A lot can change in the years following a divorce and the creation of a custody schedule in Texas. Children grow up; parents get remarried or find new jobs; financial circumstances often fluctuate. During that time, parents’ circumstances can change dramatically and grounds for full custody of a child, more parenting time or changes in child support may arise, which may necessitate a change in custody or child support modification Texas.
Considering all that can happen in the lives of both parents and children, it is important for parents with custody and visitation agreements to understand the grounds for modification of custody in Texas, how Texas custody laws work, when and if a custody agreement might change and the reasons a judge will change custody in Texas.
When a child custody modification may be appropriate in Texas
In accordance with Texas modification laws, there are three reasons a judge will change custody orders in Texas. The three grounds for modification of custody in Texas include:
- A material or substantial change in a child or parent’s circumstances;
- A child expressing his or her preference to the court (as long as he or she is at least 12 years old), where a child wants to live with noncustodial parent in Texas; or
- Voluntary relinquishment by the parent with primary custody.
Material changes in circumstances are perhaps the most common reason for a parent to request modification of child custody in Texas. Changes that are temporary or insignificant in the context of custody arrangements may not result in modification. For instance, if you move across the city, modification may not be granted. On the other hand, if you want to move to a different state, you will likely need to request a modification to the custody orders.
It is important to note that in addition to there being grounds to modify possession of or access to a child, the courts must also determine whether a modification to order a change of custody is in the best interest of the child. Moving a child to a different state may benefit you, but it may not be in the child’s best interest if the child doesn’t get to spend time with the other parent.
Material or substantial changes may also include the primary parent’s inability to continue properly caring for the child. These changes may arise due to substance abuse, physical or mental health issues, job loss and other concerns. A judge hearing a motion to modify custody Texas will often agree that changing custody orders will be in the best interest of the child under these circumstances.
An experienced family law attorney is your best resource to help with a modification of child custody in Texas
If your ex is attempting to modify your custody agreement, or if you want to pursue modification, then it is critical to understand Texas custody laws and your legal options. Agreements regarding custody, access and visitation are vital to the parent-child relationship and the well-being of the child, so a modification of child custody in Texas should not be made without cause or legal counsel.
The courts do not take requests for Texas modification of custody lightly either. By that we mean if you’re asking the court to flip primary custody (and the right to designate primary residence) from the other parent to you, you better be prepared to provide clear and convincing evidence that a material or substantial change of the parties to the suit or the child has occurred. If you don’t provide evidence to support the grounds for custody change you’re trying to assert, your case will have no merit in the eyes of a judge.
Three reasons a judge will change custody in Texas if a temporary change in primary custody is desired
You may also be wondering about the grounds for modification of custody in Texas on a temporary basis. While parents can always request a change in conservatorship, there are limited grounds for custody modification that allow a change in conservatorship on a temporary basis. The three reasons a judge will consider changing custody in Texas on a temporary basis include:
- The child’s present circumstances would significantly impair the child’s physical health or emotional development;
- The person designated in the final order has voluntarily relinquished the primary care and possession of the child for more than six months; or
- The child is 12 years of age or older and has expressed to the court in chambers the name of the person who is the child’s preference to have the exclusive right to designate the primary residence of the child.
When you file a lawsuit to temporarily modify custody in Texas, you also need to submit an affidavit to the court that provides proof that the other parent either consents to the modification of child custody in Texas OR that the child’s current living situation poses a danger to the child’s physical health or emotional wellbeing.
One emotional threat that Texas family courts will consider during a child custody modification Texas is parental alienation, where one parent takes actions to discredit the other parent—often unjustly—which in turn causes the child to refuse to interact with that parent. If you do a Google search on parental alienation, you won’t find specific mention of parental alienation in the Texas family code.
However, Texas judges take allegations of parental alienation very seriously, and parents found guilty of such alienation often find their actions backfire on them in family court. Typically, to prove parental alienation, a parent has to prove that the other parent is speaking so poorly about that parent that the children do not wish to be around that parent.
Learn how parental alienation affects child custody outcomes in Texas here.
How modifications to temporary custody orders are handled per Texas custody laws
The court will also consider modifications to a temporary custody order Texas parents have in place if a child’s safety or welfare is in jeopardy. (Get details about the statute here: Texas family code temporary orders modification.) If you have questions about temporary custody Texas or need a motion for temporary orders Texas form, contact your lawyer or seek guidance from a family law attorney in the county where you reside.
If the situation is dire, and the child needs to be removed from a parent’s custody as soon as possible, your attorney can help you submit an emergency custody order Texas courts will consider right away.
To modify child support Texas parents should act quickly
If your or your spouse’s income has changed, and you believe a modification to child support is warranted, there are a few basic factors that family courts consider for a child support modification Texas. To support a Texas child support modification, the movant needs to show income has changed by $100 or more OR 20-percent or more per month, and/or it has been 3 years since the most recent child support order was put in place.
If you believe your circumstances merit a Texas child support modification, it’s also important to file your motion to modify child support Texas to prevent overpayment as the obligor or underpayment as the obligee. If you believe that the income for the parent responsible for child support has changed and think you’ll be able to prove it, file to modify child support Texas right away.
