Who Can File a Suit to Modify Custody or Child Support?
In order to modify child custody or child support, the person bringing the suit to modify the order must have “standing” to bring suit. The term “standing” refers to legal ability for a person to file a law suit. Persons without “standing” cannot modify custody or support orders.
A party affected by the order is capable of bringing a suit to modify a custody or child support order. A party affected by the order is someone who was involved in the original suit attempting to be currently modified. The party seeking modification must be someone actually affected by the court order. For example a mother who does not receive an ordered child support payment is a party affected by the final orders. Therefore, she would have standing to bring a suit to modify the child support order. It is important to distinguish standing to file a suit and grounds to file a suit. Someone who has standing to modify an order may not necessarily have proven the proper grounds to modify an order. When attempting to file a suit to modify, the person seeking modification must have standing and must show adequate grounds to file suit.
Any person who has standing to file an original Suit Affecting Parent-Child Relationship (SAPCR) also has the ability to file a suit to modify a SAPCR, including conservatorship, possession, access, and child support. The Texas Family Code sets out who is eligible to bring an original Suit Affecting the Parent-Child Relationship (SAPCR) or a suit to modify an existing SAPCR order as the following:
A parent of the child has the right to file an original SAPCR. The parent can be either the biological parent or a parent determined by the court (i.e. adoption). However, someone who has terminated their parental rights to the child may not bring an original SAPCR. Someone who has given consent to adopt the child may bring a suit upon the child’s behalf.
The child may file an original SAPCR through an authorized representative. The representative may be the legal guardian of the child’s person or estate or an attorney ad litem. An attorney ad litem appointed to the child may also file an original SAPCR. Also, a person from another state or country that has been granted visitation rights by a court has standing to bring an original SAPCR.
Governmental entities, authorized agencies, and licensed child-placing agencies all have standing to bring an original SAPCR on behalf of a child. Common entities and agencies that bring suit are the State, the Attorney General, and the Department of Family Protective Services or a child-placing agency approved that has been approved by the Department.
A person that has had the proper actual care, custody, and possession of child for more than 6 months may be eligible to bring a suit on behalf of that child. In determining whether someone is actually caring for the child, the person bringing suit must show that the parent relinquished parental responsibilities and stopped caring for the child. Sometimes, a court may take into consideration the financial care given to the child and participation in important decisions for the child. Control over the child has not been clearly defined by the Texas courts. Some courts may find that a person’s ability to direct and restrict the child’s actions is enough to prove actual control of the child. Other courts have held that a person must have the ability to make decisions of legal importance to show actual control over the child. Possessing the child must not violate any court orders, but does not necessarily require consent from the parents. Actual care, control, and possession of the child are all required to bring an original SAPCR in front of the court.
Someone that has resided with the child and a parent or other legally authorized caregiver of the child, for at least 6 months may file an original SAPCR if the parent or person legally authorized caregiver of the child is deceased with the SAPCR is filed. Also where a child has been placed in a foster home by the Department of Family Protective Services for more than 12 months, the foster parent is eligible to bring suit on behalf of the foster child.
Family members related to the child within the third degree may file an original SAPCR on the child’s behalf. Relatives of the third degree include: brothers, sisters, grandparents, great-grandparents, aunts, uncles, nieces, nephews. Grandparents may have additional grounds to bring suit if they can show that the child’s present circumstances cause significant impairment of the child’s physical or emotional development.
Determining whether you have the right to change court orders can be complicated and overwhelming. Please call The Wright Firm, LLP Attorneys today to get answers to your questions.