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Modification
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Modification of Conservatorship
Child's Best Interest as Primary Consideration
The child's best interest is always the primary consideration of the court in determining questions of conservatorship and possession of and access to a child [ Fam. C. § 153.002 ; see Hogge v. Kimbrow, 631 S.W.2d 603, 605 (Tex. App.--Beaumont 1982, no writ) --``best interest of child'' is not legal term with peculiar meaning unknown to lay persons].
Policies Favoring Frequent Contact, Stability, and Cooperation
It is Texas' public policy to [ Fam. C. § 153.001(a) ]:
- Assure that children will have frequent and continuing contact with parents who have shown the ability to act in the children's best interest.
- Provide a stable environment for the child.
- Encourage parents to share in the rights and duties of raising their child after the parents have separated and dissolved their marriage.
Stability favored.
Although a disruption of the child's life at the time of the divorce is unavoidable, the disruption can be abated and the situation improved after the divorce. Strong public policy favors a high degree of stability in the child's present environment and disfavors post-divorce changes in the child's lifestyle [ Knowles v. Grimes, 437 S.W.2d 816, 817 (Tex. 1969) ; Mumma v. Aguirre, 364 S.W.2d 220, 221 (Tex. 1963) ; Ogletree v. Crates, 363 S.W.2d 431, 436 (Tex. 1963) ; In Interest of Vasquez, 666 S.W.2d 649, 651 (Tex. App.--Corpus Christi 1984, no writ) ; see Fam. C. § 153.001(a)(2) ]. There is also a strong public policy against relitigating child-related disputes [ Knowles v. Grimes, 437 S.W.2d 816, 817 (Tex. 1969) ; Mumma v. Aguirre, 364 S.W.2d 220, 221 (Tex. 1963) ; Ogletree v. Crates, 363 S.W.2d 431, 436 (Tex. 1963) ; see Short v. Short, 163 Tex. 287, 354 S.W.2d 933, 936 (1962) ; In Interest of Anglin, 542 S.W.2d 927, 932 (Civ. App.--Dallas 1976, no writ) ].
Right to Possession Independent From Duty of Support
A parent's right to possession of or access to a child is independent from the parent's duty to support the child. A court may not render an order that conditions a conservator's right to possession of or access to a child on the payment of child support [ Fam. C. § 153.001(b) ]. Similarly, a court may not render an order that conditions the payment of child support on whether a managing conservator allows a possessory conservator to have possession of or access to a child [ Fam. C. § 154.011 ].
Preference for Parent Over Nonparent Not Controlling
In an original conservatorship proceeding in which a parent and a nonparent are vying for appointment as the child's managing conservator, there is a rebuttable presumption that the parent is to be appointed unless the court finds that appointment of the parent would not be in the child's best interest because the appointment would significantly impair the child's physical health or emotional development [ Fam. C. § 153.131(a) ]. In an original custody proceeding, the court must heavily favor the parent by reason of this rebuttable presumption. However, in a modification proceeding, this parental presumption is a factor to consider but does not control. If a nonparent rebuts the presumption in the original custody determination, the parent in a subsequent modification proceeding must meet the requirements for a change of custody set out in the Family Code [ In Interest of Ferguson, 927 S.W.2d 766, 768-769 (Tex. App.--Texarkana 1996, no writ) ].
Gender Discrimination Prohibited
The court must consider the parties' qualifications without regard to their marital status or to the gender of the party or the child in determining [ Fam. C. § 153.003 ]:
- Which party to appoint as sole managing conservator.
- Whether to appoint a party as joint managing conservator.
- The terms and conditions of conservatorship and possession of and access to the child.
Split or Divided Custody
A split or divided custody arrangement occurs when one parent is designated the sole managing conservator of one or more of several siblings and the other parent is appointed the sole managing conservator of the others.
Clear and compelling reasons.
Some courts have held that a petitioner seeking a modification that would create divided custody must show clear and compelling reasons justifying the divided custody; otherwise, children should be raised together with their siblings [ Autry v. Autry, 350 S.W.2d 233, 236 (Civ. App.--El Paso 1961, dis.) ; O. v. P., 560 S.W.2d 122, 127 (Civ. App.--Fort Worth 1977, no writ) ; see also R.S. v. B.J.J., 883 S.W.2d 711, 720 (Tex. App.--Dallas 1994, no writ) --public policy does not bar separating children of same marriage]. On the other hand, one court of appeals has rejected the requirement of a showing of clear and compelling reasons for split custody of children on the ground that the Family Code does not impose that requirement but provides instead that the children's best interest must always be the primary consideration. That court stated that split custody is simply one of the factors to consider in determining the children's best interest [ MacDonald v. MacDonald, 821 S.W.2d 458, 463 (Tex. App.--Houston [14th Dist.] 1992, no writ) ].
Requirement applies only to siblings.
Regardless of whether the requirement for clear and compelling reasons is to be applied in all cases, it is clear that the requirement does not apply to the separation of a child of the marriage from children born to one of the parents during a previous marriage [ Wristen v. Kosel, 742 S.W.2d 868, 870 (Tex. App.--Eastland 1987, den.) ; Pizzitola v. Pizzitola, 748 S.W.2d 568, 570 (Tex. App.--Houston [1st Dist.] 1988, no writ) ].
Establishing clear and compelling reasons.
Clear and compelling reasons for divided custody were demonstrated in the following circumstances:
- The parents' behavior made appointment of nonparent managing conservators in the children's best interest, even though it resulted in splitting them from their brother who remained with parents [see R.S. v. B.J.J., 883 S.W.2d 711, 720 (Tex. App.--Dallas 1994, no writ) ].
