Sometimes you have orders that don’t work anymore or maybe they weren’t very good orders to start with. There are means to do that so we want to change those orders through a modification.
Our child custody attorneys talk broadly about the two types of modifications: one for possession or conservatorship (which, again, is how you make decisions for a child), and the other for a suit to modify child support. The two types, some of the principles overlap, some are unique to the specific kind of modification, so we’ll go over them individually.
First, let’s talk about the suit to modify possession or conservatorship.
Broadly speaking, there are four reasons that a Texas court would modify an order for possession or conservatorship: (1) maybe the parties have agreed to the change, (2) a child has expressed a preference, (3) one of the parties voluntarily relinquished, or (4) there’s been a substantial change in the case.
We’ll get to each of these areas more specifically, but first I want to point out that in every case the court will have to make a best interest of the child evaluation. So these ideas on the left here, these circumstances on the left, aren’t enough. The court will still have to hear the case to make a best interest evaluation.
So let’s talk some about them individually.
First, in terms of a party’s agreement, the parties would have to file suit, sign an agreed parenting plan, and then the court would approve it.
What I mean to say here is I don’t want to see any more of those hand-written notes that are signed by notaries. They don’t work.
To modify a Texas order for possession or conservatorship you have to get in front of the judge because again the judge has to make that best interest evaluation. You’ll sign a parenting plan, the court will likely approve.
Second, on a child’s preference, any child over 12 can speak to the judge in chambers to express their preference as to changes in the prior order. I should note that this is only a factor in a judge’s decision making. A child can’t come to a judge and say they want to live with Charles Manson and a judge just sign off on that. Not only will the child have to express a preference for a change, again, the judge will have to make a best interest evaluation.
For voluntary relinquishment, in your prior order somebody was named the person with the right to designate the primary residence of the child. Sometimes this is called the primary parent or the weekday parent. If that person has surrendered the child for more than 6 months, almost automatically the other parent could go in and totally change the order.
I will say there is no reason to wait the six months. If there has been a substantial change, which we’ll get to in just a second, as in someone has voluntarily relinquished the child to someone else, you can get into the court much earlier.
Through a substantial change, you’re just showing that the circumstances of the child, or of one of the parents, or some other involved party in the case, have materially and substantially changed. And I want to tell you about the broad list of options available to prove a substantial change in a case. So let’s look at a few of these.
Maybe there’s been parental conflict, someone remarried, someone was found guilty of family violence, put in jail, the home environment has changed, the child has grown up, moves have been frequent, there’s been sexual abuse, parental alienation, new siblings, someone violated the geographic restriction, someone relocated…
All of these circumstances have been shown in prior Texas cases to amount to a substantial change. If something big has gone on in a child’s life that changes the assumptions around the prior order, then it’s time to change the order. And all of these options are available to you.
The other thing I wanted to revisit is this best interest standard.
There are a lot of principles in determining the best interest of the child, and we’ll be making another video about how the court determines the best interest. However, I want to cover three specific considerations for a modification.
These three principles are super duper big deals in a modification case: (1) the child’s need for stability, (2) the court wanting to avoid constant litigation, and (3) the child’s need to frequently be in contact with both parents.
These three principles are huge in a modification case. A court is trying to avoid people using the court as a bludgeon against the other parent, and the child just is kind of pulled back and forth in between. If you’re making a modification of your prior order and you think that one of these principles might apply to you, you might want to think twice about filing that modification. Make sure that the change is big enough and important enough to beat the court’s unwillingness, lack of desire, to fundamentally change the child’s life.
The second thing I’d like to talk about broadly is the suit to modify child support. Again, some of these principles are similar, some are different, so we’ll go over them individually.
To modify child support: parties’ agreement, the three year rule, which we’ll talk about, or, again, a substantial change. Again, in all of these instances a court will still have to make a best interest evaluation. It’s not actually required by some of these, but as a practical matter a court will always make a best interest evaluation.
So, first on the parties’ agreement, similarly, you can differ from the standards but you’ve gotta file suit, sign a support agreement, and then the court will approve it. If you’re deviating from child support standards, which we’ve covered in the custody video, then the court may well approve it. But still, you’d have to get the court approval and then it would be enforceable as if the court ordered it.
Under the three year rule, you don’t have to prove a substantial change if the order is older than three years old. If the child support change would be more than 20% or $100, then the court will fairly automatically after three years change that child support number.
The only time that’s not true is if the prior order deviated from the standard – it wasn’t based on the normal 20% or 25%, 30%, 35%, that again we talked about in the custody video – if it’s not based on that number and there was an agreement, then the three year rule won’t apply. You have to go in and prove a substantial change.
When we’re talking about substantial change, we’re talking about a change in the needs of a child, or in the abilities of a parent. So, maybe somebody lost their job or got a really good job, maybe the child’s health care costs a lot more than we expected it to, maybe the child’s support needs to extend past 18 or graduation from high school because special needs have popped up… All of these changes in assumptions form the prior order are a basis for changing the support order.
So, we’ve talked about how to change possession and conservatorship, and how to change child support. But there are a lot of things to talk about in this area. Go to the modification section. There are some articles in there and some blog posts where we talk about stories and some tips that you can look over. Take a look there and call us if you have any questions.