Modifying Child Custody Orders
Under certain circumstances, changes may be made to standing child custody orders. However, simply because a parent wants to modify custody does not mean the court can and/or will order the modification. There must be evidence to support modifying custody. Section 156.101 lays out statutory grounds to support a modification, which states that the court may modify an order if:
- It is in the best interest of the child;
- It is the child's preference (when child is 12 years of age or older) and it is in the best interest of the child;
- The conservator who has exclusive right to designate the primary resident has voluntary relinquished primary care of the child to another person for at least six months and it is in the best interest of the child; or
- There has been a material and substantial change of child's circumstances, including, but not limited to, a conviction or deferred adjudication for domestic violence or sexual abuse, military deployment, violation of court order or agreement, parental alienation, home environment instability/changes, child age and needs change, parental conflict and relocation. The modification, on this basis, must also be shown to be in the child's best interest.
There are several factors that the court looks at when determining if the modification is in the best interest of the child. Some of these include the child's desires, the child's current and future emotional and physical needs, current and future emotional and physical dangers to the child, the parental abilities of the parties seeking custody, the availability of programs to assist the parties seeking custody, the plans for the child, home stability, cooperation between parents, parent's acts and/or omissions, and any excuse for the parent's acts and/or omissions.
Modifying Child Support
Either parent can ask the court to modify a child support order. Whether the court will actually grant your request is another matter. The court will need a compelling reason to change an existing order.
In Texas, your child support order may be modified if it has been three or more years since the order was established or last modified and the monthly amount of the child support ordered differs by either 20 percent or $100 from the amount that would be awarded according to child support guidelines or a material and substantial change in circumstances has occurred since the child support order was last set.
The most common basis or reason to seek a child support revision is a "material and substantial" change in the circumstances of the child or a person affected by the order. Below is a list of some things the court considers to be "substantial" and may provide a basis for modification:
- a substantial increase or decrease in either parent's income
- a change in the child's medical needs or medical insurance
- a paying parent's illness or disability, and
- a change in the child's residence, for example, if the child now resides with the paying parent.
Since child support is based primarily on parental income, a change in either parent's earnings may provide a good reason to modify support, but the amount of lost or increased income must be significant. Changes in income can't be voluntary. You can't simply quit your job and expect to pay less or receive more child support as a result. Paying parents that intentionally leave a job in order to try and reduce or avoid child support may be faced with an imputation of income order, which is where a court will calculate child support based on what the parent was earning before the intentional reduction in income.
If you believe there's a good basis for modifying support, you may want to start by talking to your co-parent to see if you can agree on a new amount. If you and your child's other parent can reach a compromise, be sure to get the agreement in writing. But don't stop there: You should take your child support modification agreement to court, and ask the judge to issue a new order reflecting the agreed-upon amount.
Contact Payne & Truitt today if you are looking for an attorney who will provide you with experienced counsel and personal attention to your needs. We are happy to answer any of your questions or set up an appointment to discuss a modification to your family law suit.