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Modifying a family court order during the COVID-19 pandemic

While many areas of our lives have been impacted or restricted during the COVID-19 pandemic I can tell you that one area of life that is still pressing on despite the challenges is the legal system. Courts have been closed to the public in large part since mid-March, but there are three family law courts in Harris County which are still in operation. These courts have been hearing cases relating to child support, modifications, divorces and other matters related to the family. You may not be able to get a court date as easily but if your situation merits a hearing you can contact the court and request one by phone. 

We have heard in the media and other sources that our lives will never be the same after this virus. The impact of the virus, it is said, will have varying degrees of importance in our daily lives for years and years to come. For that reason, it is become in vogue for people to be able to talk about our lives as being forever changed. While I am not able to predict the future, I would argue that to some extent this is true. Many areas of our lives will be impacted in regard to health and safety. I think these changes will be most acutely felt in regard to our families. 

If you have gone through a family law case in recent years and are operating under court orders which no longer suits your family or its needs as a result of the COVID-19 pandemic, then today's blog post from the Law Office of Bryan Fagan is for you. Today we will discuss how to modify a family court order during this pandemic. I will also provide some tips on how to best go about doing so despite the challenges presented by this viral pandemic. 

What is a family court modification? 

Family court modifications are commonplace. These are cases that are filed with great regularity in that allow people to be able to adjust the court orders that they operate under due to changes in circumstances. Like many things in life, the devil is in the details when it comes to whether or not you and your family qualify for a modification. Before we go any further, I would like to share with you the legal standard that the court would be looking to when assessing whether or not it should grant your modification request.

The basis for any family court modification of an existing court order is whether or not your family has seen a substantial change in circumstances since the rendition of the prior order. A material and substantial change must have been observed by you, your child, or the other parent to your case. If the court believes that immaterial and substantial change has occurred and that the modification you are requesting will be in the best interest of a child, then that modification should be granted. 

Practically speaking, for most of you this should tell you that there is a fairly high standard that you have to meet in order to have your modification request granted. It is insufficient for you to be able to get your modification granted to simply tell a judge in a petition that you are not satisfied any longer with the court order or that you face some degree of difficulty in achieving one of its ends. Many families go through changes overtime period it is to be expected that your family will change as well. However, a material and substantial change in circumstances required to have a modification granted. 

Why is this the case? From my experience and to the best of my knowledge, the reason why our state legislature has placed this burden on courts when it comes to assessing whether or not a modification request should be granted is due to the state of Texas believing that consistency and stability are paramount in a child's life. If you are asking the court to change a prior order, upsetting your child's schedule, habits or other characteristics of their life must be justified by a significant need to do so. A judge will not grant a modification request unless it is in the best interest of your child and it is due to a very significant change in circumstance for one of the parties or that child. 

What this should tell you is that you do not want to go into a modification case without all of your ducks in a row and without a substantial reason for having requested that modification. Many times, you will need to attach what is called an affidavit to your modification request. An affidavit is legal document that is a sworn statement made under oath that testifies to the exact circumstances which led you to filing your modification request. It is a more detailed explanation to the judge as to why your modification request is being filed and your reasons why the judge should grant the request after a hearing. 

A judge will review your modification petition as well as the affidavit that has been attached to it prior to deciding whether or not your modification attempt can proceed. If the judge believes your case has enough merit to proceed to a hearing, a hearing date will be assigned in a notice will be provided to you. You should attach that notice of hearing along with a copy of your modification petition when serving your ex-spouse or child's other parent. That way he or she will learn about your modification as well as the date of any hearing at the same time. 

Filing a modification does not mean that you have to go to court 

one of the many misnomers about family law cases is that it is not necessarily true that you will always end up in court after having filed a modification or any other family law case. Quite the opposite, from my experience a vast majority of family law cases will settle long before a court date is even needed. These settlements make may occur in formal mediation or an informal settlement discussions between yourself, your attorney, and your opposing parties’ lawyer. By being able to negotiate settlements, you save yourself time, money, and travel to the courthouse. 

While many family law cases cannot be settled without judicial intervention it is entirely probable that your case will be one that can settle. This is true even if you believe that you are circumstances are unique or is particularly heated when it comes to disagreements you are experiencing with your child's other parent. You would be surprised at how effective a mediator can be at helping parties identify issues in both cases and in leading them towards a successful and fair settlement of their case. 

There is almost always some middle ground that can be reached in a modification case. If you are the party who has filed, the modification you already have an end goal in mind as to what you want to achieve from having filed this case in the first place. You are essentially given the case to a judge and presenting a best-case scenario outcome for yourself. However, there may be some middle ground that allows you to achieve many of the goals you set out in your modification while also allowing you to resolve the matter quicker and cheaper than having to go directly before a judge weeks or months after the filing date of your case. 

How modification cases can relate to the COVID-19 pandemic

one of the areas of our life that may have changed over the past few months relates to our work schedules. Unless you were an essential employee or essential worker it is likely that your work hours were cut, or you were asked to work from home during the initial months of the pandemic. We can debate whether or not this was a good idea but at this point I think it is apparent that many employers have had changes of heart regarding the availability of work from home schedules for you and many other people in our economy. 

 What does this mean for you and your family in the long term? Well, you may have previously negotiated a family court order based on a work schedule that you no longer maintain. For instance, your prior court order may have based visitation and possession in regard to your child on your work schedule which was very intensive and required you to be in the office for many hours a week. The reality of living in a big city is that you may have to travel up to an hour or more to get to work each day. These hours add up over a given week and restrict how much time you can spend with your child. 

What if, your work schedule was to change dramatically and provide you with greater flexibility in the hours that you have during the day? What if a silver lining of the COVID-19 pandemic was that you were able to get your work hours shifted to your home , thus giving you a great amount of flexibility to be able to spend time with your child and do things you ordinarily would not be able to do? This would seem to be the basis of a modification case. 

If you find yourself with a brand-new work schedule that actually allows you greater flexibility as to when you're able to be at home and in the workplace, you should consider a few factors before filing an enforcement case. The first factor that I would consider is whether or not your work schedule will be a permanent change. Make sure that you ask your supervisor manager or other higher up whether or not the changes to your work schedule are likely to remain in effect after the pandemic passes us by. You do not want to put yourself in a position where your order is modified and then six months later you are having to scramble because your work schedule has changed again. 

Next, I would think about whether or not you are basing your modification request off of a schedule for your child that is in place right now during the summer months but will need to change again during the school year. Consider your child's extracurricular activities and weather the slower summer months give him or her a greater opportunity to spend time with you that he or she may not have during the school year. Remember that the standard that a judge must look to when deciding on a enforcement case is whether the proposed changes or modifications are in the best interests of your child if the changes require much more travel, expense or stress for a child then it is likely that the modification will not be granted. However, if the modification request does not present logistical problems and allows for more time for you and your child to be together then so long as a material and substantial change is observed I think a judge is likely to grant Your petition. 

These are a few of the factors in play that I think are relevant for a person who is filed a family court modification petition during the COVID-19 pandemic. One thing that I will note is that a modification case is not easily created, nor is it easily argued in a hearing. With that said, it is a great idea for you to be able to hire experienced and energetic counsel to represent you in a matter such as these. 

Questions about Texas family law in the COVID-19 pandemic? Contact the Law Office of Bryan Fagan

thank you for spending part of your day today reading our blog. If you have any questions about the material you have come across please do not hesitate to contact the Law Office of Bryan Fagan. Our attorneys are available six days a week to meet with you in person, via video or over the phone. We take a great deal of pride in serving our community and in helping the families that we live near. 

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