Heading into a modification case in a family law setting means being realistic with your expectations and knowledgeable about your circumstances. The tricky part when it comes to a modification case is that what you are trying to do may not be possible. This is the reality of the situation. There are many moving pieces when it comes to a modification case and your ability to move forward with the modification depends upon many factors that are outside of your control. What you can do, however, is to learn about what a modification case is, how a modification case can impact your life and that of your children in a variety of areas and ultimately discover how best to approach this type of case considering the goals in the best interests of your children.
What you will most likely find is that filing a modification case is not as simple as filing the initial child custody or divorce. In those situations, there was basically no doubt that if you wanted child custody orders you would be able to obtain them. The same goes in principle for a divorce. If you follow the court’s deadlines and meet the jurisdictional requirements for the court then you can also get a divorce. These general principles do not always apply across the board when it comes to a modification case. Rather, you need to be sure that when you file a modification case you have a good idea about how to go about accomplishing your goals. Assuming that you will be successful in your modification case without first preparing the case would be a major mistake.
The same is true if you are a parent who is defending themselves against a modification. For instance, if you got divorced five years ago and your ex-wife is now attempting to modify the child support that you pay then this is something that is going to catch your attention. You need to know whether your ex-wife has a shot at modifying child support and how you can go about presenting evidence successfully that is contrary to her goals. It is not always easy to do this, however. With that said, you need to be confident that when you move forward with your defense and modification you are putting your best foot forward.
What can surprisingly get lost in the shuffle of a modification case is the best interests of your child. You may be so concerned with coming out on top in the modification case that you lose sight of what your child could benefit from or what is in their best interest. In today’s blog post from the Law Office of Bryan Fagan, we are going to talk about the best interest of the child standard and how it can impact your life and that of your child in significant ways.
Modification cases are more complex than other family law cases
Simply put, a modification case is more complex than a typical child custody or even some divorce cases. A modification case seeks to change some aspect of the court orders that you and your co-parent or opposing party are operating under. This means that for many of you, the court may be looking at whether it can change the final orders from your divorce or child custody case. The fear of the unknown is real and your ability to understand the law is critical in this regard. Unfortunately, many people begin their modification cases with a lot of motivation to change their court orders but little knowledge or regard for the law.
First off, a modification case needs to be based on a material and substantial change in circumstances on the part of you, your opposing party, or a child involved in your case. A material and substantial change is a legal term which means that a big change must have happened since the last time you were in court. Many people file for a modification based on circumstances that have not changed but, rather, their opinion on a specific issue has changed. A judge will look at whether the lives of you, your opposing party, or your child have changed since the last time you were in court. If all that has changed is someone’s tolerance to endure a situation or someone’s preference towards an issue in the orders has changed, then the modification will not be granted.
Secondly, not only must a material and substantial change have occurred since the last time you were in court, but the requested modification must also be in the best interests of your child. This means that the modification cannot be requested if only to suit you or your opposing party. The best interests of the child standard would not apply to a case where you are asking for a modification on an issue that does not involve children. However, since it is difficult to modify much of anything having to do with the property division in a divorce, we will be focusing most of our attention today on modification cases that involve children.
When you are in a position where your court orders need to be changed for whatever reason then you should consider whether these factors are in place. Looking at your situation with rose-colored glasses and then hoping that a judge sees the situation the same way you do is not necessarily a good plan. Rather, to properly assess your situation as objectively as possible it can be a good idea for you to work with an experienced family law attorney to help advise you through the murkiness that can be a modification case. The attorneys with the Law Office of Bryan Fagan offer free of charge consultations six days a week in person, over the phone, and via video. These consultations can help you to determine whether your situation merits a modification and how best to proceed if a modification is going to be sought.
Finding the middle ground is crucial
One of the first things that you and your opposing party will encounter in your modification case is a determination of whether there is any middle ground that can be reached to settle your case rather than proceed to a contested hearing. Truthfully, not every modification case will allow for a settlement to be had. If your modification case involves child support, visitation, or possession then your ability to settle the case is probably better than average. The reason that I say this is because you can find some middle ground when it comes to this subject. Splitting the difference in child support is not a difficult conclusion to come to all other things being equal. Giving a dad some more time with the kids, but perhaps not all the time he is asking for is also a common conclusion to a custody modification case.
On the other hand, there are some issues in a modification case that cannot be settled upon as easily. Examples here include the lifting of a geographic restriction or the desire to be named as the primary conservator of a child. First, lifting a geographic restriction typically means that one parent wants to be able to move a significant distance away from Southeast Texas. This is assuming that your court orders come from a court in our area. When a parent wants to move but is not able to the usual cause of this is that a geographic restriction has been put in place. The purpose of that geographic restriction is to keep families close to one another so that both parents have an opportunity to be able to have a relationship with the children.
