Children 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.