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Modification Cases

Anderson Legal Group is located in Colleyville, Texas

Modification of Parent-Child Relationships FAQ’s

A Modification Case is filed when one of the conservators of a child wants to make a change in the current order regarding the child. A modification case is used to modify a Final Decree of Divorce, Order in Suit Affecting the Parent-Child Relationship, or Order in Suit to Modify Parent-Child Relationship.

The first thing to do in a Modification case is to review the Order that is currently in place because that is how we determine what may need to be modified. For example, if the current Order designates the mother as the conservator with the exclusive right to designate the primary residence of the child and awards the father a possession schedule, a Petition to Modify is the tool to use in order to make a change if the father wants the child to live primarily with him. The primary focus of the Court when dealing with a Modification case is the best interest of the child.

At Anderson Legal Group, we are ready to assist you with your modification case, whether the terms are agreed or contested. We will begin with a consultation to review the current Order, establish your goals, and provide options for you to consider in moving your case forward. It is very helpful to bring a copy of the current Order to your consultation.

A.  Five Major Issues in Modification Cases

There are five key areas that need to be addressed when dealing with a modification case.  The focus of each child custody modification case will likely vary, but it is important to have a general understanding of the five major issues in child custody litigation.

1. Parental Rights and Conservatorship

General Law:  All Texas parents have some rights and duties at all times.  (Examples of these would include: the right to attend school activities and the right to consult with teachers and medical providers). There are other rights and duties that all parents have during their possession period with their child. (For example, the duty to provide food, shelter and clothing for the children). Since these rights are given to all parents they are not typically the subject of child custody litigation unless a parent-child relationship is going to be terminated.

Instead, there are some specialized rights that the Court usually allocates between the parents and these are the most contested rights. (For example the right to determine the primary residence of the child, the right to make educational decisions for the child, and the right to make invasive, non-emergency medical decisions for the child). These specialized rights can be allocated between the parents in four ways: 1) by each parent independently, 2) by each parent independently after consulting with the other parent, 3) by the joint agreement of the parents, and 4) by one parent exclusively.

 The Texas Family Code addresses issues of managing the child’s life by appointing “conservators” and not by awarding “custody”.  Conservatorship simply means who will be able to make these specialized decisions of the child.  Generally, the Court awards either: Joint Managing Conservators (JMC) or Sole Managing Conservators (SMC).

A Joint Managing Conservatorship (JMC) occurs when the specialized rights are shared in some fashion.  In Texas, child custody litigation, a JMC designation occurs about 90% of the time.  One of the reasons JMC is so common is because the Texas Family Code mandates that parents should be appointed as Joint Managing Conservators (JMC) unless good cause is shown otherwise. After the designation of JMC, the Court may then assign exclusive rights to one or both of the conservators.

Alternatively, a Sole Managing Conservator (SMC) is when one parent is exclusively granted all of the specialized rights to manage the child’s life.  A Court rarely assigns a SMC, instead of JMC. However, if a Court awards SMC it is likely there are facts regarding family violence, failing to make decisions in the best interest of the child, drug use, and/or parental alienation directed against the other parent.

Sometimes custody cases include issues where the conservators cannot agree on the choice of school, or how to resolve the child’s developmental issues.  We have the working relationships with therapists and other mental health professionals to help prepare such a case to accomplish your specific conservatorship goals.  However, this is only able to be done by developing a good relationship and being able to listen to your goals.  This is something that every attorney at Anderson Legal Group strives for so that we can accomplish your objectives.

Modifying Parental Rights and Conservatorship:  In Order to modify conservatorship, we must show the Court that a material and substantial change has occurred since the prior Order, and the requested modification is in the best interest of the child. Depending on the timing and specifics of the prior order, some additional facts may need to be proven. This is very fact-specific, so make sure to tell your attorney of all reasons you believe the change is in the child’s best interest. Some requests may require that a sworn Affidavit be attached to the Petition when it is filed.