- Although the father had snatched the child, the child was so upset at having to return to the mother's custody that a custody modification was justified [ Hamann v. Morentin, 660 S.W.2d 645, 647 (Tex. App.--Fort Worth 1983, no writ) ].
- The custodian's poisoning of the oldest child's mind against the noncustodian, and their combined efforts similarly to poison the youngest son's mind, justified modification of custody of the youngest son to the noncustodian [ Jeffers v. Wallace, 615 S.W.2d 252, 254 (Civ. App.--Dallas 1981, no writ) ].
History of Domestic Violence
In determining whether to appoint a party as a sole or joint managing conservator, the court must consider evidence of the intentional use of abusive physical force by a party against the party's spouse or against any person younger than 18 years of age committed within a two-year period preceding the filing of the suit or while the suit is pending [ Fam. C. § 153.004(a) ]. The court may not appoint joint managing conservators if credible evidence is presented of a history or pattern of past or present child neglect, or physical or sexual abuse by one parent directed against the other parent, a spouse, or a child [ Fam. C. § 153.004(b) ]. The court must consider the commission of family violence in determining whether to deny, restrict, or limit the possession of a child by a parent who is appointed as a possessory conservator [ Fam. C. § 153.004(c) ].
Penalty for Frivolous Suit
If the court finds that a suit for modification was filed frivolously or is designed to harass a party, the court must tax attorney's fees as costs against the offending party [ Fam. C. § 156.005 ; see D.R. v. J.A.R., 894 S.W.2d 91 (Tex. App.--Fort Worth 1995, den.) ].
Penalty for False Allegation of Child Abuse or Neglect
If a party to a pending SAPCR makes a report alleging child abuse by another party that the reporting party knows lacks a factual foundation, the court is required to deem the report to be a knowingly false report [ Fam. C. § 153.013(a) ]. If the court makes this finding, the court is required to impose a civil penalty of up to $500 [ Fam. C. § 153.013(c) ]. In addition, if the court finds that a party made a false allegation of child abuse or neglect, the court may impose any civil sanction permitted by law, including attorney's fees, costs of experts, and any other costs [ Fam. C. § 105.006(f) --as added by Acts 1997, 75th Leg., ch. 786, § 1].
Effect on terms of conservatorship.
Evidence of a false report of child abuse is admissible in a suit between the involved parties regarding the terms of conservatorship of a child [ Fam. C. § 153.013(b) ].
Replacing Sole Managing Conservator With Another Sole Managing Conservator Based on Material and Substantial Change in Circumstances Plus Positive Improvement
The court may modify an order that designates a sole managing conservator of a child of any age if [ Fam. C. § 156.101(a) ]:
- The circumstances of the child, sole managing conservator, possessory conservator, or other party affected by the order have materially and substantially changed since the date the order was rendered; and
- The appointment of the new sole managing conservator would be a positive improvement for the child.
Both the material change and positive improvement prongs of the test must be satisfied [ Bukovich v. Bukovich, 399 S.W.2d 528, 529 (Tex. 1966) ].
More than slight change required.
A slight change in circumstances will not justify a modification of managing conservatorship [ Short v. Short, 354 S.W.2d 933, 936 (Tex. 1962) ].
Change must have occurred since prior order. The material change must have occurred after rendition of the order sought to be modified [ Fam. C. § 156.101 ; In re Y, 516 S.W.2d 199, 201, 203 (Civ. App.--Corpus Christi 1974, ref. n.r.e.) ]. A circumstance that existed at the time the prior order was rendered does not support a finding of a material change in circumstances [see Neal v. Neal, 606 S.W.2d 729, 731 (Civ. App.--Beaumont 1980, ref. n.r.e.) ; Villarreal v. Villarreal, 684 S.W.2d 214, 218 (Tex. App.--Corpus Christi 1984, no writ) ].
Change must affect child's welfare.
The material change must directly or indirectly affect the child's welfare [ Ramos v. Ramos, 683 S.W.2d 84, 86 (Tex. App.--San Antonio 1984, no writ) ]. Many aspects of the child's physical, mental, emotional, and moral well-being have been considered in deciding whether there has been a material change of circumstances affecting the child's welfare [ Snider v. Grey, 688 S.W.2d 602, 606-607 (Tex. App.--Corpus Christi 1984, dis. w.o.j.) ], including:
- Whether a party has provided for the child's particular health needs, handicaps, hygiene habits, and dietary and clothing needs [see, e.g., Horton v. Horton, 625 S.W.2d 78, 80 (Tex. App.--Fort Worth 1981, ref. n.r.e.) ].
- Whether a party has properly overseen the child's educational and social development [see, e.g., Queton v. Queton, 622 S.W.2d 648, 651 (Tex. App.--Fort Worth 1981, ref. n.r.e.) ; Wright v. Wright, 610 S.W.2d 553, 555 (Civ. App.--Houston [1st Dist.] 1980, no writ) ].
- A party's ability or inability to spend time with, care for, and supervise a child [see, e.g., Barron v. Bastow, 601 S.W.2d 213, 214 (Civ. App.--Austin 1980, dis. w.o.j.) ; Jilek v. Chatman, 613 S.W.2d 558, 561 (Civ. App.--Beaumont 1981, no writ) ].
