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Modification of Prior Order

Over time, circumstances can change for various reasons – some are expected, but many are not, such as the loss of a job.  If you find yourself needing to modify your divorce decree or SAPCR order due a change in circumstances, it’s important to formally modify the order to ensure that you aren’t violating a court order, even if you and the other party agree to the changes.

After a divorce decree or SAPCR order has been finalized, issues such as conservatorship, possession, child support, or spousal maintenance can be modified if certain grounds and factors are met.  Parties can either agree to modify the prior order or litigate the issues if the modification issues are contested.

When parties don’t agree, changing a prior court order can present its challenges.  The grounds and factors for a change in conservatorship, possession, child support, or spousal maintenance are complex and primarily based on the best interest of the child.  It’s a good idea to seek the advice of an experienced family law attorney to discuss your reasons for seeking a modification (or contesting one) and to further determine if you’re likely to achieve a positive outcome based on the circumstances and evidence in your case.

To learn more about modifying a prior court order, contact us to schedule a consultation.

Modification of Conservatorship and/or Possession

Under Texas law, conservatorship and possession can be modified if there has been a “material and substantial change” in the circumstances of a child, conservator, or other party affected by the order and the requested change is in the best interest of the child.

The court may also allow for a modification if a primary conservator has voluntarily relinquished care and possession of a child to someone else to be the child’s primary caregiver for a minimum of six months.

In some circumstances, the court may grant a modification of the person with the exclusive right to designate the primary residence of the child if a child 12 years of age or older expresses to the judge in chambers his/her preference for this change; however, this preference does not guarantee the change, and it must still be proven that such change is in the best interest of the child.

Examples of changes in circumstances that may be enough to prove a “material and substantial change” for modifying conservatorship or possession include the following:

  • relocation of one party or one party wishes to move out-of-state
  • one or both parties remarry
  • one parent interferes with another parent’s possession time
  • abuse of a child by a parent or step-parent
  • family violence
  • addiction or mental health issues of one party
  • the child’s needs change
  • death of a conservator
  • imprisonment of one party
  • an emergency concerning a child

If you’re unsure as to whether your circumstances may qualify as a “material and substantial change,” speak to an experienced family law attorney to help you determine how a judge might rule in your particular situation.

How do I change the person with the right to designate the primary residence of the child?

In order to change the person with the exclusive right to designate the primary residence of the child, you must file a Petition to Modify Parent-Child Relationship and request this change.

However, in order to request this change before the one-year anniversary of (1) the date the last order was signed; or (2) the date the mediated settlement agreement or collaborative law agreement upon which current order is based was signed, whichever the earlier, a supporting affidavit must be filed with the petition to modify containing at least one of the following allegations along with supporting facts:

  • the child’s present environment may endanger the child’s physical health or emotional development;
  • the person who currently has the exclusive right to designate the primary residence of the child has voluntarily relinquished primary care and possession of the child for at least six months, and the modification is in the best interest of the child; or
  • the person who currently has the exclusive right to designate the primary residence of the child is seeking the change or agrees to the change, and the modification is in the best interest of the child.

If you are questioning whether the facts in your case justify a modification of the person with the exclusive right to designate the primary residence of your child, consult an experienced family law attorney to understand your options and potential legal relief.

Modification of Child Support

Child support can be modified under the following circumstances:

(1) there has been a “material and substantial change” in the circumstances of a child or another party affected by the order; or

(2) it has been three years or more since the ordered was rendered or last modified and the monthly amount of child support in the order differs by either 20% or $100 from the amount that would be awarded per child support guidelines.

It is important to note that if the parties agree to modify child support and the original child support amount differs from the amount that would be awarded per 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 or if agreed upon between the parties.