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Houston Divorce & Family Law Attorney Richard J. Tholstrup

The Tholstrup Law Firm, L.P.

440 Louisiana, Suite 800
Houston, Texas 77002
    2002 Timberloch, Suite 200
The Woodlands, Texas 77380
Phone: 713.225.1280 Fax: 713.225.1344
E-Mail:  tholstru@sbcglobal.net
Home Page:  www.tholstruplaw.com

Family Law Attorney Richard J. Tholstrup

POST DIVORCE MODIFICATION

For more detail on the following, simply click on the issue

1. Relevant Texas Family Code Sections & Leading Case Law
2. When may a court modify an order for child support?
3. May a court in Texas modify another state’s order of child support?
4. If a person turns over possession of a child to another who was previously paying child support, does the person turning over possession now have to pay child support?
5. When may a court modify an order establishing possession of a child, including the right to designate the child’s primary residence?
6. Are there any special circumstances which make it more likely that a court will modify an order establishing possession of a child?
7. How long does it take for a court to modify an order for child support, possession of a child, or access to a child?
8. Do grandparents have the right to bring a suit for possession of or access to a child?
9. When will a court modify an order for alimony or spousal maintenance?

1. Relevant Texas Family Code Sections & Leading Case Law

Chapters 156 and 159 of the Texas Family Code (TFC) deal with child related Modifications. To review these statutes, click on www.capitol.state.tx.us/statutes/fatoc.html and proceed to Chapter 156 or 159. When you click on Chapter 156 or 159, the index for that Chapter of the Texas Family Code will pop-up and you can then click on the Section of the Code that is of interest to you.

2. When may a court modify an order for child support?

The court may modify an order that provides for the support of a child if:
(1) the circumstances of the child or a person affected by the order have materially and substantially changed since the earlier of:
     (A) the date of the order's rendition; or
     (B) the date of the signing of a mediated or collaborative law settlement agreement on which the order is based; or

(2) it has been three years since the order was rendered or last modified and the monthly amount of the child support award under the order differs by either 20 percent or $ 100 from the amount that would be awarded in accordance with the child support guidelines.

3. May a court in Texas modify another state’s order of child support?

The simple answer is yes, if both parties and the child reside in Texas, a Texas court may modify another state’s order of child support after registration of the order in this state.

If both parties and the child do not all reside in Texas, then the rules of the Uniform Interstate Family Support Act (UIFSA) apply. Texas’ adoption of the UIFSA can be found in Chapter 159 of the Texas Family Code. To review the details of these statutes, click on www.capitol.state.tx.us/statutes/fatoc.html and proceed to Chapter 159.

4. If a person turns over possession of a child to another who was previously paying child support, does the person turning over possession now have to pay child support?

If a court finds that a person has voluntarily relinquished the primary care and possession of the child to another person for at least six months, the court may order the person turning over possession to pay child support. The person who was previously paying child support may also have the child support obligation suspended or have a claim for reimbursement for the period of possession of the child.

5. When may a court modify an order establishing possession of a child, including the right to designate the child’s primary residence?

The court may do this if modification would be in the best interest of the child and:
(1) the circumstances of the child, a conservator, or other party affected by the order have materially and substantially changed since the earlier of:
     (A) the date of the rendition of the order; or
     (B) the date of the signing of a mediated or collaborative law settlement agreement on which the order is based;

(2) the child is at least 12 years of age and has filed with the court, in writing, the name of the person who is the child's preference to have the exclusive right to designate the primary residence of the child; or
(3) the conservator who has the exclusive right to designate the primary residence of the child has voluntarily relinquished the primary care and possession of the child to another person for at least six months.

6. Are there any special circumstances which make it more likely that a court will modify an order establishing possession of a child?

Family violence. If the child’s safety is in danger or if the person with the exclusive right to possession of the child commits an offense involving the abuse of a child or family violence, a court will grant an order that modifies possession of the child.

7. How long does it take for a court to modify an order for child support, possession of a child, or access to a child?

• Temporary Orders - temporary orders on a modification can be implemented within days to several weeks depending upon the severity of the circumstances. A higher standard is required for modification under temporary orders so that the child’s situation is not modified in the short term and returned to the prior situation on the longer term.
• Final Orders - final orders normally take approximately 6 months or longer, depending on the analysis and evidence required to get to a final trial, and the county/court in which the case is prosecuted.

8. Do grandparents have the right to bring a suit for possession of or access to a child?

• TFC 153.433. The court shall order reasonable access to a grandchild by a grandparent if:

(1) at the time the relief is requested, at least one biological or adoptive parent of the child has not had that parents parental rights terminated; and
(2) access is in the best interest of the child, and, at least one of the following facts is present:
     (a) the grandparent requesting access to the child is a parent of the parent of the child and that parent of the child has been incarcerated or in jail or prison during the three-month period preceding the filing of the petition for access or has been found by a court to be incompetent or is dead
     (b) the parents of the child are divorced or have been living apart for the three-month period preceding the filing of the petition for access or a suit for the dissolution of the parents’ marriage is pending
     (c) the child has been abused or neglected by a parent
     (d) the child has been adjudicated a delinquent or in need of supervision
     (e) the grandparent requesting access to the child is the parent of a person whose parent-child relationship with the child has been terminated by court order; or
     (f) the child has resided with the grandparent at least 6 months within last 2 years preceding the filing of the petition for access.

• A grandparent has standing to file an original suit if the grandparent has had possession of the child at least 6 months ending not more than 90 days before filing suit. TFC 102.003(a)(9). In addition, a grandparent can file for managing conservator if (1) the order is necessary because the child=s present environment poses serious questions concerning child=s health and welfare or (2) a parent, a managing conservator or custodian consent. TFC 102.004.

9. When will a court modify an order for alimony or spousal maintenance?

• Alimony in Texas is generally contractual as opposed to spousal maintenance ordered by a court. As a result, a change in alimony is dependent upon the contractual terms that provide for the alimony.
• Spousal Maintenance may be modified pursuant to TFC §8.057. The court may modify an original or modified order or portion of a decree providing for maintenance upon a proper showing of a material and substantial change in circumstances of either party.