MODIFICATION OF COURT ORDERS

Continuing Jurisdiction

Once a Texas court assumes authority over the best interest of a child, that court retains the right to make any future decision about the child until another court acquires the right to make such decisions.   Once the child has lived in a different Texas county for at least six months, the right to make decisions about the child can, and should, be transferred to the court serving that county.   However, this transfer must be requested.  If the transfer is not requested in a timely manner, the right to a transfer can be waived. 

If the current court order was created by the court of another state, Texas will grant full faith and credit to that court order.  This means that a Texas court will acknowledge and respect that order, and only change the order if specific conditions are met.  Unless emergency conditions exist that require immediate action for the safety and welfare of the child, a Texas court will not change the orders of another state until it is established that Texas is now the “Home State” of the child and the original court no longer claims continuing jurisdiction or it is shown that none of the parties to the case still reside in that state.

Authority to Modify the Order

A Texas court may lose the right to modify a custody, visitation and support order if the child has lived in another state for at least six months.  A Texas court will lose the right to modify a custody, visitation and support order if the parents marry after the final order is signed. 

Grounds to Modify the Custody/Visitation Order

Any person who is affected by the order can ask the court to modify or enforce the order.  Before the court can grant a modification, it must find:

1.  that the modification is in the best interest of the child;

2.  that the circumstances of the child, a conservator or a party affected by the order have

materially and substantially changed since the order was signed by the court. 

3.  that a child over 12 years of age has filed with the court a written preference for a different primary managing conservator.

4.  that the primary managing conservator has voluntarily given up care and possession of the child to another person for at least 6 months.    

If the change is requested within 12 months of the original order, you must also show one of the following:

1.  The child’s present environment may endanger the child’s physical health or significantly impair the child’s emotional development;

2.   The person entitled to establish the child’s primary residence is consenting to or bringing the motion for the best interest of the child;

3.   The person entitled to establish the child’s primary residence has voluntarily given care and possession to another person for at least 6 months and a change would be in the child’s best interest. 

Grounds to Modify the Child Support Order 

The Texas Legislature has established a schedule for the courts to use is setting up child support obligations.  If your net monthly income exceeds $6,000.00, the court will look at several factors to determine the child support obligation of the non-custodial parent.  If your net monthly income is under $6,000, the court will set your support obligation as follows:

• For one child, 20% of your net monthly income;
• For two children, 25% of your net monthly income;
• For three children, 30% of your net monthly income;
• For four children, 35% of your net monthly income;
• For five children, 40% of your net monthly income.

The court can change or modify the current child support order if the circumstances of the child or a person affected by the order have materially and substantially changed.  The order can also be changed if it has been in effect for over three years and applying the above guidelines would increase or decrease the support obligation by $100 or 20%. 

The court cannot change a child support obligation in the past.  It can only change future support obligations.  If you need a change, you must file your petition immediately and make sure it is served on the other person. 

What is a Material and Substantial Change?

The courts have identified several events that amount to a material and substantial change.  Marriage to another person can be a material and substantial change.  A change in residence, age, medical condition, employment, criminal history or the relationship between the parents making the current orders unworkable can be found by the court to be a material and substantial change.

The Modification Process

The process to modify a current court order affecting custody, visitation or support begins with a petition to the court asking for the modification.  You will probably need the assistance of a lawyer to file a proper petition because there are several things that must be in the petition and you will need to make sure that the petition is properly served on the other party.  Once the petition is filed and served, the court can enter temporary orders if properly requested.  If the modification is agreed to by the other party, the process can be completed relatively quick.  If the other party wants to contest the modification then the court will have to schedule the case for trial.