Modification of Child Custody/Child Support

If your, the other parent's or the child's circumstances have been materially and substantially affected by job loss or illness, you can — no, you MUST — make a formal request the court to review and modify the terms of your divorce decree or SAPCR order. In general, if your financial situation has been significantly affected by factors beyond your control, the court will probably approve a temporary change in child support and/or maintenance (post-divorce support) payments if you have the required evidence, which includes evidence that you made the requisite, good-faith attempt to find employment.

If it is your intention to attempt to prove that you are physically or mentally handicapped and unable to work, you will need very significant medical, psychological or psychiatric evidence, which can be contested by contradictory medical, psychological or psychiatric evidence. A post-divorce modification can be filed on the part of the person obligated to pay support, or the person receiving support, if his or her or the child's circumstances have been materially and substantially changed SINCE THE DATE OF THE ORDER TO BE MODIFIED. The Texas court that issued the order to be modified has the exclusive power to modify, clarify and enforce its orders and decrees concerning such matters as child custody, visitation and child support.

There are circumstances where a different court — a new court — can modify another court's order, but that is more difficult and expensive, and it involves the Uniform Child Custody Jurisdiction Act (UCCJEA). I can provide invaluable assistance in helping you modify existing orders or protect the important rights you acquired in the initial order.

Modification Of Child Custody And Support

Child custody, visitation and child support orders are also subject to modification, if there is a material and substantial change in circumstances with respect to a conservator or the child, after a divorce or SAPCR order has been entered by a court.

For example, if you are laid off from your job, your lawyer should be immediately hired to file a motion to reduce child support. Motions to modify rights and obligations of conservatorship are not always urgent, but it is important to file a motion to modify child support as soon as your financial circumstances change. You can be found in contempt of court if you don't pay child support and you can be incarcerated in the county jail for non-payment, incomplete payment or payment by another method not in the order. That arrearage (non-payment) is a judgment created at the moment of non-payment as exactly ordered. Never, ever pay child support directly to your ex-spouse or to the mother of the child if that is not the exact method of payment in the order. Direct payment is very rare. Any payment made in a way not ordered is considered a GIFT and not child support. The interest on the arrearage is very high, probably usurious (illegal), if it were not from the state of Texas.

Child custody (conservatorship) and visitation can also be modified under Texas law. I tried the very first child custody modification case requesting temporary orders on modification in Harris County after the current law went into effect in 1996. I know it was the first because it began at 8 a.m. on the day it became the law in Texas. Under the new statute, which is a permissive statute, the court MAY grant a hearing on temporary orders on modification. Judges are reluctant to give these hearings because the parties still have to present primarily the same evidence at the final hearing to get a final order on modification. Based upon the concept of judicial economy and with an eye toward practicality, some courts refuse to set temporary orders on modification hearings under the statute. If the hearing is not set, the person filing for the modification may have to wait a year or two to get finally heard. The courts do not want to hear the case twice. On child support cases, your attorney can plead for the court to grant a reduction of child support and that the order be applied retroactively to the time of filing of the motion to modify. That is why it is important to file. Prior to the date of the new statute, it was almost impossible to get a Texas court to change child custody on temporary orders.

To be successful, you will have to show a substantial and material change in circumstances of you, the other parent or the child since the last order was issued. If you are trying to get temporary orders on modification, there are more stringent requirements to meet. Before the court will have a hearing on temporary orders on modification or on final orders, you will be forced to go to mediation to try and work out a solution, without wasting the court's time. The court may also appoint an amicus attorney, which is an attorney appointed by the court to help the court with determining the best interests of the child. In addition to fees for your attorney, you will have to probably pay for half of the fees for the mediator and the amicus.

So, what if your child wants to testify in the modification (or divorce, for that matter)? How is that accomplished? The law has changed. Now, if you request it in your pleading that you want the court to confer with the child, the court MUST confer if the child is 12 years of age or older and the court MAY (vastly different from must) confer with the child if the child is under the age of 12. The court can appoint an amicus in this situation.

If the original child custody order was issued in another state, your case will come under the Uniform Child Custody Jurisdiction and Enforcement Act. I am experienced in handling these very complex cases.

Enforcement Actions

If either party violates a court order in a divorce or child custody case, the other party may get the court to compel the violating party to appear and answer to the court for the violation of the order. The burden is on the party filing the enforcement action to prove that the other party has violated the court's order by a very high burden of proof. Since the potential outcome is to incarcerate the violator, the burden of proof is akin to beyond a reasonable doubt, the criminal burden of proof. If you are the alleged violator and the filing party is seeking more than six months of incarceration, you are entitled to a free attorney to defend you (sometimes you get what you pay for) and you can request a jury trial.

Due process of law requires that the court gives the violating party the opportunity to show why he or she should not be held in contempt. If the court finds the violating party in contempt, the court can order that the violator correct the violation, be incarcerated and/or pay legal fees, fines and other costs for the contempt proceeding.

Get In Touch

Contact me today if you are looking for a family law specialist as certified by the Texas Board of Legal Specialization who will provide you with experienced counsel and personal attention to your needs.