Modification Almost Always Is Possible
All court orders affecting custody, visitation, child support and medical support can be modified if certain requirements are met. The original divorce decree that divided community property and debts, however, generally can only be clarified but not modified.
The Court You File In Matters
An action to modify an order for custody, visitation or child support must be filed in the court with “continuing, exclusive jurisdiction,” otherwise known as CEJ. Initially, CEJ will rest in the court that rendered the final divorce order (or custody, visitation and support order for unmarried parents). CEJ can transfer to another court if, for example, the children have moved to a different county or State since the original order. A qualified attorney will be able to advise you on the proper court for filing.
What It Takes to Modify Custody or Visitation
In general, a court with CEJ can modify a custody or visitation order if doing so is in the best interests of the child and any of the following apply:
- The circumstances of the child, the parent with custody, or the non-custodial parent have “materially and substantially changed” since the prior order;
- The child is at least 12 years old and expressed to the judge in the privacy of the judge’s chambers a preference for which parent should have custody; or,
- The parent with custody relinquished custody to another person for at least six months (other than due to military mobilization or deployment).
Purpose Behind “Material and Substantial Change”
The purpose is to prevent a constant stream of litigation because one party simply isn’t satisfied with the outcome of the last hearing. Proving a material and substantial change requires introducing evidence of relevant conditions now versus conditions that existed when the last order was rendered.
Not Every Change is “Material and Substantial”
Not every change in circumstances is deemed to be material and substantial. A planned move across town is unlikely to qualify. A planned move several States away might qualify. Remarriage by one parent by itself is unlikely to qualify. Remarriage by one parent to a registered sex offender will draw serious scrutiny. A qualified attorney will be able to give you sound advice only after discussing the specific facts of your case.
Burden of Proof Can Be Even Higher
The burden of proof is even higher if a custody modification is sought within one year of the original order. In these circumstances, the party seeking modification normally must prove one of the following:
- The child’s present environment may endanger the child’s physical health or significantly impair the child’s emotional development;
- The person originally awarded custody consents to the modification and such modification is in the best interest of the child; or,
- The parent with custody relinquished custody to another person for at least six months (other than due to military mobilization or deployment) and modification is in the best interest of the child.
What It Takes to Modify Child Support or Medical Support
In general, a court with CEJ can modify a child support or medical support order if one of the following applies:
- The circumstances of the child or either parent have materially and substantially changed since the prior order; or,
- It has been at least three years since the prior order and child support under the current facts and Family Code guidelines would differ by at least 20% or $100 from the amount specified in the prior order.
Modification of Child Support Doesn’t Always Mean an Increase
Either parent can request modification and the result may be an increase, decrease or no change. The custodial parent typically makes a request after they become aware that the non-custodial parent received a big promotion and significant pay raise. The non-custodial parent typically makes a request after they’ve experienced a substantial reduction in income—perhaps because they were laid off from their job and remain unable to find comparable work. Not every change in income—whether an increase or decrease—merits modification of a prior order. Courts do not concern themselves with constant requests involving de minimis (i.e. “rather small”) amounts. Again, a qualified attorney will be able to give you sound advice only after discussing the specific facts of your case.