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You will need to file a petition to modify the original order of custody in your situation, I have outlined the procedure below.
Grounds to Modify the Custody/Visitation Order
Any person who is affected by the order can ask the court to modify or enforce the order. Before the court can grant a modification, it must find:
1. that the modification is in the best interest of the child;
2. that the circumstances of the child, a conservator or a party affected by the order have
materially and substantially changed since the order was signed by the court.
3. that a child over 12 years of age has filed with the court a written preference for a different primary managing conservator.
4. that the primary managing conservator has voluntarily given up care and possession of the child to another person for at least 6 months.
If the change is requested within 12 months of the original order, you must also show one of the following:
1. The child's present environment may endanger the child's physical health or significantly impair the child's emotional development;
2. The person entitled to establish the child's primary residence is consenting to or bringing the motion for the best interest of the child;
3. The person entitled to establish the child's primary residence has voluntarily given care and possession to another person for at least 6 months and a change would be in the child's best interest.
What is a Material and Substantial Change?
The courts have identified several events that amount to a material and substantial change. Marriage to another person can be a material and substantial change. A change in residence, age, medical condition, employment, criminal history or the relationship between the parents making the current orders unworkable can be found by the court to be a material and substantial change.
The Modification Process
The process to modify a current court order affecting custody, visitation or support begins with a petition to the court asking for the modification. You will probably need the assistance of a lawyer to file a proper petition because there are several things that must be in the petition and you will need to make sure that the petition is properly served on the other party. Once the petition is filed and served, the court can enter temporary orders if properly requested. If the modification is agreed to by the other party, the process can be completed relatively quick. If the other party wants to contest the modification then the court will have to schedule the case for trial.
There are some specific nuances to changing custody and I would encourage you to seek the assistance of legal counsel to assist you. legal Aid can offer assistance and the state bar can also refer you to lawyers who might be willing to assist you pro bono or at a reduced rate.
I hope this helps. Pete
I have reproduced the Texas statute that will allow you to file for an emergency order of temporary custody because the mother is unstable. The statute provides as follows:
§ 152.204. TEMPORARY EMERGENCY JURISDICTION. (a) A court of this state has temporary emergency jurisdiction if the child is present in this state and the child has been abandoned or it is necessary in an emergency to protect the child because the child, or a sibling or parent of the child, is subjected to or threatened with mistreatment or abuse.(b) If there is no previous child custody determination that is entitled to be enforced under this chapter and a child custody proceeding has not been commenced in a court of a state having jurisdiction under Sections 152.201 through 152.203, a child custody determination made under this section remains in effect until an order is obtained from a court of a state having jurisdiction under Sections 152.201 through 152.203. If a child custody proceeding has not been or is not commenced in a court of a state having jurisdiction under Sections 152.201 through 152.203, a child custody determination made under this section becomes a final determination, if it so provides and this state becomes the home state of the child.(c) If there is a previous child custody determination that is entitled to be enforced under this chapter, or a child custody proceeding has been commenced in a court of a state having jurisdiction under Sections 152.201 through 152.203, any order issued by a court of this state under this section must specify in the order a period that the court considers adequate to allow the person seeking an order to obtain an order from the state having jurisdiction under Sections 152.201 through 152.203. The order issued in this state remains in effect until an order is obtained from the other state within the period specified or the period expires.(d) A court of this state which has been asked to make a child custody determination under this section, upon being informed that a child custody proceeding has been commenced in or a child custody determination has been made by a court of a state having jurisdiction under Sections 152.201 through 152.203, shall immediately communicate with the other court. A court of this state which is exercising jurisdiction pursuant to Sections 152.201 through 152.203, upon being informed that a child custody proceeding has been commenced in or a child custody determination has been made by a court of another state under a statute similar to this section shall immediately communicate with the court of that state to resolve the emergency, protect the safety of the parties and the child, and determine a period for the duration of the temporary order.Added by Acts 1999, 76th Leg., ch. 34, § 1, eff. Sept. 1, 1999.
Since there is not order of custody presently, this is the best way to approach this situation currently. I suggest that you contact your local clerk of court in the county in which you live to request the appropriate forms for you to fill out and request a hearing on custody.
You can contact the Texas state bar for a possible referral to a lawyer who will work pro bono (free) or at a reduced rate. The state bars website is located at: http://www.texasbar.com/
Legal Aide is a viable option. I would be reluctant to avoid Legal Aide because of rumors you may have heard. Many of the lawyers who assist legal aide are extremely qualified.
I hope this helps. Your acceptance of my work show your appreciation of my efforts.
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