An existing order is like the West Texas weather: if there is sufficient time, circumstances will change. There are numerous changes that may justify a modification of a prior order affecting children. Texas courts recognize that sometimes changes regarding custody, visitation, child support, rights and duties of each parent, the desire to relocate, and other significant matters relating to the parties’ children should be reviewable at a later date. However, there is also a desire not to re-litigate these issues unless a major change has occurred regarding the children or custodial parent. In determining whether or not to grant the request – which is called a Motion to Modify a Prior Order, or Modification of a Prior Order – the Court will consider two things:
- Was there a material and substantial change in circumstances since the last order was rendered?
- Is the requested modification in the best interests of the child?
Material and Substantial Change in Circumstances
There are many different changes that can justify a modification of a prior order affecting children. For example:
- A parent who is obligated to pay child support may be making substantially more or less money than when child support was initially ordered;
- health insurance for a child may not be available to the parent ordered to provide health insurance;
- one parent may wish to relocate to another geographic area;
- the terms of possession between parents may have become unworkable;
- a parent may be engaging in criminal, abusive, neglectful, or immoral behavior;
- the child’s home environment may have become toxic or unstable;
- a parent may not be able to control their child’s behavior;
- a child may prefer to live with the other parent; or
- the parent entitled to establish the child’s residence may have relinquished possession of the child to another person.
These are just some examples of changes that may justify modification of a prior order; however, this list is by no means exhaustive. The key to success in a modification is that a material and substantial change in circumstance must exist.
It is important to remember that it will be necessary for a person asking for a modification to be able to demonstrate both the circumstances as they existed at the time of the order as well as the changed circumstances as they exist at the time that the request for modification of a prior order is filed. The Court will not likely consider any facts or circumstances that existed before the original order was granted. Therefore, the person seeking the modification of a prior order should be prepared to demonstrate the prior circumstances as well as the new material and substantial circumstances as they exist today.
Best Interests of the Child
The changed circumstances, however, are only one part of this equation. The fact that the child’s circumstances have changed does not necessarily mean that some other change is going to be beneficial to the child. To succeed, the person seeking a modification will need to demonstrate that the requested modification is in the best interests of the child. For a greater discussion of what the Court may consider in the determination of a child’s best interests, see the custody section of this website.
Time of Filing the Modification of a Prior Order in Texas
To promote continuity in a child’s life, a court may refuse to change an existing order that attempts to modify custody, or to remove or impose a geographic restriction on a child if the new lawsuit is filed within a year since the entry of the last order, unless very narrow situations exists. For the court to be able to consider a motion to modify these conditions filed within the first year after an order was rendered, the motion must be accompanied by an affidavit under oath and punishable by contempt that sets forth specific facts:
- that failure by the court to consider a change will likely cause significant physical or mental endangerment to the child;
- establish that the custodial parent has relinquished possession of the child to the movant for at least six months; or
- contains an assertion that the child is at least 12 years of age and seeks to make the change.
Temporary Hearing
As has been discussed above, in order to prevail at a final hearing at some point in the litigation, the Movant need only establish both a significant change if circumstances and that a change is in the child’s best interest. However, it would be of great strategic importance to the Movant if, during the pendency of the action, the Movant could have primary custody of the child pending the outcome of the case. This can be established by having the court schedule a temporary hearing to consider the present circumstances immediately when the case is filed. Again, to be eligible for a temporary hearing that modifies conservatorship or attempts to modify a geographic restriction, the applicant must allege one of the following in the petition:
- that failure by the court to consider a change will likely cause significant physical or mental endangerment to the child;
- establish that the custodial parent has relinquished possession of the child to the movant for at least six months; or
- contains an assertion that the child is at least 12 years of age and seeks to make the change.
Quality legal counsel will attempt to establish one of these factors, and schedule an immediate hearing if the case is appropriate. Of course, if not, it is a waste of the client’s time and money as well as the court’s patience to proceed with a temporary hearing. For help modifying a prior order, the child custody attorneys at Woodburn and Watkins – located in Amarillo, Texas – can help.
Jury Trial
A modification of a prior custody order is another example of the type of case that can be tried to a jury of your peers. This may be an important consideration if you feel that a previous judge made an erroneous decision and you would like someone besides the judge to decide what is in your child’s best interests.
Other Child Related Issues to Be Considered
The above rules regarding temporary hearings, jury trials, and the like relate to modifying custody, residence, and geographic area of the child’s living arrangements. However, other issues regarding child-related issues may still be modified where appropriate. The amount of child support, the visitation rules, maintaining medical/dental insurance, payment of expenses related to treatment, and other matters that arise which might need tweaking can also be considered by a court if the threshold requirements of material change and best interests are established. These matters are solely within the sound discretion of the trial court and may not be the subject of jury decision making.
Knowledgeable Advice is Critical When Seeking a Modification of a Prior Order in Texas
Serving the Texas Panhandle, the family lawyers at Woodburn and Watkins take modification of a prior order affecting children very seriously. We are happy to accept new clients from the Amarillo and Potter County area who may not have been satisfied with the results at the prior hearing. If a client is not satisfied with the results of their last hearing, we will make every effort to ensure that the previous order is rectified. Further, if a client thought that the Order was satisfactory when it was rendered, but now it needs to be modified due to a change in circumstances, we will aggressively seek an Order that reflects these changes. Don’t be caught without an umbrella. Contact an attorney at Woodburn and Watkins if you would like to discuss modification of a prior Order.