There are many circumstances that necessitate changes to a previously given order related to child support, conservatorship, and/or possession & access. In legal terms, this filing of petition or motion in the court is known as modification of a Suit Affecting the Parent Child Relationship (SAPCR). Title 5; Subtitle B; Chapter 156, of the Texas Family Code defines the conditions & procedure to file for the modification of an SAPCR.
Petition for modification can only be filed by: any party that directly gets affected by the order; an entity or individual who at the time original petition was filed would have standing to sue as given by the Texas Family Code Chapter 102; or, a separated sibling of the child (through the actions of DFPS) (Texas Family Code § 156.002). This petition must be filed in the court with continuing exclusive jurisdiction i.e. with the same court where the original SAPCR was filed. It must be noted that any party whose rights & duties get affected by such modification has the legal right to receive notice by service of citation (Texas Family Code § 156.003).
During the time modification order is pending with the court, a temporary order is not given unless such order is in the best interest of the child and: physical health or emotional development of the child would be at risk if such order is not given; if the custodial parent (who has the right to decide on the primary residence of the child) has voluntarily handed over the primary care as well as possession of the child for a period of more than six months; or the child being of 12 years or older has told the court in chambers (in accordance with the Texas Family Code § 153.009) what his/her preference is related to who should have the exclusive right to finalize his/her primary residence (Texas Family Code § 156.006).
Modification suit can only be filed if such change is in the best interest of the child and: there has been a material and substantial change in circumstances of the child, conservator, or any other party affected by the order from the earlier of date of final order or signing date of mediated or collaborative law settlement agreement based on which final order was given; the child being of 12 years or older has told the court in chambers (in accordance with Texas Family Code § 153.009) what his/her preference is related to who should have the exclusive right to finalize his/her primary residence; or the custodial parent (who has the right to decide on the primary residence of the child) has voluntarily handed over the primary care as well as possession of the child for a period of more than six months (Texas Family Code § 156.101).
In the case when the modification is requested within one year of final order or signing date of mediated or collaborative law settlement agreement based on which final order was given, then the petitioner must file an affidavit with the court which states one of the allegations mentioned below with the facts supporting such allegations: physical health or emotional development of the child is at risk in the current living environment; custodial parent who has the right to decide on the primary residence of the child is seeking or agreeing to such modification and these changes are in the best interest of the child; or the custodial parent (who has the right to decide on the primary residence of the child) has voluntarily handed over the primary care as well as possession of the child for a period of more than six months and these changes are in the best interest of the child. If the supporting facts are deemed insufficient to support the allegation made, then the court can deny hearing of such modification (Texas Family Code § 156.102).
The court can modify an order if the change of the residence makes travelling costlier for a party who has possession of or access to a child. It is a rebuttable presumption that the extra expense is paid by the party whose residence has been changed as its in the best interest of the child (Texas Family Code § 156.103). The conviction (including deferred adjudication) of the conservator for child abuse (including sexual abuse with young child or children) is treated as a material and substantial change in circumstances and justifies a temporary order and/or modification (Texas Family Code § 156.104). Similarly, conviction or deferred adjudication for any act of family violence committed by the possessory, sole, or joint managing conservator is treated as a material and substantial change in circumstances and justifies a temporary order and/or modification (Texas Family Code § 156.1045).
ABOUT THE AUTHOR
Michael Busby Jr. is a divorce & family law attorney, who practices in Harris and Fort Bend Counties, Texas. He has been in practice for over 14 years and has tried over 300 cases. He is familiar with the policy and procedures of the Harris and Fort Bend County Texas family law courts. Our office is open until 8:30 p.m. on Wednesdays and Saturday from 9 a.m. to 1 p.m. for working folks. Michael Busby Jr. 6100 Corporate Dr Ste 190 Houston, Texas 77036 (713) 974-1151 281-DIVORCE Visit me on the web at www.busby-lee.com
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