Modification Cases in Texas City

A parent may file a petition to modify a prior final order, and ask to change:

• Which parent the child primarily lives with;
• The geographic area where the child must live;
• The parental rights each parent has, including the rights to enroll the child in school, make educational or medical decisions, consent to psychological or psychiatric care;
• The petition may ask to change visitation or restrict visitation or require supervised visitation;
• Drug or alcohol testing may be requested;
• The orders about passports and international travel;
• Child support may be increased or decreased, stopped or started;
• The orders about health and dental insurance and reimbursement of uninsured health expenses may be modified;
• Injunctions or orders about behavior around the children may be changed.

Most of the hotly contested cases handled by Enos Family Law involve either teenagers who want to live primarily with a different parent, teens who refuse to visit a parent, or requested changes to custody or visitation because one parent (or his/her spouse) is a danger to the child.

Relocation cases are a particularly difficult type of modification cases involving the parent with the right to determine the child’s primary residence wanting to move away to a different city. Most judges will not let parents move away unless they have an extremely strong, unavoidable reason for moving away with the child.

In some situations, a modification case may be filed by a grandparent/non-parent with custody or seeking custody.

The court will almost always approve a modification order that has been agreed to by the parents. If the modification agreement is reached in mediation, the court basically is required to accept the parents’ agreement. Parents do not need a new court order to change how they do visitation because almost all court orders say that visitation can be at any time agreed to by the parents. A new court order is required to change child support however, even if there is an agreement. As in any family law case, it is best if the parents can reach their own agreement on changing a prior order.

A parent who files a modification case to change a prior order on custody, visitation, support, or insurance must prove that there has been a material and substantial change since the date of the prior court ruling or settlement agreement. The change must relate to the modification requested. For example, the fact that both parents have remarried since their divorce, changed jobs, and moved to different parts of the Houston area may be substantial changes, but they do not necessarily have anything to do with a request to change the court order about passports and international travel. The change since the last order must be both substantial and material to the modification the court is being asked to make. A change that was anticipated when the prior order was made is not a material and substantial change to justify modification of an order. If the parents knew at the time of their divorce that mother was an astronaut and might be gone for long periods of time, for example, the fact that the mom is now going on a long mission to the moon would not be a material and substantial change.

The court must also find that the modification requested is in the child’s best interests.

The legislature has made certain events to be material and substantial changes as a matter of law, including the death of a parent, conviction or deferred adjudication for sexual abuse or family violence, and a finding of contempt for denial of visitation.

The amount of child support may be increased or decreased if: (1) the parents agree, or (2) there has been a material and substantial change in the income of the parent ordered to pay child support or the needs of the children, or (3) if it has been three years since the prior order and the amount that would be due under the child support guidelines now would vary by more than 20% or $100 from the amount ordered in the prior order. A modification may be justified if the parent ordered to pay child support has been in jail or prison for more than 180 days. Sometimes, child support can be increased if the needs of the child have greatly increased since the prior order. The birth of another child can be a material and substantial change since Texas gives a “discount” to parents ordered to pay child support if they have other children they are legally obligated to support.

If the modification case results in a change of custody or a big change in visitation, that alone can justify a change in child support. If the father had the exclusive right to determine the child’s primary custody and the mother paid child support under the prior order, for example, a change where the child starts living primarily with the mother would result in the mother’s child support obligation being terminated and the father ordered to pay child support.

The Texas Attorney General will represent parents for free in cases to modify child support, but their process can be time consuming if there is not an agreement. A private attorney is more expensive than the free Attorney General but a retained lawyer handles a lot fewer cases and will usually give your case more attention and get it resolved faster (it just costs a lot more).

The judge asked to decide a modification case is supposed to be presented evidence of the situation at the time of the prior order and evidence of what has changed since then. Generally, the court cannot consider evidence of conduct that occurred before the prior order in a modification case, but there are several exceptions to this general rule. Click here to read a detailed article on this topic written by Greg Enos.

A modification case begins with the filing of a petition to modify, which may include a request for a temporary restraining order. In emergency situations, if affidavits or unsworn declarations are attached to the petition, a judge may grant extraordinary relief to keep a parent from exercising possession or visitation until there is a hearing on temporary orders.

A modification ends with a new final order (or a dismissal). Mediation is required before a final trial and before hearings on temporary orders in some counties (like Harris County). Discovery, including requests for documents, is usually conducted in modification cases. A jury can decide the big issues of primary custody and the geographic area where the child must live, but the judge decides the details of changes in parental rights, visitation, support, insurance, and injunctions. An award of attorney’s fees may be made in a modification case, but usually each side pays their own attorneys.

A court in a modification case may consider temporary orders that are in effect while the case is pending, but certain requirements apply to the evidence needed to temporarily change primary custody. A court cannot change in temporary orders which parent has the exclusive right to determine the child’s primary residence or the geographic area in which the child must live without proof of either:

A judge at a hearing on temporary orders must, if requested, interview a child age 12 or over, about the child’s preferences for custody and visitation. Click here to go to our web page that discusses “when can a child choose?”

In Harris County, an affidavit must be filed that explains the need for a hearing on temporary orders before the court will even schedule a hearing and often mediation is required before any such hearing.

A modification lawsuit asking to change primary custody (the exclusive right to determine the child’s primary residence) filed within one year of the prior order must have attached an affidavit that sets forth facts that show the child’s present environment may endanger the child’s physical health or significantly impair the child’s emotional development or that the parent with primary custody has voluntarily relinquished primary care and possession of the child for over six months.

A modification case filed by a grandparent or non-parent must also have a similar affidavit attached.

A case involving a child, including a modification of custody, visitation, support, or insurance may be transferred to another county where the child has resided for the six months preceding the filing of the modification case. The residence does not have to be continuous or uninterrupted. The transfer must be to the county where the child has resided – as long as that residence was not in violation of a court order.

A case is not transferred unless a motion to transfer is filed by one of the parties to the lawsuit. The person who files the modification case does not have to file a motion to transfer to another county. But, if he or she wants a transfer, the motion must be filed with the original petition to modify. The parent who is sued in a modification case can file a motion to transfer but there are deadlines to do so. The judge must transfer the case if the child has resided in another county for six months preceding the filing of the case.

A Texas Court may have the authority to modify a child custody or visitation order from another state or country. A child custody case cannot be transferred from one state to another, but the court of one state may lose or give up jurisdiction and a court in Texas may be able to assert jurisdiction to decide the case. This is a complicated topic and any such case requires inquiry into where the prior case was decided, where the parents and child live now, and how long the child has lived in Texas. For more general information, click here to go to our webpage on interstate and international custody disputes.