- A party's income, financial situation, employment history and capacity, present job status, and type of employment [see, e.g., T.A.B. v. W.L.B., 598 S.W.2d 936, 939 (Civ. App.--El Paso, 1980), ref. n.r.e. per curiam 606 S.W.2d 695 (Tex. 1980), cert. denied sub nom. Bowling v. Bowling, 454 U.S. 828 (1981) ].
- Frequent changes of residence by the managing conservator [ Queton v. Queton, 622 S.W.2d 648, 650 (Civ. App.--Fort Worth 1981, ref. n.r.e.) ; Scroggins v. Scroggins, 753 S.W.2d 830, 832 (Tex. App.--Houston [1st Dist.] 1988, no writ ].
Child's Changing Needs
The changing needs of the child as he or she gets older may, by themselves, constitute a material change in circumstances [ Randle v. Randle, 700 S.W.2d 314, 316 (Tex. App.--Houston [1st Dist.] 1985, no writ) ]. However, the age of the child or a party, as an isolated fact, is generally insufficient to support modification of managing conservatorship [see, e.g., D.W.D. v. R.D.P., 571 S.W.2d 224, 226 (Civ. App.--Fort Worth 1978, ref. n.r.e.) ].
Party's Physical and Mental Condition
A party's physical infirmities rarely justify modification unless the party is substantially unable to care for the needs of the child. On the other hand, courts consider a party's mental health and emotional stability to be very important factors [see, e.g., Gibbs v. Greenwood, 651 S.W.2d 377, 379-381 (Tex. App.--Austin 1983, no writ) ; Davis v. Duke, 537 S.W.2d 519, 521-522 (Civ. App.--Austin 1976, no writ) ].
Party's Remarriage
Although a party's remarriage, as an isolated fact, is insufficient to justify modification [see Ramos v. Ramos, 683 S.W.2d 84, 86 (Tex. App.--San Antonio 1984, no writ) ], the circumstances created by a remarriage may affect the child in such a way as to justify modification [ Kirkwood v. Kirkwood, 663 S.W.2d 34, 36 (Tex. App.--El Paso 1983, no writ) ; but see Belford v. Belford, 682 S.W.2d 675, 676-677 (Tex. App.--Austin 1984, no writ) ]. For example, remarriage may provide a party with greater income and better living conditions and may allow the party to spend more time with the child [see, e.g., Jilek v. Chatman, 613 S.W.2d 558, 561 (Civ. App.--Beaumont 1981, no writ) ; Colbert v. Stokes, 581 S.W.2d 770, 772 (Civ. App.--Austin 1979, no writ) ]. On the other hand, a remarriage may produce financial hardship, or the new spouse may abuse the child, speak disparagingly of the other party, or be of less than reputable character [see, e.g., In Interest of F.J.K., 608 S.W.2d 301, 304 (Civ. App.--Fort Worth 1980, no writ) ; Evans v. Tarrant County Child Welfare Unit, 550 S.W.2d 144, 145 (Civ. App.--Fort Worth 1977, no writ) ].
New spouse's race may not be considered.
The United States Supreme Court has held it unconstitutional to consider the race of the parent's new partner in making a custody decision [ Palmore v. Sidoti, 466 U.S. 429, 433-434, 104 S. Ct. 1879, 80 L. Ed. 2d 421 (1984) ].
Use of Child as Pawn
A parent's use of a child as a pawn in disputes may constitute a material and substantial change in circumstances [see, e.g., Guy v. Stubberfield, 666 S.W.2d 176, 180 (Tex. App.--Dallas 1983, no writ) ].
Child-Snatching
Snatching a child and fleeing may be sufficient to justify a modification of custody. The deliberate secreting of the child demonstrates that the person may be unfit as a custodian and that the child's best interest will be promoted by placing the child with the other party [see, e.g., Gunther v. Gunther, 478 S.W.2d 821, 828-830 (Civ. App.--Houston [14th Dist.] 1972, ref. n.r.e.) ].
Interfering with Child's Relationship With Other Parent
Acts, omissions, or circumstances of a managing conservator that thwart the child's ties with the other parent, such as interfering with visitation, may constitute a material and substantial change in circumstances [see, e.g., Gibbs v. Greenwood, 651 S.W.2d 377, 380 (Tex. App.--Austin 1983, no writ) ; In Interest of C.E.B., 604 S.W.2d 436, 442 (Civ. App.--Amarillo 1980, no writ) ]. A material and substantial change occurs when a managing conservator, by word, attitude, or deed, directly or subtly alienates the child's affection for, or poisons the child's mind against, the other parent [see, e.g., In Interest of F.J.K., 608 S.W.2d 301, 304 (Civ. App.--Fort Worth 1980, no writ) ].
Moral Misconduct
The moral misconduct of a party, such as, for example, a party's sexual promiscuity, affairs, or living with a member of the opposite sex out of wedlock may constitute a material and substantial change [ T.A.B. v. W.L.B., 598 S.W.2d 936, 938-939 (Civ. App.--El Paso 1980), ref. n.r.e. per curiam 606 S.W.2d 695 (Tex. 1980), cert. denied sub nom. Bowling v. Bowling, 454 U.S. 828 (1981) ; Watts v. Watts, 563 S.W.2d 314, 315 (Civ. App.--Dallas 1978, ref. n.r.e.) ].
Conviction of Crime
Being convicted of a crime or subjecting the child to the influence of persons involved in criminal activities may be considered a material and substantial change in circumstances [see Choyce v. Dallas County Child Welfare Unit, 642 S.W.2d 559, 561 (Tex. App.--Dallas 1982, no writ) ; Jilek v. Chatman, 613 S.W.2d 558, 560 (Civ. App.--Beaumont 1981, no writ) ].
