A court may generally only modify a Texas custody order if the modification is in the best interest of the child and there has been a material and substantial change in circumstances since the previous order was rendered or the parties signed the settlement agreement. The court may also modify an order if the modification is in the child’s best interest and an older child has told the court his or her preference or if the parent with the exclusive right to designate the child’s primary residence voluntarily gave up primary care or possession of the child for six months or more. Tex. Fam. Code Ann. § 156.101.
In some cases, when one parent seeks a modification, the trial court may instead grant a modification requested by the other parent. In a recent case, a mother challenged a modification giving the father the exclusive right to designate the child’s primary residence after she had initially moved for a modification to expand the geographic restriction on the child’s primary residence.
Mother Files Modification Suit
Following the parties’ divorce, the mother had the exclusive right to designate the child’s primary residence in one of two counties. She petitioned for modification eight years later, seeking increased child support and the right to designate the child’s primary residence in one of the counties or any contiguous county. The father requested the exclusive right to designate the child’s primary residence within that designated county.
After the mother became pregnant, she tried to find larger home in the same school district with enough land to let the daughter keep raising animals. She did not find an affordable place in the designated county and sold her home. The child, the mother, the stepfather, and the child’s two half-siblings lived in a travel trailer for a while. They subsequently moved in with the mother’s parents where the five of them shared only two bedrooms.
The mother bought some property by the time of final trial, but had not built a house on the property yet. Although the property was near one of the counties in which the child’s primary residence was restricted, the school the child would attend if she lived there was nearly 40 miles away from the father’s home.
Furthermore, under the agreed possession schedule, the father had the daughter Thursday afternoon through Monday morning one week and Wednesday afternoon through Friday morning the next week. Under the mother’s proposed modification, he would only get her Thursday through Monday on alternating weeks.
The mother did not have much of a plan for where to live with the child if the court denied her request to modify the geographic restriction, but said she would probably rent an apartment until she came up with a better plan.
Father Testifies Against the Mother’s Requested Modification
The father testified the child’s current school was about 15 minutes away from his home, but the school she would attend if she moved was about 55 minutes away.
The father said he planned to keep the child in her current school district and would purchase a home in that district if necessary. He said the child could raise animals on land belonging to his family within the current geographic restriction. The child had extended family and medical providers nearby, as well.
At the end of final trial, the trial court awarded the father the exclusive right to determine the child’s primary residence within the previously designated county and ordered the mother to pay child support. Unhappy, the mother appealed.
Mother Appeals Trial Court’s Ruling
On appeal, the mother generally argued the trial court abused its discretion by granting the father’s proposed modification.
The mother first argued the father had not shown there was a material and substantial change of circumstances to support the modification. The appeals court found, however, that the father had not needed to prove there had been a change in circumstances because both parties had claimed there had been a material and substantial change in circumstances in their pleadings. This constituted a judicial admission that a material and substantial change existed. Under a new law applicable to motions filed after September 1, 2021,, a party who moves to modify an order related to conservatorship, possession or access, or child support based on a material and substantial change in circumstances will not be deemed “to have admitted a material and substantial change of circumstances regarding any other matter” based solely on the fact they filed the motion. Tex. Fam. Code § 156.007. The motion in this case was filed before the effective date of the new law, so the old law is applicable and the pleadings constituted a judicial admission of a material and substantial change.
The mother also argued there was not any evidence the change was in the child’s best interest. The appeals court noted a trial court has broad discretion in determining the best interest of the child. Texas law has identified a number of factors a court may consider, but the court is not limited to those factors nor is it required to consider them all.
The appeals court noted that the mother’s home was less stable than the father’s. The appeals court also pointed out that the father’s plan to keep the child in the same school district seemed to offer her more continuity. The mother’s proposed modification would also reduce the child’s time with her father.
The appeals court therefore found there was some substantive and probative evidence that supported the trial court’s decision that the modification was in the child’s best interest. The appeals court affirmed the modification order.
Retain Attorneys Who Know the Law: Call McClure Law Group Today
Generally, when a parent seeks a modification to a custody order, they must allege there has been a material and substantial change in circumstances since the prior order. Although Tex. Fam. Code § 156.007 will change the rule on judicial admissions in such cases, it can be difficult for a party to argue there has not been a material and substantial change to support a modification sought by the other parent when the party has argued for the existence of such a change in support of their own proposed modification. If you are seeking a modification, you need an experienced Texas child custody modification attorney on your side. Call McClure Law Group at 214.692.8200 to schedule your consultation.