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Modification

Orders pertaining to conservatorship, possession & access, and child support can be modified under certain circumstances.
 

Modifying Child Support

If the parties agreed to an order under which the amount of child support that would have been ordered is different (higher or lower) than guideline support, the child support order can only be modified if the court finds that the circumstances of the children or a person affected by the order have materially and substantially changed since the date the court made the order. Therfore, if you agree to child support that differs from guideline support, you are NOT entitled to having the amount of child support reviewed by the court every three years.
 
If the amount of child support ordered was equal to guideline support, or the if the court imposed a different amount on the parties, then the court can modify the order if:
 
  1. The circumstances of the child or a person affected by the order have materially andsubstantially changed since the earlier of (A) the date of the order’s rendition; or (B) the date of the signing of a mediated or collaborative law settlement agreement on which the order is based; or

  2. It has been three years since the order was rendered or last modified and 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 in accordance with the child support guidelines.
The court cannot retroactively raise or lower child support payments. However, the court may raise or lower payments that occur after the date the other party was served with notice of the suit for modification or the date on which the party made an appearance (e.g. filed an answer, showed up for a hearing) in the modification suit.
 
NOTE: Release of a child support obligor from incarceration is a material and substantial change in
circumstancesif the obligor’s child support obligation was abated, reduced, or suspended during the period of the obligor’s incarceration.
 

Who Can File

A suit to modify child support can be filed by the person who receives child support (the obligee), the person who is ordered to pay child support (the obligor), or the Office of Attorney General (OAG). An obligee or obligor who wants to raise or lower child support but who can't afford a private attorney can apply for services through the OAG's web site and they will pursue the case. The OAG does not charge for its services but due to their funding constraints and huge backlog of cases, they are very slow to move on a case. Often, a private attorney can get a modification done many months faster than the OAG and those extra months of higher or lower support can be enough to pay the attorney's fees.
 
NOTE: When the OAG files, they do not represent either party. They represent the interests of the State of Texas. Therefore, if an obligee asks the OAG to file a suit to increase child support and it turns out that the obligor's (provable) income has gone down, the OAG will move forward with a REDUCTION in child support.
 

Modifying Conservatorship

Conservatorship can be modified by agreement at any time. Absent an agreement, the party seeking modification of conservatorship can file a Petition to Modify the Parent-Child Relationship at any time, but if the suit is filed less than a year since the last suit affecting the parent-child relationship, the new suit will have to be accompanied by an affidavit explaining why a modification is being sought so soon.
 
To succeed in a suit for modification, the person who files suit must prove TWO things:
 
  1. The requested change is in the best interst of the child; AND

  2. One of the following
    • There has been a material and substantial change in the circumstances of the child or a party affected by the order since the order was rendered (a criminal conviction for child abuse is enough to establish a material change in circumstances and either a conviction of or deferred adjudication for family violence is also enough to establish a material change in circumstances); or

    • A child 12-years or older has met with the judge (or an amicus attorney) in chambers and expressed a desire for a change in conservatorship; or

    • The conservator (parent) having the exclusive right to designate the primary residence of the child has voluntarily relinquished the primary care and control of the child to another person for at least 6 months (not including periods of military deployment). NOTE that since 2009, neither party must be designated as having the exclusive right to designate the primary residence of the child. Taking the statute at its word, it would seem that if neither party had the exclusive right to designate the primary residence of the child, the person with whom the child spends most of his or her time could voluntarily relinquish the child to another without triggering this basis for modification. It seems equally likely that the other parent would be able to convince the court that the relinquishment is or was brought about by a material change in circumstances.

Modification Based on Increased Expenses Due to One Party's Move

If one party (parent) moves and that move causes increased expenses for the other party (parent), the court may render an order that allocates those increased expenses on a fair and equitable basis. This alone is sufficient grounds for a modification regarding allocation of expenses. The Texas Family Code presumes that the person who moved should pay the increased expenses caused by the move.
 
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