Modification of Texas Orders
Continuing, Exclusive Jurisdiction: The court that rendered the order sought to be modified generally retains continuing, exclusive jurisdiction unless that jurisdiction has been transferred to another court under Family Code chapter 155 or section 262.203. Tex. Fam. Code §§ 155.002, 155.201, 262.203. If the petition fails to allege either (1) that no court has continuing, exclusive jurisdiction of the child and the issue is not disputed by the pleadings or (2) that the court in which the suit or petition to modify has been filed has acquired and retains continuing, exclusive jurisdiction of the child as the result of a prior proceeding and the issue is not disputed by the pleadings, then the petitioner or the court shall request from the vital statistics unit identification of the court that last had continuing, exclusive jurisdiction of the child in a suit. Tex. Fam. Code § 155.101(a).
A voluntary or involuntary dismissal of a suit affecting the parent-child relationship does not create continuing, exclusive jurisdiction in a court. Tex. Fam. Code § 155.001(b)(1); Ramirez v. LaCombe, No. 01-17-00977-CV, 2019 WL 922058, at *2 (Tex. App.—Houston [1st Dist.] Feb. 26, 2019, no pet.) (mem. op.).
Jurisdiction to Modify Order: The court with continuing, exclusive jurisdiction may modify its order regarding managing conservatorship, possessory conservatorship, possession of and access to a child, and support of a child unless certain circumstances exist. Tex. Fam. Code § 155.003(a).
The Texas court may not exercise its continuing, exclusive jurisdiction to modify managing conservatorship if the child’s home state is not Texas or if modification is precluded by the Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA). The court may not exercise its continuing, exclusive jurisdiction to modify possessory conservatorship or possession of or access to a child if the child’s home state is not Texas and all parties have established and continue to maintain their principal residence outside Texas or if each individual party has filed written consent with the Texas court for a tribunal of another state to modify the order and assume continuing, exclusive jurisdiction of the suit. The court may not exercise its continuing, exclusive jurisdiction to modify its child support order if modification is precluded by the Uniform Interstate Family Support Act (UIFSA). Tex. Fam. Code § 155.003(b)–(d).
COMMENT: If the modification suit involves out-of-state parties or orders, the practitioner should refer to the UCCJEA, chapter 152 of the Family Code, and UIFSA, chapter 159 of the Family Code. See chapter 43 of this manual.
Loss of Continuing, Exclusive Jurisdiction: A Texas court loses its continuing, exclusive jurisdiction to modify its order if (1) an order of adoption is rendered by another court in an original suit filed as described by Family Code section 103.001(b); (2) the parents have remarried each other after the dissolution of a previous marriage between them and file a suit for the dissolution of their subsequent marriage combined with a suit affecting the parent-child relationship as if there had not been a prior court with continuing, exclusive jurisdiction over the child; or (3) another court assumed jurisdiction over a suit and rendered a final order based on incorrect information received from the vital statistics unit that there was no court of continuing, exclusive jurisdiction. Tex. Fam. Code § 155.004(a).
There are several routes to standing to modify a previous order under Family Code section 156.002. A party affected by an order may file a suit to modify that order in the court with continuing, exclusive jurisdiction. A person or entity who has standing to sue under Family Code chapter 102 may file a modification suit in the court with continuing, exclusive jurisdiction. The sibling of a child who is separated from the child because of the actions of the Department of Family and Protective Services may file a suit for modification requesting access to the child in the court with continuing, exclusive jurisdiction. Tex. Fam. Code § 156.002.
To have standing under section 156.002(a) to seek a modification, a person must not only be a party to the order sought to be modified but also have a “sufficient interest” in a child who was the subject of the order such that the order affected the person. In re Shifflet, 462 S.W.3d 528, 540–41 (Tex. App.—Houston [1st Dist.] 2015, orig. proceeding) (intervenor stepgrandparents, who were given telephone access to children and signed agreed order that is subject of modification suit, are parties affected by prior order and have standing to intervene in suit to modify that order); In re S.A.M., 321 S.W.3d 785, 789–92 (Tex. App.—Houston [14th Dist.] 2010, no pet.) (intervenor in prior suit affecting parent-child relationship, who was given telephone access to children and signed agreed order that is subject of modification suit, is a “party affected by an order” and has standing to seek modification of order).
Under section 156.002(b), a person who was not a party to the order sought to be modified may have standing to file a modification. In re B.N.L.-B., 523 S.W.3d 254, 262–63 (Tex. App.—Dallas 2017, no pet.) (when parents agreed that nonparent could have court-ordered possession of and access to child in prior order, they necessarily also agreed to nonparent’s right to file modification in subsequent suit); In re Chester, 398 S.W.3d 795, 800–802 (Tex. App.—San Antonio 2011, orig. proceeding) (aunt with standing to sue under chapter 102 could file for modification of prior grandparent access order to which she was not party).
In addition to the general standing to file suit provided by Family Code section 102.003, a grandparent, or another relative of the child related within the third degree by consanguinity, may file an original suit requesting managing conservatorship if there is satisfactory proof to the court that (1) the order requested is necessary because the child’s present circumstances would significantly impair the child’s physical health or emotional development or (2) both parents, the surviving parent, or the managing conservator or custodian either filed the petition or consented to the suit. Tex. Fam. Code § 102.004(a)(1), (a)(2). However, a party seeking standing under section 102.004(a)(1) is not required to show that he would prevail on the underlying claim for conservatorship. Rolle v. Hardy, 527 S.W.3d 405, 421–23 (Tex. App.—Houston [1st Dist.] 2017, no pet.). All of the past actions or omissions of the parties are relevant to a determination of a child’s present circumstances at the time the suit is filed. Rolle, 527 S.W.3d 405, 423.
An original suit requesting possessory conservatorship may not be filed by a grandparent. However, a court may grant a grandparent or other person deemed by the court to have had substantial past contact with the child leave to intervene in a pending suit filed by a person with standing if there is satisfactory proof to the court that appointment of a parent as a sole managing conservator or both parents as joint managing conservators would significantly impair the child’s physical health or emotional development. Tex. Fam. Code § 102.004(b).
A grandparent may request possession of a grandchild in an original suit or a modification action without regard to whether the appointment of a managing conservator is an issue if the denial of possession would significantly impair the child’s physical health or emotional well-being. Tex. Fam. Code § 153.432.
For a comprehensive discussion of grandparent standing, see chapter 44 in this manual.
The statute also provides standing to file a suit for modification requesting access to a child for a sibling who is separated from a child by the actions of the Department of Family and Protective Services. See Tex. Fam. Code § 156.002(c).
The Office of the Attorney General (OAG) is authorized to provide all services that title IV-D of the federal Social Security Act (42 U.S.C. § 651 et seq.) requires or authorizes. See Tex. Fam. Code § 231.101(a). Additionally, governmental entities have general standing to file a suit to modify a conservatorship order. See Tex. Fam. Code §§ 102.003(a)(5), 156.002(b). The Family Code also expressly authorizes the OAG, as the state’s title IV-D agency, to review a support order at any time on a showing of a material and substantial change in circumstances, taking into consideration the best interests of the child; if the agency determines that the primary care and possession of the child has changed, the agency may file a petition for modification under Code chapter 156. Tex. Fam. Code § 231.101(d). Therefore, the OAG is authorized to seek a modification of conservatorship when the modification is related to the establishment, modification, or enforcement of a child support obligation in a title IV-D case. Office of Attorney General v. C.W.H., 531 S.W.3d 178, 186 (Tex. 2017) (Family Code authorizes OAG to seek to modify conservatorship when doing so relates to parent’s child support obligations).
The petition and all other documents in the proceeding should be entitled “In the Interest of __________, a Child.” Tex. Fam. Code § 102.008(a). The petition must contain certain very specific information as set forth in Family Code section 102.008(b). See Tex. Fam. Code § 102.008(b).
COMMENT: Although the name and birth date of a minor are classified as sensitive data (see Tex. R. Civ. P. 21c(a), (b)), their inclusion in a pleading in a suit affecting the parent-child relationship is statutorily required. Since the pleading must contain sensitive data, the clerk must be notified of that fact. A document that is not electronically filed must contain, on the upper left-hand side of the first page, the phrase “NOTICE: THIS DOCUMENT CONTAINS SENSITIVE DATA.” Tex. R. Civ. P. 21c(d)(2). If the document is electronically filed, it must be designated as containing sensitive data when it is filed. Tex. R. Civ. P. 21c(d)(1).
If the modification involves a child custody proceeding, which includes a proceeding for legal custody, physical custody, or visitation with respect to a child, and not all parties reside in Texas, the first pleading by each party must contain either in the body of the pleading or in an attached affidavit the information set forth in Family Code section 152.209. See Tex. Fam. Code §§ 152.102(4), 152.209(a). If the information required by Family Code section 152.209(a) has not been provided in each of the parties’ first pleadings or in an attached affidavit, the court, on motion of a party or on its own motion, may stay the proceeding until the information is furnished. Tex. Fam. Code § 152.209(b).
The first numbered paragraph of the petition must include an allegation of the intended discovery level. Tex. R. Civ. P. 190.1.
The petition must state whether, in regard to a party to the suit or a child of a party to the suit, there is in effect a protective order under Family Code title 4, a protective order under chapter 7A of the Code of Criminal Procedure, or an order for emergency protection under article 17.292 of the Code of Criminal Procedure. The petition also must state whether an application for any of these orders is pending. The petitioner must attach a copy of each such protective order in which a party to the suit or the child of a party to the suit was the applicant or victim of the conduct alleged in the application or order and the other party was the respondent or defendant of an action regarding the conduct alleged in the application or order without regard to the date of the order. If a copy of the order is not available at the time of filing, the petition must state that a copy will be filed with the court before any hearing. Tex. Fam. Code § 102.008(b)(11), (c).
In a suit in which modification of child support or medical support is sought, before a hearing on temporary orders or a final order, if no hearing on temporary orders is held, the court shall require the parties to the proceedings to disclose in a pleading or other statement (1) if private health insurance is in effect for the child, the identity of the insurance company providing the coverage, the policy number, which parent is responsible for payment of any insurance premium for the coverage, whether the coverage is provided through a parent’s employment, and the cost of the premium or (2) if private health insurance is not in effect for the child, whether (a) the child is receiving medical assistance under chapter 32, Human Resources Code; (b) the child is receiving health benefits coverage under the state child health plan under chapter 62, Health and Safety Code, and the cost of any premium; and (c) either parent has access to private health insurance at reasonable cost to the obligor. Tex. Fam. Code § 154.181(a), (b). “Reasonable cost” means the cost of health insurance coverage for a child that does not exceed 9 percent of the responsible parent’s annual resources, as described by section 154.062(b), if the obligor is responsible under a medical support order for the cost of health insurance coverage for only one child; if the obligor is responsible under a medical support order for the cost of health insurance coverage for more than one child, “reasonable cost” means the total cost of health insurance coverage for all children for whom the obligor is responsible under a medical support order that does not exceed 9 percent of the obligor’s annual resources, as described by section 154.062(b). Tex. Fam. Code § 154.181(e).
Before a hearing on temporary orders, or a final order if no hearing on temporary orders is held, the court shall require the parties to the proceedings to disclose in a pleading or other document whether the child is covered by dental insurance. If the child is covered, the parties must disclose the following: the identity of the insurer providing the coverage, the policy number, which parent is responsible for payment of any insurance premium for the coverage, whether the coverage is provided through a parent’s employment, and the cost of the premium. If dental insurance is not in effect for the child, the parties must disclose whether either parent has access to dental insurance at reasonable cost to the obligor. Tex. Fam. Code § 154.1815(b), (c). “Reasonable cost” means the cost of a dental insurance premium that does not exceed 1.5 percent of the responsible parent’s annual resources, as described by section 154.062(b), if the obligor is responsible under a dental support order for the cost of dental insurance coverage for only one child; if the obligor is responsible under a dental support order for the cost of dental insurance coverage for more than one child, “reasonable cost” means the total cost of dental insurance coverage for all children for whom the obligor is responsible under a dental support order that does not exceed 1.5 percent of the obligor’s annual resources, as described by section 154.062(b). Tex. Fam. Code § 154.1815(a).
