Family Law

Modification of orders in Texas usually deals with modification of custody. In Texas, “custody” is broken down into two things: conservatorship and possession and access.

Conservatorship deals with the rights to make decision for the child, such as educational decisions, medical decisions, the right to enroll into the military before 18, and so on.

Possession means actual physically possession of the child, including custody and visitation.

Access means additional time with the child via telephone or virtual visits, such as Skype, Duo, Zoom, or other means. Most often, access simply gets clumped together with possession.

When a party wishes to modify any of the above, a modification action has to be filed in Texas. The name of the petition which actually begins the action is typically “Petition to Modify Parent-Child Relationship.” Like any other lawsuit, it is served unto the other party, and the other party has the first Monday after twenty days of service to file an answer.

Modifications are typically filed when a parent wants to switch custody of the child, i.e. become the parent with the right to designate the primary residence and be the parent who receives child support. However, modifications can also be filed to modify or add a geographic restriction, to modify rights and duties while keeping the custody order as is, and for other reasons.

The grounds for modification are as follows. First, the parent has to prove to the Court that the modification sought is “in the best interest of the child.” This is very generic statutory language, and the Court has discretion to decide whether or not a change is in the best interest of the child. The second item which has to be proven to the Court is that there has been a “material and substantial change in circumstance” since the last time the Court rendered or updated an order for the child.

Much like with “in the best interest of the child,” what is a “material and substantial change” is very open-ended, and the Court had discretion. Some events are listed in the Texas Family Code as unquestionably meeting this requirement (such as a conviction for sexual abuse or conviction for family violence), and some events have been interpreted by the Courts over the years to also mean a material and substantial change, such as: parental alienation, change of home environment, change in child’s age and needs, mistreatment of the child, parental conflict, a relocation of a parent, drug use by a parent, and so on.

It is important to note that if a modification has been filed in less than one year from the time the Court last rendered or updated the order, a Court in Texas will not proceed with a modification until and unless the filing party provides an affidavit which explains why they feel that there has been a material and substantial change. If the Court finds going off the affidavit that indeed there was a material and substantial change, then the modification action can proceed.