2.  Possession

In Texas, Courts use the word “possession” to define the parenting time of each conservator. In order to encourage frequent contact between a child and each parent, the legislature has adopted what is referred to as the Standard Possession Order (SPO). It is intended to act as a guideline or starting point for defining when each parent has the child exclusively.  Generally, a parent who is awarded a Standard Possession Order schedule would have the child every Thursday (during the school year) for dinner and the first, third, and fifth weekend of the month from Friday at 6:00 p.m. until Sunday at 6:00 p.m.  That parent would also get an equalized period of the holidays. While not currently supported within the Family Code, some judges and litigants want a more equalized possession schedule like week-on week-off or a 2-2-3. The point is that possession schedules are as varied as the families that they manage.

The Standard Possession Order (SPO) is presumed to be in the best interest of children age three and older. When a child is less than three years of age, the Court must usually render a customized stair-stepped possession order that is in the child’s best interest. The Texas Family Code contains a non-exclusive list of factors the Court must consider when rendering a customized stair-stepped possession order for a child under three.

Generally, the Court may deviate from the SPO if it is in the child’s best interest, to protect the child, or if the SPO is unworkable. For example, if a parent uses illegal drugs, the Court may order that visitations be supervised until the parent is no longer using drugs. The Court may only limit a parent’s possession to a child to the extent necessary to protect the child.

Sometimes parents have occupations that do not follow a typical nine-to-five, Monday through Friday work schedule. This is often common for doctors, nurses, police officers, firefighters, and airline pilots. Because of this State’s policy to encourage frequent contact between each parent and the child, the Court may deviate from the SPO and tailor a customized possession schedule for these unique circumstances.

Parents may also agree to any deviation of the possession and access schedule set forth in the Texas Family Code so long as it is in the child’s best interest. In fact, parents are encouraged to work together and reach agreements. For example, if one parent’s family always celebrates Christmas on Christmas Eve and the other parent’s family always celebrates Christmas on Christmas Day, a possession schedule can be structured that accommodates these family traditions so that the child can always participate in important events. Other examples of deviations could include religious holidays, important family days, etc.

Modifying Possession Schedule:  In Order to modify the possession schedule, we must show the Court that a material and substantial change has occurred since the prior Order, and that the requested modification is in the best interest of the child. The Court will consider the schedule that the parents are currently following for the child when making a determination on this issue. For example, if a mother is awarded a Standard Possession Order in the current Order and is not exercising all of the possession that the Court awarded her, then the Court will take that into consideration when considering a Modification of the prior Order.

Regardless of your goals and facts, our attorneys will work diligently to obtain the Modification relief that you desire.  During the process, we will answer your questions and explain the fundamental differences in each type of possession.  Our collective work and legal expertise will in turn empower you to be an informed and supportive parent during this process.

3.  Child Support

Parents owe a legal obligation to financially support their children, and for parents who are divorcing, one means of accomplishing that obligation is through child support. Texas provides a guideline calculation intended as a presumed, minimum support amount that is related to the SPO. Generally, the guideline amount is insufficient to cover expenses of child care, extracurricular activities, educational assistance, and all of the costs that come with raising a child.

Support is typically paid monthly or when the obligor is paid by their employer. To be enforceable, the amount needs to state a specific sum, not just a percentage to be applied to what the obligor is paid. During our initial consultation, we shall calculate the child support payments.  Therefore, in the future please be prepared to provide our office with the following documents:

  • Any prior divorce decree of either party;

  • Any current orders for support;

  • Any signed acknowledgment of paternity;

  • Birth certificates of the children (if paternity is disputed);

  • Documents that reflect the income of either parent;

    • Paycheck stubs

    • Tax returns

    • W-2’s

    • Bank statements

  • Records of child support payment history; and

  • Documents that evidence justification for a variance from guideline support.

During our initial consultation about Modifications, we will discuss all aspects of child support.  The following terms may also be discussed if appropriate:

  • “Temporary support” is the child support paid during the period between the initial filing and the final Order.

  • “Arrearage” is child support that was ordered to be paid by the Court but was not paid.

  • “Enforcement” is a lawsuit to request that the Court order a judgment for unpaid support, a time frame for it to be paid, and potentially, punishment for the failure to pay.

  • “Obligor” is the person ordered to pay child support.

  • “Obligee” is the person receiving child support.