The court’s order for modification must conform to the pleadings unless an issue is tried by consent. Flowers v. Flowers, 407 S.W.3d 452, 458 (Tex. App.—Houston [14th Dist.] 2013, no pet.) (court abused its discretion by removing geographic restriction when there were no pleadings to support that request and the issue was not tried by consent). But see Peck v. Peck, 172 S.W.3d 26, 35 (Tex. App.—Dallas 2005, pet. denied) (pleadings are of little importance in child custody cases).
§ 41.4Conditions Precedent to Filing Suit
In the absence of an agreement of the parties, the court has no authority to require mediation as a precondition to filing a modification suit. In re K.L.D., No. 12-10-00386-CV, 2012 WL 2127464, at *8 (Tex. App.—Tyler June 13, 2012, no pet.) (mem. op.).
In an agreed divorce, a contractual condition precedent requiring a parent to pay the other parent a sum of money on the date a suit for modification is filed was found void because it violated section 154.124(c) of the Texas Family Code prohibiting agreements regarding child support to be enforced as a contract. In re I.R.H., No. 04-12-00366-CV, 2013 WL 1850778 (Tex. App.—San Antonio May 1, 2013, pet. denied) (mem. op.).
Denying a party access to courts absent payment of money has been found to be a denial of access to courts under due course of law. Byars v. Evans, No. 07-14-00064-CV, 2016 WL 105671, at *5 (Tex. App.—Amarillo Jan. 8, 2016, no pet.) (mem. op.) (distinguishing In re Flores, 135 S.W.3d 863, 865 (Tex. App.—Houston [1st Dist.] 2004, orig. proceeding). In Byars, the trial court’s order provided that “except upon good cause shown by sworn affidavit, prior to filing any further Motions regarding the children, Father shall demonstrate that he has paid no less than $10,000 of the attorney’s fees awarded” to the mother. The court distinguished Flores because the father in Flores was not permitted to proceed to trial under any circumstances other than payment of interim attorney’s fees, resulting in a complete denial of his access to courts. In Byars, the court found the trial court’s order—in a family law case where there was a strong level of animosity between the parties—conditioning the filing of further motions on compliance with a reasonable condition to be akin to the denial of access to the courts imposed on a vexatious litigant through the use of a prefiling order. Because the father’s access to court was initially conditioned “upon good cause shown by sworn affidavit” before filing a motion regarding his children, the denial of access to the courts was not absolute. Byars, 2016 WL 105671, at *5.
The Texas Rules of Civil Procedure applicable to the filing of an original lawsuit apply to a suit for modification under Family Code chapter 156. Tex. Fam. Code § 156.004. A party whose rights and duties may be affected by the suit for modification is entitled to receive notice by service of citation. Tex. Fam. Code § 156.003.
Provisions concerning service of citation by publication in a title 5 case are contained in Family Code section 102.010. See Tex. Fam. Code § 102.010. If citation by publication is authorized, the court may, on motion, prescribe a different method of substituted service if the court finds and recites in its order that the method so prescribed would be as likely as publication to give the defendant actual notice. Tex. R. Civ. P. 109a.
A diligent attempt must be made to personally serve a respondent before alternate service can be authorized by the court. A complete failure of service deprives a litigant of due process and a trial court of personal jurisdiction; the resulting judgment is void and may be challenged at any time. In re E.R., 385 S.W.3d 552, 565–66 (Tex. 2012).
Waiver of Service: A party may waive service after the suit is filed by filing a waiver acknowledging receipt of a copy of the citation. The waiver may not be signed using a digitized signature. The waiver must contain the party’s mailing address, and it must be sworn before a notary public who is not an attorney in the suit unless the party waiving is incarcerated. The Texas Rules of Civil Procedure do not apply to these waivers. Tex. Fam. Code § 102.0091.
§ 41.6Trial before Associate Judge
Trial before an associate judge is discussed in section 40.9 in this manual.
§ 41.7Trial before Assigned Judge
Trial before an assigned judge is discussed in section 40.10 in this manual.
Notwithstanding rules 296 through 299 of the Texas Rules of Civil Procedure, if the court finds that a suit to modify is filed frivolously or is designed to harass a party, the court shall state that finding in the order and assess attorney’s fees against the offending party. Tex. Fam. Code § 156.005; see Kelsall v. Haisten, 564 S.W.3d 157, 165–67 (Tex. App.—Houston [1st Dist.] 2018, no pet.) (father engaged in pattern of harassing behavior that trial court could have reasonably determined was intended to deplete mother’s resources and demonstrated that father filed suit as means to get access to child’s psychiatric records rather than stated purpose of seeking conservatorship); see also D.R. v. J.A.R., 894 S.W.2d 91, 95–96 (Tex. App.—Fort Worth 1995, writ denied) (respondent awarded attorney’s fees where court found that modification suit was “frivolous and designed to harass” and that termination action had “no merit or basis in fact or in law and was filed late in the proceedings for purposes of harassment and leverage”).
A “frivolous” suit is generally understood to mean one that does not have a reasonable basis in law or fact. In determining whether sanctions are appropriate, the trial court must examine the facts available to the litigant and the circumstances existing when the litigant filed the pleading. Generally, courts presume that pleadings and other papers are filed in good faith. The party seeking sanctions bears the burden of overcoming the presumption. Kelsall, 564 S.W.3d at 165.
A family court is not required to state good cause for adjudging costs against the successful party as is required in other civil cases. Carlson v. Carlson, 983 S.W.2d 304, 309–10 (Tex. App.—Houston [1st Dist.] 1998, no pet.); see also Goheen v. Koester, 794 S.W.2d 830, 836 (Tex. App.—Dallas 1990, writ denied) (not abuse of discretion for trial court to have ordered appellant, who obtained all relief he requested, to pay attorney’s fees incurred by appellee, who was only partially successful).
§ 41.9Grounds for Modification: Conservatorship, Possession and Access, or Right to Designate Residence
§ 41.9:1Grounds for Modification of Order Establishing Conservatorship or Possession and Access
The court may modify an order that provides for the appointment of a conservator, provides the terms and conditions of conservatorship, or provides for possession or access if the modification would be in the best interest of the child and (1) the circumstances of the child, a conservator, or other party affected by the order have materially and substantially changed since the earlier of the date of the rendition of the order or the date of the signing of a mediated or collaborative law settlement agreement on which the order is based; (2) the child is at least twelve years of age and has expressed to the court in chambers as provided by section 153.009 the name of the person who is the child’s preference to have the exclusive right to designate the primary residence of the child; or (3) the conservator who has the exclusive right to designate the primary residence of the child has voluntarily relinquished the primary care and possession of the child to another person for at least six months. The voluntary relinquishment ground does not apply to a conservator who has temporarily relinquished the primary care and possession of the child to another person during the conservator’s military deployment, military mobilization, or temporary military duty. Tex. Fam. Code § 156.101.
Under the plain meaning of section 156.101(a)(1), a merger clause (providing that, in the event of a conflict between the mediated settlement agreement and the subsequent order, the terms of the order supersede the agreement) does not affect the determination of the start date for the timeframe for evaluating whether changed circumstances justify modification. See In re C.Z.P., No. 14-17-00565-CV, 2019 WL 386048, at *2 (Tex. App.—Houston [14th Dist.] Jan. 31, 2019, no pet.) (mem. op.) (date mediated settlement agreement was signed controls over date of rendition of subsequent order).
Even if a conservator’s circumstances have not materially and substantially changed, modification is available if the child’s circumstances have materially and substantially changed. In re A.L.E., 279 S.W.3d 424, 428 (Tex. App.—Houston [14th Dist.] 2009, no pet.).
The Family Code provides guidelines for possession of or access to an adult disabled child, but the adult disabled child, if mentally competent, may refuse possession or access. Tex. Fam. Code § 154.309(b).
Family Code chapter 153 provides guidelines for possession of and access to a child by a parent. Section 153.317 specifically provides what is frequently referred to as the “expanded possession,” which allows a conservator to elect certain alternative beginning and ending times for that conservator’s periods of possession; most of the alternative times relate to dismissal or resumption of the child’s school. See Tex. Fam. Code § 153.317. This election, however, is not available in a modification suit unless the possessory conservator is first able to establish at least one of the grounds set forth in Family Code section 156.101. See In re Davis, 30 S.W.3d 609, 613–14 (Tex. App.—Texarkana 2000, no pet.) (addressing now-repealed Family Code section 156.301). Further, section 153.317 does not provide for a separate cause of action for modification of a possession schedule to expanded possession when the election was not made before or at the time of the rendition of the original or prior modification order. In re C.A.P., Jr., 233 S.W.3d 896 (Tex. App.—Fort Worth 2007, no pet.).
If the possessory conservator resides not more than fifty miles from the child’s primary residence, the alternative possession times are to be provided unless the possessory conservator declines one or more of the alternative times or the court finds the provision would not be in the child’s best interest. Tex. Fam. Code § 153.3171. Enactment of section 153.3171 does not constitute a material and substantial change of circumstances to warrant modification of an existing order providing for the possession of or access to a child rendered before the effective date, September 1, 2021. See Acts 2021, 87th Leg., R.S., ch. 896, § 4 (H.B. 3203); Acts 2021, 87th Leg., R.S., ch. 967, § 4 (S.B. 1936).
§ 41.9:2Modification of Exclusive Right to Designate Primary Residence of Child within One Year
If a suit seeking to modify the designation of the person having the exclusive right to designate the primary residence of the child is filed within one year after the earlier of the date of the rendition of the order or the date of the signing of a mediated or collaborative law settlement agreement on which the order is based, the person filing the suit must execute and attach an affidavit that contains, 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 is the person seeking or consenting to the modification and that the modification is in the best interest of the child.
3.That the person who has the exclusive right to designate the primary residence of the child has voluntarily relinquished the primary care and possession of the child for at least six months and that the modification is in the best interest of the child.
Tex. Fam. Code § 156.102(a), (b).
The voluntary relinquishment ground does not apply to a person with the exclusive right to designate the child’s primary residence who has temporarily relinquished the primary care and possession of the child to another person during the conservator’s military deployment, military mobilization, or temporary military duty. Tex. Fam. Code § 156.102(d).
The one-year period referred to in section 156.102(a) begins on the date of rendition of the prior order. Because rendition of an order can occur by oral pronouncement, section 156.102 does not require a written, signed order to trigger the beginning of the one-year period. In re K.R.Z., No. 04-14-00876-CV, 2015 WL 4478123, at *2 (Tex. App.—San Antonio July 22, 2015, no pet.) (mem. op.).
In In re J.A., the parties were named joint managing conservators in an agreed conservatorship order signed more than two years before the father filed a petition to modify conservatorship. Between the date of the prior conservatorship order and the date of filing the petition to modify conservatorship, the Office of the Attorney General filed a suit to confirm a nonagreed child support review order that increased the father’s child support and health care obligations but did not address any specifics on conservatorship or incorporate the prior conservatorship order by reference. The father filed his petition to modify conservatorship twenty days later. In determining which order is controlling for purposes of determining the filing of a modification action, the El Paso court of appeals held that the petition to modify conservatorship was not filed within one year of the order sought to be modified and that therefore no affidavit was required. In re J.A., 482 S.W.3d 141, 146 (Tex. App.—El Paso 2015, no pet.); see also In re K.K.R., No. 04-18-00250-CV, 2019 WL 451761, at *3 (Tex. App.—San Antonio Feb. 6, 2019, no pet.) (mem. op.).
