Family circumstances change. A parent may move, a work schedule may shift, or a child may grow older and have different needs. In Texas, when a court has already entered an order about custody (called conservatorship in the Family Code), visitation (possession and access), or child support, a change to that order goes through a process called a suit for modification. This guide explains how that process is set up under Chapter 156 of the Texas Family Code, what the statute says a court considers, and what information to gather. Each point is drawn from the statute itself, linked below.
Where the rules come from
Chapter 156 of the Texas Family Code governs modification of orders in suits affecting the parent-child relationship (Tex. Fam. Code ch. 156). Section 156.001 states that a court with continuing, exclusive jurisdiction may modify an order that provides for the conservatorship, support, or possession of and access to a child. In practice, that generally means the case goes back to the court that issued the existing order.
Step by step: how a modification case is structured
Step 1: Identify the order and the court
Start with a copy of the current order and note which court issued it. Under §156.002, a party affected by an order may file a suit for modification in the court with continuing, exclusive jurisdiction. The same section also allows filing by a person or entity with standing under Chapter 102, and, in certain situations, by a sibling separated from the child because of actions of the Department of Family and Protective Services.
Step 2: Identify what you are asking to change
Chapter 156 treats different parts of an order under different sections:
- Conservatorship and possession and access are addressed in Subchapter B, starting at §156.101.
- Child support is addressed in §156.401 and the sections that follow.
Step 3: Understand the grounds in the statute
For conservatorship or possession and access, §156.101 says the court may modify an order if modification would be in the best interest of the child and one of the following applies:
- the circumstances of the child, a conservator, or another party affected by the order have materially and substantially changed since the earlier of the date the order was rendered or the date a mediated or collaborative law settlement agreement on which the order is based was signed;
- the child is at least 12 years of age and has expressed to the court in chambers, as provided by §153.009, the name of the person who is the child's preference to have the exclusive right to designate the child's primary residence; or
- the conservator with the exclusive right to designate the primary residence has voluntarily relinquished the child's primary care and possession to another person for at least six months.
For child support, §156.401 says the court may modify an order if the circumstances of the child or a person affected by the order have materially and substantially changed since the earlier of the order's rendition or the signing of a mediated or collaborative settlement agreement on which it is based. It also allows modification if it has been three years since the order was rendered or last modified and the monthly amount differs by either 20 percent or $100 from the amount that would be awarded under the child support guidelines. A separate rule applies when the parties agreed to an amount that differs from the guidelines (§156.401(a-1)).
Step 4: Notice to the other party
Under §156.003, a party whose rights and duties may be affected by a suit for modification is entitled to receive notice by service of citation. Section 156.004 states that the Texas Rules of Civil Procedure that apply to filing an original lawsuit apply to a suit for modification.
Step 5: Temporary orders while the case is pending
Section 156.006 allows the court to render temporary orders in a modification suit, with limits. While the case is pending, the court generally may not change who has the exclusive right to designate the child's primary residence through a temporary order unless the order is in the child's best interest and one of the specific conditions in the statute is met, and certain requests require a supporting affidavit.
Timing rules in the statute
- Within one year of the order. Under §156.102, if a suit seeking to change who designates the child's primary residence is filed within one year after the earlier of the order's rendition or the signing of a mediated or collaborative settlement agreement, the person filing must attach an affidavit containing at least one of the allegations listed in the statute, along with supporting facts.
- When a support change can apply. Under §156.401(b), with limited exceptions, a support order may be modified as to the amount only for obligations accruing after the earlier of the date of service of citation or an appearance in the suit to modify.
What to gather
- A complete copy of the current order, including any prior modifications
- The name of the court and the cause number on the order
- Records showing what has changed since the order was entered, with dates
- For child support questions, current information about income and the child's health and dental coverage
- Any mediated or collaborative settlement agreement the order is based on
- Contact and address information for the other party, for notice purposes
Things to know
- Best interest is part of the test. Section 156.101 ties modification of conservatorship and possession to the best interest of the child.
- Some events are addressed directly in the statute. For example, §156.105 states that a conservator's military deployment, mobilization or temporary duty does not by itself constitute a material and substantial change, though the court may render a temporary order under Subchapter L of Chapter 153.
- Voluntary extra support is not a reason to increase support. Section 156.403 says a history of support voluntarily paid above the court order does not constitute cause to increase it.
- A new spouse's resources are not added. Section 156.404 states that the court may not add a new spouse's net resources when calculating child support in a modification suit.
- Frivolous filings have consequences. Section 156.005 requires the court to assess fees and costs if it finds a modification suit was filed frivolously or to harass a party.
Frequently asked questions
Which court handles a modification?
Under §156.001 and §156.002, a suit for modification is filed in the court with continuing, exclusive jurisdiction over the order.
Who can ask for a modification?
A party affected by the order, a person or entity with standing under Chapter 102, and, in specific situations, a separated sibling, as listed in §156.002.
What does "material and substantial change" refer to?
It is one of the grounds in §156.101 and §156.401: a change in the circumstances of the child or a person affected by the order since the order was rendered or the related settlement agreement was signed.
Can child support be changed after three years?
Section 156.401 allows modification if three years have passed since the order was rendered or last modified and the monthly amount differs by 20 percent or $100 from the guideline amount.
Does the other parent have to be notified?
Yes. Section 156.003 entitles an affected party to notice by service of citation.
Can a child's preference be considered?
Section 156.101 lists, as one ground, a child at least 12 years of age who has expressed a preference to the court in chambers as provided by §153.009.
Questions in Brownsville and South Texas
CRG Law works with families in Brownsville and South Texas on family law matters, including order modifications. If you have questions about an existing custody, visitation or support order, you can contact our office.