Custody and Visitation Modifications in Texas Family Law
What constitutes a material and substantial change in Texas family law and am I entitled to a modification in my custody case?
At The Law Offices of Jayson Nag, we are commonly asked this question by potential and existing clients. Modifications in Texas family law can be highly contested issues and its important to sit down with your attorney and make sure that the grounds are there to modify your current order.
The Law
The party seeking the modification must show that the modification would be in the best interest of the child and “the circumstances of the child, a conservator, or other party affected by the order have materially and substantially changed since date of rendition of prior order. See Tex. Fam.Code Ann. Section 156.101(a)(1)(A); In re S.N.Z., 421 S.W.3d 899, 909 (Tex.App.—Dallas 2014). The best interest of the child will always be the primary consideration of the court in determining the issues of conservatorship and possession of and access to a child. See Tex. Fam.Code Ann. Section 153.002. This means the party seeking modification must come forward with evidence concerning a child’s best interest that has developed since the prior order and that there has been a material and substantial change since the prior order. If the person seeking modification fails to present evidence concerning the child’s best interest and/or fails to show a material and substantial change, the petition must be denied. In re A.L.E., 279 S.W.3d 424, 428 (Tex.App.—Houston [14th Dist.] 2009, no pet.).
The Best Interest of the Child
In determining the best interest of the child, the court may consider the desires of the child; the child’s current and future emotional and physical needs; any emotional or physical danger to the child; the parental abilities of the individual seeking custody and her plans for the child; the stability of the home; and acts or omissions by a parent tending to show the existing relationship is not a proper one. Holley v. Adams, 544 S.W.2d 367, 371-72 (Tex.1976); S.N.Z., 909 S.W.3d at 909. A party seeking a modification must understand that the focus of the analysis is on the best interest of the child, not the best interest of the parent. Tex. Fam.Code Ann. Section 156.101(a); Id. at 910.
What Constitutes a Material and Substantial Change?
To prove a material and substantial change has occurred, the party seeking the modification must demonstrate what conditions existed at the time of entry of the prior order and what material conditions have changed in the intervening period. S.N.Z., 909 S.W.3d at 909. Material and substantial changes may include, but are not limited to, (1) remarriage by a party, (2) poisoning of the child’s mind by a party, (3) change in the home surroundings, (4) mistreatment of a child by a parent or step-parent, and (5) parent’s becoming an improper person to exercise custody. In re A.L.E., 279 S.W.3d at 428-29. In addition, “a course of conduct pursued by a managing conservator that hampers a child’s opportunity to favorably associate with the other parent may suffice as grounds for redesigning managing conservators.” S.N.Z., 909 S.W.3d at 909-10.
There is no definite guideline that the trial judge must follow in deciding whether circumstance have materially and substantially changed. Rather, “the determination depends on the facts of the case and must be made according to the circumstances as they arise. Id.
Example Cases – Established a Material and Substantial Change
In In re A.D., 474 S.W.3d 715 (Tex. App. Houston [14th Dist.] 2014), evidence supported a finding that former wife's accusations of sexual abuse against former husband constituted a material and substantial change in circumstances warranting modification of divorce decree to give former husband custody of child. Husband was devoted and child thrived in his care, former wife perpetuated accusations although multiple authorities and professionals determined they were unfounded. Evidence indicated that former wife's behavior was driven by need to control former husband and not to protect child, and despite former wife's concession at trial that former husband did not abuse child, there was a likelihood of future accusations that could harm child.
In In re Moore, 2016 WL 80205 (Tex. App—Dallas 2016), the evidence showed that Mother did not anticipate a steadily decreasing income when she agreed to no child support. Based on Father's increase in income, Mother's decrease in income, and Mother's use of savings to cover expenses, the court concluded that the trial court had sufficient evidence upon which to exercise its discretion to find a material and substantial change in circumstances since the divorce.
In In re A.L.E., 279 S.W.3d 424 (Tex.App.—Houston [14th Dist.] 2009), evidence was sufficient to support District Court's finding that a material and substantial change in circumstances had occurred since the original joint custody order, granting mother right to designate child's primary residence and father standard possession. Mother’s substance abuse problems rendered her unfit to exercise primary care of child. Evidence showed child was suffering from panic attacks and began to cut herself in response to mother’s substance abuse problems. Child’s journal reflected she had been exposed to marijuana and “jello shots” while in mother's care and did not receive much supervision from mother. Mother tested positive for cocaine.
Example Cases –Failed to Established a Material and Substantial Change
In In re S.N.Z., 421 S.W.3d 899, 909 (Tex.App.—Dallas 2014), mother testified she would like to spend more time with her child. None of this testimony, however, constituted evidence of a material and substantial change in circumstances to justify a modification of the existing possession order. Mother's arguments and the evidence she cited in support focused on the fact that she cared about the child and wanted more access to her. Mother maintained her only desire was to have regular visitation without the intrusion or expense of a supervisor such that she can develop a normal, parent-child relationship with her daughter. The focus of the analysis, however, is whether there is a material and substantial change in circumstances that would cause standard visitation to be in the child’s best interest, not in the best interest of Mother.
In In re C.H.C., 392 S.W.3d 347 (Tex. App. Dallas 2013), father failed to establish material and substantial change of circumstances warranting downward modification of his child support obligation; in his motion to modify, father failed to plead any facts identifying specific circumstances requiring a modification, his testimony consisted of general statements about a downturn in the economy and his business, and the only document entered into evidence was an unsigned, unfiled copy of father's income tax return, none of which allowed trial court to make the requisite comparison to determine whether there was a substantial and material change in father's circumstances.
Conclusion
Modifications in Texas custody law can be a challenging lawsuit to initiate, however, if you believe that the grounds for a modification are there don’t be afraid to speak to an attorney about your options.
The family law attorneys at The Law Offices of Jayson Nag have handled dozens of custody modification cases in Tarrant County, Dallas County and Collin County. We have offices in Fort Worth and Weatherford. To speak to one of our attorneys about a custody modification, call us at (817) 900-2823.