23 Sep How Soon After a Custody Order Can You Ask to Modify It in Texas?
Maybe your custody order was signed only a few months ago, and life already looks different. A parent took a new job. Someone moved. Your child is having a hard time in one of the homes. It is natural to wonder whether you have to wait before asking the court to take another look. In Texas, the answer depends on two things: what part of the order you want to change, and how long it has been since the order was made.
The short answer: you can ask to modify most parts of a Texas custody order any time there has been a material and substantial change in circumstances. The big exception is the question of which parent decides where the child lives. If you want to change that within one year of the order, Texas law requires a sworn statement showing one of three specific reasons, and the judge must deny the request without a hearing if that statement falls short.
Why Texas Treats the First Year After a Custody Order Differently
Texas courts place a high value on stability for children, and the legislature created a first year safeguard so that a case is not reopened right away simply because one parent was unhappy with the result.
This safeguard lives in Section 156.102 of the Texas Family Code. To understand it, it helps to know the vocabulary. Texas law uses the term conservatorship for what most people call custody. In many cases, both parents are named joint managing conservators, which means they share rights and duties. One parent is usually given the exclusive right to designate the child’s primary residence, often within a set geographic area, such as a county and the counties that border it. People sometimes call that parent the primary parent.
The one year rule applies when someone asks the court to change who holds that right to designate the child’s primary residence. The clock starts on the earlier of two dates: the day the judge rendered the order (announced the ruling, which can happen before the written order is signed), or the day the parents signed a mediated or collaborative law settlement agreement that the order is based on. So if you settled at mediation in March and the judge signed the final order in May, your year most likely started in March.
What the One Year Rule Covers and What It Does Not
The rule is narrower than many parents assume. It is aimed at the primary residence designation, not at every line in your order. Requests to adjust other terms, such as the possession and access schedule, exchange times and locations, or certain parental rights and duties, generally fall under the standard modification rule instead. That rule does not require the special first year affidavit, although you still have to show a material and substantial change and that the change is in your child’s best interest.
Whether a particular request counts as a change to the primary residence designation is not always obvious. That is why the exact wording of your order matters, and why it is worth reviewing closely before you file anything.
The Narrow Exceptions That Let You Modify Custody Within a Year
If you file to change the primary residence designation within that first year, you must attach an affidavit. An affidavit is a written statement of facts that you sign under oath. It must include supporting facts for at least one of these three situations:
- Endangerment. The child’s present environment may endanger the child’s physical health or significantly impair the child’s emotional development. This is a serious standard, and the facts behind it need to be concrete and specific.
- Agreement by the primary parent. The parent who currently has the right to designate the child’s residence is the one asking for the change or agrees to it, and the change is in the child’s best interest.
- Voluntary handoff of care. The primary parent has voluntarily given up the primary care and possession of the child for at least six months, and the change is in the child’s best interest. Texas law carves out an exception here for parents who temporarily handed off care because of military deployment, mobilization, or temporary military duty.
The affidavit works like a gate. The judge reads it before anything else happens. If the judge decides the facts in it do not adequately support one of the three allegations, the court must deny the request and will not schedule a hearing. A general statement that things are not working is usually not enough. Dates, specific events, and firsthand observations carry far more weight than conclusions.
What Changes Once a Full Year Has Passed
After the first year, the special affidavit requirement no longer applies. Under Section 156.101 of the Texas Family Code, a court may modify conservatorship or possession terms if the change is in the child’s best interest and at least one of the following is true:
- The circumstances of the child, a parent, or another affected party have materially and substantially changed since the order was rendered or since the settlement agreement it was based on was signed. Common examples include a parent relocating, a major shift in a work schedule, a new household member, or a child whose needs have changed as they have grown.
- The child is at least 12 years old and has told the judge, in a private interview in the judge’s chambers, which parent they would like to have the right to designate their primary residence. You can read more about how that works in our post on whether a child can choose which parent to live with in Texas.
- The primary parent has voluntarily given up the primary care and possession of the child to another person for at least six months, again with an exception for military service.
Meeting one of these conditions opens the door. It does not decide the outcome. The judge still weighs what is best for your child.
Why Child Support Follows a Different Rule
The one year rule is about conservatorship, not money. Child support has its own modification standard. In Texas, support can generally be modified when there has been a material and substantial change in circumstances, or when at least three years have passed since the order was set or last modified and the amount under current guidelines would differ from the existing amount by at least 20 percent or $100 a month. One exception: if the parents agreed to a support amount that differs from the guidelines, the three year option generally does not apply, and a material and substantial change is required.
What to Do If You Are Not Sure Which Rule Applies
Start with the dates. Find the date the judge rendered your order, which may be earlier than the date it was signed, and check whether a mediated or collaborative settlement agreement was signed before that. Then read what your order says about who designates the child’s primary residence and whether there is a geographic restriction.
Next, write down what has changed, with dates and specific details. Keep following your current order while you sort this out. It stays in full effect until a judge signs a new one.
Finally, get a clear read on where your situation fits before you file. Filing too early without a sufficient affidavit can mean a denied request and lost time. Eric Navarrette is Board Certified in Family Law by the Texas Board of Legal Specialization and focuses his practice entirely on family law, including custody modifications.
Frequently Asked Questions
Does the one year rule apply if both parents agree to the change?
An agreement from the parent who currently holds the right to designate the child’s residence is one of the three listed grounds, so the first year rule does not prevent an agreed change. An affidavit is still required, the court still has to find that the change is in the child’s best interest, and the change only becomes official when the judge signs a new order. An informal agreement between parents does not change the court order on its own.
Can I file right away if my child is 12 or older and wants to live with me?
Within the first year, a child’s preference by itself is not one of the three grounds the affidavit can rely on. After the first year, a child who is at least 12 can share a preference with the judge in chambers, and that can support a modification request. You can read more in our post on whether a child can choose which parent to live with in Texas. Either way, the judge makes the final decision based on the child’s best interest.
Does filing a modification change my current custody order right away?
No. Your existing order remains in effect until a judge signs a new one, and both parents are still required to follow it. Our post on what happens if you violate a custody order in Texas explains why that matters.
This article is general information about Texas family law. It is not legal advice about your specific case. Every order and every family is different, so timing questions deserve a conversation with an attorney who can review your order.
If it has been less than a year since your custody order was signed and your situation has changed, contact Navarrette Family Law today to schedule a consultation. Call (940) 243-5050.