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Legal Standards in Custody and Support Modification Cases

Child Custody & Visitation

This article explains what to show the court to change custody and support orders.

What is the legal standard to change child support or medical support?

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. 
  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.

See Texas Family Code 156.401

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 other person affected by the order have materially and substantially changed.

For example: 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 you and the other parent agreed to a current child support amount that is different than what the percentage guidelines in the Texas Family Code would have 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.

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.

Again, see Texas Family Code 156.401.

What is a “material and substantial change in circumstances” for changing child support or medical support?

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

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

To learn more, read What is the legal standard to change child support or medical support? and Child Support, Medical Support, and Dental Support.

What is the legal standard to change custody or visitation?

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.)

See Texas Family Code 156.101.   

Is family violence a material and substantial change in circumstances?

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.

Is child abuse a material and substantial change in circumstances?

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.

What else qualifies as a material and substantial change in circumstances?

The law does not specifically say what else 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.

Can the petitioner ask that custody be changed within one year of the current order?

Texas law 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.

See Texas Family Code 156.102.

Read this article to learn more: Child Custody Modification within a Year of Current Order.

Where can I read the law about modification?

Read the law here: Texas Family Code Chapter 156.

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