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Modifications to Exclusive Right to Designate Residence of a Texas Child

In Interest of TAM involved requests to modify the parent-child relationship. The child in question was 11 when an order of modification was entered for the second time. The first time the parents asked for modification resulted in both parents keeping joint managing conservator status and lots of the rights they’d had in the original divorce decree.

However, that order gave the father two exclusive rights previously held by the mother, including the exclusive right to choose the child’s primary residence in the county. The court ordered that the mother wouldn’t pay child support at the time, given that she wasn’t able to support herself.

In 2012, the mother petitioned to modify the father’s right to designate residence. She’d moved to a different city, gotten a job, and wanted to modify custody so that the child could live with her. She believed that these changes were material and substantial and believed that modifying custody was in the child’s best interest. She also asked for child support. The father counter-petitioned, asking for a modification of child support from $0 to an amount provided by the child support guidelines

During a bench trial, the father acknowledged the mother had a new job and income, but he argued this wasn’t a material and substantial change of circumstances for the purpose of modifying custody. However, he also argued that the mother had experienced enough of a change in financial circumstances that she should have to pay child support.

The judge determined that the mother hadn’t proved a material and substantial change that would support a change in who was the conservator with the right to designate the child’s primary residence. The judge also found that the father had shown that the mother’s financial circumstances had materially and substantially changed since the earlier order, so the mother had to pay child support of $499 per month.

The mother appealed. She argued that a change in circumstances for the purpose of child support was also a change in circumstances for the purpose of custody. She argued that when the father pleaded a change of circumstances for one purpose, he was admitting there was a change for other purposes. She argued that the judge’s order had an arbitrary inconsistency that should be considered an abuse of discretion.

The appellate court explained that the trial court is allowed to modify a child support order that’s different from what’s required by the guidelines if the child or parent’s circumstances have materially and substantially changed under Texas Family Code § 156.401(a-1). Whoever is looking for a modification has the burden to show that there’s been a change that meets the requirements. The terms and conditions can also only be changed if modification is in the best interests of the child.

The appellate court explained that custody didn’t hinge on financial considerations. Material changes could include a marriage of one parent, a change in the surroundings, mistreatment, the poisoning of a child’s mind by one parent, and other factors. The appellate court disagreed with the argument that the father had judicially admitted a material change for all purposes or that the judge’s order was internally inconsistent. The trial court’s judgment was affirmed.

If your divorce involves matters related to child custody and parental rights, contact the Texas attorneys at the McClure Law Group at 214.692.8200.

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Divorce and Taxes – What to do if your ex-spouse botched your joint tax return, May 31, 2016