the mom and dad weren't married, & the daughter has been living with the mother. The mother just had a baby, so this will be her half brother. The current CO states that we're to have her the 1st 3rd and 5th weekend of each month and alt holidays & 4 weeks in the summer. but we are wanting to try to go for 50/50. We live 10 miles away from each other, so it wont be that far to drive. She is not a special needs child, so there is no "special care" that is needed, and this wont be traumatizing in the least. there is no suspected abuse in either home. we have a stable environment for her to live in. The primary motive behind this is so that my husband would be allowed to be able to parent his child, spend more time on a daily basis. What would be the chance that we would be awarded this?
A court looks first to the child's best interest; after that, stability in the child's present lifestyle and environment. Since you only live 10 miles away, it is not that far of a drive to get her to school on time, maintain her after school activities, etc., (her daily "routine.")
The chance that you would be able to modify the current possession order to be more like an extended possession order will greatly depend on the amount of disruption in her current routine.
The degree of proof required to modify amount of visitation is less than the degree required to modify custody. If you can get mom to agree to the modification of visitation that would be the easiest path, and the court will usually sign off on that.
You said the "primary motive" was to spend more time on a daily basis, what is the secondary motive? If it is a change in custody or support then you are going to have a much more difficult time. Courts do not like to modify unless there is a significant change.
A modification of the court order will be required to change the current order that is in place. If both parties agree to the proposal, than, generally the court will sign off as long as it is in the child's best interest. if contested, than the burden will be on the requesting party to show that a modification is required. The Texas family code provides differnet level of burden of proof on the requesting party based on the length of time that has passed from the last CO to the date of the request.
With that said, if the ex spouse is willing to do a 50-50 split, regardless of how the week will be split up, you don't necessarily have to file a modification, but is advisable to do so. What this means is that a court order is in place for the purpose of making sure the other party complies. IF they do not, than you can file an enforcement that will place the violating party in jail and/or fined by the court. However, if both parties are in agreement to deviate from the court order, than the Court will not know that the parties are using their deviated child custody schedule. However, it still would be advisible to have a court order that states the modified order because you cannot enforce in court your deviated child custody schedule, the court iwll only look at what was actually ordered by the court.
Sorry for the vague answer and many hypotheticals, but more facts are needed.
Consult a Houston based family law attorney to assist you.
Good luck and wish you success
Min Gyu Kim (Peter)
The statement above is general in nature and does not constitute legal advice, and in no way be interpreted as legal advice. Consult with a local attorney in your area to receive an answer specific to your case. This information does not create an attorney-client relationship.
Sign up to receive a 5-part series of useful information and advice about child custody law.
Years licensed, work experience, educationLegal community recognition
Peer endorsements, associations, awardsLegal thought leadership
Publications, speaking engagementsDiscipline