The modification of a Visitation Order in Texas shares a similar process in modifying a child custody order. State law provides a number of circumstances wherein a parent can file for modification of a visitation order. Such modification will only be made or approved if it serves the best interests of the child and when any of the following circumstances occur:
- Circumstances of the child or parent have materially and substantially changed since the original child custody order or agreement;
- The child is at least 12 years old and has told the court in chambers that the child wants a change; or
- The custodial parent has voluntarily given the child’s care and custody to another person.
Who May File
Aside from either of the parent of the child, the following may also file for the modification:
- A person listed as a party in current order;
- A person who 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; or
- When the person is the grandparent, great grandparent, sibling, aunt, uncle, niece or nephew and both of the parents are dead.
Material and Substantial Change
Family courts of Texas have recognized numerous cases that would be considered as a material and substantial change in the child’s or parent’s circumstances who are affected by the visitation order. Some of these cases include a medical condition of a parent that affects his or her ability to work and function regularly, a parent’s remarriage, the changes in residence that makes it difficult to exercise the other parent’s visitation rights, the parent’s criminal acts and convictions, and lastly, family violence, despite the non-conviction of the parent or even if he or she has never been arrested.
The judge deciding the case will conduct a private interview with children who are at least twelve (12) years old to determine parental rights. Children below this age may also be interviewed. Nonetheless, the expression of an older child his desire to live with the other parent does not have the final decision. The court will still decide based on the circumstances that will serve the best interests of the child.
Submission of Affidavit
An affidavit must be submitted to the court by the parent who filed the motion within one year after the order was made. The following allegations must be contained in the affidavit, along with the facts supporting the parent’s claims:
- The child’s current environment has the possibility to endanger the physical health of the child or significantly harm the emotional development of the child;
- The custodial parent is the one seeking the modification and such would be for the best interest of the child; or
- The custodial parent has renounced the custody and care of the child, and the modification would be for the benefit of the child’s best interest.
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