How Much Is “Enough?”:  The burden to modify a child custody order in Texas

To modify a suit affecting the parent-child relationship, the modification must 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 date of the order or the date of the signing of the mediated settlement agreement that the order is based off of. Tex. Family Code §156.101

The Family Code does not define specifically what circumstances count as a “material and substantial change,” and proving this depends on the facts of each case, though courts have agreed that material changes include all aspects of a child’s physical, mental, emotional, and moral well-being. Usually, in order to determine if the circumstances have materially and substantially changed, the court will look at the circumstances at the time the child custody order was rendered and compare them to the circumstances at the time of the modification seeking to change that child custody order.

Though the term is not specifically defined, the Code does say there are three types of circumstances that do qualify as a Material and Substantial Change. The court can modify an order if:

  1. the change of the residence makes travelling costlier for a party who has possession of or access to a child (Texas Family Code § 156.103) [child support modification];

  2. the conviction (including deferred adjudication) of the conservator for child abuse (including sexual abuse with young child or children) (Texas Family Code § 156.104);

  3. the conviction or deferred adjudication for any act of family violence committed (Texas Family Code § 156.1045); or

  4. the voluntary relinquishment of the child by the managing conservator (Texas Family Code § 156.409).

Other Texas’ courts have typically defined a “Material and Substantial Change” as the following types of events:

  1. In the Interest of E.A.D.P., J.T.C.P. and C.E.P., children (5th C. Dallas), the Court held that, “a parent’s remarriage and a change in home surroundings have been held to constitute a material change of circumstances justifying modification of conservatorship.” They also held that while a change in age alone may not be a material change, the differing needs not being met that have arisen because of a change in age can be a material change in circumstances.

  2. In In re A.D., 474 S.W.3d 715 (Tex. App. Houston [14th Dist.] 2014), evidence supported a finding that former wife's accusations of sexual abuse against former husband constituted a material and substantial change in circumstances warranting modification of divorce decree to give former husband custody of child. Husband was devoted and child thrived in his care, former wife perpetuated accusations although multiple authorities and professionals determined they were unfounded. Evidence indicated that former wife's behavior was driven by need to control former husband and not to protect child, and despite former wife's concession at trial that former husband did not abuse child, there was a likelihood of future accusations that could harm child.

  3. In In re Moore, 2016 WL 80205 (Tex. App—Dallas 2016), the evidence showed that Mother did not anticipate a steadily decreasing income when she agreed to no child support. Based on Father's increase in income, Mother's decrease in income, and Mother's use of savings to cover expenses, the court concluded that the trial court had sufficient evidence upon which to exercise its discretion to find a material and substantial change in circumstances since the divorce.

  4. In In re A.L.E., 279 S.W.3d 424 (Tex.App.—Houston [14th Dist.] 2009), evidence was sufficient to support District Court's finding that a material and substantial change in circumstances had occurred since the original joint custody order, granting mother right to designate child's primary residence and father standard possession. Mother’s substance abuse problems rendered her unfit to exercise primary care of child. Evidence showed child was suffering from panic attacks and began to cut herself in response to mother’s substance abuse problems. Child’s journal reflected she had been exposed to marijuana and “jello shots” while in mother's care and did not receive much supervision from mother. Mother tested positive for cocaine.

  5. In re S.N.Z., 421 S.W.3d 899 (Tex.App--Dallas 2014, pet. denied) the Court determined that a material change in circumstance could be a party’s remarriage, a party poisoning the child’s mind, change in home surroundings, and mistreatment of child by a parent or step-parent.

Material and Substantial change may sound like a high standard, but in actuality the courts give very broad discretion to trial court judges in their assessment of what a material and substantial change is. However, our county family law court system sees one of the highest number of CPS cases in the state each year. In other words, our local family law court’s discretion and standards for switching primary conservatorship are pretty high.

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