There are two types of child custody orders that are modifiable by a court: i) a final Decree of Divorce if you were married when you had children; or ii) a final order in Suit Affecting Parent-Child Relationship if you were not married when you had children. And to modify that order, you must plead and prove that a material and substantial change has occurred. So, not only must the modification be in the best interest of the child, the circumstances of the child, conservator, or other party to the case have materially and substantially changed since the prior order was signed into place by the court. The Texas Family Code allows for either parent of a child to file for a modification of a previous custody order.
A party seeking 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 must file an affidavit attesting in reasonable detail to the material and substantial change of the circumstances of the child, conservator or other party. Re-litigation of custody cases that are less than a year old have a heightened review standard and are discouraged by the court unless there is a good reason.
First, the material and substantial change must have occurred after the date of the prior order sought to be modified. A court will not find a "material and substantial change" using information or events that existed prior to the court order being signed. This concept is called "Res Judicata," or a "matter already judged." A circumstance that existed at the time of the prior order will not support a finding of a material change in circumstances. Although not exclusive, the court may consider the following in making its determination that a material and substantial change has occurred:
Things that generally do not justify a material and substantial change would include events like remarriage (except to a registered sexual offender), or the religious preference of the other parent that is not otherwise illegal or immoral, or injuries to a child. The court may modify an order designating a sole managing conservator of a child of any age if: (i) the circumstances of the child, sole managing conservator, possessory conservator, or other party affected by the order have materially and substantially changed since the date the order was rendered; and, (ii) such appointment would be a positive improvement for the child.
Our family law attorneys understand that often the best way to resolve a dispute is before it happens or outside of a courtroom; however, when necessary, we know it is important to protect the interests of you and your family. Our attorneys are seasoned trial litigators and will work closely with you to protect your interests and the interests of your family.
Generally, there are two grounds for the modification of the child support amount: (i) has there been 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 (ii) 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.
In Texas, a child who is at least 12 years of age can confer with a judge as to where they will live, but a judge does not have to follow the child's wishes. A judge is not required to interview the child to confer, even if requested by a party. However, absent an agreement, if a non-custodial parent or other party takes physical possession of the child for at least six months, the court must, modify the support order upon the motion of that person.
Courts are very respectful and understanding of our nation’s military service members and their deployments. So while a military deployment or duty would not constitute a “material and substantial change” to modify an existing order, the court may provide a temporary order as needed to ensure the child’s best interests for the duration of the military deployment.
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