The tricky part with Texas child support modifications is that it isn’t always easy to prove the other parent’s income has changed. We often have clients who say, “My ex owns her own little business and she’s 1099. How do I prove her income?”
We also have clients who didn’t include a finding of income in their initial child support order, which further complicates matters. Not only do you need to prove income today, you need to go back and determine what both parents’ incomes were when child support was initially ordered.
Other factors come into play during a child support modification in Texas. You need to look at how possession and access are currently handled and the lifestyle of the child, along with parental income. In addition, sometimes the physical or mental health needs of the child may have changed and require more financial resources from the parents than previously ordered.
Five reasons for child support modification in Texas
Whether you’re hoping to reduce child support payments or wondering how to get child support increased in Texas, the state is pretty clear as to when it will allow parents to request a modification in child support. In general, you must show there has been a material and substantial change in circumstances that warrants a child support modification and/or at least three years have passed since the most recent child support order was put in place.
What changes in circumstance will the court consider valid reasons to modify child support in Texas?
1). Payor loses job or has a new job that pays less.
A decrease in income can be one of the reasons to have child support reduced. In order to have your child support order reviewed due to lower income, you will need to show your net income decreased by a minimum of $100/month or 20%. Keep in mind, if the other parent can prove you deliberately took a job that pays a lot less or quit your job to reduce your child support obligation, the court may not lower your monthly child support payment amount.
It’s also important to know that being unemployed, underemployed or working part-time doesn’t mean you are no longer obligated to pay child support in Texas. The state can and will withhold child support from your unemployment check (or regular paycheck) and will also look at the prevailing minimum wage and your ability to work and earn income when recalculating child support. Furthermore, the Court will not take kindly to someone who intentionally underworks or underreports to avoid child support obligation. Meaning, they could hold you to an income you should have based on experience, education, and history.
2). Payor’s income increases.
If the other parent recently earned a promotion, switched to a higher-paying job or is earning more income for another reason, those may be reasons to increase child support. Of course, if the non-custodial parent is already paying the maximum amount of child support in Texas, increasing child support generally won’t be an option unless that parent agrees.
3). Child’s medical needs have changed, and they will not be able to provide for themselves in the future.
If your child recently suffered a physical or mental health issue that has disabled him or her to the point where he or she will need financial support after turning age 18 (meaning child support may be indefinite), those may be reasons for child support modification. It’s also important to know that both parents are expected to contribute financially to the health and wellbeing of their children, and increased uninsured medical expenses is a cost both parents are expected share equally.
4). Health insurance coverage has changed.
The state of Texas requires that medical and dental care be addressed in child support orders. If you were ordered to provide medical insurance for your child, and your insurance circumstances have changed, you can request your child support orders be reviewed. For example, if you took a new job that doesn’t offer health insurance and the other parent can get health insurance through their employer, you could be ordered to reimburse the other parent for those expenses instead. Or, if you found a private health insurance option with a different monthly premium, you could request your child support orders be modified to reflect the new amount.
5). Possession time has changed.
We often see cases where a child has a dispute with the parent who is the primary conservator, so they go live with the non-custodial parent. Those scenarios are typically valid reasons for child support modification, namely, switching who receives the child support payment each month, especially if the child has been absent from the primary conservator’s home for quite some time, and the primary parent hasn’t taken steps to repair the relationship or tried to get the child to move back.
Don’t stop paying (or pay less) court-ordered child support without a modification
Even if your circumstances have changed and you believe you have good reasons to modify child support, you are still required to pay the amount indicated in your current child support orders. It’s also critical to file a request to modify child support as soon as possible because you can only increase or decrease child support from the date of service moving forward.
Non-custodial parents who neglect to pay child support could face serious consequences, including jail time. According to the Office of the Attorney General in Texas, the state may attempt to enforce child support obligations through license suspension (driver’s, professional, hunting and fishing) and prohibiting the parent from obtaining a new or renewed passport. The state may also place liens on properties and financial accounts for failure to pay child support.
How long does a child support modification take?
When seeking a child support modification Texas parents not only need to move quickly, they also need to be patient, especially if the other parent disagrees that a modification is warranted or disputes the amount.
If you need to go to court to fight for (or against) a Texas child support modification, it could take several months before you can get on a judge’s docket. For parents requesting a child support modification, there is some good news. Should the judge agree with your request, the increase or decrease in child support will be retroactive back to the date of service.
In cases where parents mutually agree that a Texas child support modification is warranted and also agree to the amount, the modifying of child support orders should move along more quickly. Since both parties are agreeable, their attorneys can prepare and file the child support modification documents with the court. If everything appears to be in order, the judge will most likely sign off on the modification.
Learn more about Texas child support basics and Texas Family Code Chapter 154 here.
Contact our Fort Worth law firm to learn more about your options
If you live in the Dallas / Fort Worth area and have questions about Texas custody laws or a modification of child custody in Texas, visitation, access or support, our divorce lawyers in Fort Worth, TX are here to help. To schedule a confidential case review with our founder, Tarrant County family law attorney Justin Sisemore, please call our office at (817) 336-4444 or schedule a consultation online
Photo Source: Canva.com
