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Material and Substantial Changes in Circumstances for Custody Modification Suits

Child Custody & Visitation

This article discusses material and substantial changes in custody modifications suits.

To modify custody and visitation in Texas, you usually need to show there has been a "material and substantial change in circumstances" since your last order was entered. The Texas Family Code lists out some grounds as material and substantial changes that justify a modification. In addition, Texas courts have also found additional grounds as material and substantial changes. 

I want to change my custody and visitation. How?

To change an existing custody, visitation, child support or medical support order, file a modification case. 

See this guide: I need to change a custody, visitation, or support order.

What is the legal standard to change child custody or visitation?

To change your court orders for custody and visitation, you must show the court that changing the orders is in the best interest of the child, and that at least one of the following is true:

  1. The parents or conservators agree to change the orders.
  2. The circumstances of the child, a conservator or other person affected by the order have materially and substantially changed. or
  3. The child is at least 12 years old and tells the judge—in the judge's chambers (office)—that they want to live with the other parent or conservator; or
  4. The person with primary custody has allowed someone else to have primary care and possession of the child for at least 6 months. (This does not apply if the person with primary custody is on active duty military deployment.) 

See Texas Family Code 156.101.

What is a material and substantial change in circumstances?

The Texas Family Code lists the following grounds as material and substantial changes that can justify modifying custody and visitation:

  • a child abuse conviction (or probation);
  • a family violence conviction (or probation);
  • a change of residence that results in increased expenses for a party having possession of or access to a child;
  • a parent or conservator dies (starting September 1, 2021; see new Texas Family Code 156.106).

Plus, Texas courts have determined that other situations can be considered material and substantial changes, too. Whether or not the situation change justifies changing the order depends on a lot of factors. A few examples include when a parent or conservator:

  • relocates, despite restrictions on the child's residence;
  • tries to harm the relationship between the other parent/conservator and the child (often called "parental alienation");
  • new stepparents;
  • new siblings;
  • instability in the home environment; or
  • changes in the child's age and needs.

Talk to a lawyer who practices in the court you'll be in if you want to know more about what a material and substantial change in circumstances might be.

What does the court think about when deciding what is in the best interest of the child?

While courts have broad discretion in determining what is in the child’s “best interest,” judges look at the following factors from the Texas Supreme Court case, Holley v. Adams, as a guide in family law cases like custody, visitation, and support.

  1. the desires of the child;
  2. the emotional and physical needs of the child now and in the future;
  3. the emotional and physical danger to the child now and in the future;
  4. the parental abilities of the individual seeking custody;
  5. the programs available to assist the individuals to promote the best interest of the child;
  6. the plans for the child made by the individual seeking custody or the agency;
  7. the stability of the home or proposed placement;
  8. the acts or omissions of the parent that indicate that the existing parent-child relationship is not a proper one; and
  9. any excuse for the parent’s acts or omissions.

Holley v. Adams, 544 S.W.2d 367, 371–72 (Texas 1976). 

Talk to a lawyer for help understanding these factors. 

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