Modification Suits: A Breakdown
Whether you have a Final Decree of Divorce or an Order in Suit Affecting the Parent-Child Relationship dealing with the terms and conditions of child custody, visitation, and child support, you may have the right to request a Modification. In a few instances, the law allows for people other than the parents to file for a divorce modification in Texas.
Modification of Child Custody and/or Visitation
A person may file for modification of child custody and/or visitation if there has been a material and substantial change in circumstances of the child, a conservator, or other party affected by the court order. What constitutes a “material and substantial change” is decided on a case-by-case basis and is a fact intensive question. You may have a material and substantial change in circumstances if one parent has remarried, one parent is engaging in parental alienation, or a parent has been convicted of child abuse or domestic violence. The court only considers evidence that occurred after rendition of the original order.
If a child before the court is at least 12 years of age or older, the child may speak with the Judge and express their wishes of whom they wish to live with. Although it is a factor that the Judge will take into consideration, it is not necessarily a definitive factor in a Judge’s ruling.
A person may also have grounds to file for a modification if the managing conservator has voluntarily relinquished the primary care and possession of the child to another person for at least 6 months. This does not apply if the relinquishment is based on the person’s military duties.
However, if the modification is filed within one year of the original order and seeks to modify custody of the child, the requesting party has a higher burden to meet. The party must then show that the child’s present environment may endanger the child’s physical health or significantly impair the child’s emotional development or that the managing conservator has voluntarily relinquished the primary care and possession of the child to another person for at least 6 months.
Even if you believe that you may qualify for a modification, the primary factor that a court takes into consideration is whether the requested modification is in the best interest of the child. So although you may qualify, the court still has the authority to deny your requested modification.
Modification of Child Support
In order to qualify for a child support modification, the requesting party must show that the circumstances of the child or a person affected by the order have materially and substantially changed or that it has been 3 years since the last child support order and the amount differs by 20% or $100 from the child support guidelines. Once again, what constitutes a “material and substantial” change is a fact intensive question. The person requesting the modification will bear the burden of proving the circumstances at the time of rendition of the order and the present circumstances. But, the court is ultimately going to look at what is in the best interest of the child.
Persons Entitled to Divorce Modification Suits
A party to the original Divorce Decree or order is not always the only person entitled to file a modification suit. In certain instances, a grandparent, another family member, or even an unrelated person, may be entitled to request a divorce modification in Texas.
At any time, a party to a previous Divorce Decree or order may file a suit requesting a modification, as long as that party was affected by the order rendered by the court.
If you were not a party to the original Divorce Decree or Order in Suit Affecting the Parent-Child Relationship dealing with the terms and conditions of child custody, visitation, and child support, you may still have the right to request a Modification. If you meet one of the following criteria (this list is not exhaustive), you may be entitled to file a modification suit:
- You are a guardian of the child;
- You are a man alleging that you are the father of the child;
- You have had actual care, control, and possession of the child for at least 6 months (this does not include foster parents); or
- You are related to the child within the 3rd degree of consanguinity and the child’s parents are deceased.
If you believe that you may be entitled to a divorce modification in Texas, do not hesitate to contact the Law Office of Ashley J. Scott at (713) 255-2097.