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| | Change of Custody Disguised as Change in Visitation |
A petitioner may be held to the more onerous tests for modifying conservatorship if, under the guise of a suit to modify visitation or the terms of conservatorship, the petitioner attempts to obtain a substantial increase in possession rights to the child or to acquire a substantial share of the rights and duties of a managing conservator, amounting to either a joint managing conservatorship or a court-ordered change of custody. But, if supported by the evidence, a suit to modify visitation may ultimately result in a modification of custody. Whether a visitation modification is, in reality, a managing conservatorship modification is determined on a case-by-case basis. The question generally turns on two major factors:
- The amount of increased visitation being requested or awarded; and
- The degree to which the rights and duties sought by or granted to the petitioner/noncustodian would usurp the parental prerogatives traditionally reserved for the managing conservator
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