Modifying Child Support: In Order to modify child support, we must show the Court that a material and substantial change has occurred since the prior Order, and the requested modification is in the best interest of the child. The following are some examples of why child support could be modified:

  • The person currently paying child support has experienced a substantial decrease in income.

  • The person currently paying child support has experienced a substantial increase in income.

  • The person receiving child support under the current Order no longer has primary possession of the child. This is a very case-specific option, so please discuss it in depth with your attorney.

  • If a modification of possession is requested, a modification of child support may also be warranted.

4.  Health Insurance

Medical support is an amount paid by parents for a child’s medical coverage. This can be in the form of paying for health insurance, reimbursing the other parent for health insurance, or enrollment in a government program. These expenses are paid in addition to child support.

If the parent ordered to provide health insurance (obligor) has health insurance coverage available through his/her employer at a cost that does not exceed 9% of their annual gross income (referred to as “reasonable cost”), the parent will be ordered to maintain the child on the policy. If the obligor cannot provide coverage through an employer at a reasonable cost, then the other parent (obligee) should provide coverage available through their employer. Then, the obligor would be responsible to reimburse the obligee for the cost of the child’s health insurance premium. If neither parent has health insurance available through an employer, the Court can order the obligor to purchase a private policy.

In addition to the cost of premiums, the Court (or the parents by agreement), will set an amount (usually designated by a percentage), that each parent will pay for uninsured and uncovered medical expenses like co-pays, the deductible and prescriptions. While this is typically set at 50/50, the Court can consider each parent’s ability to pay these additional costs.

During our initial consultation, we will discuss your child’s current Court Ordered health insurance and we will discuss if any Modification of these Orders is appropriate.  In the future, you may also be requested to supply the following:

  • Existing health insurance policies;

  • Existing premium and coverage amounts (Your employer will have a chart that sets out the cost for Employee, Employee, and Spouse, Employee and Family, etc.);

  • Available health insurance options (including premium and coverage amounts);

  • Health savings account (HSA) information; and

  • Any extraordinary medical needs of a child subject of the suit.

5.  Residency Restriction

It is the public policy of Texas to encourage frequent contact between a child and each parent. However, this proves difficult (or sometimes impossible) if the parents live far from each other.  This situation is happening with more frequency in Texas. Therefore, the Court generally will impose a residency restriction defining the child’s primary residence. Typically, the Court will order that the child’s primary residence must remain within the county of the Court that is issuing the Order, or (sometimes) counties contiguous to where the Court is located.  In Modification actions, the residency restriction can be an issue when a conservator wants to move outside of the restricted area.

Modifying Residency Restriction:  In Order to modify a residency restriction, we must show the Court that a material and substantial change has occurred since the prior Order and the requested modification is in the best interest of the child. Depending on the timing and specifics of the prior order, some additional facts may need to be proven. The argument is very fact-specific, so make sure to tell your attorney of all reasons you believe the change is in the child’s best interest. Some requests may require that a sworn Affidavit be attached to the Petition when it is filed.

B.  Interviewing the Child

One of the tools that can be used in a Modification case is having the child speak with the Court regarding the child’s wishes. Many people ask when a child can choose with whom they live or how often they visit the other parent.

The Texas Family Code provides that a child who is 12 years of age or older may express their desire regarding which parent he/she would like to have the exclusive right to determine the child’s primary residence in an in-chambers interview with the Court. Generally, if an interview is requested, the Court must interview the child. However, the child’s desire is not binding on the Court. The Court still must make a “best interest” determination regarding which parent should be awarded the exclusive right to designate the primary residence of the child. Further, a parent can only request this interview if the pending case is a non-jury case. If a party has requested a jury trial, the interview will not be conducted.

Contrary to the impression some people have, a child cannot merely choose whether or not he or she wants to visit a parent for that parent’s periods of possession. However, a party may request that the Court interview the child to determine the child’s wishes as to possession, access, or any other issue.  The Court is not required to conduct this type of interview.

Modifications that have the potential to change your relationship with your child are emotional.  When you are ready for the best legal representation for achieving your results, and reducing your stress, contact us at 817-424-3405.  During your free consultation, you will experience first-hand how our attorneys are the best fit for your Modification matter.