If the court determines that the facts stated are adequate to support an allegation, the court shall set a time and place for the hearing. Tex. Fam. Code § 156.102(c); Burkhart v. Burkhart, 960 S.W.2d 321, 323–24 (Tex. App.—Houston [1st Dist.] 1997, pet. denied) (affidavit statements that child endangered by adults smoking in household, that former wife unemployed, and that former wife relocated to California too nebulous to support modification within one year; facts must specifically relate to effect on child). If the affidavit is not filed or the court finds the affidavit is insufficient, the court must deny the relief sought and refuse to schedule a hearing. Tex. Fam. Code § 156.102(c); In re J.R.P., 526 S.W.3d 770, 778 (Tex. App.—Houston [14th Dist.] 2017, no pet.) (statute does not require dismissal, only that court deny relief sought and refuse to schedule hearing); In re A.S.M., 172 S.W.3d 710, 716 (Tex. App.—Fort Worth 2005, no pet.) (trial court did not err when it refused to hear merits of matter and dismissed case due to absence of affidavit). Any error in holding a hearing is harmless, however, if the testimony admitted during the hearing supports the allegation that the child’s environment may significantly impair the child’s physical health or emotional development. In re Charles, No. 03-17-00731-CV, 2017 WL 5985524, at *3–5 (Tex. App.—Austin Dec. 1, 2017, orig. proceeding) (mem. op.); In re Eddins, No. 15-16-01451-CV, 2017 WL 2443138, at *4 (Tex. App.—Dallas June 5, 2017, orig. proceeding [mand. denied]) (mem. op.); In re C.G., No. 04-13-00749-CV, 2014 WL 3928612, at *3 (Tex. App.—San Antonio Aug. 13, 2014, no pet.) (mem. op.).
An affidavit not explicitly based on personal knowledge is legally insufficient. In re D.W.J.B., 362 S.W.3d 777, 781 (Tex. App.—Texarkana 2012, no pet.) (citing Marks v. St. Luke’s Episcopal Hospital, 319 S.W.3d 658, 666 (Tex. 2010)); Kerlin v. Arias, 274 S.W.3d 666, 668 (Tex. 2008) (per curiam). The affidavit must contain sworn facts showing that the child is presently being harmed. In re D.W.J.B., 362 S.W.3d at 781 (affidavit listing father’s past criminal history and car accidents did not show child’s present circumstances could endanger his physical health or significantly impair his emotional development). The fact that a hearing was set by the court is proof that the court found the affidavit to be adequate. In re A.L.W., 356 S.W.3d 564, 566–67 (Tex. App.—Texarkana 2011, no pet.). Even if a court holds a hearing in the absence of a supporting affidavit, the error is harmless if the testimony admitted during the hearing supports the allegation that the child’s environment may significantly impair the child’s emotional development. In re A.L.W., 356 S.W.3d at 567.
Family Code section 156.102 does not apply to a suit seeking an order designating a person with the right to determine the primary residence of the children for the first time, rather than a modification of the person so designated. See In re A.D.C., No. 11-17-00190-CV, 2019 WL 1428630, at *3 (Tex. App.—Eastland Mar. 29, 2019, no pet.) (mem. op.); In re X.L.B., No. 04-17-00706-CV, 2018 WL 5808316, at *2 (Tex. App.—San Antonio Nov. 7, 2018, no pet.) (mem. op.).
A suit brought within one year seeking to impose a geographic restriction on the custodial parent (see In re A.C.S., 157 S.W.3d 9, 18 (Tex. App.—Waco 2004, no pet.)) or to eliminate or modify the terms of a geographic restriction (see In re A.S.M., 172 S.W.3d 710, 715 (Tex. App.—Fort Worth 2005, no pet.)) is a suit seeking to modify the designation of the person having the exclusive right to designate the primary residence of a child for the purposes of Tex. Fam. Code § 156.102. But see In re C.R.A., 453 S.W.3d 623 (Tex. App.—Fort Worth 2014, no pet.). In In re C.R.A., the father filed for modification of a Georgia decree within one year, but he did not file the affidavit required by Tex. Fam. Code § 156.102. The Georgia decree did not designate a person with the exclusive right to determine the children’s residence; the geographic restriction in the decree was not attached to anyone’s exclusive right to determine the children’s residence; and the geographic restriction expired with time, with no post-expiration provision. Because the Georgia decree did not comply with either subsection (A) or (B) of Code section 153.134(b)(1), section 156.102 did not apply. In re C.R.A., 453 S.W.3d at 632.
In the absence of a request for findings of fact and conclusions of law, the appellate court may assume that the trial court made the finding that the children’s present environment endangered their physical health or significantly impaired their emotional development in support of the judgment. In re S.A.E., No. 06-08-00139-CV, 2009 WL 2060087 (Tex. App.—Texarkana July 17, 2009, no pet.) (mem. op.).
For additional discussion of the significant impairment standard, see section 41.11 below.
Temporary Orders: A party requesting a temporary order that has the effect of creating a designation, or changing the designation, of the person having the exclusive right to designate the primary residence of the child, or the effect of creating a geographic area, or changing or eliminating the geographic area, within which a conservator must maintain the child’s primary residence, must meet the requirements of section 156.006 of the Texas Family Code. Tex. Fam. Code § 156.006(b), (b)(1); In re Sanchez, 228 S.W.3d 214 (Tex. App.—San Antonio 2007, orig. proceeding) (where evidence showed modification was clearly pursued because child was spending more time with grandparents than with custodial parent, trial court abused its discretion by entering temporary order, because evidence did not meet requirements of section 156.006); In re Payne, No. 10-11-00402-CV, 2011 WL 6091265, at *2 (Tex. App.—Waco Dec. 2, 2011, orig. proceeding) (mem. op.); In re Winters, No. 05-08-01486-CV, 2008 WL 5177835, at *2 (Tex. App.—Dallas Dec. 11, 2008, orig. proceeding) (mem. op.).
COMMENT: Standing orders prohibiting a party from removing a child from a specified geographic area that are ordinarily effective on the filing of a suit may have the effect of creating a geographic area, or changing or eliminating the geographic area, within which a conservator must maintain the child’s primary residence in violation of Family Code section 156.006(b).
§ 41.9:3Increased Expenses because of Change of Residence
If a change of residence results in increased expenses for a party having possession of or access to a child, the court may render appropriate orders to allocate those increased expenses on a fair and equitable basis, taking into account the cause of the increased expenses and the best interest of the child. The payment of increased expenses by the party whose residence is changed is rebuttably presumed to be in the best interest of the child. The court may render an order without regard to whether another change in the terms and conditions for possession of or access to the child is made. Tex. Fam. Code § 156.103.
§ 41.9:4Presumptions in Modification Suits
There is a statutory rebuttable presumption set forth in section 153.131(b) of the Family Code that the appointment of the parents of a child as joint managing conservators is in the best interest of the child. Subject to the prohibition concerning family violence in Family Code section 153.004, a parent shall be appointed sole managing conservator or both parents shall be appointed joint managing conservators unless the court finds that the appointment would not be in the best interest of the child because the appointment would significantly impair the child’s physical health or emotional development. Tex. Fam. Code § 153.131(a).
In In re C.J.C., 603 S.W.3d 804 (Tex. 2020), the Texas Supreme Court recognized a “legal presumption” that it is in a child’s best interest to be raised by the child’s parents. Although the best interest of the child is the paramount issue in a custody determination, the presumption is that the best interest of children is served by awarding them to a parent. Thus, the fit-parent presumption is deeply embedded in Texas law as part of the determination of a child’s best interest. The court refers to this presumption as the “fit-parent” presumption. In re C.J.C., 603 S.W.3d at 812. “[A] court must apply the presumption that a fit parent—not the court—determines the best interest of the child in any proceeding in which a nonparent seeks conservatorship or access over the objection of a child’s fit parent.” In re C.J.C., 603 S.W.3d at 817.
Once a conservatorship order has been implemented, the concept of res judicata attaches, and the order establishes what was in the best interest of the children at the time of the order. Bates v. Tesar, 81 S.W.3d 411, 421 (Tex. App.—El Paso 2002, no pet.); see In re V.L.K., 24 S.W.3d 338 (Tex. 2000) (child’s imprisoned mother had consented to appointment of child’s maternal grandmother as managing conservator; therefore jury instruction that no parental presumption applied was correct statement of law); Taylor v. Meek, 276 S.W.2d 787 (Tex. 1955) (father seeking to modify court order after grandparents had been named managing conservators not entitled to parental presumption in subsequent modification proceeding).
In extending the fit-parent presumption to modification proceedings, the court in C.J.C. stated that “we read any best-interest determination in which the court weighs a fit parent’s rights against a claim to conservatorship or access by a nonparent to include a presumption that a fit parent acts in his or her child’s best interest.” In re C.J.C., 603 S.W.3d at 818–19.
The death of a parent does not terminate prior custody provisions in a divorce decree. In re P.D.M., 117 S.W.3d 453, 460–61 (Tex. App.—Fort Worth 2003, pet. denied). See also Tex. Fam. Code § 156.106 (death of conservator is material and substantial change of circumstances sufficient to justify temporary order and modification of conservatorship or possession order). But see Dohrn v. Delgado, 941 S.W.2d 244, 247–48 (Tex. App.—Corpus Christi–Edinburg 1996, orig. proceeding) (death of parent terminates prior custody provisions in divorce decree) (citing Greene v. Schuble, 654 S.W.2d 436, 438 (Tex. 1983) (orig. proceeding), which held that the original custody order was terminated solely for the purpose of habeas corpus).
§ 41.9:5Material Change of Circumstances
A court may modify an order that provides for the appointment of a conservator of a child, that provides the terms and conditions of conservatorship, or that provides for the possession of or access to a child if modification would be 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 the date of the rendition of the order or the date of the signing of a mediated or collaborative law settlement agreement on which the order is based. Tex. Fam. Code § 156.101(a)(1). A changed circumstance alone does not permit modification. The change must also be substantial and material. In re A.M., No. 07-20-00130-CV, 2020 WL 7651973, at *3 (Tex. App.—Amarillo Dec. 23, 2020, pet. denied) (mem. op.).
When considering whether a material change of circumstances has occurred, Texas courts have deemed the remarriage of one or both parents to be a pertinent factor. In re S.R.O., 143 S.W.3d 237, 244–45 (Tex. App.—Waco 2004, no pet.). Additionally, Texas courts uniformly recognize that the parental abilities of the parent seeking custody and the stability of that parent’s home are factors to be considered in determining what is in the best interests of the child. Accordingly, evidence regarding the conduct and abilities of a stepparent can be relevant and admissible in a suit seeking modification of conservatorship. In re C.Q.T.M., 25 S.W.3d 730, 734 (Tex. App.—Waco 2000, pet. denied). A trial court may consider the effect of a parent’s lifestyle choices on the children when deciding matters of custody. In re M.S.F., 383 S.W.3d 712, 716–17 (Tex. App.—Amarillo 2012, no pet.).
In considering whether a change of circumstances has occurred, the trial court compares the evidence of the conditions that existed at the time of entry of the prior order with evidence of the conditions that exist at the time of the hearing on the petition to modify. In re T.M.P., 417 S.W.3d 557, 563–64 (Tex. App.—El Paso 2013, no pet.); In re W.C.B., 337 S.W.3d 510, 514 (Tex. App.—Dallas 2011, no pet.). In deciding whether circumstances have materially and substantially changed, the trial judge is not confined to rigid or definite guidelines. In re T.M.P., 417 S.W.3d 557 at 564. Rather, the court’s determination is fact-specific and must be made according to the circumstances of the case. In re A.L.E., 279 S.W.3d 424, 428 (Tex. App.—Houston [14th Dist.] 2009, no pet.). The substantial and material change that is relied on as the basis for modification must be material to the modification sought. Smith v. Karanja, 546 S.W.3d 734, 741–42 (Tex. App.—Houston [1st Dist.] 2018, no pet.).