Crime involving child abuse.
The conviction, or an order deferring adjudication, of a managing or possessory conservator for a criminal offense involving child abuse constitutes a material and substantial change of circumstances sufficient to justify a modification of conservatorship [ Fam. C. § 156.304(a) ].
Use of Illegal Drugs
The use of illegal drugs by a party seeking custody is a material issue in a suit to modify conservatorship. Texas Rule of Civil Procedure 167(a) authorizes a court to order a petitioner to submit to drug tests if sufficient evidence is presented to place the matter in controversy and there is a showing of good cause for such an order [ Monaghan v. Crawford, 763 S.W.2d 955, 958 (Tex. App.--San Antonio 1989, no writ) ; see T.R.C.P. 167(a)
Dishonorable Discharge
A dishonorable discharge from the armed services may be considered grounds for change of custody [see Kelley v. Kelley, 583 S.W.2d 671, 674 (Civ. App.--Austin 1979, dis. w.o.j.) ].
Abuse of Child or Spouse
The physical, mental, or sexual abuse of a child is a material and substantial change in circumstances [see, e.g., Interest of T.L.H., 630 S.W.2d 441, 444 Tex. App.--Corpus Christi 1982, dis. w.o.j.) ; Wallace v. Fitch, 533 S.W.2d 164, 165-168 (Civ. App.--Houston [1st Dist.] 1976, no writ) ].
Past Isolated Instances of Misconduct
Conduct that has occurred in a few isolated instances in the distant past is less likely to be deemed a material and substantial change in circumstances than conduct occurring in the recent past [see, e.g., Hollon v. Rethaber, 643 S.W.2d 783, 785 (Tex. App.--San Antonio 1982, no writ) ].
Child's Awareness of Misconduct
Behavior that occurred in the child's presence or that the child is aware of is more likely to constitute a material and substantial change [see, e.g., Jeffers v. Wallace, 615 S.W.2d 252, 254 (Civ. App.--Dallas 1981, no writ) ].
Religious Training or Beliefs
Disputes involving a child's religious training do not constitute a material and substantial change in circumstances. Courts may not constitutionally require religious affiliation or training [see Tex. Const. Art. 1 § 6 ; Watts v. Watts, 563 S.W.2d 314, 317 (Civ. App.--Dallas 1978, ref. n.r.e.) ]. The trier of fact in a child-related dispute must remain impartial as to any religious preference [see, e.g., Matter of Marriage of Knighton, 685 S.W.2d 719, 722 (Tex. App.--Amarillo 1984), rev. o.g., 723 S.W.2d 274 (Tex. App.--Amarillo 1987, no writ) ].
Parent's religious beliefs.
The state, through its courts, may not prefer the religious views of one parent over the other in deciding the child's best interest [ Matter of Marriage of Knighton, 685 S.W.2d 719, 722 (Tex. App.--Amarillo 1984), rev'd on other grounds, 723 S.W.2d 274 (Tex. App.--Amarillo, 1987, no writ) ]. Thus, absent evidence that a parent's beliefs and practices are either illegal or immoral, or cause serious bodily or mental injury to, or neglect of, the child, continuing emphasis on a parent's religion during the trial may be reversible error [ Matter of Marriage of Knighton, 723 S.W.2d 274, 284-285 (Tex. App.--Amarillo 1987, no writ) ].
Establishing Positive Improvement
The second element of the two-part test for replacing one sole managing conservator with another sole managing conservator requires a showing that the appointment of the new sole managing conservator would be a positive improvement for the child [ Fam. C. § 156.101(a)(2) ; In Interest of Soliz, 671 S.W.2d 644, 648-649 (Tex. App.--Corpus Christi 1984, no writ) ]. Positive improvement must be found as a separate element [see Hogge v. Kimbrow, 631 S.W.2d 603, 604-605 (Tex. App.--Beaumont 1982, no writ) --even harmful environment with current managing conservator is not enough to allow change if alternative would not be positive improvement].
Factors Considered in Determining Positive Improvement
The positive improvement requirement focuses primarily on the circumstances of the person who is seeking to become sole managing conservator [ Marriage of Rutland, 729 S.W.2d 923, 934-935 (Tex. App.--Dallas 1987, ref. n.r.e.), cert. denied, 488 U.S. 818 (1988) ; Ogrydziak v. Ogrydziak, 614 S.W.2d 474, 477 (Civ. App.--El Paso 1981, no writ) ].
Present managing conservator's circumstances.
The circumstances of the managing conservator will be considered for the limited purpose of comparison [see T.A.B. v. W.L.B., 598 S.W.2d 936, 940 (Civ. App.--El Paso 1980), ref. n.r.e. per curiam 606 S.W.2d 695 (Tex. 1980), cert. denied sub nom. Bowling v. Bowling 454 U.S. 828 (1981) ; Snider v. Grey, 688 S.W.2d 602, 611 (Tex. App.--Corpus Christi 1985, dis. w.o.j.) ; Matter of Marriage of Chandler, 914 S.W.2d 252, 255-256 (Tex. App.--Amarillo 1996, no writ) --evidence that appointment of father would be positive improvement for child included facts that father had embarked on new career and had arranged for daughter to have her own room and access to close relatives, whereas, with mother, child lived in unsuitable, overcrowded environment]. In addition, the more destructive the current situation, the less that needs to be demonstrated to show positive improvement [see Marriage of Rutland, 729 S.W.2d 923, 934-935 (Tex. App.--Dallas 1987, ref. n.r.e.), cert. denied, 488 U.S. 818 (1988) --when managing conservator and new spouse physically abused children, possessory conservator's loving relationship with children constituted positive improvement; Snider v. Grey, 688 S.W.2d 602, 611 (Tex. App.--Corpus Christi 1985, dis. w.o.j.) --when managing conservator neglected child's health, lied to child, practiced bizarre rituals, and used mind control to manipulate child, possessory conservator's good remarriage and taking child to church and to dentist showed modification would be positive improvement].
