Child support is one of the most heavily litigated issues in all of family law. To increase or decrease payments there are specific requirements that must be met to modify a previous child support order. Per Tex. Fam. Code § 156.401 the requirements necessary to modify a prior child support order are:
- The circumstances of the child or an affected party have materially and substantially changed; or
- Three years have elapsed since the order was entered or last modified, and the amount of child support differs from the statutory guidelines by either 20% or $100.00.
The second requirement is self-explanatory. The three-year limitation to file for another modification is for the benefits of the Courts. If there was no three-year waiting period to refill, then every conservator would constantly attempt to modify child support, thus creating endless litigation for clogging the Courts’ dockets.
The first requirement needs more explanation. A Material and Substantial change in the circumstances of the child or an affected party must be clearly shown at trial. Many Courts are meticulous in making the determination of what a Material and Substantial change is regarding the child and the affected party to insure this requirement is not abused for excessive litigation.
To prove a Substantial and Material change in circumstances, a conservator must show evidence at the final hearing of:
- The financial needs/expenses at the time of the divorce or prior modification for the children and the person affected, and;
- The financial needs/expenses at the time of the request for the modification.
If evidence of financial needs/expenses are not submitted and proved regarding both (1) the prior divorce/modification and (2) the recent modification, then no Substantial and Material change can be adequately proved. Further, if the request for modification of child support is predicated solely on one conservator’s increase in earning capacity, absent other compelling evidence, the change in circumstances is not Substantial and Material. Interest of L.R., 416 S.W.3d 675, (Tex. App.—Houston [14 Dist.] 2013, pet. denied.)
If one conservator decides to file a modification of child support within three years just because the other conservative received a better job, it may be dismissed. At the end of the day a Court has broad discretion on determining what is Substantial and Material and may allow the case to be heard and give an unfavourable ruling, but if that occurs you will have the ability to appeal the judgment and request attorney’s fees. It is important to know in any family law case the Judge has extremely broad discretion and interprets case law in a way that he deems fit using the Best Interest Test.
If you are a conservator that meet these requirements above and wish to increase or decrease the child support obligation, be sure to hire an experienced attorney. Nacol Law Firm will always fight for you and your children’s best interest.
Julian Nacol, Attorney
Nacol Law Firm, PC
Call (972) 690-3333
The Texas 87th session was very uneventful this year, with two additional sessions. Listed below are some new bills and bill revisions that passed this year for the Family Code:
- HB 3774: Effective September 1, 2021, The date of the marriage must now be included in all final decrees of divorce in an official court document. Proof of the length of marriage is required to apply for Social Security retirement benefits.
- HB 2926: September 1, 2021, Reinstatement of Parental Rights after Involuntary Termination. This is a new and significant procedure that allows certain people, including the Department of Family and Protective Services and a previously terminated parent, to move for reinstatement of their parental rights. Subchapter D added to Ch. 161 of the Texas Family Code, sets out the basic requirements for filing and hearing procedures.
- SB1936: September 1, 2021, expressly states the standard Possession Order that the alternative ending time for Monday school holiday and teacher in-service days is 8a.m. on the following Tuesday and if a conservator lives less than 50 miles from the other conservator, the court shall also award that conservator the alternative beginning and ending time for standard possession order. This award does not apply if the possessory conservator declines one or of the alternative times or possession is limited by the court in the best interest of the child.
*If the Possessory Conservator lives more than 50 but not more than 100 miles from the child’s primary residence, the law will not change: that parent may still opt into the Expanded Standard Possession Order (ESPO) – but it will not be automatic.
- HB 1012: September 1, 2021, Access to residence or former residence to retrieve personal property. If entry is denied by a current occupant, the denied person could seek a writ, authorizing them to go to the residence to get their possessions with a peace officer. If the property was listed in a Decree, relief can be sought in court granting such Decree.
- HB 3009: September 1, 2021, Child Custody evaluators must be able to communicate with a parent in their primacy language or have someone who can assist the parent in their primary language for Child custody evaluations.
This legislature Session caused a lot of “smoke” but “little fire” for Texas Family Law.
Nacol Law Firm P.C.
Walnut Glen Tower
8144 Walnut Glen
Dallas, Texas 75231
Call (972) 690-3333
Rights and Duties of a Parent – Joint Managing Conservator in Texas.
Waiver To the Guidelines is a Matter of Court Discretion
As a joint managing conservator of a child in a divorce proceeding in Texas, unless special circumstances arise justifying a variance from the Guidelines, the Court will normally order guideline code rights and duties and a parent will be awarded the following:
1.the right to receive information from any other conservator of the child concerning the health, education, and welfare of the child.
