Any time parents with children divorce or separate, there are specific parts of the Final Decree of Divorce or Order in Suit Affecting the Parent-Child Relationship (SAPCR) that the Texas courts have the power to change (modify). These include issues pertaining to conservatorship (the word we use instead of “custody”) child support and periods of possession (commonly called “visitation”).
PERSONS WHO MAY BRING FORTH A SUIT FOR MODIFICATION
Any person who has rights to possess a child under a court order may ask for a modification. This will almost always include both of the child’s parents and no one else. In rare cases, grandparents or persons with whom the child has lived with for six months may have grounds to file a petition/motion for modification. (Contact the Law Office of Nancy E. Lusk to determine your right to bring forth a suit for modification.)
ELEMENTS REQUIRED FOR MODIFYING SPECIFIC PROVISIONS
A suit to modify a prior order will require the person who brings forth the suit (called the “Movant”) to prove different elements depending on the part of the Final Decree of Divorce or Order Suit Affecting the Parent-Child Relationship he or she is trying to change. The elements a Movant will be required to prove in the most frequently-sought modifications are listed below.
MODIFICATION OF CONSERVATORSHIP
Life happens and you may find that orders previously entered with the court are no longer workable, and you firmly believe the child would be better off living with you than with the managing conservator. Texas Law allows for the modification of conservatorship but only in limited circumstances. First and foremost, you (the Movant) must prove the modification you are requesting is in the best interest of the child.
In addition, you’ll need to provide proof that:
- the circumstances of the child or conservator have materially and substantially changed since the original or prior order, or the signing of a legally binding agreement (i.e.: Mediated Settlement Agreement);
- the child is at least 12 years old and has expressed to the court in chambers that he/she wants to live primarily with the other parent; or
- the managing conservator has voluntarily relinquished the child to another person for at least six months.
There are several different situations or life events that may be considered a material and substantial change. The following list is not all inclusive, but should give you a general idea:
- a parent remarries;
- a parent engages in criminal activities;
- a parent’s medical condition that impairs his or her ability to function, to work, and to care for the child; or
- change of residence.
Although a child, 12 years of age or older, may express to the court in chambers that he/she wants to primarily reside with the other parent, ultimately, the judge makes the final decision based on whether or not he/she feels it is in the best interest of the child.
MODIFICATION OF VISITATION
As time passes, the children grow, circumstances change, and prior orders previously rendered through the courts may no longer suit your family and your relationship with your children. Perhaps one parent moves more than 100 miles away or you want to have more time with your child. Texas Law allows for the modification of possession and access but only in limited circumstances. First and foremost, you (the Movant) must prove that the modification you are requesting is in the best interest of the child.
In addition, you’ll need to provide proof that:
- the circumstances of the child or conservator have materially and substantially changed since the original or prior order or the signing of a legally binding agreement (i.e.: Mediated Settlement Agreement).
Because child related issues can cause contention and disruption in the family, the courts encourage conservators to amicably work together to create a visitation schedule that works for both the conservators and the child. Once an agreement is reached, the parties may petition the court for the change and submit an agreed order for the judge’s approval. In most cases, the court will approve your agreement, as long as it’s in the child’s best interest and the agreement was mutual and not a result of coercion or fraud.
MODIFICATION OF CHILD SUPPORT
Orders that provide for child support (i.e.: a Final Decree of Divorce or SAPCR) can be modified if:
- it has been three years since the order was established or last modified and the monthly amount of the child support ordered differs by either 20% or $100 from the amount that would be awarded in accordance with the Child Support Guidelines; or
- the circumstances of the child or conservator have materially and substantially changed since the rendition of the prior court order.
WHAT DOES THE COURT CONSIDER MATERIAL AND SUBSTANTIAL CHANGE?
There are several different situations that may be considered a material and substantial change. The following list is not all inclusive, but should give you a general idea.
- the paying parent’s income has increased or decreased;
- the paying parent has lost his/her employment;
- the child’s medical insurance coverage has changed;
- the child’s living arrangements has changed; or
- the paying parent owes support for children born from a different relationship.
MODIFICATION BY AGREEMENT
Although conservators are free to make agreements which they feel are in the best interests of the child, if the agreement is not incorporated into a court order, it will not officially change the rights and duties of either conservator. At any point, the other conservator may refuse to comply with your verbal or written agreement and you will be left with no protection as informal agreements are not legally valid or binding. A court can only enforce a court order.
WHAT IS CONSIDERED THE “BEST INTEREST OF THE CHILD?”
The court’s main concern is the best interest of the child – not necessarily what works best for you, your lifestyle, or your schedule. The child is the court’s number one priority, and thus, they will evaluate some of the following factors when considering conservatorship, visitation, and child support issues:
- your ability to be a parent;
- the child’s emotional and physical needs;
- the stability of your home;
- what the child desires;
- the child’s need for stability;
- value to the child of having a positive relationship with both parents;
- if the visitation schedule requires excessive traveling and prevents the child from participating in school and/or extracurricular activities; and
- plans and outside resources available to persons seeking modification.
WHAT IF MY PRIOR COURT ORDER IS LESS THAN A YEAR OLD?
If your prior court order is less than a year old, an affidavit must be filed with the court along with your Petition/Motion to Modify the Parent-Child Relationship. This sworn testimony must include at least one of the following allegations and supporting facts:
- the child’s current environment may endanger the child’s physical health or significantly impair the child’s emotional development;
- the managing conservator has voluntarily relinquished the child to the other parent or another person for more than six months and it would be in the child’s best interest; or
- the managing conservator agrees to the modification and the modification is in the best interest of the child.