However, there may have been a change in circumstances since that geographic restriction was put in place where you can argue that the restriction needs to be lifted because it is no longer in the best interest of the children. Sometimes you may have a family member who moves to the United States from another country and now your child has an opportunity to be able to bond with that relative of yours. Or, you may have landed the job offer of a lifetime that will allow you to further your career and better the day-to-day life of your child, as well. That’s not to say that it is necessarily in the best interests of your child to go through with this move but that the circumstance involved here may be a material in substantial change to begin with.
When we talk about there not being much middle ground in this area, we mean that it is difficult to envision a situation where a potential move could be accommodated under a geographic restriction. It is not as if you could take a job in Austin and still live in Houston realistically. This would complicate so many areas of your child custody order. Either you would need to have a geographic restriction lifted, take the new job in Austin, and then move. Trying to make that sort of commute work under a geographic restriction is not practical, economical, and almost certainly is not in the best interests of anyone including your children.
There may be an opportunity to modify the geographic restriction to include an additional county that neighbors yours to take a job that is not quite that far away. Even then, if your co-parent is happy with the order as it’s set up then he or she may have little to no motivation to work with you on a modification.
Informal modifications are risky
When we talk about an informal modification of any subject in the world of family law what we are referencing is a handshake agreement between you and your opposing party. For example, let’s say that you have your hours reduced at work and you are no longer able to afford to pay the child support that was ordered in your case. You can talk to your ex-spouse about this and see if she would be willing to accept a lesser amount of child support while you work to get your hours back up or find replacement employment.
While the two of you work to talk through this issue you all could decide that rather than try to go to court and have you formally produce The child support that you owe you could just talk with your co-parent about the situation and see if she would be agreeable to allow a temporary reduction in child support without actually changing your child support order. It makes sense to do this in some ways especially if you are sure that the reduction in your pay is going to be temporary and if you have communicated clearly with your parents about what the circumstances are and how you expect to be able to find a pay increase soon.
If this is going to be something that you try to do that may be smart to get the agreement in writing so at least everyone understands exactly what you are agreeing to. The last thing you want to do is go through all the trouble of formally modifying some aspect of your court orders only to find that one of you did not fully understand exactly what you were signing up for. At the very least, getting something in writing to memorialize what you are planning to do as far as a modification is concerned shows basic due diligence on both of your parts. That way you can go back and verify what you had agreed to if there is a discrepancy or disagreement.
However, bear in mind that neither you nor your opposing party are bound to continue to go off the informal agreement that you created together. Even if you both sign a piece of paper with the agreement attached there is no substitute for a court order signed by a judge. Be aware that you are operating off the goodwill of your opposing party for as long as he or she is willing to extend that goodwill toward your agreement.
Make sure your orders reflect the agreement you came to
One of the most important parts of a modification case is at the end once you and your opposing party have either settled on the issues of your case or have gone through a hearing with a judge. No matter what your specific circumstances are you should be very diligent about drafting the final orders in your case. Going through a modification case this is not easy. There are costs associated with the case as well as the time commitment aspect. You will want to make sure that the orders drafted reflect the circumstances and outcome of your case.
What can end up happening when your orders do not reflect the reality of your case is that both parties walk away feeling like they have accomplished something when you have court orders that are either vague, incorrect, or both. The purpose of having written and straightforward court orders is that both parties can rely upon them in the future to know what their responsibilities are. Additionally, well-written orders allow for both you and your opposing party to be able to enforce those court orders if necessary. Vaguely written court orders do not allow you to enforce your rights in the future.
Working with an experienced family law attorney increases your chances of success
From the beginning of a case and determining whether we have grounds to modify your court orders, to the end of a case where you are working to ensure your court orders are written correctly, there are many advantages to hiring an attorney in a modification case. As we mentioned at the beginning of today’s blog post there are different elements in a modification case compared to a divorce or child custody case. The trouble is that the details of the modification case make it difficult for you to represent yourself. Even assessing whether you have a strong case or a case at all is not easy.
A family law attorney can help you determine whether a material or substantial change has occurred in the circumstances of a relevant party since the last time you were in court. From there, an attorney can help you explain to a judge exactly what has transpired since the last time you were in court it could also help you negotiate with your opposing party before a hearing to determine whether a settlement is possible based on your circumstances. If a settlement is not possible an attorney can help prepare for a hearing, collect evidence, and go through testimony with you so that you are ready to talk in court about your situation.
Questions about the material contained in today’s blog post? Contact the Law Office of Bryan Fagan
If you have any questions about the material contained in today’s blog post please do not hesitate to contact the Law Office of Bryan Fagan. Our licensed family law attorneys offer free-of-charge consultations six days a week in person, over the phone, and via video. These consultations are a great way for you to learn more about the world of Texas family law as well as about how your family’s circumstances may be impacted by the filing of a divorce or child custody case.