Material changes may include (1) remarriage by a party, (2) poisoning of the child’s mind by a party, (3) change in the home surroundings, (4) mistreatment of the child by a parent or stepparent, and (5) a parent’s becoming an improper person to exercise custody. Smith, 546 S.W.3d at 741. New marriages may qualify if they are shown to affect the parent-child relationship, but the mere fact of remarriage is not sufficient. In re A.T.E., No. 01-19-00481-CV, 2020 WL 5790417, at *5 (Tex. App.—Houston [1st Dist.] Sept. 29, 2020, no pet.) (mem. op.). In addition, “a course of conduct pursued by a managing conservator that hampers a child’s opportunity to favorably associate with the other parent may suffice as grounds for redesignating managing conservators.” In re S.N.Z., 421 S.W.3d 899, 909–10 (Tex. App.—Dallas 2014, pet. denied), quoting Arredondo v. Betancourt, 383 S.W.3d 730, 735 (Tex. App.—Houston [14th Dist.] 2012, no pet.).
Evidence that a parent’s employment is being transferred to another city and that the transfer is expected to provide a significant economic impact on that parent’s household can constitute a material and substantial change of circumstances. See In re H.N.H., No. 04-18-00574-CV, 2019 WL 2996972, at *3 (Tex. App.—San Antonio July 10, 2019, no pet.) (mem. op.).
Repeated allegations of sexual abuse of the child and subjecting the child to repeated physical and forensic examinations constitute a material and substantial change in circumstances. In re T.M.P., 417 S.W.3d at 564.
A parent’s allowing the child’s grandmother, who had a history of drug abuse and routinely uttered profanities, to move in with the parent and to care for the child constituted a material and substantial change of circumstances. See Fleming v. Fleming, No. 13-16-00373-CV, 2018 WL 3599284, at *4 (Tex. App.—Corpus Christi–Edinburg July 27, 2018, no pet.) (mem. op.).
A parent’s drug use can support a trial court’s finding of a material and substantial change. See In re K.D.B., No. 01-18-00840-CV, 2019 WL 4065276, at *9 (Tex. App.—Houston [1st Dist.] Aug. 29, 2019, no pet.) (mem. op.).
Where the only change of circumstances alleged is an investigation by the Texas Department of Family and Protective Services based on allegations of sexual assault of a child that were ultimately determined by the department to be groundless, evidence of that investigation is legally insufficient to support a modification. Warren v. Ulatoski, No. 03-15-00380-CV, 2016 WL 4269999 at *5–6 (Tex. App.—Austin Aug. 11, 2016, pet. denied) (mem. op.).
Examples of changed circumstances that have been found to not meet the threshold of a material or substantial change include (1) a temporary loss of contact with the child, (2) a parent’s decreased participation in raising the child, (3) a parent’s desire, but inability, to have the child travel internationally, and (4) a parent’s desire to spend more time with the child. In re A.T.E., 2020 WL 5790417, at *3.
A change in the number of children under the control of the visitation order is by itself a substantial change, as is the natural change that occurs between age one and age six and the concomitant change in the scope of activities and the needs of the children involved. In re Davis, 30 S.W.3d 609, 614 (Tex. App.—Texarkana 2000, no pet.).
Evidence that a parent with the exclusive right to designate the child’s primary residence had increased work-related travel and the absences increased in duration, that the absences required that the parent leave the child in the care of persons other than the other parent, that there were difficulties with the other parent’s being able to communicate with the caretakers, and that law enforcement was called on several occasions to facilitate the exchange of possession with the caretakers was sufficient to show a material and substantial change of circumstances. See In re Y.C., No. 13-17-00419-CV, 2018 WL 3764210, at *4 (Tex. App.—Corpus Christi–Edinburg Aug. 9, 2018, no pet.) (mem. op.).
Aging of a child alone, in light of a mediated settlement agreement that established which school the child would attend, does not constitute a material and substantial change of circumstances warranting modification of a conservator’s right to make educational decisions. Zeifman v. Michels, 212 S.W.3d 582 (Tex. App.—Austin 2006, pet. denied). While an increase in the age of a child alone may not be a change in circumstances sufficient to justify modification of conservatorship, changed needs of the child may constitute a material change of circumstances and a child’s need for dependable, secure, and stable environment may be different as the child grows older. In re E.A.D.P., No. 05-15-01210-CV, 2016 WL 7449369, at *3 (Tex. App.—Dallas Dec. 28, 2016, no pet.) (mem. op.).
Evidence that the children expressed a desire for more stability and privacy can constitute a material and substantial change. See In re J.J., No. 09-18-00068-CV, 2019 WL 1186768, at *3 (Tex. App.—Beaumont Mar. 14, 2019, no pet.) (mem. op.).
An anticipated circumstance cannot be evidence of a material or substantial change of circumstances. See Smith, 546 S.W.3d at 740–41 (child’s international travel issue was not changed circumstance, but rather issue of some contention between parties that they neglected to address in divorce decree); see also, e.g., In re A.B.R., No. 04-17-00220-CV, 2018 WL 3998684, at *5 (Tex. App.—San Antonio Aug. 22, 2018, no pet.) (mem. op.) (father’s move to Puerto Rico after divorce was contemplated by MSA and divorce decree); Warren, 2016 WL 4269999, at *5 (where mother’s husband was active-duty military and thus subject to relocation, her move out of state was contemplated by parties at time of prior order); In re M.A.F., No. 12-08-00231-CV, 2010 WL 2178541, at *5 (Tex. App.—Tyler May 28, 2010, no pet.) (mem. op.) (travel schedule not changed circumstance where travel issue existed at time of prior order and mother anticipated that child would get older and be in school). A parent’s decision to strictly enforce the standard possession order is not a material and substantial change. The fact that the standard possession order was incorporated into the divorce decree is evidence that the parties anticipated following this schedule. See In re C.W.J., No. 11-17-00085-CV, 2019 WL 1067489, at *7 (Tex. App.—Eastland Mar. 7, 2019, no pet.) (mem. op.).
In a modification suit to lift an international travel restriction, “potential benefit” is not the applicable standard. There must be evidence of a material and substantial change of circumstances since the rendition of the order the subject of the modification. The fact that it may be desirable or even generally beneficial for older children to travel internationally is not evidence that a need has arisen in conjunction with the child’s age sufficient to demonstrate that there has been a material and substantial change of circumstances. Wiese v. AlBakry, No. 03-14-00799-CV, 2016 WL 3136874, at *5 (Tex. App.—Austin June 1, 2016, no pet.) (mem. op.).
Rights and duties of conservators are also subject to modification based on a material and substantial change of circumstances. Evidence that the child’s needs were not being met by the mother’s homeschooling the child without an established curriculum and that the mother’s choice of homeschooling was isolating the child socially supported the trial court’s modification of the prior order, which awarded the mother the exclusive right to make educational decisions, with an order that awarded that right to both parents and required that the child attend public school rather than being homeschooled by the mother. See In re M.C.K., No. 14-17-00289-CV, 2018 WL 1955065, at *7 (Tex. App.—Houston [14th Dist.] Apr. 26, 2018, no pet.) (mem. op.); see also Trammell v. Trammell, 485 S.W.3d 571, 579 (Tex. App.—Houston [1st Dist.] 2016, no pet.) (trial court did not abuse its discretion by modifying parent-child relationship so that both parents shared right to make educational decisions where youngest child was not in school at time of previous order and father’s ability to pay for private-school education had since changed).
Evidence that a parent repeatedly violated the court’s prior orders prohibiting the parent from initiating direct nonwritten communication with the other parent and questioned the other parent in a hostile manner in front of the children and in direct contravention of the court’s prior order, that there were concerns about the parent’s mental health and home life, and that the supervised possession center dismissed the parent as a result of altercations between the parent and the center’s staff, as well as the parent’s admission that she had violated the court’s orders regarding communication and expressed the sentiment that she need not follow the court’s orders if she disagreed with them, supported a finding that there was a material and substantial change of circumstances warranting restrictions on the parent’s exercise of periods of possession and the requirement that periods of possession remain supervised, despite a jury’s determination that the joint managing conservatorship should not be replaced by appointing the other parent as sole managing conservator. In re P.A.C., 498 S.W.3d 210, 218–20 (Tex. App.—Houston [14th Dist.] 2016, pet. denied).
In a modification proceeding, if both parties’ claims contain the common essential element of changed circumstances of one or more of the parties, one party’s allegation that the essential element is met constitutes a judicial admission. In re L.C.L., 396 S.W.3d 712, 718 (Tex. App.—Dallas 2013, no pet.). To be such an admission, though, the assertion must be nothing less than clear and unequivocal, and it may not be alleged in the alternative. Holy Cross Church of God in Christ v. Wolf, 44 S.W.3d 562, 568 (Tex. 2001). Alternative pleadings and factual assertions uttered in those pleadings are not the fodder of judicial admissions. In re A.M., 2020 WL 7651973, at *2. A party who files a motion to modify an order that provides for the appointment of a conservator of a child, that provides the terms and conditions of conservatorship, or that provides for the possession of or access to a child based on a material and substantial change of circumstances may not be considered, on that basis alone, to have admitted a material and substantial change of circumstances regarding any other matter. Tex. Fam. Code § 156.007.
If prior to trial a party nonsuits that party’s pleading alleging a material and substantial change of circumstances, the pleading is no longer a live pleading and the statements contained within it do not constitute judicial admissions. See In re H.P.J., No. 14-17-00715-CV, 2019 WL 1119612, at *5 (Tex. App.—Houston [14th Dist.] Mar. 12, 2019, no pet.) (mem. op.).
Death of Conservator: The death of a person who is a conservator is a material and substantial change of circumstances sufficient to justify a temporary order and modification of an existing court order or portion of a decree that provides for the appointment of a conservator or sets the terms and conditions of conservatorship or for the possession of or access to a child. Before modifying an order based on such a change in circumstances, the court must consider any term or condition of the order or portion of the decree that denies possession of the child to a parent or imposes restrictions or limitations on the parent’s right to possession of or access to the child. The court may include those restrictions or limitations in a modification of the order if the court finds that the restrictions or limitations continue to be in the child’s best interest. Tex. Fam. Code § 156.106.
Conviction for Child Abuse: Except as provided by Family Code section 156.1045, the conviction of a conservator for an offense under section 21.02 of the Penal Code or the conviction of a conservator or an order deferring adjudication with regard to the conservator for an offense involving the abuse of a child under section 21.11, 22.011, or 22.021 of the Penal Code is a material and substantial change of circumstances sufficient to justify a temporary order and modification of an existing court order or portion of a decree that provides for the appointment of a conservator or that sets the terms and conditions of conservatorship or for the possession of or access to a child. A person commits a class B misdemeanor if the person files a suit to modify an order or portion of a decree based on those grounds and the person knows that the person against whom the motion is filed has not been convicted of an offense, or received deferred adjudication for an offense, under section 21.02, 21.11, 22.011, or 22.021 of the Penal Code. Tex. Fam. Code § 156.104.
Conviction for Family Violence: The conviction or an order deferring adjudication of a person who is a possessory conservator or a sole or joint managing conservator for an offense involving family violence is a material and substantial change of circumstances sufficient to justify a temporary order and modification of an existing court order or portion of a decree that provides for the appointment of a conservator or that sets the terms and conditions of conservatorship or for the possession of or access to a child to conform the order to the requirements of Family Code section 153.004(d). A person commits a class B misdemeanor if the person files a suit to modify an order or portion of a decree based on those grounds and the person knows that the person against whom the motion is filed has not been convicted of an offense, or received deferred adjudication for an offense, involving family violence. Tex. Fam. Code § 156.1045.
