McKinney / Frisco Divorce Decree Modification

What Is A Modification Suit?

Generally the final order entered in a divorce case is called a Decree Of Divorce. It usually includes orders that divide the marital property, appoint conservators (the Texas term for persons with “child custody” rights), provides possession periods (the Texas terms for “visitation orders”), requires the payment of child support and other matters.

A modification suit is a lawsuit that requests some terms of the Decree be changed.

What Can Be Modified?

Except in very rare situations, the division of the marital assets and liabilities can NOT be modified. Once the court enters the Decree and the time for appeal has expired, the court has no power to reconsider the property matters.

The exception to the rule arises in cases involving fraud. In those instances, there may be an opportunity for a person to ask that the court reconsider the terms of the Decree related to property. However, the procedure is not a modification suit.

On the other hand, the Texas courts have authority to modify virtually every order related to children. The court retains that power until each of the children reaches 18 years of age, graduates from high school, marries or becomes financially self-sufficient.

How Is An Order Modified – Agreement

The courts encourage parents to make agreements, particularly with respect to orders related to children. Frequently, both parents recognize a need to change the terms of the Decree and agree to do so. Although the parties have accomplished the first step of the modification process by making an agreement, they have not quite completed the process because their understanding alone does not serve to change the court’s orders. The second step is to have a revised order entered by the court.

Why Does An Agreement Need To Be Put Into An Order?

Frequently, parents who need changes to court orders will make informal modifications to the divorce decree. Although parents are free to make agreements which are in the best interest of a child, agreements for changes which 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 recited in the original order. If a dispute between the parents arose concerning how much was owed, the judge may assume that enforcing the existing order is the only option and a contempt order might even be entered. That risk exists even if the parties write down their agreement, unless it is approved by the court.

If the paying party obtains a modification order signed by the judge, there is no doubt about what is owed as child support and the risks of disagreements disappear. The same principles are applicable to informal agreements concerning visitation, health insurance payments and any other court orders relating to children.

Most modifications are settled without hearings or trials. The parents’ agreement is written into an Agreed Order Modifying Prior Order. Each party and the attorneys sign the orders and present them to a judge for approval and entry. Once the modification order is signed by the judge, it supersedes the terms of the prior order.

If the parents cannot agree concerning changes in the orders, the facts are presented to a judge, associate judge, or, in some cases, a jury, who will decide whether an order should be modified.

Conservators & Parental Rights Defined

In Texas, parents will be named as conservators of children unless there is a good reason why a parent should not be allowed to be a child’s conservator. There are some situations when others, such as grandparents, may also be named as children’s conservators.

Generally, parents who divorce will either be named as Joint Managing Conservators, or one parent will be named as Sole Managing Conservator and the other will be named as Possessory Conservator. The Texas Family Code outlines the rights of parents who are appointed as conservators of children.

Rights Of Parents At All Times

Each parent conservator will have the following rights at all times:

  • Access to the child’s medical, dental, psychological and other health care records,
  • Access to the child’s educational records,
  • The right to consult with any physician, psychologist, dentist or other health care provider for the child,
  • The right to consult with school officials,
  • The right to attend and participate in the child’s school activities,
  • The right to be designated as a person to be notified in case of an emergency involving the child,
  • The right to manage assets put aside for the child from the conservator’s relatives.

Rights Of Parents While In Possession Of The Child

Each parent conservator will have the following rights and duties during possession of the child:

  • The right to conduct moral and religious training of the child,
  • The duty of care, control, protection, and reasonable discipline of the child.
  • The duty of supporting the child, including providing clothing, food, and shelter,
  • The duty to provide medical, surgical, dental and other health care for the child that are not involve invasive procedures,
  • The right to consent to medical, dental, surgical and other health care treatment in the event of an emergency.

