A court may modify a Texas custody order only in certain circumstances. One of the most common reasons to modify an order is that there has been a material and substantial change in circumstances since the previous order and a modification is in the child’s best interest. Whether a material and substantial change has occurred is a question of fact. The party seeking modification has the burden of proving a material and substantial change has occurred.
In a recent case, a father challenged denial of his petition for modification because he had not been allowed to present evidence to support it. A 2010 order named the parents joint managing conservators, with the mother having the exclusive right to designate the child’s primary residence.
The child moved in with his father, his paternal grandmother and his step-grandfather following his mother’s death in 2015. The grandparents filed a petition to modify the 2010 custody order based on the mother’s death, as well as the father’s behaviors they claimed significantly impaired the child’s safety and well-being. The grandparents asked to be named temporary joint managing conservators with the right to designate the child’s primary residence. They also asked the father be denied access to the child, or alternatively, that his access to the child be supervised.
The Department of Family and Protective Services (the Department) petitioned for an order of protection for the child after receiving a report that alleged that the father disciplined the child by making him take a cold shower and that he was verbally abusive and made belittling comments about the child. The Department also received reports the child “frequently missed school” because the father would not wake up to help him get to school. There were also reports the father admitted he used synthetic marijuana and drank alcohol. The court named the department temporary sole managing conservator. The court also ordered the father’s visitation occur at CPS offices, that the child be placed with the father’s mother, and that the father comply with the Family Service Plan.
The grandparents moved to modify the temporary orders after a month. The trial court appointed the grandparents and the Department as temporary joint managing conservators. The Department ultimately dropped its case against the father, stating it did not see a need for it to continue as the child’s managing conservator.
The trial court held a jury trial. The next day the court rendered a modification order removing the father as managing conservator and appointing the grandparents. The court also limited the father’s visitation to one supervised four-hour visit per month.
After six months, the father petitioned to modify the parent-child relationship to change his rights and duties of conservatorship, visitation, and child support obligation. He argued he was not ready to be the child’s primary custodial parent at the time the mother died due to drug addiction, lack of income, and homelessness at times. He argued he now had full-time employment, was in a stable relationship, was expecting another child with his domestic partner, and intended to get married. He argued supervised visitation was not justified anymore because his life was stable and he had been drug-free for more than two years. He asked for a temporary order appointing him joint managing conservator with the grandparents.
The parents argued the father failed to identify a material and substantial change of circumstances. The court held a hearing, but issued a ruling without allowing the parties to call witnesses. The trial court found there was no material or substantial change of circumstances and denied the father’s motion to modify. The father appealed.
The trial court’s order did not reference any authority for dismissing the modification petition based on no material or substantial change of circumstances without an evidentiary hearing.
The parents had filed a “motion to deny” the modification petition, but the appeals court noted the Texas Rules of Civil Procedure do not recognize such a motion. The appeals court also noted that motions to dismiss are only authorized in suits affecting the parent-child relationship in limited circumstances.
The appeals court found the motion to deny was “not a proper mechanism for dismissal of [father’s] claims” and the proper way to make the request would have been through a motion for summary judgment or at trial. Although a motion to dismiss may sometimes be treated as a motion for summary judgment, the parties had not complied with the procedures for summary judgment in this case. There were no affidavits or other evidence attached to the parents’ motion.
The father had the burden to show there had been a material and substantial change in circumstances. He was not allowed the opportunity to present evidence. The appeals court found he was deprived of the right to be heard. The appeals court found neither the Rules of Civil Procedure nor the Family Code authorized the trial court to dismiss the father’s modification petition on the grounds there was no material or substantial change in circumstances without holding an evidentiary hearing so he could present evidence. The appeals court reversed and remanded the case for further proceedings.
This case shows that a court cannot dismiss a modification petition on the grounds there has not been a material and substantial change in circumstances without allowing the petitioner to present evidence. The appeals court did not find that a material and substantial change occurred, but instead found that the father must be given the opportunity to have his evidence heard.
If you are facing a custody dispute, an experienced Texas child custody attorney can help ensure that your rights are protected. Schedule an appointment with McClure Law Group by calling 214.692.8200.