When Can a Texas Family-Law Order Be Modified? Understanding a “Material and Substantial Change”

A divorce decree or child-custody order may be final, but some of its provisions are not necessarily permanent. Children grow older, parents relocate, employment changes, financial circumstances shift, and arrangements that once worked well may become impractical or no longer serve a child's needs.

Texas law therefore allows certain family-law orders to be modified. But a parent generally cannot obtain a modification simply because he or she would prefer a different arrangement. In many cases, the party requesting the change must prove that circumstances have materially and substantially changed since the prior order.

What qualifies as a material and substantial change depends heavily on the facts of the individual case.

What Does “Material and Substantial Change” Mean?

The Texas Family Code does not provide one universal list of circumstances that automatically qualify as material and substantial.

For orders involving conservatorship, possession, or access to a child, Texas Family Code § 156.101 generally permits modification when:

Texas appellate courts describe the inquiry as fact-specific rather than governed by rigid rules. The court generally compares the circumstances that existed when the prior order was entered with the circumstances that exist at the time modification is sought.

In other words, the question is not simply, “Has something changed?” Life almost always changes. The question is whether the change is significant enough to justify altering an existing court order.

Examples of Changes That May Support Modification

Depending on the facts, circumstances supporting modification may include:

Texas courts have recognized, for example, that changes in home surroundings, remarriage, mistreatment of a child, and conduct affecting a child's relationship with a parent may be relevant to the analysis. But none of these circumstances automatically guarantees modification. The court considers the evidence in the context of the particular family. citeturn590338search39

A Change in Circumstances Is Not Enough by Itself for Custody Modification

For conservatorship and possession issues, proving changed circumstances is only part of the case.

The requested modification must also be in the best interest of the child.

This distinction is important. A parent may establish that circumstances have changed considerably but still fail to prove that the particular modification requested would benefit the child.

For example, a parent's new job may substantially alter that parent's schedule. That could constitute changed circumstances. But the court must still determine whether changing the possession schedule, conservatorship rights, or the designation of the primary parent would actually be in the child's best interest.

The analysis therefore focuses not only on what has changed, but on why the requested new arrangement is better for the child.

What About Changing Which Parent Determines the Child's Primary Residence?

Requests to change the parent who has the exclusive right to designate the child's primary residence often receive particularly careful scrutiny.

Texas law recognizes several statutory grounds for modification. In addition to a material and substantial change, modification may potentially be based on circumstances such as a child who is at least 12 expressing a preference to the judge concerning which parent should have the exclusive right to determine primary residence, or the existing primary conservator voluntarily relinquishing primary care and possession for at least six months. Even then, the child's best interest remains central to the court's decision.

A child's preference therefore does not mean that a 12-year-old simply gets to choose where to live.

Special Rule When Modification Is Requested Within One Year

Texas law imposes an additional hurdle when someone seeks to change the person with the exclusive right to designate a child's primary residence within one year of the prior order or qualifying settlement agreement.

The person seeking modification generally must file a supporting affidavit containing specific facts supporting at least one of the statutory grounds, including circumstances indicating that:

If the affidavit does not contain adequate supporting facts, the court is required to deny the requested relief without setting the modification hearing.

This heightened requirement is intended to discourage repeated litigation over a child's primary residence shortly after an order has been entered.

Modifying Child Support

Child support has its own modification rules.

Under Texas Family Code § 156.401, a court generally may modify child support if the circumstances of the child or a person affected by the order have materially and substantially changed.

There is also a separate statutory basis for modification when:

An important exception applies when the parties previously agreed to a child-support amount that differed from the amount required by the guidelines. In that situation, modification generally requires proof of a material and substantial change rather than merely satisfying the three-year/20-percent-or-$100 test.

Potentially relevant financial changes can include a substantial increase or decrease in income, changes in employment, changes in the child's needs, or changes involving health or dental coverage.

A parent should not simply begin paying a different amount because circumstances changed. The existing order remains enforceable until it is modified by the court.

Additionally, a modified child-support amount generally can affect obligations accruing only after the earlier of service of citation on the respondent or the respondent's appearance in the modification lawsuit.

That timing can be important when a parent has experienced a significant income change.