Managing Conservator’s Rights

The parent Sole Managing Conservator will have the following rights or they will be allocated between the parents if they are appointed as Joint Managing Conservators:

  • The authority to establish the residence of the child,
  • The right to consent to the child’s enlistment in the armed forces,
  • The right to consent to the marriage of the child while under age 18,
  • The right to consent to medical, dental, surgical or other health care for the child,
  • The right to consent to psychological or psychiatric treatment for the child,
  • The right to receive the child’s services and earnings,
  • The authority to represent the child in legal actions and make decisions of legal significance,
  • The right to act on behalf of the child or the child’s estate if action is required by a governmental agency.
  • The right to receive support payments for the child,
  • The right to spend support payments for the child’s benefit,
  • The right to make education decisions for the child.

Some of the parental rights may require consultation between the parties or an agreement of the parents in order to take action. For example, a) the parents may be required to agree before they can authorize elective surgery for the child or b) one parent may be obligated to listen to the other parent’s opinion about elective surgery, but is able to make the decision even if the other parent disagrees.

Jurisdiction

The Texas court that granted a divorce retains the power to modify the parts of the decree relating to children until a child finishes high school or is living on his own. If the children have moved to another county in Texas and lived there for at least six months, the case must be moved to that county upon any party’s request when a modification suit is filed.

If children whose parents divorced in Texas have lived for at least six months in a different state, any suit to change custody will be conducted in the state where the children live. The same rule applies to parents who were divorced in another state and whose children have lived in Texas for at least six months. 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.

Persons Who May Bring Suits For Modification

Any person who has court-ordered rights concerning a child may ask for a modification. Generally, that means the parents of children may request that orders be changed and usually no other persons have the right to do so. However, in some limited cases, other people may be allowed to bring a suit to modify a prior order.

Grandparents

The rights of grandparents are somewhat unsettled and the terms of the Texas Family Code have been changed several times concerning the latitude a grandparent has in child custody matters.

Generally speaking, a grandparent may initiate a suit asking for Managing Conservatorship of a child only if the grandparent can prove that the current court order puts the grandchild at risk because the parents are unfit. There are limited circumstances under which grandparents may request “possession” orders be entered allocating them specific times during which they have the children.

Persons With Whom The Child Has Lived For Six Months

If the conservators under a court order have allowed a child to live with a person who is not a conservator for six months or more, the person who has cared for the child may ask a court to modify a prior court order to give him or her managing conservatorship.

Proof Requirements

In each suit to modify a divorce decree the court will require the person who brings the suit (usually called the “Movant”) to prove certain facts. If the Movant cannot do this, the court will order that the divorce decree not be changed. Suits asking to change various parts of the decree require a Movant to prove different elements, but all elements must be proved by credible evidence presented through witnesses and documents. Generally, affidavits are not accepted by a court as evidence.

Change Of Circumstances

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 – but, each case is dependent upon the facts of the particular situation.

Motions To Modify Conservatorship (Child Custody) Orders:

The Family Code defines the level and type of proof necessary to change the different kinds of conservatorship orders. The requirements differ somewhat depending upon the nature of the existing order and the type of changes that are sought. Generally speaking, a change in conservatorship orders requires proof of a substantial and material change of circumstances that has rendered the past order inappropriate coupled with proof that a modification would be in the child’s best interests.

Changes in conservatorship are sometimes warranted but more often than not, the thrust of the modification sought by a party is actually a change in decision making authority with respect to the child. Although the court has the power to change the conservatorship label allocated to a person, the label alone is not too significant. Through the power to make decisions on behalf of a child, parents are able to exert the most influence over the child’s environment and development. Therefore, what an agitated parent may view as “a custody fight”, an experienced lawyer may characterize as a dispute over “parental rights and authority.”

Motions To Change The Relative Rights & Powers Of Conservators:

Often, Joint Managing Conservators will discover that a joint right — for instance, a right to determine where a child attends school — is unworkable because they cannot agree. That would be the appropriate time for one of the Joint Managing Conservators to ask the court to modify the parents’ rights, privileges, powers and duties. Similarly, if a parent proves that there is a need for the child to receive psychological treatment and the other parent refuses to take the child to a therapist, the Movant parent might ask a court to modify a prior order to give him or her the right to make decisions relating to the child’s mental health.

