MODIFICATION QUESTIONS AND ANSWERS

1. What is a modification?

   A modification is a court ordered change to a previous court order, mediated or collaborative settlement agreement whether it be a temporary order or final order.

   

2. What provisions in my order may be modified?

   The provisions in a court order relating to custody, support or possession of and access to the child may be modified. The division of property in a final divorce may not be modified.

   

3. Under what circumstances may the amount of child support that I pay be lowered or increased?

   In order to have child support modified (increased or lowered), there must be proof that the circumstances of the child or a person affected by the court order have "materially and substantially" changed since the date of the original order or the date of a mediated or collaborative law settlement agremeent, or OR

   Three years has passed since the original order was entered or last changed and the monthly amount of the child support differs by 20% or $100 from the amount that would be ordered paid if a modification is granted.

   Keep in mind that the Courts additionally base its decision on considerations of the child support guidelines and the child's best interest. See Texas Family Code, Grounds for Modification of Child Support, Chapter 156.401.

   

4. My spouse has primary custody (managing conservatorship) of our child. How may I have custody changed?

   A custody order, mediated or collaborative law settlement agreement may be modified upon a showing that the change would be in the child's best interest AND

   the circumstances of the child, the managing conservator (primary caretaker), or the possessory conservator (party having possessory rights) have materially and substantially changed since the entry of the order;OR

   that the child is at least 12 years of age and has filed with the court, in writing, 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

   the conservator who has the exclisve 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. Texas Family Code, Grounds for Modification of Order Establishing Conservatorship or Possession and Access, Chapter 156.101.

   

5. I've always heard that an older child can decide which parent he wants to live with, is this true?

   If a child is twelve (12) years of age, he or she may file with the Court a written designation of the person who is the child's preference to have the exclusive right to designate the primary residence of the child. A child cannot decide who he/she wants to live with but can have input on who should have the right to determine the child's exclusive residence. The Courts will consider the child's preference and will make such appointment as the child has requested only considering all of the evidence such preference is found to be in the child's best interest. See Texas Family Code, Child's Preference of Person to Designate Residence, Chapter 153.008.

   

6. I just got divorced six months ago, and my ex-spouse has custody of our child. I've changed my mind, and have decided that I'd like to have custody. May I request a modification?

   It depends. If a request for a change of custody is made within one (1) year of the date of the rendition of your order, you must be able to show one of the following before the Court will consider a modification changing custody:

   (a) That the child's present environment may endanger the child's physical health or significantly impair the child's emotional development; OR

   (b) That the managing conservator (your ex-spouse) consents to the change of custody and the custody change is in the child's best interest;OR

   (c) That your ex-spouse (the managing conservator) has voluntarily relinquished (turned over) the actual care, control, and possession of the child for not less than six months and the custody change is in the child's best interest. See Texas Family Code, Modification of Exclusive Right to Determine Primary Residence of Child Within One Year of Order, Chapter 156.102.