Any time parents with minor children divorce, there are specific parts of the divorce decree relating to the children. These include conservatorship (which is the term used instead of "custody"), child support, and periods of possession (commonly called "visitation"). In some situations, the child-related provisions of a decree may be updated and changed. If parents are divorced when children are very young, it is common for child-related provisions of a divorce decree to be changed several times before the children are out of high school.
Modification by Agreement
Frequently, parents who need changes to court orders will make informal modifications to the divorce decree. Although parents are free to make agreements that are in the best interest of a child, agreements for changes that are not included in court orders will not officially change the duties and rights of either parent.
For instance, parents might agree that child support ordered in their divorce decree should be lowered because the paying parent's income has gone down. If the agreement is not recited in a court order, the paying parent could be required to pay the entire amount as originally ordered by the court if a dispute between the parents arises and worse, could also be held in contempt of court and jailed. This is true even if the parties write down their agreement, unless a court approves it.
Most modifications are settled without hearings or trials. The parents' agreement is written into an Agreed Order Modifying Prior Order in Suit Affecting the Parent-Child Relationship. Each party and the attorneys sign the orders and present them to a judge for approval. If the parents cannot agree, the facts are presented to a judge, associate judge, or, in some cases, a jury, who will decide whether an order should be modified.
Filing Details for Child Custody and Support Modifications In Texas
Any person who has rights to custody of a child under a court order may ask for a modification, including grandparents and persons with whom the child has lived for six months. The Texas court that granted a divorce retains the power to modify the parts of the decree relating to children until a child is out of high school or living on his or her own. If, however, the children have lived for at least six months in another county in Texas, the case can be moved to that county.
If children whose parents divorced in Texas have lived for at least six months in a different state, custody cases will be tried in the state in which the children live. The same rule applies to parents who were divorced in another state and whose children have lived in Texas for less than six months. This rule is part of the Uniform Child Custody Jurisdiction Act, which has been adopted by almost every state in the nation, including Texas. Cases dealing with only support and visitation issues may be kept in the original court if one parent continues to live in the place where the divorce was granted, even if the children have moved out of state.
In each suit to modify a divorce decree, the court will require the person who brings the suit to prove certain facts. If the person cannot do this, the court will not order a change to the divorce decree. Depending on what changes are requested, the person requesting the change may have to prove different elements, but all elements must be proved by credible evidence presented through witnesses and documents.
How Courts Decide Modifications
Any time a person asks for changes in a decree, he or she must prove that the circumstances of one or both of the parents, or of the child, have materially and substantially changed since the time of the prior order. Whether a change is "material and substantial" is decided on a case-by-case basis. Courts have ruled that anything from the increased costs of older children, to a move by a parent and the children across the country are material and substantial changes.
To win a motion to change the terms and conditions of visitation, the parent requesting the change must prove the following:
To modify a child support order, you show that the circumstances of one or both of the parents or the child have materially and substantially changed since the prior order. Support modifications may not be entered for amounts that were owed prior to the filing of a request for an increase or decrease. A parent who had custody of a child during a period for which he or she owed support may use that fact as a defense against a motion for contempt for nonpayment of child support during that period.
In all cases, the court will decide on requested modifications based on what would be in the best interest of the children involved.
Family law in Texas can be complex and confusing. If you want to consult an attorney, you can contact an experienced family law attorney in Texas. You can also use FindLaw to find more information on Texas child custody and child support laws.
Contact a qualified attorney.