Sometimes a modification of the rights and duties as divided in a Joint Managing Conservatorship can have the same effect as a change in custody. For instance, a Joint Managing Conservatorship can be set up so that one parent maintains the child’s primary residence and has the child with him or her at all times except when the other parent exercises standard visitation rights. If a parent files a suit asking to be given the right to move the child 500 miles away, it means a major change in the lives of the child and the parents, even though no formal request for change of custody has been filed.

Motions To Change The Possession Schedules Or Circumstances

A motion to change the terms and conditions of possession can occur within a Joint Managing Conservatorship or a Sole Managing Conservatorship. Usually, the alteration sought is related to the times each conservator has possession of the child. In other cases, the circumstances related to parent or the child might be an issue (i.e., prohibitions related to the use of alcohol or drugs, restrictions upon where the parent might take the child, orders forbidding the presence of certain persons near the child, etc.).

The Texas Family Code includes a standard possession schedule and in the vast majority of cases the judge will apply that schedule or a variation of it. Even though it is referred to as a “standard schedule” the terms of it have changed over the past several years through amendments by the legislature. Recent changes to the Family Code allow parents with weekend visitation to elect to extend their periods of weekend possession so that they begin at the time school ends on Friday and end at the time school resumes the following Monday. If such a provision is not in the prior order, the election may be made at the time other visitation provisions are modified.

A modification of the schedule of visits is almost always required when one parent moves and the distance between a parent and the child is more than about 50 miles because travel time becomes an obstacle. Such problems frequently lead to the filing of a modification suit. The judge may also be requested to determine who should pay for the expenses related to visitation, including air fare or bus tickets for the child or hotel accommodations for a parent who visits a child from out of town.

Motions To Modify Child Support:

The Movant must present evidence that: 1) the circumstances of one or both parents or the child have materially and substantially changed since the date of the prior order and 2) the change in circumstances justifies an alteration in the amount of child support. Generally that means the earning capacity of the paying party has changed (increased or decreased) or the expenses of the child have changed (usually upward). Of course, the child’s advancing age may justify an escalation in support due to additional expenses incurred for the benefit of the child.

Modification orders cannot be used to change any amount that was owed prior to the filing of a request for an increase or decrease. However, if a parent had possession of the child during a period that the existing orders anticipated the other parent would have possession of the child, the paying parent can request an offset against the child support for expenses he/she paid for the child’s benefit. That fact can also be presented as a defense to a motion for contempt for nonpayment of child support during that period.

The Texas legislature has enacted guidelines for the calculation of child support. The guidelines are based upon percentages of the paying parent’s net monthly income from all sources. The percentage rises from 20% to 40% based upon the number of children for whom support payments are to be made. Those percentages will be adjusted downward if the paying party has other children he/she is obligated to support.

A new spouse’s income is not to be considered in setting a child support modification figure.

Orders that were entered before there were child support guidelines may be modified so that the amount ordered is consistent with the guidelines.

An increase in the needs, standard of living, or lifestyle of the parent who receives the support is NOT a reason to raise the paying parent’s child support obligation. However, the courts will rule that if the paying parent’s lifestyle has improved, the children should benefit from his or her ability to pay more.

A court may set support in an amount that is different from the guideline figure if additional sums are needed to pay for expenses directly related to the child (i.e., ongoing medical treatment, special educational costs, etc.). Further, the other budget items of the parents may be considered by the judge if they involve the children, such as payment of college costs or transportation expenses related to visitation travel.

A parent who pays support is also expected to pay the child’s health insurance premiums and part of the uncovered medical expenses for the child. Given the rising cost of both health insurance and medical care, issues relating to health insurance — including policy types and minimum coverage requirements – are frequently the subject of motions to modify child support.

The receiving parent may seek to modify a child support order which calls for support to be paid only through a child’s eighteenth birthday. Changes to the Family Code now require that support payments continue until a child graduates from high school even if that extends the payment period beyond age eighteen.

