Divorced parents might seek to modify an agreement that was reached at the time of divorce for a number of reasons. Perhaps your particular financial circumstances have changed and you want to change the amount of support you are required to pay or receive on behalf of your child. Or, you might have enrolled your child in extracurricular activities and now require a change in the conservatorship order for the convenience of your child. Or, perhaps the order is just no longer working for you and your former spouse. Regardless of the reason, you are entitled to seek a modification of that support and/or conservatorship order. The purpose of this post is to discuss the basic requirements of a modification. It should be remembered that any order affecting your children should be carried out in the best of interest of your children, regardless of your personal feelings toward your former spouse. Seeking a modification that is not in the best interest of your children is simply a waste of time, as the court is not likely to grant your request without further proof of your genuine motivation for seeking the modification.
Modifying the parent-child relationship, a child support order, or a conservatorship order can be accomplished without the need for an attorney to appear in court on your behalf. The complexity of your situation, however, instructs that it is most beneficial to you and your children to seek the advice and counsel of an attorney before filing the petition to modify. Your attorney can then determine if you have correctly filled out the appropriate forms and if your request meets the required legal standards. If your case requires further assistance from an attorney, we can discuss your options to carry on the litigation. Often, if both parties agree to the modification, the need for continued representation is not as great. If you and your former spouse do not agree to the terms of the modification, we can represent your interest in the modification proceedings.
To begin, we will look at how you go about modifying a court order regarding your children. Either parent is entitled to file a modification case requesting that the judge make a change to the current custody, visitation, child support, or medical support order. You must file the case in the same county in which the current order was originally issued. If your child has lived in another county for the last 6 months prior to filing the case, you must still file in the county where the original order was issued. If this applies, you can also petition the court to transfer the case to the county where the child currently resides. You should discuss this situation with your attorney to make sure the proper petitions are filed. Also, if your order was issued in another state or you, your child, or the other parent is now living in another state, you should present this information to your attorney. Specific jurisdictional rules apply in these circumstances and your attorney can help determine how and where to file your case. The court will grant your petition to modify only if you meet the appropriate legal standard of proof required by your specific request.
To modify a child support or medical support order, you must prove that there has been a material and substantial change in circumstances, or it has been at least 3 years since the last order was entered and the support ordered differs from the guidelines by at least 20% or $100. To determine the amount of guideline child support, you can access the Texas Attorney General Calculator. Other unique circumstances amount to a material and substantial change but these are considered on a case-by-case basis. You should discuss your unique set of facts with your attorney before requesting the modification. To change custody or visitation rights you must prove that the change is in the best interest of the child and at least 1 of the following is true: (1) a material and substantial change; (2) the child is at least 12-years-old and tells the judge which parent they would like to live with; or (3) the person with primary custody has allowed another person to care for and have possession of the child for at least 6 months (unless that parent is deployed as a member of the military). Family violence and child abuse are material and substantial changes that necessitate a change in the custody or visitation order. If you are seeking modification for either of these reasons, you should also discuss with your attorney your options for a protective order. Unless you qualify for other reasons, an existing visitation and custody order cannot be modified within 1 year of its issuance. Importantly, if you petition to modify the visitation, custody, child support, or medical support order, you must comply with the current order until a new order is issued. Therefore, while the case is pending, you must continue to pay child or medical support and you must comply with the current terms of the visitation and custody order (unless the court issues a temporary restraining order or other protective order).
Family law issues are challenging because they are often met with a range of emotions. For this reason, we encourage you to seek legal assistance when deciding to modify an order affecting your children. Our services are available if you are the parent seeking the modification (the petitioner) or if you are the parent opposing the modification or the parent on whom the modification was served (the respondent). In both situations, we can help you achieve an outcome that is most favorable to you and your children. If you need our help to resolve a family law issue, give us a call so that we might discuss your current situation.
Suggested tags: texas family law, family law, child support, visitation, custody, modification