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How to Modify a Child Custody Order in Texas


The Family Code of Texas permits the parent of a child, whether the mother or father, to file for the modification of the child custody order. There are two scenarios in the case of modifying the prior child custody order. The first one is if the parents were once married and the second one is not having any marriage involved. In the former case, the prior order should be the Final Decree of Divorce, and for the latter, it is the final order in the Suit Affecting Parent Child Relationship.

In this article, what will be discussed are the following:

(1) Who may file for the modification;

(2) Where to file the petition for modification;

(3) What fees are involved and if they are waivable;

and the (4) Need for counsel in modification cases.

Who May File for the Modification

Either of the parent of the child may file for the modification of the child custody order. There are cases where a person who is not either of the parents of the child may file for the modification. These are the following cases:

  • When the person is listed as a party in current order;
  • When the person is NOT a foster parent and had actual control, possession and care of the child for a period of at least six (6) months which ends not more than ninety (90) days prior the date of filing of the modification case before the proper court;
  • When the parent, guardian or conservator of the child has died and the person filing for the modification case must have lived with the parent, guardian or conservator of the child;
  • When the person is the grandparent, great grandparent, sibling, aunt, uncle, niece or nephew and both of the parents are dead.

Where to File the Petition for Modification

The modification case must be filed in the county of Texas where the order was made. If the child has been living in another state for the last six (6) months, discuss this matter with a lawyer.

What Fees are Involved and if the Fees are Waivable

Usual fees such as “filing fee” must be paid and in other cases, the person who files must pay the “issuance or service fee” if one of the parents needs to have the other parent served. These fees are, of course, waivable as long as the petitioner files a Statement of Inability to Afford Payment of Court Costs. Keep in mind that these fees vary from county to county in Texas.

Need for Counsel

A person who wishes to file a petition for modification does not need to have a lawyer for this case. It is, however, advisable to discuss this matter with a legal expert so they can explain the options and rights of the parent.

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Mr. Hutton is a Divorce and Custody Lawyer based out of Round Rock, TX. His background is with child psychology at Arizona State University where he received a B.S. in 2006, and he continued this by working with the Children’s Right’s Clinic at the University of Texas School of Law where he received his J.D. in 2009. Throughout his practice, he has been a strong proponent of utilizing modern technology to improve his practice and the representation of his clients. He currently is the technology chair of CAFA of Travis County and is committed to improving and modernizing the practice of law in Texas. If you have any questions you can contact him at timothy.hutton@austintexaslegal.com

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