Material and Substantial Change Must Be Related to Requested Texas Custody Modification

When a parent seeks modification of Texas custody order, he or she must a substantial and material change in circumstances since the previous order.  Generally, the change must be material to the modification the parent is requesting.  A mother recently appealed a custody order modification allowing the father to have unsupervised visits, arguing he had not shown a material and substantial change in circumstances.

The mother filed a Suit Affecting Parent Child Relationship (SAPCR) asking the court to limit the father’s access to their daughter after he received a DWI in 2012.  Her affidavit detailed a number of events related to the father’s intoxication during the marriage.  She asked to be named sole managing conservator.  She also asked that the father be allowed only supervised visitation and that he be prohibited from drinking for 12 hours before and during the visitation.

The father was from Canada and had returned there.  He did not contest the suit and a default judgment was entered.  It named the mother sole managing conservator and limited the father to supervised visitation.

The parties divorced soon after.  Both parties participated in the divorce proceedings.  The agreed divorce decree incorporated the terms of the SAPCR.  The father agreed to supervised visitation and the alcohol restrictions.  The decree stated the visitation would be supervised by the mother or a responsible adult she designated.

The father came to Texas for visitation over the next three years.  The mother denied his requests to have someone else supervise.  After the mother began a new relationship, her boyfriend and his children sometimes came to the visits.

The father petitioned to modify the custody order to name him joint managing conservator, allow unsupervised visits, and permit him to have alcohol before and during the visits.  The father, his new wife, and the mother testified at the hearing.  The trial court entered a modified custody order allowing unsupervised visits that would ultimately progress to allow international travel.  The court did not modify the alcohol restrictions.

The mother appealed, arguing the trial court abused its discretion because there was insufficient evidence of a substantial and material change in circumstances.

The appeals court noted the trial court ordered supervised visitation after hearing evidence the father had issues with alcohol.  The appeals court pointed out the father had to establish that the substantial and material changes were connected to his request for unsupervised visitation and international travel.

The mother argued there was no evidence the circumstances related to the father’s alcohol use had changed.  She submitted screenshots of the father’s Facebook posts, including images of him drinking and posts where he mentioned alcohol.

The trial court stated there was no material and substantial change if the father’s drinking was “still happening,” but there was such a change if the drinking was “not happening.” The appeals court noted the father had denied having a drinking problem when he agreed to the supervised visits and alcohol restrictions, but the custody decree was res judicata on the child’s best interest at the time.

The father testified he had passed pre-employment drug and alcohol tests and that alcohol was illegal where he worked a 35-days on-and 35-days-off schedule.  He testified that he averaged four days per week drinking and one or two days intoxicated in 2012, but drank three days a week and was intoxicated about once a week in 2019.  He stated, however, that it was not consistent so it was hard to state an average.

The father was asked how things had changed since the decree.  He testified he had lost his job, lost his visa, and moved back to Canada, in addition to getting the DUI in 2012.  In 2019, he had a job, had remarried, and was living with a friend in Houston.  The appeals court found these changes were not sufficient to constitute a substantial and material change related to the modification he requested.  Although his job required him to refrain from drinking for 35 days, that did not mean he would not drink excessively during his visitation.  The appeals court noted the father had admitted to drinking twice during his supervised visits.

The appeals court found the father failed to establish there had been a material and substantial change in circumstances related to the requested modification since the divorce decree.  The trial court had abused its discretion in granting the modification.  The appeals court reversed and remanded the case.

In this case, changes that may have been considered material and substantial in some cases were found to be unrelated to the requested modification in this case.  If you are seeking or opposing a custody modification, you need a knowledgeable Texas custody attorney on your side.  Schedule a consultation with McClure Law Group by calling 214.692.8200.

Contact Information