Modification

When Should I Consider a Modification?

Maybe you previously went through a divorce or had a final order entered regarding conservatorship, possession and access, or child support, however life has happened, and the prior order no longer is workable. This is not uncommon and Texas law allows for prior orders to be modified in different circumstances.

Our firm works on behalf of families in San Antonio/Bexar County, Seguin/Guadalupe County, Kerrville/ Kerr County, Bandera/Bandera County, New Braunfels/Comal County, and Boerne/Kendall County.

Who Can File a Modification of a Texas Order?

The Texas Courts limit who can modify a prior order. Section 156.002 of the Texas Family Code provides that the only persons who can file a suit for modification are:

(b) A person or entity who, at the time of filing, has standing to sue under Chapter 102 may file a suit for modification in the court with continuing, exclusive jurisdiction.

(c) 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.

Can I File a Suit to Modify Who the Primary Parent of the Child is and/or to modify the Visitation Schedule?

In most instances the answer is yes. However, bringing a lawsuit and prevailing are two different things. Section 151.101 of the Texas Family Code requires:

(a) The 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:

(1) the circumstances of the child, a conservator, or other party affected by the order have materially and substantially changed since the earlier of:

(A) the date of the rendition of the order; or

(B) 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 12 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.

(b) Subsection (a)(3) does not apply to a conservator who has the exclusive right to designate the primary residence of the child and 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, as those terms are defined by Section 153.701

There are a multitude of factors that a court looks at when determining the best interest of the child, including but not limited to: the desires of the child, the current and future emotional needs of the child, the potential for physical or emotional danger, the parental abilities, stability within the home, etc.

The court is not limited to these factors nor are they required to consider all of these factors, which makes it hard to predict what a court may or may not do. Preparing for a modification case involves the gathering of information that will assist the court in making their determination.

What If It Has Been Less Than a Year and I Want to Modify Who is the Primary Conservator?

The Texas Family Code is more stringent when it comes to this type of modification. Section 156.102 of the Texas Family Code requires the following to be met in order to bring a suit for modification in under a year to change who has the exclusive right to designate the primary residence:

(a) If a suit seeking to modify the designation of the person having the exclusive right to designate the primary residence of a child is filed not later than 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 shall execute and attach an affidavit as provided by Subsection (b).

(b) The affidavit must contain, 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 the modification is in the best interest of the child; or

(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 the modification is in the best interest of the child.

(c) The court shall deny the relief sought and refuse to schedule a hearing for modification under this section unless the court determines, on the basis of the affidavit, that facts adequate to support an allegation listed in Subsection (b) are stated in the affidavit. 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.

(d) Subsection (b)(3) does not apply to a person who has the exclusive right to designate the primary residence of the child and 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, as those terms are defined by Section 153.701.

Working with an attorney that can guide you through the steps and assist you in preparing the necessary paperwork, including your affidavit, is important. No two cases are the same and it is important that you speak with an attorney about the specific facts of your case to make the best determination regarding the course of action for your case.