What does “primary custody” mean?
Some orders give one parent or person the right to determine the child's primary physical residence. The person with “primary custody” of a child is the person who has the exclusive right to designate the primary residence of the child. This person is often referred to as the "custodial parent."
Can I ask that primary custody be changed within one year of the current order?
If you want to make changes to the order that affect who has the right to determine the child's primary physical residence (that is, who has primary custody), you generally must wait a year before going to court to make this change. That waiting period may even apply if you want to make changes to or remove a geographic restriction in the order.
You can file a modification case to change primary custody within one year of the current custody order only if:
- the person with primary custody is asking for or agrees to the change;
- the child’s present environment may endanger the child’s physical health or significantly harm the child’s emotional development, or
- the person with primary custody has allowed someone else to have primary care and possession of the child for at least 6 months. (Number 3 does not apply if the person with primary custody is on active duty military deployment.)
Your allegation (that one of the above is true) must be supported by specific facts. You must write those specific facts in a declaration form (made under penalty of perjury). You must attach the declaration form to your Petition To Modify the Parent-Child Relationship (the form you file to start a modification case.)
Get the declaration form here: Declaration in Support of Changing Primary Custody within One Year.
Get modification instructions and forms here: I need to change a custody, visitation or support order.
What happens after I file my Petition (if I’m asking to change primary custody within one year of the current order)?
After you file your Petition to Modify the Parent-Child Relationship, the judge will review your attached Declaration in Support of Changing Primary Custody within One Year.
If the judge decides that the facts alleged in your declaration (if true) would be enough to support a modification, the judge will schedule a hearing.
If the judge decides that the facts alleged in your declaration (even if true) would not be enough to support a modification, the judge will refuse to have a hearing and your modification case will be dismissed.
Warning: Do not file a frivolous modification suit. A frivolous lawsuit means one that is filed for "any improper purpose, including to harass or to cause unnecessary delay or needless increase in the cost of litigation." Texas Civil Practice and Remedies Code 10.001. A judge can order you to pay attorneys' fees if the judge finds that the modification suit was filed frivolously or to harass the other side. See Texas Family Code Section 156.105.
What date do I use to calculate the one year period for changing primary custody?
If the current custody order is based on a judge’s decision after a hearing or trial, use the date the judge made the decision to calculate the one year period. That date may be different from the date the judge signed the order.
If the current custody order is based on a mediated or collaborative law settlement agreement, use the date the settlement agreement was signed by the parties to calculate the one year period. That date may be different from the date the judge signed the order.
What if the parent with primary custody is active in the military and is deployed?
The court can’t permanently change custody just because a military parent has been deployed. However, any parent or person listed in the order can ask the court for temporary orders that temporarily change custody during the deployment.
In this case, the court’s first choice for temporary custody must be the person who has visitation rights under the other (the other conservator). Usually this is the other parent. If living with the other parent would not be in the child’s best interest, the court’s second choice must be a person designated by the military parent. The court’s third choice would be a person chosen by the court.
The court may also make temporary changes to child support and visitation. For example, the court may temporarily change who pays child support. Or the military parent may ask the court to allow a designated person, such as a grandparent or step-parent, to visit the child while the military parent is deployed.
When the military deployment ends, the temporary orders end. Custody returns to the military parent and the original child support and visitation orders resume.
Why is there a one-year waiting period?
The main reason for the one-year waiting period is to maintain stability for the child. This may not apply if the child's present environment may endanger their physical health or significantly impair their emotional development.
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