Can a Parent Overturn Residential Custody?
The most important matters in a divorce involve any children produced during the marriage. Residential custody refers to the parent with whom the children live the majority of the time. It is possible in some cases to have a ruling of residential custody overturned, but you will need a compelling reason. It may be in your best interests to work with a College Station family law attorney.
Motions to Modify and Appeals
You may seek to overturn a ruling of residential custody either through the appeals process or with a motion to modify the original order. To appeal, you will need to seek a decision from a higher court than the one in which the original order was made. An appeal cannot be made if you agreed to the original order.
You may, on the other hand, apply for a motion to modify in the same court where the original order was made. You will need to show, however, that a substantial change of circumstances has occurred. This includes the residential parent moving out of state or neglect/abuse of the children. It will be necessary to provide the court with compelling evidence of any abuse. Keep in mind, however, that Texas family courts always hold as priority the best interests of the children. This includes ensuring that no physical or mental abuse is taking place.
The age of the children will be taken into account by the court. Also, you cannot seek residential custody of a child who has been emancipated or has married. In these circumstances the child in question is regarded in most respects to have reached majority status. Moreover, the standard by which a judge will consider what is in the best interests of the children is somewhat subjective. It is worth noting that it does not matter whether the petitioning parent is the father or mother. At one time the presumption was that the mother should have custody, especially when the children in question are very young. This is no longer the case.