Portions of a divorce decree or other final court order involving children’s issues are subject to modification in the future based on a “material and substantial change of circumstances” and if the modification is in the “best interest of the children.”    To determine if you have a valid reason to modify a portion of a decree involving children issues, consult with an experienced attorney to discuss your concerns and explore whether there is a justification to file a motion to modify.   Gary Kollmeier provides legal services to modify these prior court orders to better reflects your family's current circumstances, the needs and the interests of you and your children.

Modification of Child Custody/Conservatorship

    The right to primary possession of the child(custody), and the rights and duties allocated between parents can be modified, as well as custody, periods of possession and access, geographic restrictions, and parenting plans.   Typically, a parent determines after the original order is entered that there is a need to change the provisions related to right, privileges and duties.  These may include the right to make decisions related to medical and other health issues, educational issues including choice of school or school programs, legal issues, underage marriage and enlistment in the military, property issues of the child, and virtually any other issue that is in dispute between the separated parents.

Modification of Child Support/Health Support

      If the parent paying child support experiences an increase in earning power or a decrease in earning power, or if the financial needs of the children increase, there could be grounds to modify child support.    Texas child support obligations are defined by statute, and usually result in the imposition on one parent of a child support obligation based upon the Texas Child Support Guidelines.   Usually the parent paying the periodic monetary child support also pays for or provides major medical health insurance coverage for the child.   It may seem simple, however, there can be many factors that play into whether the child support will be above or below the Texas support guidelines.  These factors may include the age of the child, the paying parent's income and ability to contribute to the child's support, any alimony or spousal maintenance being paid to the primary parent, the amount of time the paying parent has possession of or access to the child in relation to the other parent, as well as any special needs or requirements of the child.  While the parties may have initially entered into an agreement in the prior case concerning child support as a part of their custody arrangement, the court may still order a modification that is in the best interests of the child.    A support order is also usually modifiable after three years.

Modifications of  Possession/Visitation           

         Many times, there is a need to modify the current custody arrangement or the possession/visitation schedule to reflect a change of circumstances or the needs and desires of the child.    In Texas, the term Conservatorship is used instead of Custody in the Family Code.   Many lawyers in Texas use the terms interchangeably.   Usually, there is primary conservator, either a Sole Managing Conservator with a corresponding Possessory Conservator, or the parents are appointed as Joint Managing Conservators, with one parent considered primary, and the other parent considered a possessory parent.   In either case the primary parent is usually awarded possession pursuant to the Texas Standard Possession Schedule.    This schedule is often familiar to anyone who has been involved with separated parents, either as a child or as an adult.   The primary parent has the right to possession (visitation) at all times not otherwise allocated to the other parent.   This is usually on a schedule which includes weekends, alternating holidays, split holidays, and extended summer periods.  The standard possession schedule is presumed to be correct for any child over the age of three.            The major options that usually cause the most problems are whether the possession for weekends is extended to Monday morning instead of Sunday night, and whether the Mid-Week Possession is overnight or for a fixed time period.    Pick up and return times often also cause problems, with a dispute as to the whether the child can be picked up and returned to school, etc.   Many older orders do not provide for as liberal possession as the current Standard Possession Order provides.   There also has been a change in recent years to make it the presumption that parent can have overnight possession mid-week, and on Sundays.   Also the former Wednesday midweek day has been changed to Thursday, which allows a piggy back to Friday, thereby allowing for Thursday night to Monday morning possession.   Also, the Christmas mid-winter break now splits on the 28th at noon, rather than the 25th or the 26th, as many older orders provide. These issues provide an excellent opportunity for modification of a prior possession order, and it usually does not matter whether the order sought to modified was agreed or judicially imposed.

Modification of Geographic Restrictions - Geographic Relocations

            A geographic restriction, as it relates to child custody is the imposition of a restriction of where the child’s legal residence and domicile will be.   This means that the primary parent, or in the case of a true split custody, both parents, must reside within a defined geographic area.   This is usually within a specific county or counties, or within a specific boundary, such as a school district or city.    One the restriction is imposed, the child’s residence may not be changed unless the court changes the order.   This restriction is usually put into place to ensure that the non-primary parent is able to conveniently and frequently interact with the child and the attend school and other activities on a regular basis.    Geographic Relocation Litigation is the term used to refer to cases in which the imposition or removal of a restriction is in contest.

Imposition:

    A geographic restriction is usually put into place in the first original order.   This is usually agreed to by the parties, however, the court can impose the restriction upon the request of a parent, and a finding that it is in the best interest of the child.    Many times, however, the parties did not think that either would like to move, and no thought was given to a  restriction and the current order does not contain one.    Then, if the primary parent desires to move, the possessory parent must decide to allow the move or ask the court to restrict the child’s residence which will usually prevent the move.   At this time, there are no statutory presumptions in Texas related to geographic restrictions.   The determine whether to impose such a restriction, typically, the court will look at the time of possession actually being exercised, the amount of activities that the parent is attending, the interests of the child, the needs of the primary parent, and the length and cost of travel to exercise visitation for both the non-primary parent and the child if the move is made.  

Removal:

            If a geographic restriction was put into place in the first original order, and the  primary parent desires to move, the primary parent must either get permission from the other parent, or must ask the court to remove the restriction on the child’s residence, so they can move without violating the court’s order.    At this time, there are no statutory presumptions in Texas related to geographic restrictions.   The determine whether to remove such a restriction, typically, the court will look at the time of possession actually being exercised by the non-primary parent, the amount of activities that the other parent is attending, the interests of the child, the needs of the primary parent, and the length and cost of travel to exercise visitation for both the non-primary parent and the child if the move is made.    It is generally considered easier to impose a geographic restriction than remove one, when the non-primary parent has been attentive and support of the child and the other parent.

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