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MODIFICATION
Custody
The
primary consideration of the court is what is in the child’s best interest when determining questions of conservatorship
and possession of and access to a child. Public policy is to assure that children will have frequent and continuing contact
with parents who have shown the desire and ability to act in the children's best interest. This includes providing a stable
environment for the child, and encouraging parents to share in the rights and duties of raising their child. Although disrupting
the child’s life during divorce proceedings can be unavoidable, the disruption can be abated and the situation improved
after the divorce.
The standard in many suits depends on the degree to which the requested modification would disrupt
the stability of the child's present environment and lifestyle. Therefore, if the court finds that a suit for modification
was filed frivolously or is designed to harass the opposing party, the court must tax attorney's fees as costs against
the offending party.
The court may modify an order or portion of a decree that provides for the appointment of
a conservator of a child, that provides the terms and conditions of conservatorship, or that provides for the possession of
or access to a child if:
1. Modification would be in the child's best interest; and
• The
circumstances of the child, a conservator, or other party affected by the order have materially and substantially changed
since the date of the rendition of the order; or
• The child is at least 12 years of age and has filed with
the court, in writing, the name of the conservator who is the child's preference to have the exclusive right to determine
the primary residence of the child; or
• The conservator who has the exclusive right to establish the child's
primary residence has voluntarily relinquished the primary care and possession of the child to another person for at least
six months.
Best Interest
It
is the child's best interest, rather than the parent's, that must be determined. This has been defined as the environment
that will have the most desirable or favorable effect on the child. In determining whether the proposed modification is in
the child's best interest, the court may weigh all factors bearing directly or indirectly on the child's physical,
emotional, mental, educational, social, moral, or disciplinary welfare and development. Factors that have been considered
in evaluating the child's best interest include:
• The child's emotional and physical needs.
• The parenting ability of the conservators or potential conservators.
• The plans and outside
resources available to persons seeking the modification.
• The value to the child of having a relationship
with both parents.
• A visitation schedule that requires excessive traveling or prevents the child from engaging
in school or social activities.
• The stability of the homes of the persons seeking the modification.
• The child's desires.
Materially and
Substantially
Determinations as to whether the circumstances of the child, a conservator, or other
party affected by the order have materially and substantially changed are made on a case-by-case basis. Nonetheless, some
general principles have emerged from cases decided under earlier versions of the modification statutes:
1) A slight
change in circumstances will not justify a modification of managing conservatorship.
2) The material change must have
occurred after rendition of the order sought to be modified.
3) The material change must directly or indirectly affect
the child's welfare.
Other Factors
to be considered:
• The child's changing needs as he or she gets older may solely constitute
a material change in circumstances. However, the age of the child or a party, as an isolated fact, is generally insufficient
to support modification of managing conservatorship. A party's physical infirmities rarely justify modification unless
the party is substantially unable to care for the child's needs. However, courts will consider a party's mental health
and emotional stability to be very important factors. The remarriage of one or both parents has been proven a pertinent factor.
Texas courts recognize that the parental abilities of the parent seeking custody and the stability of the home.
• Negative
behavior and the use of a child as a pawn in disputes.
• Child-snatching or the deliberate secreting of a
child may be sufficient to justify a modification of custody.
• Acts, omissions, or circumstances of a managing
conservator that thwart the child's ties with the other parent, such as interfering with visitation.
• The
moral misconduct of a party. This can include such acts as a party's sexual promiscuity, affairs, or living with a member
of the opposite sex out of wedlock.
• Being convicted of a crime or subjecting the child to the influence of
persons involved in criminal activities.
• The use of illegal drugs by a party seeking custody is a material
issue in a suit to modify conservatorship. Texas Rules of Civil Procedure authorize a court to order a petitioner to submit
to drug tests if sufficient evidence is presented to place the matter in controversy and there is a showing of good cause
for such an order.
• The physical, mental, or sexual abuse of a child.
Conduct that occurred in
a few isolated instances in the distant past is less likely to be deemed a material and substantial change in circumstances
than conduct occurring in the recent past. Additionally, behavior that occurred in the child's presence or that the child
is aware of is more likely to constitute a material and substantial change.
Evidence of a false report of child
abuse is admissible in a suit between the involved parties regarding the terms of conservatorship of a child. A false report
of child abuse or neglect made before or during a suit affecting the parent-child relationship may be grounds for the court
to modify the parent-child relationship to restrict further access to the child by the accuser.
The court must
consider the parties' qualifications without regard to their marital status or to the gender of the party or the child
in determining which party to appoint as sole managing conservator, whether to appoint a party as joint managing conservator,
and the terms and conditions of conservatorship and possession of and access to the child.
Support
The court may modify a child support decree if the circumstances of the child or a person affected by
the decree have materially and substantially changed since the date of its rendition. The party seeking to establish a material
and substantial change is required to prove that the circumstances of either the child or a person affected by the order had
materially changed; the party is not required to prove both. A substantial increase in one parent's income constitutes
a material and substantial change. A court's decision to modify support often involves a consideration of both the
financial condition of the obligated parent and the child's changed needs.
Often the terms of child support
payment become unworkable. In these instances, the court can order the support paid through a County child support office,
or the support can be paid through the Texas Attorney General's office.
A parent's testimony showing a
substantial increase in a child's expenses is enough to establish a material and substantial change in circumstances.
Items examined to determine the child's increased needs include items such as expenses for travel, summer camp, sports
lessons, entertainment, and private school tuition. Age is frequently a factor in determining the existence of a change of
circumstances, since as children grow older, their clothing, food, and educational expenses generally increase.
When
a decrease in income makes it impossible for the parent paying support to make the ordered child support payments, and also
pay for the parent's necessary living expenses, a decrease in the amount of support may be justified. Conversely, a reduction
in the custodial parent's income may constitute a material and substantial change of circumstances justifying an increase
in child support.
A court may not add any portion of the net resources of a new spouse to the net resources of
an obligor or obligee in order to calculate the amount of child support to be ordered in a suit to modify. In addition, a
court may not subtract the needs of a new spouse, or of a dependent of a new spouse, from the net resources of the obligor
or obligee in an attempt to reduce support.
The court may modify an original or modified spousal maintenance order
on a proper showing of a material and substantial change in circumstances of either party. Spousal maintenance may be terminated,
after a hearing, if the party receiving maintenance cohabitates with another person in a permanent place of abode on a continuing,
conjugal basis.
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