A parent or child’s circumstances will often change after a court issues an order on child custody. Maybe you have a new job opportunity in another city.
Maybe your former spouse remarried and there are problems between your child and the new step-parent. Maybe the other parent simply isn’t giving you the time you are entitled to have with your child.
When these situations arise, a parent wants to know how they can go about changing that custody order. The legal process is called a Modification.
The Legal Standard For Modifying Child Custody
In order to modify a child custody order in Texas, the party requesting the modification must show two things.
First, the party must show that there is a “substantial and material” change in circumstances of the child or one of the parents. Second, the parent must show that the modification the parent requested is in the best interests of the child.
This article focuses on the first element – a substantial and material change in circumstances. This inquiry is very fact dependent and the slightest change in any fact scenario could result in a different outcome.
This also means that a court has significant discretion in deciding whether or not the substantial and material change standard is met.
Whose Circumstances Changed And When?
A change in circumstances of any one of the parents or the child can be the basis of the modification.
In order to show the change in circumstances, the party requesting the modification must demonstrate the circumstances at the time of the original order as well as the change in those circumstances that exists at the time the party requests the modification.
Put more simply – you must show what has changed since the court entered the original order and you must show that it is a substantial and material change in circumstances.
What are Some Examples of Substantial and Material Changes In Circumstances?
Below are some examples of situations courts found to be a substantial and material change in circumstances of one of the parties:
- remarriage of a party (in some circumstances);
- one parent attempting to impair or interfere with the child’s relationship with the other parent;
- changes in the home surroundings;
- mistreatment of a child by a parent or a step-parent;
- a parents drug or alcohol abuse;
- voluntary relinquishment of custody by one parent;
- a parent’s criminal conviction;
- a parent’s failure to comply with a CPS family service plan;
- taking a child out of state or denying possession;
- a parent’s relocation – depending on distance; and
- a child’s desires for which parent he or she wishes to live with.
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No Change If It Was Contemplated In The Prior Order
One limit to the substantial and material change element is that the change cannot be a change in circumstances that was contemplated in the prior order.
For example, courts found that a child aging, alone, is not a substantial and material change. The parents obviously knew the child would continue to grow and age when they entered into the order, therefore, that the parents contemplated that fact at the time of the original order. This does not mean a child’s aging cannot be a factor in a modification, just that it cannot be the sole basis for the modification.
Another example is that potential changes in employment or residency – when known or contemplated at the time of the prior order – cannot form the basis of a substantial and material change in circumstances.
Change Must Be In The Child’s Best Interest
And don’t forget the most important part of any modification case. The proposed change must be in the best interests of the child.
This means that even if there has been a substantial and material change in circumstances, if the change you are requesting is not in the child’s best interest – then the court will deny the modification.
If you would like to schedule a consultation to discuss modifying your child custody order, then please send me an e-mail or click here to schedule a consultation online.
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