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FAMILY LAW
PRIMER |
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Divorce Modification Custody 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 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
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: 1) A slight change in
circumstances will not justify a modification of managing conservatorship. 2)
The material change must have occurred after rendition of the order sought to
be modified. 3) The material change must directly or indirectly affect the
child's welfare.
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. Support 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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