change-is-inevitable-200x186Children grow and change over time, as do parents. People not only get older, but change jobs, remarry, divorce, sell houses, buy houses, have problems, and successes. Change is inevitable…. right? But, how does change effect children and custody orders?

The Texas Family Code allows custody orders to be modified until the child turns 18. All orders regarding children are subject to change until the kids grow up. But, not just any change is enough. The standard set in the law requires a “material and substantial” change of the children or the parents. See Texas Family Code section 156.101. What is that?

The dictionary definition of material is “having real importance”. The dictionary definition of substantial is “important, essential”. So the change must be really important to rise to the level of warranting a change of the orders regarding the children.

The second prong for modification is the best interest of the children. So, it’s not enough that a change be really important, material and substantial, but it also must be best for the children.

So the question arises, can you plan for changes that could occur in the future to keep from having to modify orders? The answer is YES as it relates to some issues. No for child support.

So, first on child support. Child support is set as of the date of the order, based on a backward-look at income and financial resources. So, child support may only be modified in the future based on changed financial situation that has already occurred.

As for other orders relating to children, such as conservatorship, possession and access, and other decisions, the parents can anticipate changes and agree on what to do when those changes happen. For example, parents can agree that the children are going to attend certain schools in the future. Parents can agree that they are going to handle extracurricular activities a certain way in the future. Parents can agree as to where the children will live and how their time will be split between the parents in the future. Maybe one possession schedule is good for really young children, but a different schedule will be implemented when the children get to a certain age. Or, parents can agree that they will live close together and raise the children together.

When parents agree on these things and anticipate changes that may happen in the future, when those changes then actually occur, they cannot be said to be really important (material and substantial) changes to warrant a modification contrary to the parents prior agreement. Something else unanticipated would have to intervene to make the change material or substantial. Preventing a parent from filing a modification simply over buyer’s remorse when the change actually happens encourages settlement and consistency for the children.

Texas public policy is to encourage settlement of disputes between parties, so allowing parents to reach agreements about their children and the future anticipated issues is consistent with public policy. Those agreements should be supported and upheld to prevent unnecessary judicial resources being spent to re-do what the parties agreed on.

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Photo of Michelle O'Neil Michelle O'Neil

Michelle May O’Neil has 27 years’ experience representing small business owners, professionals, and individuals in litigation related to family law matters such as divorce, child custody, and complex property division. Described by one lawyer as “a lethal combination of sweet-and-salty”, Ms. O’Neil exudes…

Michelle May O’Neil has 27 years’ experience representing small business owners, professionals, and individuals in litigation related to family law matters such as divorce, child custody, and complex property division. Described by one lawyer as “a lethal combination of sweet-and-salty”, Ms. O’Neil exudes genuine compassion for her client’s difficulties, yet she can be relentless when in pursuit of a client’s goals. One judge said of Ms. O’Neil, “She cannot be out-gunned, out-briefed, or out-lawyered!”

Family Law Specialist

Ms. O’Neil became a board-certified family law specialist by the Texas Board of Legal Specialization in 1997 and has maintained her certification since that time. While representing clients in litigation before the trial court is an important part of her practice, Ms. O’Neil also handles appellate matters in the trial court, courts of appeals and Texas Supreme Court. Lawyers frequently consult with Ms. O’Neil on their litigation cases about specialized legal issues requiring particularized attention both at the trial court and appellate levels. This gives her a unique perspective and depth of perception that benefits both her litigation and appellate clients.

Top Lawyers in Texas and America

Ms. O’Neil has been named to the list of Texas SuperLawyers for many years, 2011-2018, a peer-voted honor given to only about 5% of the lawyers in the state of Texas. In 2014-2018, Ms. O’Neil received the special honor of being named by Texas SuperLawyers as one of the Top 50 Women Lawyers in Texas, Top 100 Lawyers in Texas, and Top 100 Lawyers in DFW. She was named one of the Best Lawyers in America for 2016 and received an “A-V” peer review rating by Martindale-Hubbell Legal Directories for the highest quality legal ability and ethical standards.

Author and Speaker

A noted author, Ms. O’Neil released her second book Basics of Texas Divorce Law in November 2010, with a second edition released in 2013, and a third edition expected in 2015.  Her first book, All About Texas Law and Kids, was published in September 2009 by Texas Lawyer Press. In 2012, Ms. O’Neil co-authored the booklets What You Need To Know About Common Law Marriage In Texas and Social Study Evaluations.  The State Bar of Texas and other providers of continuing education for attorneys frequently enlist Ms. O’Neil to provide instruction to attorneys on topics of her expertise in the family law arena.