Removal of negative factors as consideration.
While any number of factors potentially affecting the child's welfare may be considered in ruling on positive improvement, the focus of these factors will be on the potential positive impact on the child if the modification is granted, rather than the harm to the child if the managing conservator is retained. However, the removal of a negative factor in the existing environment may be sufficient to show positive improvement. For example, the elimination of a daughter's emotional distress caused by living with her father was sufficient to support a finding that giving her mother custody would be a positive improvement [ L.P.W. v. S.O., 669 S.W.2d 182, 184-185 (Tex. App.--Fort Worth 1984, no writ) ]. Similarly, the more stable home life of the person seeking managing conservatorship, as compared to the unstable environment with the present managing conservator, may make the modification a positive improvement [ Randle v. Randle, 700 S.W.2d 314, 316-317 (Tex. App.--Houston [1st Dist.] 1985, no writ) --possessory conservator's more dependable routine found to be positive improvement over consistent interruptions in routine of managing conservator; Thompson v. Uzzell, 541 S.W.2d 499, 501-502 (Civ. App.--Tyler 1976, no writ) --possessory conservator's remarriage to financially stable professional contrasted with managing conservator's unconventional lifestyle].
Based on Voluntary Relinquishment of Child for More Than Six Months
The court may modify an order that designates a sole managing conservator if [ Fam. C. § 156.103 ]:
- The sole managing conservator has voluntarily relinquished possession and control of the child for a period of more than six months; and
- The modification is in the child's best interest.
The petitioner need not be the person who has de facto custody of the child; the managing conservator must simply have voluntarily relinquished possession and control of the child to another [see Thompson v. Rylee, 675 S.W.2d 777, 778 (Tex. App.--Beaumont 1984, no writ) ].
Establishing Voluntary Relinquishment
Voluntary relinquishment means an affirmative agreement to give up the child. The agreement need not be formal [ Leighton v. Court, 773 S.W.2d 63, 64 (Tex. App.--Houston [14th Dist.] 1989, no writ) ] and may be evidenced by conduct that effectively permitted the care and custody of the child to be taken over by another party, such as leaving the child with a grandparent while the parent is away at school [see Bolden v. Clapp, 751 S.W.2d 674, 676-677 (Tex. App.--Tyler 1988, no writ ]. A managing conservator who leaves a child in another's custody may have voluntarily relinquished the child even though the managing conservator continues to visit and have contact with the child [ Davis v. Davis, 499 S.W.2d 922, 925 (Civ. App.--Houston [14th Dist.] 1973, no writ) ].
Establishing Best Interest
The child's best interest has been defined as the environment that will have the most desirable or favorable effect on the child [ MacDonald v. MacDonald, 821 S.W.2d 458, 460 (Tex. App.--Houston [14th Dist.] 1991, no writ ]. Factors that may be considered in evaluating the child's best interest include [ MacDonald v. MacDonald, 821 S.W.2d 458, 461 (Tex. App.--Houston [14th Dist.] 1991, no writ ]:- The child's emotional and physical needs.
- The parenting ability of persons seeking to be named managing conservator.
- The plans and outside resources available to persons seeking to be named managing conservator.
- The stability of the homes of the persons seeking to be named managing conservator.
- The child's desires.
Based on Child's Preference
The court may modify an order that designates a sole managing conservator of a child 12 years of age or older if [ Fam. C. § 156.101(b) ]:
- The child has filed with the court in writing the name of the person who is the child's choice for managing conservator; and
- The court finds that the appointment of the named person is in the child's best interest.
The second part of the test is crucial, however, since the courts have consistently held that a child's choice is not controlling [see, e.g., Cole v. Cole, 880 S.W.2d 477, 479-480 (Tex. App.--Fort Worth 1994, no writ) ].
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Modifying Child Support
Material and Substantial Change in Circumstances
The court may modify a child support decree if the circumstances of the child or a person affected by the decree have materially and substantially changed since the date of its rendition [ Fam. C. § 156.401(a)(1) ; MacCallum v. MacCallum, 801 S.W.2d 579, 583 (Tex. App.--Corpus Christi 1990, den.) ; S.A.B.S. v. H.B., 767 S.W.2d 860, 861-862 (Tex. App.--Corpus Christi 1989, no writ) ]. The relevant measuring period is not affected by an intervening custody modification [ Bradshaw v. Billups, 587 S.W.2d 61, 62 (Civ. App.--Eastland 1979, no writ) ; Phillips v. Phillips, 695 S.W.2d 61, 64 (Tex. App.--San Antonio 1985), rev'd on other grounds, 701 S.W.2d 651 (Tex. 1985) ], by a temporary order [see Starck v. Nelson, 878 S.W.2d 302, 307-308 (Tex. App.--Corpus Christi 1994, no writ) ], or by a built-in increase in support payments [ Bagot v. Bagot, 602 S.W.2d 334, 335-336 (Civ. App.--Texarkana 1980, no writ) ].
