Modification

Divorced Father Seeks Reduction in Child Support, But Court Ultimately Orders an Increase Instead

May 10, 2023 | by Robert Guest

Texas courts consider various factors when determining how to award child support in cases of divorce or paternity. Generally, a child support award is based upon the needs of the custodial parent in caring for the children, as well as the ability of the noncustodial parent to pay for support. These determinations are usually made based on the needs and earning abilities of the parties at the time when the order is entered. Because circumstances change, the Texas code allows for a parent to seek a reduction or increase in child support based on a change of circumstances. A Texas man recently petitioned a Harris County Family Court to reduce his child support obligation based on a change in his employment situation, but the results were likely not what he expected or desired.

The Facts of the Case

The Petitioner in the recently decided case previously agreed to a divorce settlement with the Respondent, which included a child support obligation of $1893.00 per month to support the parties’ child. A final decree of divorce consistent with the agreement was then entered by the court in 2018. Since the decree of divorce was entered, the Petitioner had a change in his employment, as a contract job he had been working with was no longer available. As a result of his change in income, he filed a petition to modify the divorce decree. To modify a child support order, Texas law requires that the circumstances of the children or a person affected by the order have materially and substantially changed, and the support payments previously ordered should be decreased.

In response to his petition to modify his support obligation, the Respondent filed a counter-petition, arguing that the Petitioner’s income had actually increased and that her income was reduced, and that an increase in child support was justified. In evaluating the parties’ claims, the court noted that while the Petitioner did see a decrease in his overall employment income since the decree of divorce was entered, he had been receiving substantial other income that would need to be factored into his support obligation.

Texas Appeals Court Dismisses Child Support Case Due to Mootness

November 18, 2021 | by Robert Guest

Although generally family court cases have a substantial and lasting effect on people’s lives, changes in circumstances may make some cases no longer relevant or actionable. In a recent case in a Texas child support case, a Texas appeals court found that the wife’s suit for child support modification had become moot.

In that case, the husband and wife shared two children. After their divorce, the wife filed a motion to modify child support and possession claiming that there were material and substantial changes affecting the child support. The court held a hearing and issued a decision in that case in 2018. The wife appealed that decision. While the appeal was pending, that wife filed a subsequent motion to modify the order and in 2020, the trial court signed a judgment in a separate proceeding. The wife did not appeal that decision. In the wife’s appeal, the husband argued that the appeal was moot because the wife had filed a new modification suit and the court entered a new child support order, which she had not appealed.

When Does a Case Become Moot?

Texas courts are required to consider intervening events that may affect a lawsuit and cause it to be moot. A case is moot if there is no “justiciable controversy between the parties.” If a controversy between the parties does not exist or ceases to exist, the parties do not have a legal interest in the outcome, or the court’s judgment does not have any practical legal effect, the case is moot.

I’m a grandparent, can I sue for visitation of my grandchild?

January 31, 2017 | by Guest and Gray Law Firm

Can I ask a Texas Court for visitation rights for my grandchild?

Texas allows grandparents to gain court-ordered visitation of grandchildren in very limited circumstances. The reason that the statute allowing grandparent visitation is so limited is because the United States Supreme Court has decided that parents having the ability to make decisions about raising their children is a fundamental right that should not be interfered with by courts. Basically, in the United States we want parents to be able to decide whether their kids get to see their grandparents or not even if the parents don’t seem to have a great reason for keeping their kids away from their grandparents. A parent’s right to decide how their kids are raised is more important under the law than a grandparent’s desire to see their grandchildren.

How does Grandparent visitation work in Texas?

Texas Family Code 156.101(a)(1), What is a material and substantial change?

January 17, 2017 | by Robert Guest

What is a material and substantial change?

The Texas Family Code allows for a modification of a suit affecting the parent-child relationship if modification would be in the best interest of the child 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 order or the date of the signing of the mediated settlement agreement that the order is based off of. Material and Substantial change is not defined in the code, but obviously this is a term that has been dealt with by Texas Courts extensively. Material and Substantial change may sound like a high standard, but in actuality the courts give very broad discretion to trial court judges in their assessment of what a material and substantial change is.

What have appellate courts said about material and substantial change?

Modification of Custody in Less Than One Year: How Important is the Affidavit?

May 13, 2014 | by Guest and Gray Law Firm

You just finalized your divorce or custody matter, however it seems like every time you turn around you think that your child should live with you instead of the other parent primarily of the time. Even though it is has not even been a year yet since your final orders were rendered, it just seems as though something is constantly coming up and you are genuinely concerned. The other parent may be endangering the child’s physical welfare or emotional development such as engaging in criminal activity, drug usage, physical/mental/sexual abuse, or overall endangerment of the child. You want to change the custody orders now but you have been told that there are certain roadblocks in requesting the modification this soon. What should you expect?

Less than One Year Requirements

If you are filing your petition to change the parent who has the exclusive right to designate the child’s residence in less than one year, there are specific requirements that you must follow. In fact, you must qualify within these statutory parameters to even file your case. The most important and crucial requirement is the affidavit that must be attached to your petition. In fact, Texas Family Code Section 156.102 mandates that an affidavit must be attached to your pleadings and “(b) must contain, along with supporting facts, at least one of the following allegations: (1) that the child’s present environment may endanger the child’s physical health or significantly impair the child’s emotional development; (2) that the person who has the exclusive right to designate the primary residence of the child is the person seeking or consenting to the modification and the modification is in the best interest of the child; or (3) that the person who has the exclusive right to designate the primary residence of the child has voluntarily relinquished the primary care and possession of the child for at least 6 months and the modification is in the best interest of the child.” Frequently, we see the first requirement being the grounds on which someone files a modification. Allegations are made that something bad has happened in the other parent’s care and this is why that parent should no longer have possession of the child. But, the key is that the allegations must be made in the affidavit. Many people get hung up on this requirement and many times affidavits fall short on their face.

