A Texas court generally cannot modify a custody order or parenting plan unless there has been a material and substantial change in circumstances. Sometimes, a parent may seek modification because the other parent’s actions have created a change in circumstances. Texas law provides examples of potential material changes, including marriage of one of the parents, changes in the home surroundings, and mistreatment of the child by a parent or step-parent. Tex. Fam. Code Ann. § 156.101.
A Texas appeals court recently considered whether a modification allowing the father, rather than the mother, to determine the child’s primary residence was appropriate. In the Texas divorce, the mother was awarded the family home, which was subject to a mortgage in both names. The father paid child support. At the time of the divorce, the child went to daycare while the mother worked, then spent a few hours with the father, and spent the night with his mother.
The mother subsequently started working a night shift. The child continued going to daycare, but then spent both evenings and nights with the father. The mother sold the family home to the father and moved into another home with the child’s maternal grandmother. Soon afterward, she switched to the day shift. She removed the child from daycare and left him with the grandmother during the day. The mother then only allowed the father to see the child on the days specified in the divorce decree, and would deny him access to the child if he was late, even by a few minutes.
The father testified that the grandmother used profanity and had a history of drug abuse. He said he was not comfortable with the grandmother watching his son. He also testified that CPS had taken the grandmother’s children away “numerous times.”
After hearing all of this evidence, the trial court modified the custody order to allow the father the exclusive right to designate the child’s primary residence. The mother appealed, arguing there was no material and substantial change justifying modification.
When a parent seeks modification of an order, they must show that the child’s circumstances or those of a party affected by the order have materially and substantially changed. The appeals court noted that actions by one parent that prevent the child from seeing or bonding with the other parent can constitute a material and substantial change.
The appeals court also noted that the need for a babysitter because the custodial parent must work does not justify a modification if there is no evidence the babysitter was somehow improper, abusive, or neglectful.
The mother argued there was no material and substantial change and that she was now working the same shift she worked at the time of the decree. The appeals court acknowledged she was working the same shift, but noted there were other changes in circumstances. The mother had sold the family home back to the father. The grandmother had moved in with her without the mother having knowledge of how long it had been since the grandmother used drugs or had been arrested. The mother had taken the child out of daycare to be cared for by the grandmother. The mother also set a strict schedule for the father to pick up the child, interfering with his right to spend time and bond with his son. The appeals court found there was sufficient information for the trial court to find a material and substantial change in circumstances and exercise its discretion to grant the modification.
The mother also argued the trial court erred in admitting evidence about the grandmother because the father failed to disclose it in discovery. The court found the mother knew the grandmother’s history, so the trial court did not abuse its discretion in finding there was no unfair surprise. The appeals court rejected the mother’s argument that the court erred in allowing evidence about the grandmother.
The appeals court affirmed the order granting the father the exclusive right to designate the child’s primary residence.
The court in this case found sufficient support for a modification, but that is not always the case. Whether there has been a material and substantial change is dependent upon the specific circumstances of each case. If you are facing a custody issue, the experienced Texas family law attorneys at McClure Law Group can help. Call us at 214.692.8200.
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