In cases where children become disabled after a child support order has been established, modification is available to extend support indefinitely.

Best Interest Of The Children

In all cases, the Movant must also offer evidence that the requested modification would be in the best interest of the children.

Testimony Of Children

Generally, judges take the position that children should not be asked to testify in custody matters. It is very difficult for a child to sit on a witness stand, look a parent in the eye and say under oath that he/she wants to live with the other parent. Judges may interview the children and, if so, may do so with or without the lawyers being present.

Children who are at least 12 years old may sign a statement choosing one parent as the person the child prefers to live with. A child’s testimony about where he/she wants to live or the fact that a statement of choice has been signed is not binding on the judge. If a parent can convince a judge that pressure to choose has been placed on a child or that a child’s choice would not be best for him or her, the child’s choice will not be honored. Generally, however, the choice of a teenager will greatly influence a judge’s custody decision. Likewise, the report of a psychological expert concerning what orders would be best for a child will be given considerable weight by the judge.

Procedure For Modifying Prior Orders

Contents Of Motion

All suits by parents to change court orders are started by filing a Petition To Modify Prior Order In Suit Affecting the Parent-Child Relationship. Suits brought by persons who were not mentioned in a prior order, like grandparents or persons with whom a child has lived for more than six months, would file a similar pleading, but with a somewhat different title. Each request for a change in court orders will recite terms similar to those used in the Family Code concerning the basis for modification.

Pleadings that seek to change conservatorship orders within a year after the date of a prior custody order must include an affidavit stating specific facts to support a claim that the child is in danger of physical or emotional harm unless a change of custody occurs.

Citation & Service

Each person whose rights are affected by the order to be modified must be served with the Petition and a form called a Citation. The Citation includes language stating that the person receiving it must file a written answer in the lawsuit and states the time within which that is to be done – roughly 20 days – if the person wants to participate in the modification proceedings. A court may not make a valid modification order unless all persons involved have been served with citation or have taken part in the suit.

Temporary Orders

A court can grant a party’s request to make an immediate change in the prior order by signing temporary orders. However, the judges are very reluctant to enter temporary orders unless the evidence is clear that doing so is necessary to protect the child.

A court will not change Managing Conservatorship of a child by signing temporary orders unless it finds that the child’s physical or emotional welfare would be in danger if custody were not changed immediately, or unless a child over the minimum age has signed a statement choosing one parent as a Managing Conservator. Even in cases where children have filed such statements, if a Movant is unable to prove that the temporary custody change would be in the best interest of the child, the change will not be ordered.

In situations where the children have lived for more than six months in a county other than where the prior order was entered, the original court may enter temporary orders before moving the case to the new county.

Final Hearings

Attorneys prepare for final hearings in modification suits in the same way that they prepare for original divorce trials and other lawsuits. Clients are asked to prepare lists of possible witnesses and outlines of what testimony each of the persons may have to offer. Documents, photographs, video and audio tapes related to the issues will also be collected by each side. Often, the parties and some experts will be required to give depositions and there may be other discovery tools used by the lawyers.

In suits to modify prior orders, parents are entitled to a jury only if custody is contested. Judges decide requests to change visitation, support or the relative rights of the parents. Even in cases where a parent wants a change of custody, the jury only gets to decide who gets custody, not the parents’ rights, visitation or support.

Modifying Orders

Changes to child-related parts of a prior order will be set out in an Order Modifying Prior Orders. Any parts of the prior order that are not specifically changed by the new order will remain in effect.

Conclusion

The existence of the standard possession schedule and the standard child support guidelines make the modification of prior orders more predictable than was previously the case. Generally speaking, the judge will be inclined to apply the standards or, at least, use the standard as a “starting point:” to fashion a modification order. Predictability was one of the primary reasons the “standards” were placed into the Family Code. That being the case, the majority of modification suits are settled through the entry of a “standard” order or one similar in terms to the standard order.