You have a child but do not live with the other parent of that child. You may have been married and gotten a divorce, or you may have lived together and separated. Or you may never have lived together. Either way, you have an order in place that covers custody, visitation, and child support.

However, as time went on, that order stopped working for you. Maybe your child is not happy or struggling in school. Maybe the child support is too high or too low. Maybe something has happened in the other parent’s life that concerns you.

These orders can be changed. In fact they can be changed any time before the child becomes an adult. This type of case is called a modification because you are asking the court to modify the previous order.

What does the court look for when deciding these cases?

Modification of Custody or Visitation

The Texas Family Code provides four grounds for modifying custody or visitation:

  • The parties agree and it is in the child’s best interest. If the parties agree on a modification, courts will typically approve those agreements. The courts will look at whether the agreed change is in the child’s best interest. They will consider the child’s need for stability, the need to prevent constant litigation, and the child’s need for frequent contact with both parents to develop close relationships, among other factors.
  • The child wants a change and it is in the child’s best interest. The court can modify which parent is the primary caretaker if the child is at least 12 years old and tells the judge in private that he wants that other parent to be his primary caretaker. At the party’s request, the judge will meet with the child privately to ask for his preference, and will approve the change if the judge finds it to be in the child’s best interest.
  • The primary parent has voluntarily relinquished custody and it is in the child’s best interest. The court can modify which parent is the primary caretaker if the primary parent has voluntarily relinquished primary care and possession of the child to another person for at least six months. In other words, if the other parent is the primary caretaker under the existing order but you have been mostly raising the child for the last six months, you can ask for a modification.
  • There has been a “material and substantial change” and it is in the child’s best interest. Even without an agreement or child interview or voluntary relinquishment, the court can modify a custody and visitation order if there has been a “material and substantial change” in circumstances. You would have to show that something has happened since the last order to justify changing it.

This last reason is the source of a lot of confusion. What exactly is a “material and substantial change”?

Material and Substantial Change

There are a few important things you need to know about material and substantial change.

First, it has to be a change that has occurred after the previous order. For example, if you got divorced two years ago and now want to modify that order, you cannot bring up things that happened three, four, or five years ago. It has to have happened since the last order. Likewise, it cannot be something that the parties knew or expected to happen.

Second, there are certain things that are automatically considered a material and substantial change. These are primarily criminal convictions for domestic violence or sexual abuse. If the other parent has been convicted of an offense of this nature, you have good grounds to modify a custody order.

Third, the question of “material and substantial change” is otherwise determined on a case-by-case basis. You will have to convince a judge that the specific facts of your case are a big enough change that custody or visitation needs to be changed.

While each case is different, there are certain things that we know courts look at, for example:

  • a violation of a geographic restriction
  • parental alienation
  • a change in the home environment
  • the child’s age and needs
  • mistreatment of the child
  • parental conflict
  • incarceration of one parent
  • a parent’s desire to move
  • drug use
  • termination or reinstatement of parental rights
  • death in the family

These are some of the specific things that courts have looked at in other cases.

However the important thing to remember is that every case is different. If you think something important has happened in your life, your child’s life or the life of the other parent that calls for a new order, you may want to consider asking for a modification.

One final note: there are specific rules with regard to grandparents or siblings asking for modifications, as well as for modifications involving military service. If one of those situations apply to you, you should contact an experienced attorney to address your specific case.

Modification of Child Support

Many modification suits ask for a change in child support, either up or down. The court will modify child support if the parties agree. But what if the parties do not agree? In that case, under what circumstances will the court change a child support award?

There are two main ways to change child support without an agreement.

First, the three-year rule. This rule says that courts will review a child support amount if it has been at least 3 years since the previous order and the other parent’s income has changed so much that the monthly child support obligation will differ by at least $100 or 20%.

For example, if the other parent currently pays $500 in child support, but based on his current income, his guideline child support would be calculated at $700 today, you can ask for a modification because the difference between $700 and $500 is more than $100. That is of course assuming the last order was more than 3 years ago.

You can calculate guideline child support by using the calculator provided by the Attorney General’s office, which can be found here.

It should be noted that this rule only applies if the original child support amount was based on guidelines. If the original amount was based on an agreement between the parties, then the three-year rule does not apply.

The final way to change child support is to prove a “material and substantial change” in circumstances. Just as in modifying custody or visitation, the material and substantial change has to have occurred after the last order.

What would be a “material and substantial change” that would justify changing child support?

One important change would be a change in the financial circumstances of the parent. If his or her income has gone up or down significantly or if they have had another child, that would likely be considered a material and substantial change.

Another important change would be a change in the child’s needs. If it has become more expensive to raise the child, for example, due to school expenses, medical expenses, extracurricular activities, or other reasons, there may be grounds to ask for a higher child support award.

Just as in the changes to custody and visitation orders discussed above, these are case-by-case determinations, so you always want to consider the specific facts of your case to see if it justifies a change in child support.

Contact our Modification Lawyer Today

If you have a divorce, custody, or child support order that just is not working for you today, contact an experienced family law attorney at Salmon Haas Law to see if there are sufficient grounds to ask for a modification of your order. Circumstances change because life happens, and you need to protect the best interests of yourself and your child when those changes happen. Contact our office for a free consultation with one of our knowledgable attorneys today.

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