Generally, when custody orders are entered, they are based on underlying facts and circumstances that are known or contemplated at the time that they are made. But what happens when circumstances change or new facts become known, that did not exist at the time the order was signed by the Court? In Texas, an individual can ask the Court to modify orders for custody, possession, and child support. This article will discuss a modification relating to custody.
How do I modify an order for custody?
In Texas, a request to modify is filed as a new lawsuit. You may have heard of a “motion” to modify, but in Texas, a modification is filed as a brand new lawsuit. This lawsuit is usually filed with the same Court that issued the original underlying order. In filing a petition for a modification, the person seeking the modification must show: 1) that the circumstances of a child, a conservator, or another party affected by the [underlying] order have materially and substantially changed since the earlier of the date was rendered or the date the settlement agreement that the order was based on was signed; and, 2) the modification is in the child’s best interest.[1] One of the important elements of this Texas Family Code provision that is often overlooked is that there has to have been a material and substantial change in circumstance since the earlier of the date the decree or order was rendered, or the date the underlying settlement agreement that the decree or order was based on, was signed. If the Court has issued an Order that was based on a settlement agreement – the date that the settlement agreement was signed would be the key date. Which means that any material and substantial change must occur after that date. Further, the change in circumstances must not have been anticipated (ie. must not have been factored into the Order that a person wants to modify). Timing is key.
What is a material and substantial change?
There are several factors which could be considered by the Court to determine if a material and substantial change has occurred. Proving a material and substantial change is a fact-intensive inquiry and is looked at by the Court on a case-by-case basis. In Texas, there are some changes that are deemed material and substantial by law. A non-exhaustive list of some of these statutes include:
- A conviction or deferred adjudication for sexual abuse of conservator;[2]
- A conviction for continued sexual abuse;[3]
- A conviction or deferred adjudication for family violence;[4]
- The child was conceived by a criminal act;[5] and,
- Evidence of sexual abuse.[6]
Some of the factors that a Court will look at to see if there has been a material and substantial change include:
- Have geographical restrictions been violated?
- Has there been parental alienation?
- Has there been a change in the home environment? (ie. remarriage, frequent moves, new siblings, alternative lifestyles).
- The age of the child and their needs.
- Severe conflict and discord between parents.
- Incarceration of a parent.
- Drug and alcohol abuse by a parent.
These factors are fact-intensive and the Court will rely on evidence of the specific facts alleged by the person seeking the modification. The burden of proof is on the person seeking the modification.
As a brand new lawsuit, there is a period for discovery – where both sides get to send each other written questions and request documents to be produced. And depositions can be taken regarding changes in circumstances and best interests of the children.
What if my ex has custody and they and my children live outside of Texas?
In a situation where either: 1) the child, the child one parent, or the child and a person acting as a parent have a significant connection with Texas; and, 2) substantial evidence concerning the child’s care, protection, training and personal relationships is no longer available in Texas, then it is possible that the Texas Court could lose jurisdiction to modify its earlier order or decree. It is vital to retain a competent, knowledgeable, and experienced family lawyer to assist you with determining which Court may have jurisdiction to consider a modification.
Child’s Best Interest
In Texas, the person seeking a custodial modification must show that the modification is in the child’s best interest. There is a seminal case in Texas on some of these factors, commonly referred to as the “Holley” Factors.[7] That case can be found by clicking here. As outlined by the Court, this non-exclusive list of factors includes:
- the desires of the child;
- the emotional and physical needs of the child now and in the future;
- the emotional and physical danger to the child now and in the future;
- the parental abilities of the individuals seeking custody;
- the programs available to assist these individuals to promote the best interest of the child;
- the plans for the child by these individuals or by the agency seeking custody;
- the stability of the home or proposed placement;
- the acts or omissions of the parent which may indicate that the existing parent-child relationship is not a proper one; and,
- any excuse for the acts or omissions of the parent.[8]
There are other factors outside of the Holley Factors that a Court may look to in order to ascertain the best interests of the child. It is vital that an individual seeking a modification find a Texas Family Lawyer to help with understanding all of the factors that may play a role in determining what is in the best interest for a child.
A modification may also be necessary to address a change in child support orders or spousal maintenance orders. Modifications for child support or spousal maintenance will be discussed in later blog posts. If you need assistance, call our office at (713) 229-8855 and speak to one our experience Family Lawyers. We are here to help you navigate modifications. The link to the Texas Family Code can be found here: https://statutes.capitol.texas.gov/Docs/FA/htm/FA.156.htm#156.001
* At Skillern Firm, we pride ourselves on the results we have achieved for those we help. We stand ready to assist you with any of your Family Law needs. Contact us today. https://skillernfirm.com/
[1] Tex. Fam. Code §156.101(a)(1)
[2] Tex. Fam. Code §156.104(a)
[3] Tex. Fam. Code §156.104(a)
[4] Tex. Fam. Code §156.1045(a)
[5] Tex. Fam. Code §153.003(d)(2)
[6] Tex. Fam. Code §153.004(c)
[7] See Holley v. Adams, 544 [email protected] 367, 372 (Tex. 1976)
[8] Id.