COMMENT: The court must take into consideration evidence of the intentional use of abusive physical force by a party against the party’s spouse, a parent of the child, or any person younger than eighteen years of age committed within a two-year period preceding the filing of the suit or during the pendency of the suit when determining whether to appoint a party as a joint or sole managing conservator in an original SAPCR. Tex. Fam. Code § 153.004(a). Presumably this statute should apply both in an original suit and in a suit to modify conservatorship or possession and access. However, Family Code chapter 156 does not contain a provision similar to section 153.004. An actual conviction of a conservator for one of certain specified offenses involving child abuse or family violence is a material change in circumstances to justify modification of an existing order that provides for conservatorship, possession, or access. Tex. Fam. Code §§ 156.104(a), 156.1045(a). See the paragraphs entitled “Conviction for Child Abuse” and “Conviction for Family Violence” above.
Military Duty Alone Not Sufficient: The military duty of a conservator who is ordered to military deployment, military mobilization, or temporary military duty does not by itself constitute a material and substantial change of circumstances sufficient to justify a modification of an existing court order or portion of a decree that sets the terms and conditions for the possession of or access to a child, except that the court may render a temporary order under subchapter L of chapter 153 of the Code. Tex. Fam. Code § 156.105. See chapter 45 of this manual concerning military duty.
§ 41.9:6Best Interest of Child
In a suit to modify conservatorship or possession and access, the court's focus is on the best interest of the child. See Tex. Fam. Code § 156.101. In determining the best interest of a child, a court may consider (1) the desires of the child, (2) the child’s emotional and physical needs now and in the future, (3) any emotional and physical danger to the child now and in the future, (4) the parental abilities of the individuals seeking primary possession, (5) the programs available to assist these individuals to promote the child’s best interest, (6) the plans for the child by those seeking primary possession, (7) the stability of the home or proposed placement, (8) the acts or omissions of the parent that may indicate that the existing parent-child relationship is not a proper one, and (9) any excuse for the acts or omissions of the parent. In re C.A.M.M., 243 S.W.3d 211, 221 (Tex. App.—Houston [14th Dist.] 2007, pet. denied) (citing Holley v. Adams, 544 S.W.2d 367, 371–72 (Tex. 1976)).
In the specific context of modification of conservatorship, courts also consider the child’s need for stability and the need to prevent constant litigation regarding conservatorship of the child. In re V.L.K., 24 S.W.3d 338, 343 (Tex. 2000); In re C.A.M.M., 243 S.W.3d at 221; Long v. Long, 144 S.W.3d 64, 68 (Tex. App.—El Paso 2004, no pet.).
Just as a parent’s history is relevant in deciding matters of custody, the history of those with whom the parent associates and to whom the child is exposed has relevance. In re E.J.P., No. 07-17-00304-CV, 2018 WL 2325564, at *2 (Tex. App.—Amarillo May 22, 2018, no pet.) (mem. op.) (not abuse of discretion for trial court to admit testimony from ex-girlfriend of mother’s new husband regarding new husband’s use of physical violence against ex-girlfriend).
Modification of a possession order must be in the best interest of the child, not the parents. See In re M.M.S., 256 S.W.3d 470, 476–77 (Tex. App.—Dallas 2008, no pet.) (trial court abused its discretion limiting Oklahoma father’s periods of possession to Texas and limiting his periods of weekend possession to once per month when there was no evidence children were affected by distance or location and no evidence of any sort that children’s best interest would be served by limiting father’s rights to weekend possession).
The standards for relocation have been reassessed, “moving away from a relatively strict presumption against relocation and toward a more fluid balancing test that permits the trial court to take into account a greater number of relevant factors” in part because of the “[i]ncreasing geographic mobility and the availability of easier, faster, and cheaper communication.” Lenz v. Lenz, 79 S.W.3d 10, 15 (Tex. 2002).
Although relocation, regardless of distance, will not automatically suffice to establish a material and substantial change in circumstances, if the custodial parent moves a significant distance, a finding of changed circumstances may be appropriate. Such a decision is necessarily fact intensive. Bates v. Tesar, 81 S.W.3d 411, 430 (Tex. App.—El Paso 2002, no pet.).
The fact that a divorce decree does not prohibit a parent from relocating is not evidence that the parent seeking relocation anticipated moving at the time of the prior order. See In re C.F.M., No. 05-17-00141-CV, 2018 WL 2276351, at *4 (Tex. App.—Dallas May 18, 2018, no pet.) (mem. op.).
Factors that courts have considered in the relocation context include (1) the parents’ good-faith reasons for and against the proposed move; (2) a comparison of economic, educational, health, and leisure opportunities for the custodial parent and the child; (3) whether the child’s special needs or talents can be accommodated; (4) the effect on the child’s extended family relationships; (5) the effect the move would have on the noncustodial parent’s visitation and communication and his ability to maintain a full and continuous relationship with the child; (6) whether the noncustodial parent has the ability to relocate; and (7) whether a visitation schedule could be arranged that would allow the noncustodial parent to continue a meaningful relationship with the child. Lenz, 79 S.W.3d at 15–16; Holley v. Adams, 544 S.W.2d 367, 371–72 (Tex. 1976) (setting out nonexhaustive list of factors to be considered in determining best interest).
It was not an abuse of discretion for a court to deny relocation where the evidence established that the child’s opportunities would be approximately the same whether or not the child moved. While one parent’s financial situation would be improved by removing the geographic restriction, it would also negatively affect the child’s relationship with the other parent and the child’s extended family. Romero v. Arguello, No. 03-14-00674-CV, 2016 WL 3974762, at *3–5 (Tex. App.—Austin July 21, 2016, no pet.) (mem. op.).
§ 41.9:8Actions outside Cognitive Presence of Child
Actions outside the cognitive presence of the child are discussed in section 40.11 in this manual.
Material and Substantial Change: The court may modify an order that provides for the support of a child, including an order for health-care coverage or dental care coverage, if (1) the circumstances of the child or a person affected by the order to be modified have materially and substantially changed since the earlier of the date of the order’s rendition or the date of the signing of a mediated or collaborative law settlement agreement on which the order is based or (2) it has been three years since the order was rendered or last modified and the monthly amount of the child support award under the order differs by either 20 percent or $100 from the amount that would be awarded in accordance with the child support guidelines. Tex. Fam. Code § 156.401(a).
However, if the parties agreed to an order under which the amount of child support differs from the amount that would be awarded under the child support guidelines, the court may modify the order only if the circumstances of the child or a person affected by the order have materially and substantially changed since the order was rendered. Tex. Fam. Code § 156.401(a–1).
The party seeking the modification bears the burden of establishing that there has been a material and substantial change in circumstances by a preponderance of the evidence. In re N.H.N., 580 S.W.3d 440, 445 (Tex. App.—Houston [14th Dist.] 2019, no pet.).
A party who files a motion to modify an order that provides for the support of a child based on a material and substantial change of circumstances may not be considered, on that basis alone, to have admitted a material and substantial change of circumstances regarding any other matter. Tex. Fam. Code § 156.007.
A court or administrative order for child support in a title IV-D case may be modified at any time, and without a showing of material and substantial change of circumstances, to provide for medical support or dental support of the child if the order does not provide health-care coverage as required by Code section 154.182 or dental care coverage as required by Code section 154.1825. Tex. Fam. Code § 156.401(a–2).
A child support order may be modified with regard to the amount of support ordered only as to obligations accruing after the earlier of the date of service of citation or an appearance in the suit to modify. Tex. Fam. Code § 156.401(b). The trial court has no power to retroactively modify child support to offset an arrearage incurred before the obligor was served or made an appearance in a suit to modify. See In re W.M., 587 S.W.3d 828, 831 (Tex. App.—El Paso 2019, no pet.). The purpose of allowing child support to be modified retroactive to the date of the original request is to remove any motive on the part of the obligor to engage in delay tactics. In re H.S.N., 69 S.W.3d 829, 833 (Tex. App.—Corpus Christi–Edinburg 2002, no pet.). While the trial court is afforded discretion to order retroactive child support, retroactive modification of a child support obligation is not required. To justify retroactive modification of child support, the evidence must directly support a retroactive modification. Radler v. Philavanh, No. 01-19-00931-CV, 2021 WL 2793475, at *9 (Tex. App.—Houston [1st Dist.] July 6, 2021, no pet.) (mem. op.).
COMMENT: The availability of dental support in suits filed on or after September 1, 2018, does not by itself constitute a material and substantial change of circumstances under section 156.401 sufficient to warrant modification of an order for support rendered before September 1, 2018. Acts 2015, 84th Leg., R.S., ch. 1150 (S.B. 550), § 72(b).
A material and substantial change of circumstances is determined by comparing the current circumstances to those that existed on the date of the rendition of the prior support order, rather than the date of denial of a prior motion to modify. In re J.D.D., No. 05-10-01488-CV, 2011 WL 5386370, at *3 (Tex. App.—Dallas Nov. 9, 2011, no pet.) (mem. op.); In re G.J.S., 940 S.W.2d 289, 292–93 (Tex. App.—San Antonio 1997, no writ).
The court must compare the financial circumstances of the child and the affected parties at the time the order was entered with their financial circumstances at the time of the hearing on the modification. Dobyanski v. Breshears, No. 01-17-00407-CV, 2018 WL 2049345, at *4 (Tex. App.—Houston [1st Dist.] May 3, 2018, no pet.) (mem. op.) (evidence before trial court in default hearing did not show obligor’s current net resources or additional financial support necessary to provide child with substantial care and personal supervision because of disability, nor did it show that child will require substantial care and personal supervision indefinitely into future); In re C.H.C., 392 S.W.3d 347, 350 (Tex. App.—Dallas 2013, no pet.) (court was unable to make requisite comparison of financial circumstances to determine whether there was material and substantial change without specific testimony on how much money father was making at time of original order); In re N.T.P., 402 S.W.3d 13, 19 (Tex. App.—San Antonio 2012, no pet.). An anticipated change in circumstance that is contemplated at the time of the entry of the order cannot be used as evidence of a material or substantial change of circumstances. In re N.T.P., 402 S.W.3d at 19 (neither father’s retirement four years after divorce nor his move to England were specifically contemplated by prior decree, so when he retired he was able to prove that his income was reduced by nearly one-third, which constituted a material and substantial change of circumstances); In re Moore, 511 S.W.3d 278, 284 (Tex. App.—Dallas 2016, orig. proceeding) (anticipating that bonuses will fluctuate over time is different from anticipating that bonuses will steadily decrease, and evidence of latter will support finding of material and substantial change of circumstances).
An increase in a parent’s resources alone may not justify modifying child support. In re L.R., 416 S.W.3d 675, 679–80 (Tex. App.—Houston [14th Dist.] 2013, no pet.) (where father could afford to pay support in excess of guidelines at all times since divorce, yet had been ordered to pay nothing, any increase in his income standing alone would not equate to material and substantial change of circumstances; thus any discovery intended to establish increase in his ability to pay was immaterial).
It is well established that an obligor is a person affected by a child support order, and therefore a setback in the obligor’s financial circumstances can be a basis for finding that a material and substantial change has occurred since the rendition of a prior child support order. See Reagins v. Walker, 524 S.W.3d 757, 761 (Tex. App.—Houston [14th Dist.] 2017, no pet.); see also In re A.A.T., 583 S.W.3d 914, 921 (Tex. App.—El Paso 2019, no pet.) (evidence uncontroverted that obligor’s income had been reduced to zero because of disability); In re J.Z., No. 02-17-00127-CV, 2018 WL 5289353, at *4 (Tex. App.—Fort Worth Oct. 25, 2018, no pet.) (mem. op.) (finding no abuse of discretion in modifying child support order where obligor presented evidence of decrease in income); Trammell v. Trammell, 485 S.W.3d 571, 578 (Tex. App.—Houston [1st Dist.] 2016, no pet.) (obligor established material and substantial change in circumstances by showing significant decrease in income). However, not every change in a party’s income will qualify as material and substantial; instead, what is required is “a marked decrease in income or steady decline without offsetting circumstances.” See In re A.A.T., 583 S.W.3d at 922.
