Articles Posted in Modification

In a Texas nonjury custody proceeding, upon the request of a party or certain other interested individuals, the court must interview a child who is at least 12 years old or may interview a child under 12 in chambers to determine their wishes regarding conservatorship or the person who will have the exclusive right to determine their primary residence.  Tex. Fam. Code § 153.009(a).  The interview is intended to help the court make determinations regarding conservatorship and possession, but the court still has discretion to determine the child’s best interest.  Tex. Fam. Code § 153.009(c).  Case law has held that the court retains its broad discretion and can either consider the information from the interview or even ignore it.  In re A.C. A father recently appealed a modification order that was not consistent with the child’s preference.

The parents were appointed joint managing conservators of their then two-year-old child in their 2009 divorce, with the father having the exclusive right to designate the child’s primary residence. A modification order in 2013 set forth the mother’s possession schedule, dependent on where she lived.

Modification Proceeding

The mother petitioned for modification in 2021, seeking the right to designate the child’s primary residence without a geographic restriction. She also asked that the father be limited to supervised visitation.

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A parent seeking modification of a Texas custody order must prove a material and substantial change in circumstances has occurred and that the modification would be in the child’s best interest.  Tex. Fam. Code § 156.101.  A father recently appealed an order naming the mother sole managing conservator of their three children after the parents had previously shared joint managing conservatorship.

The parents’ agreed divorce decree named them both joint managing conservators of their three children and gave the mother the exclusive right to designate their primary residence.

According to the appeals court’s opinion, the father refused to give their two daughters back to the mother after his holiday visitation.  He alleged it was unsafe for the girls to go back to the mother’s home with the son because the son had assaulted one of the daughters.

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A parent seeking modification of a Texas conservatorship order must show by a preponderance of the evidence that there has been a material and substantial change in circumstances and that the modification would be in the child’s best interest. A Texas appeals court recently held that the parent must meet this burden even if the other party defaults.

According to the appeals court’s opinion, the child was born in October 2019.  The trial court signed an agreed order in February 2020 establishing paternity, naming both parents joint managing conservators, and awarding the mother the right to designate the child’s primary residence  as well as other exclusive rights.  The father had a modified possession schedule that started with supervised visitation and transitioned to unsupervised possession, and then a standard possession order after a specified number of visits.

Modification Proceeding

The father petitioned for modification, seeking a standard possession order without supervision.  The mother did not appear at the hearings, and the court granted the requested order.

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A trial court may vacate, modify, correct or reform its judgment or grant a new trial within 30 days after the judgment is signed.  Tex. R. Civ. P. 329b.  Additionally, if a party files a timely motion, the trial court has the power to take those same actions until 30 days after any timely motions are overruled by an order or operation of law.  The court’s plenary power generally expires 30 days after the final judgment is filed if there is not a timely post-judgment motion.

Courts generally retain continuing subject-matter jurisdiction to clarify and enforce the property division set forth in a Texas divorce decree.  The court has the authority to render additional orders to enforce, assist in the implementation of, or clarify the property division.  It may specify the manner of the property division more precisely, but may not change the substantive property division.  A court may order delivery of specific property through its enforcement power.  If a party has not delivered property awarded pursuant to the divorce decree and delivery is not an adequate remedy, the court may award damages. Additionally, a court may render judgment against a party who fails to make monetary payments as awarded in a decree.

A former husband recently challenged a court order purportedly enforcing the property division in his divorce decree, arguing that it instead improperly modified the division.

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Texas custody orders commonly include geographic restrictions limiting a parent’s ability to relocate the children outside a specified area.  Regardless of whether there is a geographic restriction, a parent may seek to prevent the other parent from relocating with the children, often through modification of the custody order to either modify or add a geographic restriction or to change the parent with the exclusive right to designate the children’s primary residence.  A mother recently challenged a modification giving the father the right to establish the children’s primary residence after she provided him notice of her intent to move to another county.

According to the appeals court’s opinion, the parties were appointed joint managing conservators with equal possession in the agreed final divorce decree.  The mother was awarded the exclusive right to establish the primary residence for their two children, with a geographic restriction.

Pursuant to the decree, the mother could move the children to Harris or Dallas County if she provided the father six months’ notice of her intent to relocate and if the father successfully “secure[d] a transfer in employment” to that county.  She notified him in 2020 that she intended to move to Harris County.

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A court may retroactively modify a Texas child support order in some circumstances, but it generally may only do so as to child support obligations that accrue after the earlier of the date of service of citation or an appearance in the modification suit.  Tex. Fam. Code 156.401.  A father recently challenged a modification terminating his child support obligation, arguing it should have applied retroactively to the date of his son’s eighteenth birthday.

When the son was fourteen, he enrolled in the American School, which is a private, distance-learning school.  Students complete their course by correspondence and computer-based work.  Students take two courses at a time and must complete a course before being provided another.  Courses earn one-half to one unit, and students must earn eighteen units to graduate high school.

