New Texas Law Makes Modifying Child Custody And Support Orders Easier

The State of Texas just enacted a new law affecting how parties prove and courts determine whether a material and substantial change in circumstances occurred in modification cases.

The House and Senate passed HB 851 then sent the bill to Governor Abbott who signed it on June 4, 2021. Let’s look at why this bill is so important.

The Material and Substantial Circumstances Standard

Courts apply the material and substantial change in circumstances legal standard in a number of contexts.

If you ask a court to modify a child support order, then you must prove that there has been a material and substantial change in circumstances.

If you ask a court to modify a child custody order, then you must prove that there has been a material and substantial change in circumstances.

And if you ask a court to modify a spousal maintenance order, then you must prove that there has been a material and substantial change in circumstances.

You can read more about the legal standard for a material and substantial change in circumstances here.

Why This Change Matters

There is a legal theory called a judicial admission. In simplest terms, a judicial admission means that if you make an allegation in a pleading you cannot later contest that issue.

Let’s look at an example. Let’s say you were ordered to pay child support but suffered a reduction in your income. So you petition the court to modify your child support order.

Modifying a child support order requires that you allege a material and substantial change in circumstances in your pleading.

Well, your spouse isn’t happy about losing out on child support so he or she decides to file a motion to modify your child custody order in response. In order to modify a child custody order you must plead and prove that there has been a material and substantial change in circumstances.

Some courts took the position that because you plead a material and substantial change in circumstances regarding child support, you had judicially admitted a material and substantial change of circumstances regarding your possession order. This meant that you could not argue against that element.

This often deterred clients from seeking a modification because it made it easy for the other spouse to muddy the waters.

How HB 851 Changes The Law

HB 851 changes the law by adding language to the laws governing modifications of conservatorship, possession and access, child support, and spousal maintenance orders.

The bill provides that a party may not be considered to have admitted a material and substantial change of circumstances regarding any issue other than the modification requested based solely on filing a petition to modify.

This means that if you petition to modify child support, then your spouse argue that you admitted a material and substantial change of circumstances on another issue.

This was a much needed law and should restore the ability of individuals to seek modification of single issues without fear of turning the case into an all out war.

If you would like to schedule a consultation to discuss your modification case, then please send me an e-mail or click here to schedule a consultation online.