My 10-year old son tells me every time he comes to visit that he wants to live with me, not his mom. I’m not his primary caretaker, but think I should be especially since he tells me he wants to live with me. What can I do to get primary custody here in Texas?

Texas family courts have recognized several situations that would qualify as a material and substantial change in the circumstances of a child or parent affected by a custody or visitation order. Examples include a parent’s remarriage, a medical condition that adversely affects a parent’s ability to function and work on a regular basis, a parent’s criminal acts and convictions, or a parent’s changes in residence that make visitation a hardship for the other parent.

When analyzing what we know about custody, we have to first break it down into two concepts, “conservatorship” and “possession”. “Conservatorship” is defined as the time a parent has decision-making rights a parent has on behalf the child. For example, selecting a school to attend, decisions made on medical, and other major decisions. “Possession” refers to the time when parents have physical possession of the children.

Children over the age of 12 can use the “Child Preference” option to select which parent they want to live with. Usually an interview in the judge’s private quarters will be held with the child. Even when older children ask to switch parental custody, the courts have to determine that it is in the best interest of the child.

If a custodial parent has voluntarily given up care and custody to another person for a least six months, the courts may modify the original custody order. This situation is only invalid if a custodial parent has to relinquish the care of a child during a period of military deployment, mobilization or duty.

When a parent files a motion to modify a child custody order within one year after the original order was made, he or she must also submit an affidavit to the court. The affidavit must include at least one of the following allegations, including support for the parent’s contention:

  • the child’s current environment may endanger the child’s physical health or significantly impair the child’s emotional development
  • the custodial parent is seeking the modification, and the modification would be in the child’s best interests
  • the custodial parent has voluntarily relinquished the custody and care of the child, and the modification would be in the child’s best interests.

Outside of the other parent fully agreeing with your request to modify a child custody or visitation order, you should seek help from an experienced Texas family lawyer. Given the high stakes, you need counsel from Houston, Texas’ premier divorce and family lawyer, Lacy Lafour. Contact her today and ensure the best possible outcome for you and your child.

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