Legal Standards in Custody and Support Modification Cases

In general, to change child support or medical support you must prove that:

1. The circumstances of the child, a conservator, or other person affected by the order have materially and substantially changed, and
2. It has been at least three years since the last child support order, and a new support order (based on child support guidelines), would differ from the last support order by at least 20% or $100.

In some cases, you may only be able to modify the child support order by proving that the circumstances of a child, a conservator, or another person affected by the order have materially and substantially changed.

Also, if your order is an order in a Title IV-D (Attorney General) case and does not include orders for medical support or dental support for the child, then a court may modify the orders without anyone having to show that there has been a material change in circumstances since the last orders were entered.

See Texas Family Code 156.401 to read the full text of the law.

If you and the other parent made an agreement about the amount of child support in the orders, then the legal standard might be different. If the current agreed child support amount is different than what the support guidelines in the Texas Family Code required, then you will not be able to modify the child support amount simply because it has been three years since the last orders were signed and the monthly child support obligation differs by 20% or $100 from the order. 

In this situation, you can only modify the child support order if you can show that the “circumstances of the child, a conservator, or other person affected by the order have materially and substantially changed.”

The Family Code does not define “material and substantial change,” and proving this depends on the facts of each case. Usually, in order to determine if the circumstances have materially and substantially changed, the court will look at the circumstances at the time the agreement on child support was made and ordered and compare them to the circumstances at the time of the modification seeking to change that child support agreement.

Generally, this means that at least one of these things has happened:

• The income of the parent ordered to pay child support has either increased or decreased; or
• The parent ordered to pay child support is legally responsible for additional children; or
• The child's medical insurance coverage has changed; or
• The child's living arrangements have changed.

To learn more, read Changing a Child Support Order and Child Support in Texas.

To change custody or visitation you must prove that the change is in your child’s best interest and that at least one of the following is true:

1.  The circumstances of the child, a conservator or other person affected by the order have materially and substantially changed; or
2. The child is at least 12 years old and tells the judge (in the judge’s chambers), who the child wants to live with; or
3. The person with primary custody has allowed someone else to have primary care and possession of the child for at least six months. (This does not apply if the person with primary custody is on active duty military deployment.)

Reach Changing a Custody or Visitation Order for more information. See Texas Family Code 156.101.

The law specifically says that a conviction or order of deferred adjudication for family violence is a material and substantial change in circumstances that will justify a modification of custody or visitation. Family violence may also be a material and substantial change in circumstances even if you have never been arrested or convicted.

If you need help, call one of the organizations listed below for more information: 

• National Domestic Violence Hotline, (800) 799-SAFE (7233),  

• Crime Victims, (888) 343-4414, or  

• Texas Advocacy Project, (800) 374-HOPE (4673).

The law specifically says that a conviction or order of deferred adjudication for an offense involving abuse of a child is a material and substantial change in circumstances that will justify a modification.

The Texas Family Code does not specifically define what also qualifies as a material and substantial change in circumstance. However, there are many court decisions that talk about this. Although you can conduct legal research yourself, you need to talk to a lawyer.

An experienced family law lawyer can help you determine whether or not a judge is likely to find that there has been a material and substantial change in circumstances in your particular situation. 

If you need help finding a lawyer, you can: 

• Use our Legal Help Directory to search for a lawyer referral service, legal aid office, or self-help center in your area. 

• Check our Legal Events and Clinics page for free legal clinics in your area. 

• Use Ask A Question to chat online with a lawyer or law student. 

The Texas Family Code says that a modification case to change primary custody can be filed within one year of the current custody order only if:

1. The person with primary custody is asking for or agrees to the change, or
2. The child’s present environment may endanger the child’s physical health or significantly harm the child’s emotional development, or
3. The person with primary custody has allowed someone else to have primary care and possession of the child for at least six months. (Number 3 does not apply if the person with primary custody is on active duty military deployment.)

The allegation (that one of the above is true) must be supported by specific facts.

If the judge decides that the facts alleged would be enough to support a modification, the judge will schedule a hearing.

If the judge decides that the facts alleged (even if true) would not be enough to support a modification, the judge will refuse to have a hearing and the modification case will be dismissed.

Read Child Custody Modification within a Year of Current Order to learn more. Also, see Texas Family Code 156.102.

The law covering modifications can be found in the Texas Family Code Chapter 156.