A change in custody of a child is, in and of itself, a material and substantial change. In re A.M.W., 313 S.W.3d 887, 891 (Tex. App. —Dallas 2010, no pet.); In re Z.B.P., 109 S.W.3d 772, 781 (Tex. App.—Fort Worth 2003, no pet.) (modification order giving father right to establish children’s primary residence was material and substantial change requiring reallocation of financial resources); Labowitz v. Labowitz, 542 S.W.2d 922, 925 (Tex. App.—Dallas 1976, no writ) (father’s appointment as managing conservator of children constituted material and substantial change requiring reallocation of financial obligations).
Incarceration of a child support obligor in a local, state, or federal jail or prison for a period exceeding 180 days is a material and substantial change of circumstances for the purposes of Family Code section 156.401. Tex. Fam. Code § 156.401(c–1). The release of an obligor from incarceration is a material and substantial change in circumstances for purposes of section 156.401 if the obligor’s child support obligation was abated, reduced, or suspended during the period of the obligor’s incarceration. Tex. Fam. Code § 156.401(d).
If a material change has occurred in either the needs of the child or the ability of either parent to support the child, the burden of proof is met. Baucom v. Crews, 819 S.W.2d 628, 631 (Tex. App.—Waco 1991, no writ). Monthly expenses and proven needs are not the same thing; thus, conclusory testimony regurgitating the contents of the spreadsheet of monthly expenses is insufficient to establish that those amounts reflect needs of the children warranting an increased amount of child support beyond the statutory guidelines. In re K.F., No. 02-21-00056-CV, 2021 WL 5742239, at *6 (Tex. App.—Fort Worth Dec. 2, 2021, no pet.) (mem. op.). A court is not required to base a child support obligation solely on the needs of the children to the exclusion of other factors, such as the obligor’s monthly net resources. Cortez v. Garza, No. 01-21-00062-CV, 2022 WL 3649636, at *8 (Tex. App.—Houston [1st Dist.] Aug. 25, 2022, no pet. h.) (mem. op.).
An order of joint managing conservatorship, in and of itself, does not constitute grounds for modifying a support order. Tex. Fam. Code § 156.401(c).
Neither a history of support voluntarily provided in excess of the court order nor an increase in the needs, standard of living, or lifestyle of the obligee is grounds for an increase in the amount of a child support order. Tex. Fam. Code §§ 156.403, 156.405; Scott v. Younts, 926 S.W.2d 415, 418 (Tex. App.—Corpus Christi–Edinburg 1996, writ denied).
Neither the net resources of a new spouse nor the needs of a new spouse or of a dependent of a new spouse may be considered in calculating the amount of support to be ordered. Tex. Fam. Code § 156.404.
The court may consider the statutory guidelines for the support of children set forth in Family Code sections 154.121 through 154.133 to determine whether there has been a material and substantial change in circumstances under chapter 156; if the amount contained in the order sought to be modified does not substantially conform with the guidelines, the court may modify the order to substantially conform with the guidelines if the modification is in the child’s best interests. Tex. Fam. Code § 156.402. In determining whether application of the guidelines would be unjust or inappropriate under the circumstances, the court may consider evidence of all relevant factors. Tex. Fam. Code § 154.123(b); Scott, 926 S.W.2d at 418–19. The court requires the filing of a financial statement, the last two years’ tax returns, and current pay stubs in all cases setting child support. Tex. Fam. Code § 154.063.
In In re J.D.D., 242 S.W.3d 916 (Tex. App.—Dallas 2008, pet. denied), the obligor parent was ordered to pay child support based on his potential income. The obligor filed a petition to modify the payments, which was denied except for an interlocutory order slightly reducing his child support obligation and finding him to be intentionally unemployed. The obligor then worked temporarily before being fired for abandoning his job. The obligor then filed another petition to modify seeking a reduction of child support based on his unemployment. The trial court denied the petition, and the court of appeals affirmed. The obligor had closed his business and was unemployed at the time the interlocutory order was entered, and he had abandoned his job and was unemployed at the time he filed his petition to modify. The trial court did not abuse its discretion in finding there had been no material and substantial change in circumstances. In re J.D.D., 242 S.W.3d at 921.
Calculation of Child Support: A trial court is not required to modify an order to conform with the statutory guidelines and, in fact, may do so only if it determines that the modification would be in the child’s best interest. Clark v. Clark, No. 03-20-00411-CV, 2021 WL 3775565, at *3 (Tex. App.—Austin Aug. 26, 2021, no pet. h.) (mem. op.). In determining whether to modify child support, the trial court’s primary consideration is always the best interest of the child. Rumscheidt v. Rumscheidt, 362 S.W.3d 661, 666 (Tex. App.—Houston [14th Dist.] 2011, no pet.). An order requiring a parent to pay half of any future extracurricular expenses can be tantamount to a child support order. See In re C.S., No. 04-20-00421-CV, 2021 WL 5496159, at *4 (Tex. App.—San Antonio Nov. 24, 2021, no pet.) (mem. op.). Without parameters that limit a parent’s discretion to enroll the children in extracurricular activities and the amount that can be spent on those extracurricular activities, a trial court may abuse its discretion in ordering a party to pay for half of these expenses. See In re C.S., 2021 WL 5496159, at *6.
A notice of assignment filed under Family Code chapter 231 does not constitute a modification of an order to pay child support. Tex. Fam. Code § 156.407.
Various aspects of child support calculations and procedures are discussed in chapter 9 of this manual.
Change in Physical Possession: On the motion of a party or a person having physical possession of the child, the court shall modify an order providing for the support of the child to provide that the person having physical possession of the child for at least six months shall have the right to receive and give receipt for payments of support for the child and to hold or disburse money for the benefit of the child if the sole managing conservator or the joint managing conservator who has the exclusive right to determine the child’s primary residence has voluntarily relinquished the primary care and possession of the child, been incarcerated or sentenced to be incarcerated for at least ninety days, or relinquished the primary care and possession of the child in a proceeding under title 3 or chapter 262 of the Family Code. Tex. Fam. Code § 156.409(a).
If the court modifies a support order under this provision, the court shall order the obligor to pay the person or entity having physical possession of the child any unpaid child support that is not subject to offset or reimbursement under Code section 157.008 and that accrues after the date the conservator relinquishes possession and control of the child or is incarcerated. Tex. Fam. Code § 156.409(a–1).
An order modifying a support order because of a conservator’s incarceration must provide that, on the conservator’s release, the conservator may file an affidavit with the court that the conservator has been released, that there has not been a modification of conservatorship during the incarceration, and that the conservator has resumed physical possession of the child. A copy of the affidavit is to be delivered to the obligor and any other party, including the title IV-D agency if appropriate. On receipt of the affidavit, the court on its own motion shall order the obligor to make support payments to the conservator. Tex. Fam. Code § 156.409(a–3).
The provisions discussed above do not affect the court’s ability to render a temporary order for payment of child support that is in the child’s best interest. Tex. Fam. Code § 156.409(a–2).
Intentional Unemployment or Underemployment: Child support based on intentional unemployment or underemployment of an obligor is discussed in chapter 9 of this manual.
Withholding from Earnings: In proceedings in which periodic payments of child support are ordered, modified, or enforced, the court or the title IV-D agency shall order that income be withheld from the disposable earnings of the obligor as provided in Family Code chapter 158. Tex. Fam. Code § 158.001.
Family Code section 158.403 contains provisions relating to the modification of voluntary wage withholding. See Tex. Fam. Code § 158.403. Various aspects of the withholding procedures are discussed in chapter 9 of this manual.
QDRO for Child Support: The court that rendered an order for the payment of child support, or the court that obtains jurisdiction to enforce a child support order under chapter 159 of the Family Code, has continuing jurisdiction to render enforceable qualified domestic relations orders or similar orders (QDROs) permitting payment of pension, retirement plan, or other employee benefits to an alternate payee or other lawful payee to satisfy amounts due under the child support order. Tex. Fam. Code § 157.501(a).
COMMENT: The availability of a QDRO in suits filed on or after September 1, 2021, does not constitute a material and substantial change of circumstances sufficient to warrant modification of an order for support rendered before September 1, 2021. Acts 2021, 87th Leg., R.S., ch. 64, § 6(b) (H.B. 867).
Use of the QDRO for the payment of child support is discussed in chapter 25 of this manual.
The court may generally enter temporary orders in a suit affecting the parent-child relationship. See Tex. Fam. Code § 105.001(a). While a suit to modify is pending, however, the court may not render a temporary order that has the effect of creating a designation, or changing the designation, of the person who has the exclusive right to designate the primary residence of the child, or the effect of creating a geographic area, or changing or eliminating the geographic area, within which a conservator must maintain the child’s primary residence, under the final order unless the temporary order is in the child’s best interest and (1) the order is necessary because the child’s present circumstances would impair the child’s physical health or emotional development or (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 twelve years of age or older and has expressed to the court in chambers as provided by section 153.009 the name of the person who is the child’s preference to have the exclusive right to designate the primary residence of the child. Tex. Fam. Code § 156.006(b).
A temporary order that deprives a custodial parent of any discretion inherent in the right to determine the child’s primary residence has the effect of changing the designation of the person with the exclusive right to determine the child’s primary residence. In re Browning, No. 01-21-00248-CV, 2021 WL 2096658, at *2 (Tex. App.—Houston [1st Dist.] May 24, 2021, orig. proceeding) (mem. op.).
The voluntary relinquishment ground does not apply to a conservator with the exclusive right to designate the child’s primary residence who has temporarily relinquished the primary care and possession of the child to another person during the conservator’s military deployment, military mobilization, or temporary military duty. Tex. Fam. Code § 156.006(c).
The movant in a motion for a temporary order authorized by Tex. Fam. Code § 156.006(b)(1) must execute and attach an affidavit that contains facts that support the allegation that the child’s present circumstances would significantly impair the child’s physical health or emotional development. The affidavit must be on the movant’s personal knowledge or the movant’s belief based on representations made to the movant by a person with personal knowledge. Unless the court determines on the basis of the affidavit that facts adequate to support the allegation are stated in the affidavit, the court must deny the relief sought and decline to schedule a hearing. If the court determines that the facts are adequate to support the allegation, the court shall set a time and place for the hearing. Tex. Fam. Code § 156.006(b–1). The insufficiency or absence of the affidavit is irrelevant if the court conducts a hearing and resolves the dispute based on the evidence presented. In re Eddins, No. 15-16-01451-CV, 2017 WL 2443138, at *5 (Tex. App.—Dallas June 5, 2017, orig. proceeding [mand. denied]) (mem. op.).
It is an abuse of the trial court’s discretion under section 156.006(b)(1) to issue a temporary order that modifies the designation of a parent with the exclusive right to designate a child’s primary residence on insufficient evidence that the child’s present circumstances would significantly impair the child’s physical health or emotional development. In re Eddins, 2017 WL 2443138, at *6. Because the “significant impairment” standard is a high one, the movant must present evidence of bad acts or omissions committed against the children. In re Lee, No. 04-19-00440-CV, 2019 WL 3642640, at *2 (Tex. App.—San Antonio Aug. 7, 2019, orig. proceeding) (mem. op.); In re Eddins, 2017 WL 2443138, at *4. Section 156.006(b) precludes a trial court from issuing a temporary order “that has the effect of creating a designation, or changing the designation, of the person who has the exclusive right to designate the primary residence of the child, or the effect of creating a geographic area, or changing or eliminating the geographic area, within which a conservator must maintain the child’s primary residence” in the absence of notice and a hearing. In re Mach, No. 13-22-00126-CV, 2022 WL 1395327, at *7 (Tex. App.—Corpus Christi–Edinburg May 3, 2022, no pet.) (mem. op.).