Can Temporary Orders Be Changed While the Modification Case Is Pending?

Sometimes a family cannot wait until final trial.

Texas courts may issue temporary orders while a modification case is pending. But the rules are considerably more restrictive when someone asks the court to temporarily change the person who determines the child's primary residence or to create, eliminate, or change the geographic restriction governing the child's residence.

Such temporary relief generally requires circumstances specified by Texas Family Code § 156.006, such as evidence that the child's present circumstances would significantly impair the child's physical health or emotional development, qualifying voluntary relinquishment of the child, or certain circumstances involving a child age 12 or older. An affidavit requirement also applies to temporary relief based on significant impairment.

A temporary modification therefore should not be confused with the standard governing the ultimate final modification.

What Does a Texas Modification Case Look Like?

A modification proceeding is a new lawsuit within the existing parent-child case.

1. Filing the Petition to Modify

The party requesting the change files a Petition to Modify the Parent-Child Relationship identifying the existing order, the provisions that should be changed, the requested new terms, and the legal grounds for modification.

Generally, the suit is filed in the Texas court that has continuing, exclusive jurisdiction over the child. Once a Texas court acquires continuing, exclusive jurisdiction through a final order, another Texas court ordinarily cannot simply assume jurisdiction over the same child unless the statutory transfer provisions or another exception applies.

2. Service of Citation

The opposing party generally must be formally served unless service is properly waived.

Texas Family Code §§ 156.003 and 156.004 provide that a person whose rights and duties may be affected is entitled to service of citation and that the procedural rules applicable to an original lawsuit generally apply to the modification proceeding.

3. Temporary-Orders Proceedings

If circumstances require immediate relief, either party may request temporary orders concerning issues the court is authorized to address while the case is pending.

4. Discovery and Evidence Gathering

The parties may exchange information and obtain evidence concerning the alleged changed circumstances.

Depending on the dispute, relevant evidence might include:

One of the most important evidentiary issues is establishing the comparison point: what circumstances existed when the prior order was entered versus what circumstances exist now.

5. Negotiation or Mediation

Many modification cases resolve by agreement.

Depending on the county and the court, mediation may be required before trial. A carefully drafted settlement can establish a new possession schedule, conservatorship provisions, child-support obligation, or other modified terms without requiring the judge to decide every disputed issue.

6. Final Hearing or Trial

If the parties cannot agree, the court hears evidence and determines whether the statutory requirements for modification have been satisfied.

The party seeking modification generally bears the burden of proving the required change and establishing the legal basis for the requested relief.

7. Entry of a New Order

If modification is granted, the court signs a modified order establishing the parties' new rights and obligations.

Until that occurs, the existing order remains controlling. Parents should be cautious about relying solely on informal arrangements, even when both sides initially agree to them.

Not Everything in a Divorce Decree Can Be Modified

There is an important distinction between modifiable child-related provisions and the final division of marital property.

Texas courts generally cannot later reopen a final divorce decree merely because circumstances have changed and redistribute property differently. Texas Family Code § 9.007 expressly prohibits a court from modifying the substantive property division contained in a final divorce decree. The court may enforce or, when appropriate, clarify the decree, but it cannot use an enforcement proceeding to make a new property division.

Court-ordered spousal maintenance is different. Under appropriate circumstances, Texas Family Code § 8.057 permits modification based on a material and substantial change occurring after the maintenance order, subject to statutory limitations.

Modification Cases Require More Than Showing That Life Has Changed

Family circumstances rarely remain static. But Texas modification law is designed to provide some stability to court orders while still allowing courts to respond when important circumstances genuinely change.

A successful modification case therefore usually requires more than showing that today's circumstances are different. The evidence should establish:

For child-related orders, the ultimate question remains whether the requested modification serves the child's best interest.

Considering a Modification of a Texas Family-Law Order?

If your existing custody, possession, child-support, or other family-law order no longer reflects your family's circumstances, it may be appropriate to determine whether Texas law permits modification.

Rodney A. Brown and The R.A. Brown Legal Group assist clients with Texas family-law modification and enforcement matters, including conservatorship, possession and access, child support, and post-divorce disputes.