2.the right to confer with the other parent to the extent possible before making a decision concerning the health, education, and welfare of the child.
3.the right of access to medical, dental, psychological, and educational records of the child.
4.the right to consult with a physician, dentist, or psychologist of the child.
5.the right to consult with school officials concerning the child’s welfare and educational status, including school activities.
6.the right to attend school activities.
7.the right to be designated on the child’s records as a person to be notified in case of an emergency.
8.the right to consent to medical, dental, and surgical treatment during an emergency involving an immediate danger to the health and safety of the child.
9.the right to manage the estate of the child to the extent the estate has been created by the parent/conservator or the parent/conservator’s family.
10.the duty to inform the other conservator of the child in a timely manner of significant information concerning the health, education, and welfare of the child; and
11.the duty to inform the other conservator of the child if the conservator resides with for at least thirty days, marries, or intends to marry a person who the conservator knows is registered as a sex offender under chapter 62 of the Code of Criminal Procedure or is currently charged with an offense for which on conviction the person would be required to register under that chapter. IT IS ORDERED that this information shall be tendered in the form of a notice made as soon as practicable, but not later than the fortieth day after the date the conservator of the child begins to reside with the person or on the tenth day after the date the marriage occurs, as appropriate. IT IS ORDERED that the notice must include a description of the offense that is the basis of the person’s requirement to register as a sex offender or of the offense with which the person is charged. WARNING: A CONSERVATOR COMMITS AN OFFENSE PUNISHABLE AS A CLASS C MISDEMEANOR IF THE CONSERVATOR FAILS TO PROVIDE THIS NOTICE.
12.the duty of care, control, protection, and reasonable discipline of the child.
13.the duty to support the child, including providing the child with clothing, food, shelter, and medical and dental care not involving an invasive procedure.
14.the right to consent for the child to medical and dental care not involving an invasive procedure.
15.the right to direct the moral and religious training of the child.
16.Only one parent shall have the exclusive right to designate the primary residence of child in a specific geographical area, which is commonly the county in which the child currently resides and the contiguous counties thereto.
17.the right to consent to medical, dental, and surgical treatment involving invasive procedures may be subject to agreement, an independent right or an exclusive right;
18.the right to consent to psychiatric and psychological treatment of the child may be subject to agreement, an independent right or an exclusive right;
19.Only one parent shall have the exclusive right to receive and give receipt for periodic payments for the support of the child and to hold or disburse these funds for the benefit of the child;
20.the right to represent the child in legal action and to make other decisions of substantial legal significance concerning the child may be subject to agreement, an independent right or an exclusive right;
21.the right to consent to marriage and to enlistment in the armed forces of the United States may be subject to agreement, an independent right or an exclusive right;
22.the right to make decisions concerning the child’s education may be subject to agreement, an independent right a joint right or an exclusive right;
23.except as provided by section 264.0111 of the Texas Family Code, the right to the services and earnings of the child may be subject to agreement, an independent right or an exclusive right;
24.except when a guardian of the child’s estate or a guardian or attorney ad litem has been appointed for the child, the right to act as an agent of the child in relation to the child’s estate if the child’s action is required by a state, the United States, or a foreign government may be subject to agreement, an independent right or an exclusive right; and
25.the right to manage the estate of the child to the extent the estate has been created by community property or the joint property of the parent/conservator may be subject to agreement, an independent right or an exclusive right.
In accordance with section 153.001 of the Texas Family Code, it is the public policy of Texas to assure that children will have frequent and continuing contact with parents who have shown the ability to act in the best interest of the child, to provide a safe, stable, and nonviolent environment for the child, and to encourage parents to share in the rights and duties of raising their child after the parents have separated or dissolved their marriage. The Court will therefore normally establish the primary residence of the child in the county where the child currently resides and/or a contiguous county thereto, and the parties shall not remove the child from such county for the purpose of changing the primary residence of child until there is a modification to the existing order of the court of continuing jurisdiction or a written agreement signed by the parties and filed with the court.
The geographical restriction on the residence of the child may be lifted or modified if, at the time the primary parent with the right to establish residence wishes to remove the child from the county for the purpose of changing the primary residence of the child, the other parent does not reside in that county or a contiguous county thereto.
Time constraints, employment issues of the primary Joint Managing Conservator, and other material factors may come into play when a Joint Managing Conservator requests waiver of the geographical restrictions. It customarily is a very difficult, but not always insurmountable, burden to achieve a geographical restriction waiver. The success, consistency and regularity of the non-primary conservator’s possession and access to the child is a factor the court will view in making a ruling. Frequently, an agreement to adjust the amount of support and/or transportation costs comes into play in resolving such disputes.