What constitues a change of circumstances?

I have a child with my ex-wife (I’ll call my ex B). B is the custodial parent and, as joint managing conservators, we have a standard visitation order. Here’s the situation: For the last several months, B has been working out of town. Furthermore, B has no intention of coming back to town any time soon; in fact, she is now planning to go to work out of state in the near future. Our child has been living with B’s parents for the entirety of her trip. B has made it clear that, though she isn’t even around, I am to only have the child for the prescribed visitation periods. Does the fact that the child is not living with B constitute a change of circumstances substantial enough to afford me possession of the child? Desperate Dad

Asked on September 1, 2012 under Family Law, Texas


S.L,. Member, California Bar / FreeAdvice Contributing Attorney

Answered 8 years ago | Contributor

There are two types of custody; physical custody and legal custody.  Physical custody means the parent with whom the child lives.  Legal custody means making decisions about the child's healthcare, education, etc.

Although it is not possible to predict how a court will rule in a case, you do have a strong argument of changed circumstances supporting a change in physical custody of your child.  The court will base its ruling on what is in the best interests of the child.  The documents you will need to file with the court may vary from state to state and you can check with the court clerk regarding the specific documents, but generally you will need to file an Order to Show Cause (court form) in which you would request a change in custody.  You would also file a supporting  declaration signed under penalty of perjury stating your reasons (changed circumstances) supporting your request for a change in custody.  You would mention the facts you have stated here about your child no longer being in the physical custody of B.  When you file your Order to Show Cause with the court, the court will schedule a hearing on the issue of child custody.  In addition to the Order to Show Cause and your supporting declaration, file with these documents a proof of service.  The proof of service verifies the date of mailing your documents to B.  You can either use a court form proof of service or you can write your own.  If you write your own proof of service, it just says that you are over eighteen and the attached documents were sent via first class mail unless stated otherwise to ____________ (name and address of your ex) on _______ (date).  You sign and date at the bottom.  The date you sign should be the same as the date of mailing and the same date you file your documents with the court.

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