Wichita Falls Family Law Modifications

 

Modification of Custody, Visitation or Child Support:

A.     CUSTODY— The right to establish the primary residence of the child.

Modification of child custody may be effected through the filing of an original petition to modify in suit affecting the parent-child relationship. Each conservator is entitled to notice of the filing of the suit. If modification of a child custody order is sought within one year of the issuance of the order sought to be modified, the party seeking modification must attach to the initial pleading an affidavit which must contain, along with supporting facts, at least one of the following allegations: (1) that the child’s present environment may endanger the child’s physical health or significantly impair the child’s emotional development; (2) that the person who has the exclusive right to designate the primary residence of the child (i.e. the custodial parent) is the person seeking the modification or has consented to the modification and the modification is in the best interest of the child; or, (3) that the person who has the exclusive right to establish the primary residence of the child has voluntarily relinquished the primary care and possession of the child for at least six months and the modification is in the best interest of the child.

If the initial pleading does not contain this affidavit or if the affidavit fails to state facts adequate to support one of these allegations, the court is required to deny the relief sought and refuse to schedule a hearing for modification.

If the modification is sought more than one year after the issuance of the order sought to be modified, the requirements are less stringent and the party seeking the modification must provide evidence that there has been a material and substantial change in circumstances of one of the conservators of the child and that the requested modification is in the best interest of the child.

After the modification suit is filed and while the case is pending, the court may not enter a temporary order that has the effect of changing the designation of the person who has the exclusive right to designate the primary residence of the child under the final order unless the temporary order is in the best interest of the child and (1) the order is necessary because the child’s present circumstances would significantly impair the child’s physical health or emotional development; (2) the person designated in the final order has voluntarily relinquished the primary care and possession of the child for more than six months; or, (3) 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.

Does this mean that the child’s preference controls who has custody? No. It simply means that if the child has expressed such a preference the court could enter a temporary order changing custody. Ultimately, it is up to the court in a temporary orders hearing to determine what is in the best interest of the child notwithstanding that the child’s preference may be different than the ruling of the court.

B.       VISITATION AND ACCESS

A petition seeking a change in visitation and access to the child may be filed at any time following the date of the rendition of the order sought to be modified. The court may modify the provisions for visitation and access if it finds that the modification is in the best interest of the child and the circumstances of the child, a conservator, or other party affected by the order have materially and substantially changed since the earlier of: (a) the date of the rendition of the order sought to be modified or (b) the date of the signing of a mediated or collaborative law settlement agreement on which the order is based.

However, there exists a rebuttable presumption that the Standard Possession Order of visitation provides reasonable minimum possession of a child for the non-custodial parent and it is in the best interest of the child.   Standard Possession Order visitation must be altered if the work schedule or other special circumstances of the custodial parent, non-custodial parent or the child or the year-round school schedule of the child make the Standard Possession Order unworkable. In that case, the court is instructed to render an order that grants periods of possession of the child as similar to the Standard Possession Order as possible.

C.        CHILD SUPPORT

A petition seeking a change in the amount of child support to be paid, including one which seeks an order for health care coverage, may be modified if (1) the circumstances of the child or a person affected by the order sought to be modified have materially and substantially changed since the earlier of: (a) the date of rendition of the order sought to be modified or (b) the date of the signing of a mediated or collaborative law agreement; (2) it has been three years since the order was rendered and the monthly amount of child support ordered differs by either 20% of $100 from the amount that would be awarded in accordance with the child support guidelines.

If the parties previously agreed to an amount of child support which differed from the amount that would have been awarded had the child support guidelines been followed, then the court may only modify the order if the circumstances of the child or a person affected by the order have materially and substantially changed since the date of the order’s rendition. Thus, if the parties agreed in their divorce decree that the party paying child support would pay a lesser amount than that required under the child support guidelines and the party receiving the support decided to seek more child support in the absence of proof that there has been a material and substantial change in the needs of the child or of a person affected by the order, then the child support may not be increased even if the amount which could be awarded under the child support guidelines is greater than the amount to which the parties agreed.

Modification actions frequently occur and may be initiated by either parent or, in the case of a requested increase in child support, by the Attorney General’s office. However, because the Attorney General of Texas can only represent the interests of the State of Texas in such proceedings, both affected parties should retain legal counsel.

Richard Sutherland has been involved in numerous modification actions regarding custody, possession and child support. He has also participated in numerous Attorney General initiated proceedings.