After the conclusion of a child custody case (including a divorce with children), things can change. Sometimes, this change is substantial enough that the child custody arrangement — including conservatorship, possession and access, or child support — needs to be modified. This kind of lawsuit is known as a modification. How do you know if your change in circumstances warrants a modification suit?
I. Modification of Conservatorship and Possession and Access
A. Modification of Final Order
Under the Texas Family Code, the parties to a modification suit can enter into a written agreement which contains provisions for modification of the parenting plan in the existing final order. If the court finds that this written agreement to modify is in the best interest of the child, the court will make a new order (which replaces the original order) in accordance with that agreement. So, the easiest way to modify an existing order for conservatorship (decision-making ability) and access (physical custody of the child) is to make an agreement with the other parent.
Under the Texas Family Code, the court can also modify an order for conservatorship or possession and access if two requirements are met. The first one is that the modification is in the best interest of the child. The second requirement can be met in a number of ways. The circumstances of the child, a conservator, or other party affected by the order must have materially or substantially changed since the rendition of the order or the signing of a mediated settlement agreement, whichever is earlier. Or, the child is at least 12 and has expressed to the judge which conservator the child prefers to be the person with the exclusive right to designate the primary residence of the child. Or, the person 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. Meeting these two requirements carries the lowest legal burden to achieve a modification for conservatorship or possession and access. It is important to remember that even if there is a material and substantial change, the cild has expressed a preference, or there has been a voluntarily relinquishment, the modification must be in the best interest of the child.
A common question that we get is what counts as a “material and substantial change?” The answer is that it depends. A material and substantial change is one that is not anticipated at the time the existing final order is made. For example, a change in a child’s age and educational abilities is not usually a material and substantial change because we can anticipate that a child will age and, the existing order will have laid out a means to determine how educational decisions will be made. By themselves, things like military duty, desire to have more time with a child, desire to travel with child, or the acquittal from a family violence charge are not material and substantial changes. But, things like parental alienation, mistreatment of a child, drug use by a parent, or the incarceration of a parent are good examples of what courts regularly recognize as material and substantial changes. The Texas Family Code also lays out some circumstances that are a substantial and material changes. For example, these include a conservator’s conviction of or deferred adjudication of sexual abuse or family violence, a conservator’s conviction of continued sexual abuse, the death of a conservator, or a pregnancy caused by criminal act or evidence of sexual abuse. What constitutes a material and substantial change really depends on the facts of each case.
B. Modification on Temporary Order
Sometimes, a change seems dire enough that you want it to happen quickly after the filing of a modification suit. Under the Texas Family Code, the court can make a temporary order in a modification suit. But, if you want to modify who is the conservator with the exclusive right to designate the primary residence of the child or the geographic restriction on the child’s primary residence, the Texas Family Code does not allow the court to make a temporary order making that change. This means that change would have to be done on a final order. However, there is an exception to this rule. The court can make a temporary order that creates or changes the designation of the primary residence of the child (or that creates, changes, or eliminates a geographic restriction) if two requirements are met. First, the temporary order making this change must be in the best interest of the child. There are several ways to meet the second requirement. The temporary order must be necessary because the child’s present circumstances would significantly impair the child’s physical health or emotional development. Or, the person designated in the existing final order has voluntarily relinquished the primary care and possession of the child for more than six months. Or, the child is 12 or older and has expressed to the judge which conservator the child prefers to be the person with the exclusive right to designate the primary residence of the child. No matter which way the second requirement is met, the modification in the Temporary Order has to be in the best interest of the child.
C. Modification of Exclusive Right to Designate Primary Residence of Child Within One Year of Order
The Texas Family Code also provides guidance when a conservator seeks to change who is the conservator with the exclusive right to designate the primary residence of the child within one year of the existing final order. To modify conservatorship in this way, the person filing the suit must file an affidavit that contains one of three allegations. First, the child’s present environment may endanger the child’s physical health or significantly impair the child’s emotional development. Second, the person who has the exclusive right to designate the primary residence of the child is the person seeking or consenting to the modification and the modification is in the best interest of the child. Third, the person who has the exclusive right to designate the primary residence of the child has voluntarily relinquished the primary care and possession of the child for at least six months and the modification is in the best interest of the child. If the court finds that the affidavit contains sufficient facts to support one of these three allegations, then the court could render a modification order that changes who is the conservator with the exclusive right to designate the primary residence of the child within one year of the existing final order. It is important to note that this is a high burden to meet.
II. Modification of Child Support
Under the Texas Family Code, the court may modify a child support order in two situations: first, the circumstances of a child or a person affected by the order have materially and substantially changed since the rendition of the order or the signing of a mediated settlement agreement, whichever is earlier. For example, the conservator who is paying child support getting a large promotion and raise would likely qualify as a material and substantial change. Second, it has been three years since the child support order was rendered or last modified and the monthly amount of the child support award under the order differs by either 20% or $100 from the amount that would be awarded in accordance with the child support guidelines. For example, it has been four years since the final order was rendered and the conservator paying child support has gotten a raise that would increase the amount they are paying in child support each month by $200 according to the guidelines laid out in the Texas Family Code. In addition, parties are entitled to review of child support through the Office of the Attorney General every three years without having to file a modification.
It is important to note an order for child support can be modified at any time without a material and substantial change if the modification is made to provide medical or dental support for the child when the existing final order does not. For example, if at the time of the final order, medical and dental insurance for the child is not available to either conservator at a reasonable cost, but later it becomes available to a conservator, then the other conservator could bring a modification suit to make sure the child is covered under that newly available insurance coverage.
Alternatively, the parties can agree to an order of child support which would be different than the amount of child support that would be ordered under the guidelines. In this instance, the court can make an order that modifies the existing child support order only if the circumstances of a child or a person affected by the order have materially and substantially changed since the final order.
To sum up, there are a number of rules when it comes to qualifying for a modification suit. The most important idea generally is that there must a material and substantial change in circumstances. To determine if you have a possible case for a modification for conservatorship, possession and access, or child support, consult with one of our attorneys at Hunt Law Firm today!