Material & Substantial Change in Texas

When a divorce is finalized in Texas, both parties must obey all the court orders regarding child custody, conservatorship, possession of and access to the child(ren), and child support. However, after the date of the final order, commonly, a parent or child may experience significant life changes that may affect the efficacy or appropriateness of these prior final orders.

If you need to change your court orders for child custody and visitation, you will have to show that the modification would be in the best interest of the child. 

Reasons a Judge WIll Change Custody in Texas

Picnic - mother and daughter facing each other and smiling

Parents are encouraged to work out any issues among themselves. If everyone agrees to the proposed change, both parents can sign the forms agreeing to the modification and briefly appear in court so the judge can review the paperwork and determine whether the request is in the best interests of the child.

In general, if the parents or conservators agree to a modification, then the court will sign off on the parties' agreements so long as the Court finds that the modification is in the child's best interest.

Without an agreement, parents request to change an existing custody, visitation, or child support order by filing a “modification” case. There are limited circumstances whereby Texas courts will grant a request for modification.

If the modification is not agreed upon, then to modify these court orders, parents or conservators must show the court that changing the court orders is in the child’s best interests and that one or more of the following circumstances are true:

  • If the case has been finalized for under one year, the conservator requesting a modification must show that the child’s present circumstances endanger the child
  • The parent with primary custody has allowed another person to have primary care and possession of the child for at least six months (this does not apply if the custodial parent is on active-duty military deployment)
  • The child is at least 12 years old and requests to meet with the judge to express a preference regarding which parent he/she wants to live with primarily.
  • Suppose the case has been finalized for one year or longer. In that case, the conservator requesting the modification must show that the circumstances of one parent or the child have “materially or substantially” changed since the date of the current.

Examples of Substantial Change

A “material and substantial change” means any change to the family dynamic that may require modification to an existing court order. Whether a change is considered material and substantial depends on the facts and circumstances of the case.

A material change is a change in the facts and conditions related to the custodial arrangement. These changes must be so substantially different that the existing plan will no longer represent the best interest of the child or children.

Common examples of circumstances that may be considered material and substantial changes include:

  • A parent moves a distance that renders the current order unworkable
  • The birth of a new half-sibling
  • A parent suffers serious health complications impacting a parent’s ability to care for the child.
  • A parent remarries (including new stepparent and new siblings)
  • The home surroundings change
  • A parent’s employment changes (including unemployment, underemployment, and new employment/promotion)
  • A parent has alcohol or substance abuse issues
  • Incidents of child abuse or neglect
  • A parent is convicted of domestic violence
  • A parent is convicted of a serious crime
  • Changes in the child’s age and needs
  • Change in costs to custody and support

Each modification case is decided on a case-by-case basis. While judges prioritize the child’s best interests, they will determine if the modification request is based on hostility against the other parent.

If a parent does not agree to the modification but fails to file any paperwork to object to the motion, the parent filing for modification can proceed by “default.”

Lastly, if a parent files papers objecting to the request, the court will schedule a date to review the evidence and hear testimony from both sides and a judge will decide whether to grant modification.

How to Modify an Existing Order Based on Substantial Change

If you are interested in modifying an existing child custody, visitation, or child support order in McKinney, TX, or within the surrounding area, call Camille Borg Law PLLC at (469) 646-7763 or fill out our online contact form today to schedule an initial consultation. Do not hesitate to obtain experienced and award-winning legal services from our firm!

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