The son’s brother sadly died in April 2017.  The mother moved out of the marital home in June and the parents filed for divorce in July.  The son remained in the home with his father.  With all of this going on, the son fell behind and performed no work for his courses for a period of nine to ten months.

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A trial court may modify a Texas child support order if there has been a material and substantial change in circumstances since the rendition of the prior order. The party seeking the modification has the burden of establishing the change in circumstances. The court may also modify an order if it has been at least three years since the prior order was rendered or modified and the order varies by 20% or $100 from the guidelines.  Tex. Fam. Code § 156.401(a).  As with many issues involving child custody or support, the court’s primary consideration should be the child’s best interest.  A father recently appealed a court’s denial of his request to modify his child support obligation due to a change in income.

Petition for Modification

According to the appeals court, the father’s monthly child support obligation under a 2015 agreed order in a modification suit was $1,231.78 and his monthly medical support obligation was $105. There were no findings as to the father’s net resources or any indication in the order that the child support was based on the guidelines.

The father petitioned for modification in October 2021, alleging a material and substantial change in his circumstances based on his income.  He requested a decrease in his child support obligation.  The mother argued that the previous modification agreement had not been based on the child support guidelines.  She further argued that a change in the father’s income did not constitute a material and substantial change in circumstances because there was no indication the parties had relied on the father’s income in setting the child support obligation in the agreed order.

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Generally, a parent seeking modification of a Texas custody order must show that there has been a material and substantial change in circumstances and that the modification is in the child’s best interest. The determination of whether there has been a material and substantial change of circumstances is fact specific.  By way of example, a material and substantial change in circumstances may include a parent’s remarriage or, when there is a request for a change in child support, a change in income. A father recently appealed a modification order that permitted the mother to relocate with the children.

The parties’ agreed divorce decree named the parties joint managing conservators and granted the mother the right to designate the children’s primary residence. Subsequently, the mother petitioned for modification in 2022 because she wanted to move to Maine with the children.  Following trial, the trial court granted the modification. Specifically the trial court ordered modified the children’s geographic restriction to include Maine, modified the father’s possession and access, and awarded the mother child support.

The father appealed, arguing that the trial court abused its discretion because there had been no substantial or material change in the parties’ or children’s circumstances, and that the move was not in the best interest of the children.

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Sometimes after agreeing to mediate or arbitrate future controversies at the time of a Texas divorce, one party may not want to follow through on that agreement when a controversy actually arises.  In other cases, the parties may disagree on whether the alternative dispute resolution provision applies to a particular claim or controversy.  In such circumstances, the party seeking arbitration may move to compel arbitration.  That party must show that there is a valid arbitration agreement and that the dispute is within the scope of the agreement.

Arbitration Provision

In a recent case, a father appealed the trial court’s denial of his motion to compel arbitration.  According to the appeals court’s opinion, the final divorce decree included an alternative dispute resolution provision.  The provision provided the parties shall mediate the controversy in good faith before setting a hearing or initiating discovery in a suit to modify the terms and conditions of conservatorship, possession, or child support, except in case of an emergency.  The provision specified it did not apply to enforcement actions.  It required a party seeking modification to give the other party written notice of the desire to mediate.  If the parties do not agree on a mediator within 10 days or the other party does not agree to or fails to attend mediation, the party seeking modification is relieved of the obligation to mediate.  The provision further provides that if a controversy could not be settled by mediation, the parties agreed to submit it to binding arbitration with a specified arbitrator.

In the fall of 2021, the father started trying to negotiate custody matters.  In July 2022, the mother’s attorney sent an email to the father’s attorney stating modifications did not need to be arbitrated. The father’s efforts to negotiate or mediate failed, and he sent an email demanding arbitration at the beginning of August.

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Generally, when a parent seeks modification of a Texas custody or visitation order, they must show that they modification would be in the child’s best interest and that there has been a material and substantial change in circumstances since the earlier of the prior order’s rendition or the date the mediated or collaborative law settlement agreement upon which the prior order was based was signed. Tex. Fam. Code 156.101. Whether there have been material and substantial changes is a significant issue in many modification cases.  In a recent case, a father challenged an order granting a no-evidence summary judgment in favor of the mother and disposing of his claims for modification.

Pursuant to the parents’ mediated settlement agreement and agreed order, neither had the exclusive right to designate the primary residence of the child, but instead each parent had the right to establish the primary residence during their possession periods within 15 miles of the child’s school.  The mother, however, was permitted to establish the primary residence during her possession at her home until she moved. Possession alternated weekly during the school year and every two weeks during the summer break.

Father Seeks Modification

In January 2021, the father moved to modify the order, alleging material and substantial changes in circumstances.  He requested the exclusive right to designate the child’s primary residence and to make a number of decisions, including to enroll the child in team sports.  He also asked that the mother be enjoined from enrolling the child in extracurricular activities that would occur during his possession.  He also asked for the right of first refusal and an expansion of the geographic restriction to two counties.

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