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An Introduction to the Divorce
Process in Dallas Texas
Separation
Filing for Divorce
Temporary Divorce Orders
Conducting Divorce Discovery
Mediation and Settlement
in the Divorce Process
Collaborative Representation
in the Divorce Process
Divorce Trials In Dallas
Decree of Divorce
Appellate Process in
the Dallas District
Divorce Modification
Paternity
Adoption
Grandparent Access
Child Protective Services
Abuse
Divorcing a US Military
Service Person
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Divorce Modification
Custody
Child Support
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. It
is Texas' public policy to 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, and encourage parents to
share in the rights and duties of raising their child after
the parents have separated and dissolved their marriage.
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. The policy favoring stability influences
the standard or prerequisite for modification. That is, the
standard in a particular suit depends on the degree to which
the requested modification would disrupt the stability of
the child's present environment and lifestyle. For example,
the degree of proof necessary to justify a modification of
visitation is less onerous than the proof required to modify
custody. 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.
The court may modify an order or portion of a decree that
provides for the appointment of a conservator of a child,
that provides the terms and conditions of conservatorship,
or that provides for the possession of or access to a child
if modification would be in the child's best interest and
one of the following applies:
- The circumstances of the child, a conservator, or
other party affected by the order have materially and
substantially changed since the date of the rendition of
the order; or
- The child is at least 12 years of age and has filed
with the court, in writing, the name of the conservator
who is the child's preference to have the exclusive
right to determine the primary residence of the child;
or
- The conservator who has the exclusive right to
establish the child's primary residence has voluntarily
relinquished the primary care and possession of the
child to another person for at least six months
The court may modify an order or portion of a decree that
provides for the appointment of a conservator of a child,
that provides the terms and conditions of conservatorship,
or that provides for the possession of or access to a child
if modification would be in the child's best interest and
one of the tests for modification is met. It is the child's
best interest, rather than the parent's, that must be
determined. The child's best interest has been defined as
the environment that will have the most desirable or
favorable effect on the child. In determining whether
modification is in the child's best interest, the court may
weigh all factors bearing directly or indirectly on the
child's physical, emotional, mental, educational, social,
moral, or disciplinary welfare and development. The trial
judge has broad discretion in making the best interest
determination because of the opportunity to observe and
evaluate the personalities involved.
- Factors that have been considered in evaluating the
child's best interest include:
- The child's emotional and physical needs.
- The parenting ability of the conservators or
potential conservators.
- The plans and outside resources available to persons
seeking the modification
- The value to the child of having a relationship with
both parents.
- A visitation schedule that requires excessive
traveling or prevents the child from engaging in school
or social activities.
- The stability of the homes of the persons seeking
the modification.
- The child's desires
The court may modify an order or portion of a decree that
provides for the appointment of a conservator of a child,
that provides the terms and conditions of conservatorship,
or that provides for the possession of or access to a child
if modification would be in the child's best interest and
the circumstances of the child, a conservator, or other
party affected by the order have materially and
substantially changed since the date of the rendition of the
order. Determinations as to whether the circumstances of the
child, a conservator, or other party affected by the order
have materially and substantially changed are necessarily
made on a case-by-case basis. Nonetheless, some general
principles have emerged from cases decided under earlier
versions of the modification statutes:
- A slight change in circumstances will not justify a
modification of managing conservatorship.
- The material change must have occurred after
rendition of the order sought to be modified.
- The material change must directly or indirectly
affect the child's welfare.
- The child's changing needs as he or she gets older
may, by themselves, constitute a material change in
circumstances. However, the age of the child or a party,
as an isolated fact, is generally insufficient to
support modification of managing conservatorship. A
party's physical infirmities rarely justify modification
unless the party is substantially unable to care for the
child's needs. On the other hand, courts consider a
party's mental health and emotional stability to be very
important factors.
- When considering whether a material change of
circumstances has occurred, Texas courts have deemed the
remarriage of one or both parents to be a pertinent
factor. Texas courts recognize that the parental
abilities of the parent seeking custody and the
stability of that parent's home are factors to be
considered in determining the child's best interest
- One party's negative behavior may constitute a
material and substantial change of circumstances. A
parent's use of a child as a pawn in disputes may
constitute a material and substantial change in
circumstances.
- Child-snatching 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
- 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
- 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
- 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
- The use of illegal drugs by a party seeking custody
is a material issue in a suit to modify conservatorship.
Texas Rules of Civil Procedure authorize 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
- The physical, mental, or sexual abuse of a child is
a material and substantial change in circumstances
Conduct that 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. Additionally, 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.
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. A false report of child abuse or
neglect made before or during a suit affecting the
parent-child relationship may be grounds for the court to
modify the parent-child relationship to restrict further
access to the child by the accuser.
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 which party to appoint as sole
managing conservator, whether to appoint a party as joint
managing conservator, and the terms and conditions of
conservatorship and possession of and access to the child.
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. The party seeking to establish a
material and substantial change is required to prove that
the circumstances of either the child or a person affected
by the order had materially changed; the party is not
required to prove both. A substantial increase in one
parent's income in itself constitutes a material and
substantial change. 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.
Often the terms of child support payment become unworkable.
In these instances, the court can order the support paid
through the Dallas or Collin County child support office, or
the support can be paid through the Texas Attorney General's
office.
A parent's testimony showing a substantial increase in a
child's expenses is enough to establish a material and
substantial change in circumstances. Items examined to
determine the child's increased needs include items such as
expenses for travel, summer camp, sports lessons,
entertainment, private school tuition. 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.
When a decrease in income makes it impossible for the parent
paying support 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.
Conversely, a reduction in the the custodial parent's income
may constitute a material and substantial change of
circumstances justifying an increase in child support. 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. 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. The court may modify an
original or modified spousal maintenance order on a proper
showing of a material and substantial change in
circumstances of either party. Spousal maintenance may be
terminated, after a hearing, if the party receiving
maintenance cohabits with another person in a permanent
place of abode on a continuing, conjugal basis.
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