Children grow and change over time, as do parents. People not only get
older, but change jobs, remarry, divorce, sell houses, buy houses, have
problems, and successes. Change is inevitable…. right? But, how
does change effect children and custody orders?
The Texas Family Code allows custody orders to be modified until the child
turns 18. All orders regarding children are subject to change until the
kids grow up. But, not just any change is enough. The standard set in
the law requires a “material and substantial” change of the
children or the parents.
See Texas Family Code section 156.101. What is that?
The dictionary definition of
material is “having real importance”. The dictionary definition of
substantial is “important, essential”. So the change must be really important
to rise to the level of warranting a change of the orders regarding the children.
The second prong for modification is the best interest of the children.
So, it’s not enough that a change be really important, material
and substantial, but it also must be best for the children.
So the question arises, can you plan for changes that could occur in the
future to keep from having to modify orders? The answer is YES as it relates
to some issues. No for child support.
So, first on child support. Child support is set as of the date of the
order, based on a backward-look at income and financial resources. So,
child support may only be modified in the future based on changed financial
situation that has already occurred.
As for other orders relating to children, such as conservatorship, possession
and access, and other decisions, the parents can anticipate changes and
agree on what to do when those changes happen. For example, parents can
agree that the children are going to attend certain schools in the future.
Parents can agree that they are going to handle extracurricular activities
a certain way in the future. Parents can agree as to where the children
will live and how their time will be split between the parents in the
future. Maybe one possession schedule is good for really young children,
but a different schedule will be implemented when the children get to
a certain age. Or, parents can agree that they will live close together
and raise the children together.
When parents agree on these things and anticipate changes that may happen
in the future, when those changes then actually occur, they cannot be
said to be really important (material and substantial) changes to warrant
a modification contrary to the parents prior agreement. Something else
unanticipated would have to intervene to make the change material or substantial.
Preventing a parent from filing a modification simply over buyer’s
remorse when the change actually happens encourages settlement and consistency
for the children.
Texas public policy is to encourage settlement of disputes between parties,
so allowing parents to reach agreements about their children and the future
anticipated issues is consistent with public policy. Those agreements
should be supported and upheld to prevent unnecessary judicial resources
being spent to re-do what the parties agreed on.