Post-Majority Expenses/Support—You May Have an Order, But Is It Enforceable?

February 25, 2014 | by Guest and Gray Law Firm

You have a pending case involving a child (divorce, SAPCR, modification) and child support has been established. However, like most parents you are concerned about the future—what happens when the children go to college, how will I afford their expenses then? Most people say that you can “save the child support” but that is not ideal. Children are expensive and it is highly likely that you will spend all of the child support and then some with all of the things that come up throughout their lives until they turn 18 or graduate from high school. Child support ends on “removal of the child’s disabilities for general purposes, the marriage or death of a child, or a finding by the court that the child is 18 years of age or older and is no longer enrolled in high school or a high-school equivalent program.” In the Interest of W.R.B. and B.K.B., Children. So, what are your options to ensure that your children can get a college education and have support from the other parent?

This issue is addressed in In the Interest of W.R.B. and B.K.B., Children from the 5^th District Court of Appeals in Dallas. There, the Dallas Court of Appeals addressed the issue of post-majority support which is defined as applying “only to a non-disabled child who is 18 years of age or older and is no longer enrolled in high school or a high-school equivalent program” Tex. Fam. Code Section 154.001(a). Therefore, this creates or allows for a specific scenario in which the other parent would still be required to make support payments. In this case, the Court held that the trial court cannot order post-majority support on its own volition but the parties can agree to post-majority support in writing. In the agreed modification orders, the parties had done just that. Therefore, the Court of Appeals held that it was proper for the trial court to render the order of post-majority support. However, the issue then became that the obligor parent stopped paying the post-majority expenses and so the recipient or obligee parent filed an enforcement action seeking reimbursement of all of the expenses, attorneys’ fees and interest.

The Dallas Court of Appeals held that for post-majority support, this is after the child ages out and was based purely upon the parties’ agreement and so therefore it is not enforceable in a family law court under the Texas Family Code. Rather, the proper avenue is breach of contract. This is because the agreed orders, with respect to the post-majority support, are considered a contract because it is an agreement of the parties not based upon legal authority. This is unlike the issue of child support that was ordered which remains enforceable even post-aging out of the children because the Court still maintains jurisdiction over that issue as it was awarded under the family code.

What is a right of first refusal?

November 4, 2013 | by Guest and Gray Law Firm

Are you involved in a divorce or child custody suit and you are concerned that your ex constantly leaves your child with strangers or a relative? Then the right of first refusal might be the answer to your concern. The questions then arise as to how it works and would it be best for your child.

If you or your ex are in possession of your child and you are going to be absent for a certain period of time, then you must first call the other parent before you can leave your child with another relative, babysitter, etc. This provision is a mutual agreement between the parties that if you or your ex are not going to be present after a certain number of hours (can range from 2, 4, 5, etc.) then you agree that the other parent can have possession of the child during your absence. As you can imagine, this provision has both negative and positive aspects.

For instance, you know that if your ex is going to be absent during their scheduled period of possession more than 3 hours then you have the first opportunity to take possession of the child during their absence. This allows for additional time with a parent who may have only a standard possession schedule which reinforces Texas’ public policy of frequent and continuing contact between both parents. After all, who would want a babysitter to watch their child if you know the other parent is available? Would you not want your child to have some extra time with the other parent? Maybe, maybe not. You definitely need to discuss the pros and cons with your attorney.

I want to move for a new job, can I have my geographical restriction modified?

October 10, 2013 | by Guest and Gray Law Firm

You have final orders in your custody case and you have the exclusive right to designate the primary residence of the child. The problem is that this right is subject to a geographical restriction (ex. Dallas County and contiguous counties, Kaufman County and contiguous counties, etc.) and therefore it puts a restriction on you and where you can live. You currently had a meeting with your boss and they want to relocate you or you have found better employment opportunities out of state. You know that this would be really good for your family, but you feel as though your hands are tied because of this geographic restriction.

However, you may have the opportunity to seek a modification to lift the geographical restriction. It truly depends upon your situation, the factors that the court will consider, and even the presiding judge. In fact, this is a difficult decision for courts. On one hand, you have the public policy of frequent and continuing contact under Texas Family Code Section 153.001(a)(1) which states that “children will have frequent and continuing contact with parents who have shown the ability to act in the best interest of the child”. On the other hand, you have the primary parents who really need this move to better their family. Therefore, Texas courts struggle with this decision in modifications. The Texas Supreme Court Lenz v. Lenz does offer guidance with respect to factors that would support relocation. For instance, the Court and courts after it have examined: the other parent’s lack of interest in the child; prior connections to the new location (do you have family there, have you ever lived there, etc.); and reasons for the move.

Therefore, if you have an opportunity for a job in another state that pays considerably more money, you have familial ties in the state and the job is located near that family, you originally lived in that state, you only moved to Texas for your ex-spouse, your ex-spouse is not exercising their visitation, and you do not have anyone additional in this state to support you then that is definite grounds to discuss a modification. Additionally, it is helpful if you have a roadmap already planned out that can be explained to the judge. For example, where you are going to live, where you are going to work, where the child will attend school, and any extracurricular activities for the child. If you are the parent moving, most likely the court will make you pay all travel expenses for the child to have visitation with the other parent. Many courts use this order as compensation to the parent who remains in Texas. Like with many family law issues, this is a decision the courts must take on a case-by-case basis. As you can see, there are several issues to discuss with your attorney.