Evidence of past and present financial circumstances. Without evidence setting out the parties' financial circumstances both at the time of the original decree and at the time of the hearing in the suit to modify, the court cannot make a determination that there has been a material and substantial change [ Cole v. Cole, 882 S.W.2d 90, 92 (Tex. App.--Houston [14th Dist.] 1994, den.) ; Penick v. Penick, 780 S.W.2d 407, 408 (Tex. App.--Texarkana 1989, den.) ].
Change of Custody
A change in custody constitutes a material and substantial change in circumstances justifying modification of support [ Labowitz v. Labowitz, 542 S.W.2d 922, 925 (Civ. App.--Dallas 1976, no writ) ; see Phelan v. Taylor, 627 S.W.2d 852, 853 (Tex. App.--Fort Worth 1982, no writ) ]. A request for modification of support need not be made at the time custody is changed. For example, modification of child support was granted in an action filed approximately two years after the parents agreed to a change in custody [ Bradshaw v. Billups, 587 S.W.2d 61, 61 (Civ. App.--Eastland 1979, no writ) --child support modified two years after parents agreed to change in custody].
Variance From Child Support Guidelines as Changed Circumstance
The court may modify a child support order if both of the following are true [ Fam. C. § 156.401(a)(2) ]:
- It has been three years since the order was rendered or last modified.
- The monthly amount of the child support award under the order differs by either 20 percent or $100 from the amount that would be awarded under the child support guidelines.
Even if these criteria are not met, if modification is in the child's best interest, the court may consider the child support guidelines [see Fam. C. § 154.121 et seq.] to determine whether there has been a material and substantial change of circumstances that warrants a modification of an existing child support order [ Fam. C. § 156.402(a) ]. The Family Code's child support guidelines are intended to guide the court in determining an equitable amount of child support [ Fam. C. § 154.121 ]. If the amount of support contained in the order does not substantially conform with the guidelines, the court may modify the order to substantially conform with the guidelines if the modification is in the best interest of the child Fam. C. § 156.402(b) ].
Obligor's Increased Income
A substantial increase in one parent's income in itself constitutes a material and substantial change [ Billeaud v. Billeaud, 697 S.W.2d 652, 654-655 (Tex. App.--Houston [1st Dist.] 1985, no writ) ; see, e.g., Holt v. Holt, 620 S.W.2d 650, 651-652 (Civ. App.--Dallas 1981, no writ) --84% increase in father's salary justified increased support without proof that children's needs had changed]. A slight increase in income does not constitute a material and substantial change [see, e.g., Baker v. Baker, 719 S.W.2d 672, 675-676 (Tex. App.--Fort Worth 1986, no writ) --$6 per week increase in obligor's income did not justify modification].
Increase in Child's Needs
A parent's testimony showing a substantial increase in a child's expenses is enough to establish a material and substantial change in circumstances [ Giangrosso v. Crosley, 840 S.W.2d 765, 769 (Tex. App.--Houston [1st Dist.] 1992, no writ) ; Arndt v. Arndt, 685 S.W.2d 769, 770 (Tex. App.--Houston [1st Dist.] 1985, no writ) ]. Items examined to determine the child's increased needs include items such as expenses for travel, summer camp, sports lessons, entertainment, private school tuition [ Hazelwood v. Jinkins, 580 S.W.2d 33, 36 (Civ. App.--Houston [1st Dist.] 1979, no writ) ], medical care [e.g., Lambert v. Lambert, 545 S.W.2d 542, 543-545 (Civ. App.--Houston [1st Dist.] 1976, no writ) ], and increased costs of living caused by inflation [see Worford v. Stamper, 801 S.W.2d 108, 109 (Tex. 1990) ; Laviage v. Laviage, 647 S.W.2d 758, 760-761 (Tex. App.--Tyler 1983, no writ) ].
Increased needs combined with increased income.
A court's decision to modify support often involves a consideration of both the financial condition of the obligated parent and the child's changed needs. The following cases illustrate the courts' consideration of these combined factors:
- Evidence of increased needs due to inflation and the children entering school combined with an increase in the father's income was sufficient to justify modification [ Carpenter v. White, 624 S.W.2d 618, 619 (Tex. App.--Houston [14th Dist.] 1981, no writ) ; Strauss v. Strauss, 619 S.W.2d 18, 19 (Civ. App.--Corpus Christi 1981, no writ) ].
- Inflation was an important factor in the upholding of the reasonableness of the trial court's granting an increase in support despite testimony that both parents' incomes had increased since the divorce decree [ Jackman v. Jackman, 533 S.W.2d 361, 363-364 (Civ. App.--San Antonio 1975, no writ) ].
- Increased expenses due to inflation, the growth of the children, and medical expenses, along with an increase in the father's salary, justified an increase in support [ Lambert v. Lambert, 545 S.W.2d 542, 543-545 (Civ. App.--Houston [1st Dist.] 1976, no writ) ].
- The possessory conservator was ordered to start paying child support eight years after divorce because the managing conservator had a significant drop in income and the child's financial needs had increased as child grew older [ Giangrosso v. Crosley, 840 S.W.2d 765, 769 (Tex. App.--Houston [1st Dist.] 1992, no writ) ].
- An increase in child support was ordered based on the father's net resources and the children's expanding needs as they entered their teenage years [ Marriage of Hamer, 906 S.W.2d 263, 267 (Tex. App.--Amarillo 1995, no writ) .]
