Modifying Custody Orders in Texas

When families undergo changes that necessitate a reassessment of custody arrangements, the question often arises: can a court modify a custody order against a child’s preference? This complex issue intertwines legal principles with the nuanced realities of family dynamics, requiring a careful examination of Texas law and judicial discretion.

Understanding Material and Substantial Change

At the heart of any custody modification request is the principle of “material and substantial change.” This concept is pivotal in determining whether the circumstances warrant a revision of the existing custody order. The Texas Appellate Court in Arredondo v. Betancourt explained that in deciding whether such a change has occurred, “a fact finder is not confined to rigid or definite guidelines; instead, the determination is fact specific and must be made according to the circumstances as they arise.” This statement highlights the court’s flexibility in assessing each case’s unique facts and conditions.

To establish a material and substantial change, it is necessary to compare the conditions at the time of the original order with those present at the trial for modification. As noted in In re A.L.E., “the evidence must show the conditions that existed at the time of the entry of the prior order as compared to the circumstances existing at the time of the trial on the petition to modify.” This comparison lays the groundwork for understanding the shifts in circumstances that may justify a custody modification.

The Role of the Child’s Preference

Texas law provides a mechanism for considering the child’s voice in custody matters. Specifically, the Family Code mandates that “on the request of certain interested parties, the trial court must conduct an in-chambers interview of a child twelve years of age or older to determine the child’s wishes as to conservatorship or as to the determination of the person having the exclusive right to determine the child’s permanent residence.” This provision ensures that older children have an opportunity to express their preferences directly to the court.

However, the information obtained from such interviews is just one component of a broader array of factors the court will consider. As Syed v. Masihuddin points out, this information becomes part of the “storehouse of other information the trial court can use in exercising its discretion in matters of this type pertaining to children.” The court’s discretion is broad, allowing it to weigh the child’s expressed wishes alongside other critical factors.

Discretion of the Court

The judiciary’s discretion in custody matters is notably wide-ranging. In In re A.C., it was emphasized that the court “may choose to either take into account the information learned at such an interview or ignore it in its entirety.” This discretion is vital, as it enables the court to make decisions that best serve the child’s interests, even if those decisions do not align with the child’s stated preferences.

When determining what is in the best interest of the child, courts refer to a comprehensive list of factors, including but not limited to the child’s desires, the emotional and physical needs of the child, the stability of the home, and the parental abilities of the individuals seeking custody. This holistic approach, detailed in Holley v. Adams, ensures that all aspects of the child’s welfare are considered.

Statutory Provisions and Judicial Discretion

The Texas Family Code does not mandate interviews for children under 12 but allows for it, reflecting a balance between giving children a voice and maintaining judicial discretion. The statute acknowledges that while a child’s preference is important, it is not determinative. This stance is supported by case law, such as in Galliher, where it was recognized that “the child’s preference does not override the trial court’s discretion in determining primary custody.”


In Texas, while a child’s preference regarding custody arrangements is given consideration, it does not serve as the sole determinant in the court’s decision-making process. The court’s primary objective is to act in the best interest of the child, guided by a comprehensive evaluation of all relevant factors. This approach ensures that decisions are made with a nuanced understanding of each family’s unique situation, balancing the child’s wishes with their overall well-being and safety.

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