Standards for Modifications of Texas Custody Orders - Material and Substantial
Family law judges don’t want parents running into court every time there is a dispute. The Texas legislature and Texas courts do recognize that justice and fairness require that parents have some ability to modify orders. In order to strike the correct balance between fairness to parents and respecting the need to honor existing court orders, Texas law does permit parents to request modifications – in limited cases.
The limitation is that the requests to change a custody or support order must be “material and substantial.” The judge won’t consider minor changes. They will consider major changes. Family law judges will always review these modifications based primarily on what is in the best interest of your children.The Law on Modification of Conservatorship Orders
The Texas family code, Chapter 156, authorizes modifications in limited requests. Texas uses the word “conservator” instead of “custody.” There are two types of conservators. Managing conservators make decisions about the child’s upbringing and needs. A possessory conservator is the parent with whom the child lives.
Both types of conservator orders (managing and possessory) can be modified based on the following:
- The circumstances of the child, a conservator (or other affected parties) have materially and substantially changed since the date of the original conservator order or the date a mediated or collaborative agreement was entered.
- Modifications of parts of the conservator arrangement such as decisions about the primary residence of the child can also be modified on other grounds – such as the preferences of a child who is at least 12 years old.
- Modifications of the exclusive right to determine the primary residence of a child may be permissible if they are made within one year of the order.
- Child abuse or other reasons
Texas Statute 156.401 authorizes modification of child support orders (including the duty to pay for health insurance coverage for the child), with some exceptions:
- If the circumstances of a child or parent have materially and substantially changed since the entry of the order or the signing of a mediated or collaborative divorce agreement.
- If it’s been at least three years since the initial order/agreement or modification and the amount that would be paid under the current child support guidelines would vary from the existing order/agreement by at least 20% or $100.
Family courts prefer stability. They respect the hard work that goes into arriving at the original agreement or order. Family judges also know some spouses use litigation as a way to exert pressure on another spouse or parent. For these reasons, family law judges carefully consider whether there has indeed been a material and substantial change. While there are no specific rules, there are some general principles. Courts normally will review modifications of child conservator orders based on a material and substantial change if:
- A spouse remarries
- There are incidents of child abuse or child neglect
- A parent moves – especially if the move is to another school district or to a place where exchanging the child becomes costly and difficult
- The home surroundings change
- A step-parent mistreats a child
- Either parent has substance abuse problems
- A parent is incarcerated or found guilty of a serious crime
- The needs of the child have changed due to health issue or other reasons
- The child’s school performance is suffering
Some of the factors that, based on current case law, do not qualify as a material and substantial change include:
- The decreased participation in the raising of a child
- The temporary loss of child contact
- A desire of a parent to have the child travel with him/her internationally – where the parent doesn’t have the ability to foster such travel
- The desire of a parent to spend more time with a child
Some of the factors a family law judge may consider in reviewing whether there’s been a material and substantial change to justify modification of a child support order are:
The legitimate loss of a job or a job demotion. If a parent loses a job, the judge will expect that that parent continues to look for work to support his/her child. Judges will not consider modifications if the loss is due to an intentional desire to make less money just to avoid paying child support.
New employment or a promotion. If the income of either parent increases (keeping in mind the $100/20% guidelines), the family judge may consider the increase material and substantial.
A change in health status. If a parent can’t work long-term due to health problems, that change could be a material and substantial change.
A child has special health costs such as dental care
Each modification case is decided on a case-by-case basis. Judges again will place the highest priority on what is in the best interests of the child. Judges will look to see if the modification request is driven by any sort of hostility against the other spouse/parent.
Parents do need to understand they do need to try to work out things among themselves. A carefully negotiated conservatorship agreement should address many of the likely disputes that may occur when raising a child from different homes – and also provide for a dispute resolution process.Get Help From an Experienced Texas Custody and Child Support Lawyer
Life changes. Sometimes for the better. Other times for the worse. We know you want what’s best for your children – but there are times though when you need to request that a child conservator or support order be modified or times when your ex-spouse may request a modification.
At Lyttle Law Firm, our skilled family lawyers explain when these life changes qualify for a modification and when they won’t be considered material or substantial. To review your child conservatorship and support orders, call us at 512.215.5225 or use our online form to schedule an appointment. Our Austin, San Marcos, and Central Texas family lawyers represent parents who live in Travis, Hays, Comal, Williamson, Bell, Caldwell, Burnett, Llano, and Guadalupe Counties.