Child's Increasing Age
Age is frequently a factor in determining the existence of a change of circumstances, since as children grow older, their clothing, food, and educational expenses generally increase [see, e.g., Sohocki v. Sohocki, 730 S.W.2d 30, 32 (Tex. App.--Corpus Christi 1987, no writ) ; Lambert v. Lambert, 545 S.W.2d 542, 543-545 (Civ. App.--Houston [1st Dist.] 1976, no writ) ]. One court of appeals has stated that the fact ``[t]hat children outgrow clothes as they physically mature, expand their social and intellectual activities, and consume greater quantities of food over the years is hardly open to dispute'' [ Marriage of Hamer, 906 S.W.2d 263, 267 (Tex. App.--Amarillo 1995, no writ) ].
Comparison evidence needed.
Increased age alone will not support a modification unless the record contains sufficient evidence from which a comparison may be made between the support needs at the time of the prior order and at the time the suit for modification is brought [ Bergerac v. Maloney, 556 S.W.2d 586, 586-587 (Civ. App.--Dallas 1977, dis. w.o.j.) ; see [a], above].
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Circumstances for Reduction of Support
Decrease in Obligor's Income
When a decrease in income makes it impossible for an obligor to make the ordered child support payments and also pay for the parent's necessary living expenses, a decrease in the amount of support may be justified [e.g., Tucker v. Tucker, 908 S.W.2d 530, 534 (Tex. App.--San Antonio 1995, den.) --obligor's loss of job, bankruptcy, and birth of another child constituted material and substantial change as matter of law; Escue v. Escue, 810 S.W.2d 845, 849 (Tex. App.--Texarkana 1991, no writ) --support amount should not be so great as to deny parent necessary living expenses]. However, courts appear to be increasingly reluctant to reduce child support, and the obligor seeking a reduction must show that the decrease in income was involuntary [e.g., Terry v. Terry, 920 S.W.2d 423, 426-427 (Tex. App.--Houston [1st Dist.] 1996, no writ) ] and that he or she has no other assets that could be liquidated to pay the support obligation [e.g., In Interest of Striegler, 915 S.W.2d 629, 636-638 (Tex. App.--Amarillo 1996, den.) ].
Job loss.
Loss of the child support obligor's job resulting in no income or a substantially reduced income, particularly for a sustained period of time, may constitute a material and substantial change in circumstances justifying a reduction of the child support obligation [ Blanco v. Gracia, 767 S.W.2d 896, 898 (Tex. App.--Corpus Christi 1989, no writ) ]. However, reduction in support may be denied if the court finds that the obligor is intentionally unemployed [ Terry v. Terry, 920 S.W.2d 423, 426-427 (Tex. App.--Houston [1st Dist.] 1996, no writ) ].
Job change.
A reduction in the obligor's income due to a voluntary decision to change employment may justify a decrease in support payments, at least when the change in employment and resulting reduction in income were not designed to reduce support payments [ Casterline v. Burden, 560 S.W.2d 499, 500-501 (Civ. App.--Dallas 1977, no writ) ]. However, reduction in support may be denied if the court finds that the obligor is intentionally underemployed [ Kish v. Kole, 874 S.W.2d 835, 838-839 (Tex. App.--Beaumont 1991, no writ) ].
Business reversals.
If an obligor undergoes a reduction in income in an attempt to keep an established business financially afloat, the reduced income may be the basis for a reduction in child support [ Woodall v. Woodall, 837 S.W.2d 856, 858 (Tex. App.--Houston [14th Dist.] 1992, no writ) ]. Even a possibly temporary decline in income may justify a reduction in support if the decline amounts to more than a short-term slump [ Watkins v. Austin, 590 S.W.2d 830, 831-832 (Civ. App.--Dallas 1979, no writ) --support reduced due to a decrease in father's sales territory that resulted in 7-month decline in earnings, even though territory might be restored in future].
Leaving work to attend school or start new business.
Voluntarily leaving employment to attend school or start a new business generally does not justify a reduction in child support. For example, a father was not entitled to a support reduction because he did not attempt to find employment after voluntarily leaving his job to attend college full-time [ Curtis v. Curtis, 448 S.W.2d 242, 243-245 (Civ. App.--Austin 1969, no writ) ]. Similarly, a father who retired from a police force and enrolled in community college at age 50 was denied a reduction in support on the ground that he was voluntarily underemployed [ Anderson v. Anderson, 767 S.W.2d 163, 165 (Tex. App.--Houston [14th Dist.] 1989, no writ) ]. A father who decided to put his efforts into getting his new business going rather than accepting employment was not entitled to support reduction [ Powell v. Powell, 721 S.W.2d 394, 396 (Tex. App.--Corpus Christi 1986, no writ) ].
Obligor may be required to sell assets to pay support.
In general, courts are not receptive to an obligor's attempt to modify child support based on a reduction in income when the evidence shows that the obligor has a substantial net worth. The duty to support one's child is not limited to a parent's ability to pay from current earnings but also extends to his or her financial ability to pay from any and all sources that might be available [ In Interest of Striegler, 915 S.W.2d 629, 636-638 (Tex. App.--Amarillo 1996, den.) ; In Interest of G.J.S., -- S.W.2d --, --, No. 04-96-00271-CV (Tex. App.--San Antonio 1997, --) --father not entitled to reduction in support despite post-divorce drop in earnings because he had sufficient non-liquid assets with which to pay ordered support]. The mere fact that an obligor has sold assets in order to pay child support does not constitute material and substantial change justifying modification [ Farish v. Farish, 921 S.W.2d 538, 541-545 (Tex. App.--Beaumont 1996, no writ) )]. On the other hand, while savings are a factor in assessing the overall financial ability to pay support, the obligated parent is not required to deplete all savings before a modification is available [ Watkins v. Austin, 590 S.W.2d 830, 831-832 (Civ. App.--Dallas 1979, no writ) ].
