Custody Modification

Reaching the conclusion of a divorce or a custody case is a significant life event. One hopes that the resulting decree or order is the end of the line as far as litigation is concerned. Unfortunately (or fortunately – depending on the circumstances), there may be future court action to modify child custody, child support, or alimony after a divorce or separation. That’s where our attorneys come in.

During the course of a marriage, a couple likely created a community estate. Often, they also created a family by having children. If there is a divorce with children, then two suits merge into one:

  • Dissolution of marriage – this deals with the division of the marital property
  • A Suit Affecting Parent-Child Relationship (“SAPCR”) – this deals with the conservatorship, support, and possession of and access to the child

The divorce will result in a “Final Decree of Divorce.” This title is somewhat misleading, because in reality, the only aspect of the divorce that is final when there are children before the court is the division of community property. The child aspects (the SAPCR) such as custody, visitation, and child support are all subject to future modifications. A divorce modification lawyer with specific experience in modifying divorce decrees is your best bet at getting the changes you want.

Also, the SAPCR suit may stand alone. An example is where two parents were never married, have no property to divide, but have a child together. That standalone SAPCR suit is, likewise, subject to future modification by the court.

What Custody, Child Support & Divorce Modifications Can Be Made?

After a divorce decree (or, alternatively, just a SAPCR itself) has been entered by a court, a court may modify any (or all of) the three SAPCR matters identified above:

  • Conservatorship
  • Support
  • Possession of and access to a child

However, these matters may only be modified as long as the court maintains “continuing, exclusive jurisdiction.”

Who Can File a Suit to Modify Custody Orders?

A party affected by the order (either a Decree of Divorce or a prior SAPCR order) in the court with continuing, exclusive jurisdiction. A person or an entity (e.g., a grandparent or the Department of Family and Protective Services) may also sue for modification if they meet specific “standing” requisites in the court that has continuing, exclusive jurisdiction.

Lastly, a sibling of a child who is separated from the child because of actions taken by the Department of Family and Protective Services may file a suit for modification requesting access to the child. That suit would again occur in the court with continuing, exclusive jurisdiction.

Do You Qualify for a Custody Modification?

There are two prongs to a modification suit that the court examines:

  • Would the modification be in the “best interest of the child”
  • Have the circumstances of the child, a conservator (typically a parent), or other party affected by the order “materially and substantially” changed since the last order was entered?

The second prong warrants some emphasis: Things generally need to be materially and substantially different in order for the modification to be granted.

The family code makes a distinction within the scope of the SAPCR suit as to the nature of the modification and provides different guidelines for the grounds thereof. There are particular grounds for:

  • The modification of an order establishing conservatorship, possession and access, or determination of residence
  • The modification of child support

What Does Material and Substantial Mean?

If you’re thinking the two words emphasized above, “material and substantial,” are a little unclear, you’re not alone. There really isn’t a clear definition. It’s somewhat left to the court’s discretion.

So with regard to modification of an order establishing conservatorship, possession and access, or determination of residence of a child, a parent’s desire just to spend more time with their child is typically not a “material and substantial change in circumstances,” but the remarriage of a parent may constitute a material change in circumstances. A work move across the state by one parent may also present a material change in circumstances.

In such instances, the court might want to look at whether there was a geographic restriction imposed in the prior order and whether this circumstance was foreseen.

The hurdle is heightened further if a party seeks to modify the designation of the person having the exclusive right to designate the primary residence of a child within a year of the last order. The Texas Legislature intends to discourage re-litigation of custody cases within a short time period after the last order. Judges are not generally too keen to see parents back within a short period of time unless there’s a particularly good reason. You need an experienced lawyer to change child custody orders or a child support order.

Petitioning for Custody Modification

The party seeking the modification must execute and attach to their petition an affidavit showing one of the following three things:

  • The child’s present circumstances at the other home may endanger the child’s physical health or emotional development
  • The primary conservator is the person seeking or consenting to the modification
  • The primary conservator has voluntarily relinquished the possession of the child for at least six months

If the court finds that none of those grounds has been satisfied, as set forth in the affidavit, the court must deny the motion and not schedule a hearing. Your modification won’t go any further at that time and you may risk some loss of credibility with that court in the future. You want to make sure that you proceed in these circumstances wisely. Our custody modification lawyers know how to strategize a successful plan of action to get you the changes you need.

Clear Grounds for Custody Modification: Child Abuse or Family Violence

Two areas where the legislature gave clear guidance to courts as to what “material and substantial change of circumstances” means are convictions for either child abuse or family violence. A conviction for either one can be a sufficient basis for the court to issue a temporary order and modify the prior order setting forth the terms and conditions of a conservatorship or for the possession of and access to a child.

Custody During Military Deployment

In the event a conservator is ordered to military deployment or duty, that would not constitute a “material and substantial change” to modify the existing order; however, a court may issue a temporary order during that time that is intended to reflect the child’s best interests.

Child Support Modifications

The second type of modification suit, identified above, relates to a modification in the amount of support for a child. This may include the provisions for health care coverage.

Who Qualifies for a Child Support Modification?

Generally, there are two grounds for the modification of the child support amount: The first brings the court’s focus again to a situation based on a “material and substantial” change in circumstances since the last order (if the motion is filed in less than three years from the last time the court set child support); and the second ground is whether it has been three years since the order was last rendered or modified and the monthly child support amount under the order would differ by either 20 percent or $100 from the amount that would be awarded according to the child support guidelines.

Accounting for the Unforeseen

Sometimes parties may agree to an order in which the amount of child support differs from what would be awarded if the Texas Child Support Guidelines were applied. In that instance, the court may modify if the circumstances have materially and substantially changed.

An example of this may be a person who was a significant wage earner, who was more generous in terms of support than the guidelines would otherwise require, and then that person is impacted in an unforeseen way, losing almost all of his or her income.

That’s one of the benefits of modification. Modification is intended to compensate for the unforeseen.

What if the ex-spouse marries someone new? What happens to the child support? Texas doesn’t consider the income of the new spouse. So if your ex-spouse marries the Dallas Cowboys’ biggest superstar, don’t expect that to be “material and substantial” change in circumstances in the eyes of the court, at least not just because of his income. The Family Code is express that it is not to be considered.

Likewise, if there is an increase in the needs, standard of living, or lifestyle of the parent receiving child support since the order was last rendered, it does not warrant an increase in the obligor’s support.

Child Moves in With Other Parent

In the event that there is a change in physical possession of a child to the extent that a person has physical possession of the child for at least six months, the court must, upon the motion of that person, modify the support order.

The point of child support is, as the name implies, to support the child. Therefore, the modification here flows logically: The person who has possession of the child should not be the one paying child support.

Modifying an order is appropriate in many circumstances. Things change as children grow. Those changes can’t be foreseen at the time of either the decree or SAPCR order. That’s a fact of life.

Fortunately, unlike the division of property, the recourse to return to court is one that is available under the appropriate circumstances. Nevertheless, it’s important to look carefully to make sure that the circumstances truly are appropriate. If things under the existing order are broken, a modification suit is your mechanism to try to fix them. That order can and should be modified.

Schedule a Consultation for Divorce or Custody Modification Today

It takes years to master the rules of divorce and custody modifications and put those rules into practice with technique and skill. The lawyers at Orsinger, Nelson, Downin & Anderson have years of experience and practice those techniques to help you be the best parent you can be.  Call us or request an appointment online and we will work with you to modify custody orders or a divorce decree.