Serious acts or omissions committed against a child are acts more grave than violation of a divorce decree or alienation of a child from a parent. Section 156.006(b) requires evidence of the child’s present circumstances—not past circumstances—and evidence that remaining in those circumstances during the pendency of the custody proceedings would significantly impair the child’s physical or emotional development. Similarly, mere conjecture about what might happen in the future is not evidence of a risk of significant impairment posed by the child’s present circumstances. In re Barker, No. 03-21-00036-CV, 2021 WL 833970, at *7 (Tex. App.—Austin Mar. 4, 2021, orig. proceeding) (mem. op.).
Temporary orders that have the effect of creating a geographic area in which a parent must maintain the child’s residence when the decree has none must be supported by evidence that the child’s present circumstances significantly impair the child’s physical health or emotional development. See In re J.W., No. 02-18-00419-CV, 2019 WL 2223216, at *3–4 (Tex. App.—Fort Worth May 23, 2019, orig. proceeding) (mem. op.) (temporary orders dictating that children must attend specific elementary school had effect of creating geographic area in which father must maintain children’s residence, because they created geographic limitation whereas decree had none).
In deciding if a temporary order effectively changes or eliminates the prior final order’s geographic restriction, appellate courts do not focus on the trial court’s characterization of its temporary order but on the temporary order’s substance. To determine if a temporary order effectively creates, changes, or eliminates a geographic restriction, appellate courts examine the temporary order in relation to the final order and the evidence presented. In re C.R., No. 04-21-00393-CV, 2021 WL 6127884, at *4 (Tex. App.—San Antonio Dec. 29, 2021, no pet.) (mem. op.).
The right to designate a child’s primary residence, the right to designate school enrollment, and a geographic restriction are closely connected and may even overlap, depending on the provisions in the final order and the evidence presented. Under Texas law, the child’s primary residence is closely connected to the right to designate school enrollment. One of the two reasons to designate a child’s primary residence, either by use of a geographic restriction or by giving one parent the exclusive right to designate primary residence, is to determine the child’s residency for purposes of public school enrollment. In re C.R., 2021 WL 6127884, at *5.
Because Family Code section 156.006(b)(1) precludes a trial court from issuing an order eliminating the geographic area within which a conservator must maintain a child’s primary residence without evidence that the child’s primary residence would significantly impair the child’s physical health or emotional development, a trial court abuses its discretion by lifting the geographical restriction imposed in the final order the subject of the modification without such evidence. See In re Lee, 2019 WL 3642640, at *4 (section 156.006 imposes high burden on movant to present evidence that child’s circumstances are significantly impairing child’s physical health or emotional development).
It is an abuse of discretion for a trial court to render a temporary order that provides for a conditional modification of the person with the right to determine the child’s primary residence without proof that child’s present circumstances would significantly impair the child’s physical health or emotional development, as required by Family Code section 156.006(b)(1). In re Kyburz, No. 05-15-01163-CV, 2015 WL 6935912, at *2 (Tex. App.—Dallas Nov. 10, 2015, orig. proceeding) (mem. op.) (order requiring mother to refinance residence by certain date or father would have right to designate primary residence was improper).
Courts have held that the following evidence does not rise to the level of “significant impairment”:
1.that the mother had interfered in the father’s visitation and communications with the child; that the child frequently wore dirty, ill-fitting, or damaged clothes and shoes; and that the child’s hair, body, and underwear were often dirty. See In re Charles, No. 03-17-00731-CV, 2017 WL 5985524, at *4 (Tex. App.—Austin Dec. 1, 2017, orig. proceeding) (mem. op.);
2.that CPS had investigated whether the children were dirty and had bugs in their hair, that the father witnessed the children being disheveled and wearing clothes that were too small, and that the mother might be forced to move. See In re Kyburz, 2015 WL 6935912, at *2;
3.that the mother had attempted to alienate the children from the father and prevent them from having a relationship with him. See In re Coker, No. 03-17-00862-CV, 2018 WL 700033, at *5 (Tex. App.—Austin Jan. 23, 2018, orig. proceeding) (mem. op.); see also In re Serio, No. 03-14-00786-CV, 2014 WL 7458735, at *1–2 (Tex. App.—Austin Dec. 23, 2014, orig. proceeding) (mem. op.); and
4.that the father’s relationship with the child might be adversely affected by the mother’s move, that the mother’s home was messy or unsanitary, that the child was not always appropriately dressed for the weather, and that the child was sometimes not properly supervised. See In re Rather, No. 14-11-00924-CV, 2011 WL 6141677, at *2 (Tex. App.—Houston [14th Dist.] Dec. 8, 2011, orig. proceeding) (mem. op.).
Further, a bad case of scabies occurring eight months before a parent filed a petition for modification does not amount to evidence that a child’s present circumstances would significantly impair the child’s health and well-being. See In re Charles, 2017 WL 5985524, at *4.
Evidence of frequent moves by the parent having the exclusive right to designate the child’s primary residence, when several of the moves were to the home of that parent’s mother or the home of the other parent and his parents, is insufficient proof of a significant impairment to the child’s physical health or emotional development necessary to support a temporary order changing the parent having the exclusive right to designate the child’s primary residence. See In re Tindell, No. 03-18-00274-CV, 2018 WL 3405035, at *6 (Tex. App.—Austin July 12, 2018, orig. proceeding) (mem. op.).
Evidence of the emotional distress resulting from separation and loss caused by a move is not, by itself, evidence of a significant impairment of a child’s physical health or emotional development as required by section 156.006(b). In re Montemayor, No. 04-16-00222-CV, 2016 WL 3440130, at *2 (Tex. App.—San Antonio June 22, 2016, orig. proceeding) (mem. op.). But see In re Walton, No.11-16-00230-CV, 2017 WL 922418 (Tex. App.—Eastland Feb. 28, 2017, orig. proceeding) (mem. op.).
A temporary order in a suit affecting the parent-child relationship rendered in accordance with Family Code section 105.001 is not required to include a temporary parenting plan. The court may not require the submission of a temporary parenting plan in any case or by local rule or practice. Tex. Fam. Code § 153.602.
A trial court abuses its discretion in entering temporary orders that significantly modify existing orders for conservatorship and access without proper notice to a party and an opportunity for a full adversary hearing. In re Bustos, No. 04-14-00755-CV, 2014 WL 7339259, at *3 (Tex. App.—San Antonio Dec. 23, 2014, orig. proceeding) (mem. op.). A temporary order rendered by the trial court awarding conservatorship to a party who has not requested such relief and is before the court only on a petition for enforcement is not supported by the pleadings, is rendered without the notice required by section 105.001 of the Family Code, and is void. In re Eddins, 2017 WL 2443138, at *5.
Chapter 156 of the Family Code (modification) does not apply to modifications of temporary orders. The policy concerns regarding finality of judgments and the cessation of custody litigation are not implicated in the same way by modifications of temporary orders because at the time of their entry or modification the litigation concerning the child is ongoing. For that reason, the Family Code expressly sets forth a different test by which the propriety of temporary orders and any modifications of temporary orders are to be measured, namely whether temporary orders are for the “safety and welfare” of the child. In re McPeak, 525 S.W.3d 310, 314 (Tex. App.—Houston [14th Dist.] 2017, orig. proceeding); In re Casanova, No. 05-14-01166-CV, 2014 WL 6486127, at *3 (Tex. App.—Dallas Nov. 20, 2014, orig. proceeding) (mem. op.).
Modification of temporary orders is further discussed in section 4.15 in this manual, and temporary orders pending appeal are discussed in section 4.18.
Temporary Restraining Orders and Temporary Injunctions: Temporary restraining orders and temporary injunctions are discussed in section 4.2 in this manual.
It has been held that in the absence of specific provisions to the contrary in an order establishing conservatorship, the death of the managing conservator ends the conservatorship order, and it no longer constitutes a valid subsisting court order for purposes of seeking a writ for habeas corpus. Greene v. Schuble, 654 S.W.2d 436, 437–38 (Tex. 1983) (orig. proceeding); Lewis v. McCoy, 747 S.W.2d 48, 49–50 (Tex. App.—El Paso 1988, orig. proceeding). Family Code section 156.106, however, states that the death of a conservator is a material and substantial change of circumstances sufficient to justify a temporary order and modification of an existing conservatorship or possession order, casting doubt on the reliability of these cases. See Tex. Fam. Code § 156.106. Further, under section 156.106(b), the court must consider any term or condition of the order or portion of a decree that denies possession of the child to a parent or imposes restrictions or limitations on the parent’s right to possession of or access to the child. Tex. Fam. Code § 156.106(b).
Habeas corpus, however, is not an appropriate means to initiate a proceeding to modify prior court orders in a suit affecting the parent-child relationship. See Tex. Fam. Code §§ 157.371–.376. Note that when a writ is met by the responsive filing of a suit to modify seeking temporary orders, Family Code section 156.006 alters the burden of proof necessary to effect a temporary change in conservatorship from the more onerous burden found in section 157.374. See Tex. Fam. Code § 156.006.
Habeas corpus for possession of a child is discussed in chapter 36 of this manual.
A party has a limited right to a jury trial on timely demand and payment of the jury fee. Tex. Fam. Code § 105.002(a); Tex. R. Civ. P. 216. In a jury trial, a party is entitled to a verdict by the jury and the court may not contravene a jury verdict on the issues of (1) the appointment of a sole managing conservator; (2) the appointment of joint managing conservators; (3) the appointment of a possessory conservator; (4) the determination of which joint managing conservator has the exclusive right to designate the primary residence of the child; (5) the determination of whether to impose a restriction on the geographic area in which a sole or joint managing conservator may designate the child’s primary residence; and (6) if such a restriction is imposed, the determination of the geographic area within which the sole or joint managing conservator must designate the child’s primary residence. Tex. Fam. Code § 105.002(c)(1).
The court may not submit to the jury questions on the issues of (1) support under Family Code chapters 154 or 159; (2) a specific term or condition of possession of or access to the child; or (3) any right or duty of a conservator, other than which joint managing conservator has the exclusive right to designate the primary residence of the child and determinations concerning geographic restrictions on the primary residence. Tex. Fam. Code § 105.002(c)(2).
A trial court’s order for a “2-2-5-5” possession schedule does not contravene a jury verdict that one parent should have the exclusive right to designate the child’s primary residence. The specific terms and conditions of possession of or access to a child are distinct from the determination of which parent has the exclusive right to designate the child’s primary residence. Because the trial court is statutorily prohibited by Code section 105.002(c)(2)(B) from submitting the possession and access issue to a jury, the specific terms and conditions of possession and access are for the court alone and are subject to the court’s discretion. See In re S.H., 590 S.W.3d 588, 594 (Tex. App.—El Paso 2019, pet. denied).
§ 41.14Child Custody Evaluation
In a suit affecting the parent-child relationship, the court may order the preparation of a child custody evaluation regarding (1) the circumstances and conditions of the child, a party to the suit, and, if appropriate, the residence of any person requesting conservatorship of, possession of, or access to the child and (2) any issue or question relating to the suit at the request of the court before or during the evaluation process. Tex. Fam. Code § 107.103(a).
Child custody evaluations are discussed in section 40.19 in this manual.
In any suit affecting the parent-child relationship, after a hearing, the court may grant a motion for a preferential setting for a trial on the merits filed by a party, the amicus attorney, or the attorney ad litem for the child and may give precedence to that hearing over other civil cases if the court finds that the delay created by ordinary scheduling practices will unreasonably affect the best interests of the child. Tex. Fam. Code § 105.004.