Obligor's Health Problems
A suit to reduce support may be based on medical problems or physical limitations that have decreased the obligor's earning capacity [e.g., Hammond v. Hammond, 898 S.W.2d 406, 408 (Tex. App.--Fort Worth 1995, no writ) --self-employed father sought support reduction after herniated disk reduced his ability to work; Bell v. Sykes, 521 S.W.2d 752, 753 (Civ. App.--Houston [1st Dist.] 1975, no writ) --testimony that father could not work at his usual job as electrician due to physical impairment to his knee justified reduced support order].
Duty to Support Children in Multiple Households
If the obligor in a modification suit has a duty to support children in more than one household and the court applies the child support guidelines in setting the modified amount of support, the court must apply the percentage guidelines that apply to parents who have a duty to support children in more than one household [ Fam. C. § 156.406 ; see Fam. C. § 154.128 --computing support for children in more than one household]. The enactment of these child support guidelines for multiple-household obligors constitutes a material and substantial change in the circumstances of a child sufficient to warrant modification of a child support order [see Acts 1993, 73rd Leg., ch. 798, § 27(d) ].
Birth of another child.
Depending on the facts of a given case, the birth of another child to the obligor may or may not constitute a material and substantial change in circumstances justifying a reduction in existing child support orders [e.g., Tucker v. Tucker, 908 S.W.2d 530, 534 (Tex. App.--San Antonio 1995, den.) --obligor's loss of job, bankruptcy, and birth of another child constituted material and substantial change as matter of law; Farish v. Farish, 921 S.W.2d 538, 541-545 (Tex. App.--Beaumont 1996, no writ) --in light of father's substantial net worth and increased income, birth of another child did not represent such change in father's financial condition so as to constitute material and substantial change in circumstances].
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Circumstances Not Justifying Increase
New Spouse's Income
A court may not add any portion of the net resources of a new spouse to the net resources of an obligor or obligee in order to calculate the amount of child support to be ordered in a suit to modify [ Fam. C. § 156.404(a) ]. On the other hand, a court may not subtract the needs of a new spouse, or of a dependent of a new spouse, from the net resources of the obligor or obligee in an attempt to reduce support [ Fam. C. § 156.404(b) ].
Change in Obligee's Situation
An increase in the needs, standard of living, or lifestyle of the obligee since rendition of the existing order does not warrant an increase in the obligor's child support obligation [ Fam. C. § 156.405 ]. On the other hand, a reduction in the obligee's income may constitute a material and substantial change of circumstances justifying an increase in child support [ Thomas v. Thomas, 895 S.W.2d 895, 897 (Tex. App.--Waco 1995, den.) --88 percent decrease in mother's income due to cessation of alimony payments justified increase in child support; see Fam. C. § 154.123(b)((5) --court may consider amount of obligee's net resources in determining whether application of guidelines would be just or inappropriate under circumstances;].
Voluntary Support in Excess of Court Order
A history of support voluntarily provided in excess of the court order does not constitute cause to increase the amount of an existing child support order [ Fam. C. § 156.403 ; Matter of Marriage of Edwards, 804 S.W.2d 653, 657 (Tex. App. Amarillo 1991, no writ) ].
Existing Order Differs From Guideline Amount
The court may modify a child support order if both of the following are true [ Fam. C. § 156.401(a)(2) ]:
- It has been three years since the order was rendered or last modified.
- The monthly amount of the child support award under the order differs by either 20 percent or $100 from the amount that would be awarded under the child support guidelines.
Retroactive Modification
- A support order may be modified only as to obligations accruing after the earlier of [ Fam. C. § 156.401(b) ; Holley v. Holley, 864 S.W.2d 703, 707 (Tex. App.--Houston [1st Dist.] 1993, den.) ]:
- The date of service of citation; or
- An appearance in the suit to modify.
The court may not reduce or modify the amount of the child support arrearage that has already accrued [ Fam. C. § 157.262(a) ]; that is, the court may not modify support retroactive to a time before the date of service of citation or an appearance in the modification suit. The court's continuing, exclusive jurisdiction to modify does not empower the court to reduce or forgive child support arrearages; rather, the court must confirm the amount of arrearages and render judgment for all unpaid child support [ Fam. C. § 157.263(a) ; Matter of Marriage of Vogel, 885 S.W.2d 648, 652 (Tex. App.--Amarillo 1994, den.) ].
Supporting evidence required.
Evidence must support the retroactive modification [see Grundy v. Grundy, 589 S.W.2d 776, 777-778 (Civ. App.--Dallas 1979, no writ) ]. For example, modification retroactive to the date of a job change was upheld because the evidence clearly showed that a change in circumstances occurred when the movant changed jobs four months after the motion to modify was filed [ Casterline v. Burden, 560 S.W.2d 499, 501-502 (Civ. App.--Dallas 1977, no writ) ]. A retroactive increase was upheld on the basis of evidence consisting of the mother's statement that the child needed the increase in child support to be retroactive [ Huckeby v. Lawdermilk, 709 S.W.2d 331, 333-334 (Tex. App.--Eastland 1986, no writ) ].
Pleading Requirement
The petitioner must give fair notice in the pleadings of the intention to seek retroactive modification so that the opponent has an opportunity to defend on that issue [see Grundy v. Grundy, 589 S.W.2d 776, 777-778 (Civ. App.--Dallas 1979, no writ) ].
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