Modification of Orders

Modification of Orders

Custody

The child's best interest is always the primary consideration of the court in determining questions of conservatorship and possession of and access to a child. It is Texas' public policy to assure that children will have frequent and continuing contact with parents who have shown the ability to act in the children's best interest, provide a stable environment for the child, and encourage parents to share in the rights and duties of raising their child after the parents have separated and dissolved their marriage. Although a disruption of the child's life at the time of the divorce is unavoidable, the disruption can be abated and the situation improved after the divorce. Strong public policy favors a high degree of stability in the child's present environment and disfavors post-divorce changes in the child's lifestyle.

The policy favoring stability influences the standard or prerequisite for modification. That is, the standard in a particular suit depends on the degree to which the requested modification would disrupt the stability of the child's present environment and lifestyle. For example, the degree of proof necessary to justify a modification of visitation is less onerous than the proof required to modify custody. If the court finds that a suit for modification was filed frivolously or is designed to harass a party, the court must tax attorney's fees as costs against the offending party.

The court may modify an order or portion of a decree that provides for the appointment of a conservator of a child, that provides the terms and conditions of conservatorship, or that provides for the possession of or access to a child if modification would be in the child's best interest and one of the following applies:

•   The circumstances of the child, a conservator, or other party affected by the order have materially and substantially changed since the date of the rendition of the order; or

•   The child is at least 12 years of age and has filed with the court, in writing, the name of the conservator who is the child's preference to have the exclusive right to determine the primary residence of the child; or

•   The conservator who has the exclusive right to establish the child's primary residence has voluntarily relinquished the primary care and possession of the child to another person for at least six months.

The court may modify an order or portion of a decree that provides for the appointment of a conservator of a child, that provides the terms and conditions of conservatorship, or that provides for the possession of or access to a child if modification would be in the child's best interest and one of the tests for modification is met. It is the child's best interest, rather than the parent's, that must be determined. The child's best interest has been defined as the environment that will have the most desirable or favorable effect on the child. In determining whether modification is in the child's best interest, the court may weigh all factors bearing directly or indirectly on the child's physical, emotional, mental, educational, social, moral, or disciplinary welfare and development. The trial judge has broad discretion in making the best interest determination because of the opportunity to observe and evaluate the personalities involved

•   Factors that have been considered in evaluating the child's best interest include:

•   The child's emotional and physical needs.

•   The parenting ability of the conservators or potential conservators.

•   The plans and outside resources available to persons seeking the modification.

•   The value to the child of having a relationship with both parents.

•   A visitation schedule that requires excessive traveling or prevents the child from engaging in school or social activities.

•   The stability of the homes of the persons seeking the modification.

•   The child's desires

The court may modify an order or portion of a decree that provides for the appointment of a conservator of a child, that provides the terms and conditions of conservatorship, or that provides for the possession of or access to a child if modification would be in the child's best interest and the circumstances of the child, a conservator, or other party affected by the order have materially and substantially changed since the date of the rendition of the order. Determinations as to whether the circumstances of the child, a conservator, or other party affected by the order have materially and substantially changed are necessarily made on a case-by-case basis. Nonetheless, some general principles have emerged from cases decided under earlier versions of the modification statutes: 1) A slight change in circumstances will not justify a modification of managing conservatorship. 2) The material change must have occurred after rendition of the order sought to be modified. 3) The material change must directly or indirectly affect the child's welfare.

•   The child's changing needs as he or she gets older may, by themselves, constitute a material change in circumstances. However, the age of the child or a party, as an isolated fact, is generally insufficient to support modification of managing conservatorship. A party's physical infirmities rarely justify modification unless the party is substantially unable to care for the child's needs. On the other hand, courts consider a party's mental health and emotional stability to be very important factors.

•   When considering whether a material change of circumstances has occurred, Texas courts have deemed the remarriage of one or both parents to be a pertinent factor. Texas courts recognize that the parental abilities of the parent seeking custody and the stability of that parent's home are factors to be considered in determining the child's best interest

•   One party's negative behavior may constitute a material and substantial change of circumstances. A parent's use of a child as a pawn in disputes may constitute a material and substantial change in circumstances.

•   Child-snatching may be sufficient to justify a modification of custody. The deliberate secreting of the child demonstrates that the person may be unfit as a custodian and that the child's best interest will be promoted by placing the child with the other party

•   Acts, omissions, or circumstances of a managing conservator that thwart the child's ties with the other parent, such as interfering with visitation, may constitute a material and substantial change in circumstances

•   The moral misconduct of a party, such as, for example, a party's sexual promiscuity, affairs, or living with a member of the opposite sex out of wedlock may constitute a material and substantial change

•   Being convicted of a crime or subjecting the child to the influence of persons involved in criminal activities may be considered a material and substantial change in circumstances

•   The use of illegal drugs by a party seeking custody is a material issue in a suit to modify conservatorship. Texas Rules of Civil Procedure authorize a court to order a petitioner to submit to drug tests if sufficient evidence is presented to place the matter in controversy and there is a showing of good cause for such an order

•   The physical, mental, or sexual abuse of a child is a material and substantial change in circumstances

Conduct that occurred in a few isolated instances in the distant past is less likely to be deemed a material and substantial change in circumstances than conduct occurring in the recent past. Additionally, behavior that occurred in the child's presence or that the child is aware of is more likely to constitute a material and substantial change.

Evidence of a false report of child abuse is admissible in a suit between the involved parties regarding the terms of conservatorship of a child. A false report of child abuse or neglect made before or during a suit affecting the parent-child relationship may be grounds for the court to modify the parent-child relationship to restrict further access to the child by the accuser.

The court must consider the parties' qualifications without regard to their marital status or to the gender of the party or the child in determining which party to appoint as sole managing conservator, whether to appoint a party as joint managing conservator, and the terms and conditions of conservatorship and possession of and access to the child.

Support

The court may modify a child support decree if the circumstances of the child or a person affected by the decree have materially and substantially changed since the date of its rendition. The party seeking to establish a material and substantial change is required to prove that the circumstances of either the child or a person affected by the order had materially changed; the party is not required to prove both. A substantial increase in one parent's income in itself constitutes a material and substantial change. A court's decision to modify support often involves a consideration of both the financial condition of the obligated parent and the child's changed needs.

Often the terms of child support payment become unworkable. In these instances, the court can order the support paid through the Dallas or Collin County child support office, or the support can be paid through the Texas Attorney General's office.

A parent's testimony showing a substantial increase in a child's expenses is enough to establish a material and substantial change in circumstances. Items examined to determine the child's increased needs include items such as expenses for travel, summer camp, sports lessons, entertainment, private school tuition. Age is frequently a factor in determining the existence of a change of circumstances, since as children grow older, their clothing, food, and educational expenses generally increase.

When a decrease in income makes it impossible for the parent paying support to make the ordered child support payments, and also pay for the parent's necessary living expenses, a decrease in the amount of support may be justified. Conversely, a reduction in the the custodial parent's income may constitute a material and substantial change of circumstances justifying an increase in child support.

A court may not add any portion of the net resources of a new spouse to the net resources of an obligor or obligee in order to calculate the amount of child support to be ordered in a suit to modify. On the other hand, a court may not subtract the needs of a new spouse, or of a dependent of a new spouse, from the net resources of the obligor or obligee in an attempt to reduce support.

The court may modify an original or modified spousal maintenance order on a proper showing of a material and substantial change in circumstances of either party. Spousal maintenance may be terminated, after a hearing, if the party receiving maintenance cohabits with another person in a permanent place of abode on a continuing, conjugal basis.