§ 41.16Mandatory Provisions in Order
Certain information and provisions must be included in the final order in a suit affecting the parent-child relationship, other than in a proceeding involving the termination of the parent-child relationship or adoption. For detailed discussion of these requirements, see section 40.22 in this manual.
§ 41.17Attorney’s Fees and Costs
Attorney’s fees awarded in a modification proceeding may not be characterized as child support. See In re C.A.C., No. 05-17-00602-CV, 2018 WL 2126811, at *3 (Tex. App.—Dallas May 9, 2018, no pet.) (mem. op.).
In the absence of express statutory authority, a trial court may not award attorney’s fees as necessaries or additional child support in a modification suit that does not involve the enforcement of a child support obligation. See Tucker v. Thomas, 419 S.W.3d 292, 295 (Tex. 2013); see also Kerlick v. Kerlick, No. 03-14-00620-CV, 2016 WL 4506162, at *6 (Tex. App.—Austin Aug. 24, 2016, pet. denied) (mem. op.); Guillory v. Boykins, 442 S.W.3d 682, 692–93 (Tex. App.—Houston [1st Dist.] 2014, no pet.). But see In re D.D.J., No. 13-14-00401-CV, 2016 WL 6962007, at *4 (Tex. App.—Corpus Christi–Edinburg Nov. 22, 2016, no pet.) (mem. op.) (trial court erred in awarding fees in a modification/enforcement action where fees were not properly segregated).
When a party fails to segregate attorney’s fees incurred with an enforcement proceeding—fees that can be enforced through contempt—from attorney’s fees incurred for work performed in connection with a modification proceeding—fees that cannot be enforced through contempt—the award of attorney’s fees is enforceable only as a debt. See In re C.A.C., 2018 WL 2126811, at *3; In re Braden, 483 S.W.3d 659, 666 (Tex. App.—Houston [14th Dist.] 2015, orig. proceeding) (per curiam).
Attorney’s fees and costs are discussed in section 40.16 and in chapter 20 in this manual.
§ 41.18Parent Education and Family Stabilization Course; Counseling
In a suit affecting the parent-child relationship, including an action to modify an order in a suit affecting the parent-child relationship providing for possession of or access to a child, the court may order the parties to attend a parent education and family stabilization course if the court determines that the order is in the child’s best interests. Tex. Fam. Code § 105.009(a). Parent education and family stabilization courses are discussed in section 40.24 in this manual.
Counseling: If the court finds at the time of a hearing that the parties have a history of conflict in resolving an issue on conservatorship or possession of or access to the child, the court may order a party to participate in counseling with a mental health professional with specialized training and to pay for that counseling. Tex. Fam. Code § 153.010(a).
§ 41.19Clarification vs. Modification
A court may clarify an order rendered by the court if the court finds, on the motion of a party or on the court’s own motion, that the order is not specific enough to be enforced by contempt. Tex. Fam. Code § 157.421(a); Lundy v. Lundy, 973 S.W.2d 687, 688 (Tex. App.—Tyler 1998, pet. denied). A court, however, may not change the substantive provisions of an order to be clarified, and a substantive change is not enforceable. Tex. Fam. Code § 157.423; Lundy, 973 S.W.2d at 688.
The only basis for clarifying a prior decree is when a provision is ambiguous and nonspecific. Lundy, 973 S.W.2d at 688; Bina v. Bina, 908 S.W.2d 595, 598 (Tex. App.—Fort Worth 1995, no writ). In the absence of an ambiguity, the trial court is without authority to change the judgment. Lundy, 973 S.W.2d at 688–89. A court may not modify the original judgment under the guise of clarification. Dunn v. Dunn, 708 S.W.2d 20, 23 (Tex. App.—Dallas 1986, no writ) (citing McGehee v. Epley, 661 S.W.2d 924, 925 (Tex. 1983) (per curiam)).
Section 153.009 of the Family Code regulates the court’s interview of a child in chambers. The court’s interview with a child is discussed in section 40.14 in this manual.
The final order in a suit affecting the parent-child relationship must include a parenting plan. Tex. Fam. Code § 153.603. Parenting plans are discussed in chapter 16 of this manual.
§ 41.22Agreement for Modification
The Family Code encourages parents to make an agreed parenting plan regarding conservatorship and possession of the child. In re Kubankin, 257 S.W.3d 852, 858 (Tex. App.—Waco 2008, orig. proceeding) (per curiam) (citing Tex. Fam. Code § 153.007 and Tex. Fam. Code § 154.124 (providing for agreement concerning support)). However, a purported agreement to modify remains unenforceable until it has been approved by a court in a modification proceeding. In re Kubankin, 257 S.W.3d at 859. If the words the trial court uses show the trial court intended to render a full, final, and complete judgment on the modification issues and both parties consented to judgment at that time, the trial court has a ministerial duty to sign an order consistent with its oral rendition of judgment. In re R.H.B., ___S.W.3d ___, No. 04-21-00038-CV, 2022 WL 946640, at *7 (Tex. App.—San Antonio Mar. 30, 2022, no pet.).
§ 41.23Modification during Pendency of Appeal
A trial court has continuing, exclusive jurisdiction over a suit for modification pending appellate review of a prior final order in a suit affecting the parent-child relationship. While in theory allowing modification of prior orders during the pendency of an appeal could allow a party or a trial court to evade judicial review, the Family Code contains sufficient safeguards to ensure the unlikelihood and undesirability of such an endeavor. Further, the law provides adequate remedies for those who must face litigation costs in defense of groundless or frivolous claims, but a party should not be barred from asserting a valid claim simply because additional resources must be expended to litigate them. In re Reardon, 514 S.W.3d 919, 929–30 (Tex. App.—Fort Worth 2017, orig. proceeding); see also In re G.E.D., No. 05-17-00160-CV, 2018 WL 507673, at *4 (Tex. App.—Dallas Jan. 2, 2018, no pet.) (mem. op.); Blank v. Nuszen, No. 01-13-01061-CV, 2015 WL 4747022, at *2 (Tex. App.—Houston [1st Dist.] Aug. 11, 2015, no pet.) (mem. op.); Hudson v. Markum, 931 S.W.2d 336, 337–38 (Tex. App.—Dallas 1996, no writ). But see In re E.W.N., 482 S.W.3d 150, 154 (Tex. App.—El Paso 2015, no pet.) (Family Code section 109.001 implicitly, if not explicitly, recognizes appellate court’s exclusive plenary authority over cause on appeal).
§ 41.24Transfer of Permanent Physical Custody of Adopted Child
Court approval is required for the transfer of permanent physical custody of an adopted child by a parent, managing conservator, or guardian to any person who is not a relative or stepparent of the child or an adult who has a significant and long-standing relationship with the child. See Tex. Fam. Code § 162.026. It is a felony offense to conduct, facilitate, or participate in an unregulated custody transfer of an adopted child except as provided in Tex. Penal Code § 25.081(d). See Tex. Penal Code § 25.081. This topic is discussed in more depth in section 51.30 in this manual.
[Sections 41.25 through 41.30 are reserved for expansion.]
The amount of maintenance awarded under chapter 8 of the Family Code may be modified by the filing of a motion in the court that originally entered the order. A party affected by the order or portion of the decree to be modified may file the motion. Tex. Fam. Code § 8.057(a). Spousal maintenance is more fully discussed in chapter 23 of this manual.
Notice and response to a motion to modify maintenance or to modify a maintenance qualified domestic relations order are governed by the Texas Rules of Civil Procedure applicable to the filing of an original lawsuit. Tex. Fam. Code § 8.057(b).
After a hearing, the court may modify an original or modified order or portion of a decree providing for maintenance or a maintenance qualified domestic relations order if there has been a material and substantial change in circumstances that occurred after the date of the order or decree, including circumstances reflected in the factors to be considered in determining maintenance that are specified in Family Code section 8.052, relating to either party or to a child of the marriage who requires substantial care and personal supervision because of a physical or mental disability, as specified in Code section 8.051(2)(C). The modification may apply only to payments accruing after the filing of the motion and may not increase maintenance to an amount or duration that exceeds the amount or remaining duration of the original maintenance order. Tex. Fam. Code § 8.057(c).
A party who files a motion to modify maintenance based on a material and substantial change of circumstances may not be considered, on that basis alone, to have admitted a material and substantial change of circumstances regarding any other matter. Tex. Fam. Code § 8.057(c–1).
A party’s assertion of a material change of circumstances in a petition to modify possession of and access to a child is not a judicial admission of a material and substantial change of circumstances to support a modification of spousal maintenance. Rother v. Rother, No. 04-13-00899-CV, 2014 WL 4922898, at *2 (Tex. App.—San Antonio Oct. 1, 2014, no pet.) (mem. op.). Where the parties were aware of the husband’s degenerative disease when the agreement for spousal maintenance was made, the husband’s subsequent worsening health did not constitute a change in circumstances to warrant modification. Bolda v. Bolda, No. 02-18-00307-CV, 2019 WL 6334706, at *5–6 (Tex. App.—Fort Worth Nov. 27, 2019, no pet.) (mem. op.).
A loss of employment or circumstances that render a former spouse unable to provide for his or her minimum reasonable needs by reason of incapacitating physical or mental disability that occurs after the divorce or annulment are not grounds for the institution of maintenance. Tex. Fam. Code § 8.057(d). But see Crane v. Crane, 188 S.W.3d 276 (Tex. App.—Fort Worth 2006, pet. denied) (continuation of spousal maintenance based on incapacitating physical or mental disability is not modification of spousal maintenance and places no special burden of proof on movant other than to prove by preponderance of evidence that disability is continuing).
In McCollough v. McCollough, 212 S.W.3d 638 (Tex. App.—Austin 2006, no pet.), the former husband sought to modify the terms of his alimony obligation on the basis that his former wife had entered into an “informal marriage”; he relied in part on sections 8.056, 8.057, and 8.059 of the Family Code. The court held that the agreement incident to divorce in which the husband agreed to pay the wife $5,000 per month as alimony for a period of ten years, which was incorporated into the divorce decree, was governed by contract law rather than by Family Code chapter 8, the statute governing court-ordered maintenance. Nothing in the agreement indicated the parties’ intent that the alimony obligation be governed by chapter 8, the agreement made no reference to chapter 8, and the agreement would have violated the statutory prohibitions in chapter 8 governing the terms and amount of alimony to be paid.
There is no authority for an award of attorney’s fees in a suit to modify or terminate a maintenance order. See Tex. Fam. Code ch. 8, subch. B.
Withholding from Earnings: In proceedings in which periodic payments of spousal maintenance are ordered, modified, or enforced, the court may order that income be withheld from the disposable earnings of the obligor as provided in Family Code chapter 8. Tex. Fam. Code § 8.101.
Family Code section 8.302 contains provisions relating to the modification of vol-untary wage withholding. See Tex. Fam. Code § 8.302. Various aspects of the withholding procedures are discussed in chapter 32 of this manual.
QDRO for Spousal Maintenance: The court that rendered an order for the payment of maintenance, or the court that obtains jurisdiction to enforce a maintenance order, has continuing jurisdiction to render enforceable qualified domestic relations orders or similar orders (QDROs) permitting payment of pension, retirement plan, or other employee benefits to an alternate payee or other lawful payee to satisfy amounts due under the maintenance order. A maintenance order includes a temporary or final order for maintenance and arrears and interest with respect to that order. Tex. Fam. Code § 8.351(a).
COMMENT: The availability of a QDRO in suits filed on or after September 1, 2021, does not constitute a material and substantial change of circumstances sufficient to warrant modification of an order for support rendered before September 1, 2021. Acts 2021, 87th Leg., R.S., ch. 64, § 6(b) (H.B. 867).
Use of QDROs for the payment of spousal maintenance is discussed in chapter 25 of this manual.