by Houston Divorce Attorney Sam M. “Trey” Yates, III
A Motion to Modify is a written request to the court asking to change a previous order. In family law, that can mean changing things like child custody or visitation, child support, or other provisions found in a divorce decree or order concerning the parent-child relationship. Under the Texas Family Code, an existing order in a family law case can be modified or set aside, but that act must be done by a court of competent jurisdiction. That means that parties must present their request to change the terms of their order to the court that has jurisdiction to hear the case, typically the court that entered the order sought to be changed. If, however, one or both parties have moved away since the last order or other substantial changes have occurred, there may be a jurisdictional question that an experienced attorney who is a family law specialist will be able to advise you on. Remember, an agreement by the parties is not enough to effect a change to the existing court order, even if it’s in writing, and one who relies on such an agreement and acts in violation of a court order is at risk of being found in contempt of court.
The first step in the process of modifying a court order in Texas would be to file a motion to modify and request a hearing. The motion or ‘pleading’ should specify the change that is being requested in enough detail to be clearly understood by the judge. Once filed, the pleading will have to be served on the opposing party. Further, there are specific legal requirements that must be met in order for the court to even consider a request for modification. An experienced family law attorney will be familiar with the requirements of the Texas Family Code, and be able to explain to you why you do or do not meet the requirements. A material and substantial change in circumstances is one of the primary legal requirements that must be satisfied, in order to seek the modification of an existing order concerning the parent-child relationship. Some of the types of things that may reach the level required to satisfy the “material and substantial change” burden are:
- Change in employment that involves a significant change in income, work hours or travel
- Change in parenting schedule involving a substantial shift in time children spend in each parent’s home
- Parent moving significantly further from or closer to children
- Change in a child’s home environment, for better or worse (ex: incidents of abuse of a spouse or child or drug/alcohol abuse, or therapy and/or treatment leading to recovery)
- Habitual violations of the existing court order
- Parent is convicted of a crime, such as crime of violence, sexual assault, or domestic violence
Save yourself the expense and frustration of filing a modification and going to court, just to learn that your circumstances do not meet the legal requirements set out in the Texas Family Code. Seek out the advice of an experienced attorney first, preferably one who is board certified in family law by the Texas Board of Legal Specialization.
Assuming that your circumstances meet the requirements of the Texas Family Code to proceed with a modification, an experienced family law attorney will be able to prepare your modification so that it meets the various pleading requirements, and get it filed with the appropriate court in the proper jurisdiction.
Some common reasons people may seek a modification are that they want to move, or they learn the other parent got a raise in salary at work, or they become concerned that there may be abuse, neglect or domestic violence occurring in the home with the other parent. Many times the reason for moving or amount of salary change will not reach the level of “material and substantial change” required by the Texas Family Code for the court to consider your request to modify. For example, a change in salary that will not result in a change of at least $100 per month when the child support guidelines are applied will not support a modification sought three or more years after an existing order. But a significant shift in the amount of time children spend in the home of one parent over the other may be sufficient to satisfy the material and substantial change requirement. Family law attorneys will usually offer consultations during which your reasons for wanting to modify can be discussed, and the attorney will offer his opinion as to the likelihood of success and other factors and options to consider.
Of course, if you suspect that your child is in immediate danger when in the home of the other parent, your concerns should be reported immediately. The Department of Family and Protective Services has a toll free number, and reports of suspected abuse or family violence remain anonymous. Every report will be investigated and the Department will become involved, possibly including removing the child from the home, if their investigation confirms the abuse or reveals a reason to believe abuse is occurring. Some circumstances of neglect or abuse may not reach the level of immediate danger to the child required for CPS involvement, but will still satisfy the material and substantial change required by the Texas Family Code to seek a modification. Discuss your concerns with an attorney experienced in family law, particularly in cases of possible family violence and/or abuse.
When seeking to modify an order affecting the parent-child relationship, the strongest tool in a parent’s arsenal is the advice and guidance of an experienced attorney who is board certified in family law by the Texas Board of Legal Specialization. Here at The Law Office of Sam M. “Trey” Yates, III, P.C., we have more than 20 years of experience handling a wide variety of family law matters, and we will guide you every step of the way. With our help, you can be assured that you will approach your modification case with a realistic understanding of the strengths and weaknesses of your case, an idea of the likely outcome, and knowledge of the various alternative options available.
Sam M. “Trey” Yates, III is a Houston-based Board Certified Family Law Attorney and creator of The Guide to Good Divorce seminars for women. If you need an attorney to assist you with the modification of an order affecting the parent-child relationship in Harris, Fort Bend, Brazoria, Montgomery or Galveston Counties, or the surrounding area, please contact The Law Office of Sam M. “Trey” Yates, III, P.C. for a consultation.