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Modifying a child custody order: A how to guide for Texas parents

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 substantial change?

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 modification.

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.

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