In a modification of orders regarding children following a Texas divorce, sometimes lawyers get confused about the application of presumptions like the presumption of the application of guideline child support or the presumption against joint conservatorship when there has been domestic violence. In fact, neither of these presumptions apply in a modification proceeding. Likewise, the parental presumption does not apply in a modification proceeding. So, if you have a case for modification of child support where the obligor makes more than the ceiling amount, the court is not bound by the strictures of the guidelines and the burden of proof required in a divorce or original proceeding to exceed the guidelines. The court may set any amount of child support that the court finds is in the best interest of the child based upon the evidence.
To read the Court of Appeals’ decision, click here: See In re S.E.K., 294 S.W.3d 926 (Tex. App. – Dallas 2009).