Modification of Previous Order

A Petition or Motion for Modification is a suit requesting a change from the last court order affecting the child. The modification may be in regard to child sup­port, conservatorship (custody), and/or possession and access.

Who may file for a modification? A person affected by the prior court order, or a person who would have standing to sue in an original suit to affect the parent child relationship regarding the child, may file for a modification.

Where should the modification be filed? The modification suit should be filed in the court of continuing exclusive jurisdiction, i.e., the last court to issue a final order.

Who needs to be notified of the modification? Any party whose rights and duties may be affected by a suit for modification is entitled to receive notice by personal serv­ice of citation.

Can temporary orders be issued in a modification? Yes, however, the court may not render a temporary order that changes the designation of the person having exclu­sive right to designate the primary residence of the child under the final order unless:

(1) the order is necessary because the child’s present living environment may endanger the child’s physical health or significantly impair the child’s emo­tional development; or

(2) the person designated in the final order has voluntarily relinquished the pri­mary care and possession of the child for more than six months and the tem­porary order is in the best interest of the child.

Is a change in circumstances required to request a modification? There must be a material and substantial change in circumstances since the last court order to be able to request a modification. For example, there is an increase in travel expenses due to a parent’s change of residence; a parent is convicted of child abuse or family violence; the needs, standard of living, or lifestyle of a parent or child changes; the child’s residence changes; or military service changes a parent’s living status.

What must I show to modify an order regarding custody or possession and access? You must show the modification would be in the best interest of the child, and either:

(1)               the circumstances of the child, a conservator or other party affected by the order have materially and substantially changed since the earlier of (a) the date the order was rendered, or (b) the date the mediation order or collabo­rative agreement was signed on which the order is based; or

(2)               the conservator who has the exclusive 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.

Can a modification be filed within one year of the order establishing the parent who has the exclusive right to designate the primary residence of the child? If a suit is filed seeking to change the person who has the exclusive right to determine the pri­mary residence of the child not later than one (1) year after the order is rendered or the mediated or collaborative settlement is signed, then the person seeking the modifica­tion must sign an affidavit stating facts supporting at least one of the following:

(1) the child’s present environment may endanger the child’s physical health or significantly impair the child’s emotional development;

(2) the person who has the exclusive right to designate the primary residence of the child is the person seeking or consenting to the modification and the modification is in the best interest of the child; or

(3) the person who has the exclusive right to designate the primary residence of the child has voluntarily relinquished the primary care and possession of the child for at least six months and the modification is in the best interest of the child.

If the court does not find adequate facts to support any of the allegations listed above, the court will deny the modification and refuse to schedule a hearing for modification.

If the court determines the facts stated in the affidavit are adequate to support an alle­gation, the court will set a time and place for the modification hearing.

Can a modification be filed when there is an increase of travel expenses due to a parent’s change of residence? Yes. If a change of residence results in increased expenses for a parent having possession of or access to a child, the court may issue appropriate orders to take into account those increased expenses and the best interest of the child. It is presumed that the parent whose residence has changed shall be responsible for payment of the increased expenses. However, the parent whose residence has changed may present evidence to the court to try to overcome that presumption.

What must be shown to modify a child support order? To change a child support order, you need to show the court the following:

(1) there has been a material and substantial change in circumstances affecting a child or person affected by the order since the last court order, or

(2) it has been three years since the last order and the monthly amount of child support differs by either 20 percent or $100 from the amount that would be awarded now under the child support guidelines.

If the person ordered to pay child support remarries can the court consider the income of the new spouse? No. The court cannot consider the income or needs of the new spouse when calculating the child support.

Can the change in child support be retroactive? Yes, but only back to the earlier of the date the opposing party is served with citation, or the opposing party makes an appearance in the suit.

This article is not intended to be legal advice and is not a substitute for legal representation by an attorney. You are encouraged to seek the advice of your own attorney to answer any specific legal questions you may have.