“Finally, I live in Texas. In absence of abuse, criminal behavior, child molestation, etc. at TWELVE a child can sign an affidavit stating which parent s/he wishes to live with. The judge will confer with him/her, but unless it can be PROVEN not to be 'in the child's best interests' the judge will sign off on it. Or at least in the court we're in, which is what my lawyer and the GAL AND mediator told me.”
This is only partially true.. Either someone is jerking your chain OR you are hearing only what you want to hear.
I AM not from Texas SO I have no idea. I googled the Texas Family Code and the appellate case law. Below is the TEXAS FAMILY CODE; you are referring to.
Here is my take; perhaps someone from TX could chime in and add their 2cents…
The first bar that must be met is the “significant change of circumstances”. From my perusal of appeal cases; the state does not “usually” take your move into the neighborhood as a “significant change”.
From what I have read so far there must be a “significant change” before the affidavit is considered. In addition, the change must have taken place since the last court appearance.
I am not saying that all your circumstances together are not enough to force a modification.
It seems historically the courts are more likely to increase your visitation (if there is any basis) rather than overturn custody.
Just saying that it isn’t the slam-dunk that you are assuming. Given the grilling and acrimony that your son is exposed to; it might not be seen as in his best interests.
Are there any changes that occurred that would give the court reason to re-consider you for primary custody?
TEXAS FAMILY CODE
CHAPTER 156. MODIFICATION
SUBCHAPTER A. GENERAL PROVISIONS
§ 156.101. GROUNDS FOR MODIFICATION OF ORDER ESTABLISHING
CONSERVATORSHIP OR POSSESSION AND ACCESS. The court may modify an
order that provides for the appointment of a conservator of a child,
that provides the terms and conditions of conservatorship, or that
provides for the possession of or access to a child if modification
would be in the best interest of the child and:
(1) the circumstances of the child, a conservator, or
other party affected by the order have materially and substantially
changed since the earlier of:
(A) the date of the rendition of the order; or
(B) the date of the signing of a mediated or
collaborative law settlement agreement on which the order is based;
(2) the child is at least 12 years of age and has filed
with the court, in writing, the name of the person who is the
child's preference to have the exclusive right to designate the
primary residence of the child; or
(3) the conservator who has the exclusive right to
designate the primary residence of the child has voluntarily
relinquished the primary care and possession of the child to
another person for at least six months.
Added by Acts 1995, 74th Leg., ch. 20, § 1, eff. April 20, 1995.
Amended by Acts 1995, 74th Leg., ch. 751, § 47, eff. Sept. 1,
1995; Acts 1999, 76th Leg., ch. 1390, § 16, eff. Sept. 1, 1999;
Acts 2001, 77th Leg., ch. 1289, § 5, eff. Sept. 1, 2001; Acts
2003, 78th Leg., ch. 1036, § 19, eff. Sept. 1, 2003.