Whether you were once married to your child’s other parent or simply
had the child together, the
Texas Family Code allows for either parent of a child to file for a
modification of the prior child custody order. If you were once married, the prior
order is likely your
Final Decree of Divorce. If you were not married to your child’s other parent then the order
to be modified is likely a final order in
Suit Affecting Parent Child Relationship.
It is not enough to simply want to see a change occur in whatever order
is currently in place for you, your child and your child’s other
parent. The purpose of today’s blog post from the
Law Office of Bryan Fagan will get into the specific standard that courts in Texas apply if you
petition for a modification of a
child custody order.
What is a material and substantial change and how does it affect your attempt
to modify a custody order?
Within the Texas Family Code you will find section 156.101(a)(1). This
section contains the standard by which courts will determine if your situation
passes muster as far as having enough evidence in place to warrant a modification
of a child custody order. Make no mistake. Courts are not looking for
a reason to modify a prior order. On the contrary, courts do not want
to alter the consistency (to the degree that there is any) in a child’s
day to day life. With that being said, it would stand to reason that instead
of granting modification requests with ease, a Court will look to see
if the law’s stringent tests on modifications are actually met before
considering the request.
First and foremost, the modification must be in the
best interests of the child. If you are a regular or even semi regular of this blog then
you will know that this is the standard by which a
family law court in Texas judges most every decision in a family law case- large
or small. The second part of the initial review by a family court judge
would be whether or not the circumstances of a child, conservator or other
party to the case have materially and substantially changed since the
prior order was signed into place by the Court.
What does materially and substantially mean though? Surely, if the law
sets forth this standard and expects courts to follow it, then a definition
would be included within the Texas Family Code? Wrong. There is no definition
in Texas family law for what material and substantial actually means.
While it may not be straightforward to win a modification case in Texas,
you can solace in the fact that your judge is given wide latitude to find
that circumstances are in place that justify a modification. The burden
of providing that, however, is on you and your lawyer.
What sort of guidance have Texas courts provided in defining material and
An appellate court in Dallas recently took up a case in which it reviewed
factors that it had previously relied on in determining whether a material
and substantial change was present for any party or child to the modification
suit. Specifically, this court noted that even the remarriage of one parent
and a subsequent move to a different home could equal the material and
substantial change requirement as set forth in the Texas Family Code for
a successful modification attempt. The court went on to state that the
child’s physical, emotional, mental and even moral well being were
to be considered when determining whether a material and substantial change
had occurred that could justify a modification of the child custody order.
On the other hand, the age of your child probably is not a sufficient cause
to justify a court modifying a prior order. Specifically, your child becoming
older (a fact that I can confirm does apply to every child in Texas and
elsewhere) does not alone present circumstances that meet the need for
a material and substantial change. However, if your child’s age
appropriate needs are not being met (physical, emotional, educational,
etc.) then that would be a factor for the court to consider granting a
What is the bottom-line for your modification case?
Due to the fact that the Texas Family Code does not specifically define
the term “material and substantial change” or even give clues
for a court to consider its meaning, that provides ample opportunity for
judges across our state to decipher its meaning. If you are interested
in filing for a modification of a prior child custody order you can take
heart in this fact.
On the other hand, courts are generally not apt to want to change an order
that its court granted just a few years prior. This means that even if
your situation justifies consideration of a modification you and your
attorney will need to prepare diligently and thoroughly your evidence
to be presented in order to provide yourself with the best chance and
winning your desired modification. This means communicating early and
often with your attorney and preparing for and organizing your case even
before hiring an attorney. The work that you do at the initial stages
of your case can make a tremendous difference in the long term success
or failure of your efforts.
Additional questions on a child custody modification? Contact the Law Office
of Bryan Fagan
If you are wanting to pursue a child custody modification then there is
no better group of attorneys to consider hiring than those with the
Law Office of Bryan Fagan. Our office combines the experience of successfully handling modification
cases for clients across all of southeast Texas and the advocacy and understanding
of the sort of difficulties you and your family are facing. A free of
charge consultation is available with one of our licensed family law attorneys
six days a week. Please
contact us today to learn more about our office and how we can assist you and your family.