Modifying Custody Based on Material and Substantial Change in Circumstances Plus Positive Improvement - A Two-Part Test
By Gregg L. Dorst, Esq.
If the other parent does not agree to the desired changes, however, you must persuade the court that the changes you seek would be in the best interests of the child or children, and request that the court order those changes be incorporated into the parenting plan.
To successfully request a court-ordered change in custody, one of the requirements is that the court must find that a "substantial change in circumstances" has taken place since the initial (or previous) custody determination was made.
Exactly what constitutes a 'substantial change in circumstances' can be perplexing. In many cases a parent will have numerous, valid concerns about the current custody arrangements, yet those concerns do not meet the definition of a 'substantial change in circumstances'. If this parent goes to court to ask for a modification of the parenting plan, he or she will almost certainly be denied their request, since they have not met the criteria the court requires for a change to be made.
In this article, written by Gregory L. Dorst, the concept of 'substantial change in circumstances' is examined. After reading this page, you should be able to determine if the concerns you have are sufficient to satisfy the definition of a 'substantial change in circumstances' (and in turn, to warrant a custody modification).
The court may modify an order that designates a sole managing conservator of a child of any age if:
The circumstances of the child, sole managing conservator, possessory conservator, or other party affected by the order have materially and substantially changed since the date the order was rendered; and,
The appointment of the new sole managing conservator would be a positive improvement for the child.
Both the material change and positive improvement prongs of the test must be satisfied. More than a slight change is required. A slight change in circumstances will not justify a modification of managing conservatorship. The change must also have occurred since the prior order.
The material change must have occurred after rendition of the order sought to be modified. A circumstance that existed at the time the prior order was rendered does not support a finding of a material change in circumstances. The material change must also directly or indirectly affect the child's welfare. Many aspects of the child's physical, mental, emotional, and moral well-being have been considered in deciding whether there has been a material change of circumstances affecting the child's welfare, including:
Whether a party has provided for the child's particular health needs, handicaps, hygiene habits, and dietary and clothing needs.
Whether a party has properly overseen the child's educational and social development.
A party's ability or inability to spend time with, care for, and supervise a child.
A party's income, financial situation, employment history and capacity, present job status, and type of employment.
Frequent changes of residence by the managing conservator.
Child's Changing Needs
The changing needs of the child as he or she gets older may, by themselves, constitute a material change in circumstances. However, the age of the child or a party, as an isolated fact, is generally insufficient to support modification of managing conservatorship.
Party's Physical and Mental Condition
A party's physical infirmities rarely justify modification unless the party is substantially unable to care for the needs of the child. On the other hand, courts consider a party's mental health and emotional stability to be very important factors.
Although a party's remarriage, as an isolated fact, is insufficient to justify modification, the circumstances created by a remarriage may affect the child in such a way as to justify modification. For example, remarriage may provide a party with greater income and better living conditions and may allow the party to spend more time with the child. On the other hand, a remarriage may produce financial hardship, or the new spouse may abuse the child, speak disparagingly of the other party, or be of less than reputable character.
New spouse's race may not be considered
The United States Supreme Court has held it unconstitutional to consider the race of the parent's new partner in making a custody decision.
Party's Negative Behavior - Use of Child as Pawn
A parent's use of a child as a pawn in disputes may constitute a material and substantial change in circumstances.
Snatching a child and fleeing may be sufficient to justify a modification of custody. The deliberate secreting of the child demonstrates that the person may be unfit as a custodian and that the child's best interest will be promoted by placing the child with the other party.
Interfering with Child's Relationship With Other Parent
Acts, omissions, or circumstances of a managing conservator that thwart the child's ties with the other parent, such as interfering with visitation, may constitute a material and substantial change in circumstances. A material and substantial change occurs when a managing conservator, by word, attitude, or deed, directly or subtly alienates the child's affection for, or poisons the child's mind against, the other parent.
The moral misconduct of a party, such as, for example, a party's sexual promiscuity, affairs, or living with a member of the opposite sex out of wedlock may constitute a material and substantial change.
Conviction of Crime
Being convicted of a crime or subjecting the child to the influence of persons involved in criminal activities may be considered a material and substantial change in circumstances.
Crime involving child abuse
The conviction, or an order deferring adjudication, of a managing or possessory conservator for a criminal offense involving child abuse constitutes a material and substantial change of circumstances sufficient to justify a modification of conservatorship. Caution: It is a Class B misdemeanor to seek modification on the basis of an alleged conviction or adjudication while knowing that the conservator against whom modification is sought has not actually been convicted of, or received deferred adjudication for, a child abuse offense.
Use of Illegal Drugs
The use of illegal drugs by a party seeking custody is a material issue in a suit to modify conservatorship. Texas Rule of Civil Procedure 204 authorizes a court to order a petitioner to submit to drug tests if sufficient evidence is presented to place the matter in controversy and there is a showing of good cause for such an order.
A dishonorable discharge from the armed services may be considered grounds for change of custody.
Abuse of Child or Spouse
The physical, mental, or sexual abuse of a child is a material and substantial change in circumstances.
NOTE: In determining whether to appoint a party as a sole or joint managing conservator in the original divorce action, the court must consider evidence of the intentional use of abusive physical force by a party against the party's spouse, the child's parent, or any person younger than 18 committed within a two-year period preceding the filing of the suit or during the pendency of the suit.
Past Isolated Instances of Misconduct
Conduct that has occurred in a few isolated instances in the distant past is less likely to be deemed a material and substantial change in circumstances than conduct occurring in the recent past
Child's Awareness of Misconduct
Behavior that occurred in the child's presence or that the child is aware of is more likely to constitute a material and substantial change.
Religious Training or Beliefs
Disputes involving a child's religious training do not constitute a material and substantial change in circumstances. Courts may not constitutionally require religious affiliation or training. The trier of fact in a child-related dispute must remain impartial as to any religious preference.
Parent's religious beliefs
The state, through its courts, may not prefer the religious views of one parent over the other in deciding the child's best interest. Thus, absent evidence that a parent's beliefs and practices are either illegal or immoral, or cause serious bodily or mental injury to, or neglect of, the child, continuing emphasis on a parent's religion during the trial may be reversible error.
Positive Improvement as Separate Element of Two-Part Test
The second element of the two-part test for replacing one sole managing conservator with another sole managing conservator requires a showing that the appointment of the new sole managing conservator would be a positive improvement for the child. Positive improvement must be found as a separate element.
Factors Considered in Determining Positive Improvement
The positive improvement requirement focuses primarily on the circumstances of the person who is seeking to become sole managing conservator.
Present managing conservator's circumstances
The circumstances of the managing conservator will be considered for the limited purpose of comparison. In addition, the more destructive the current situation, the less that needs to be demonstrated to show positive improvement.
Removal of negative factors as consideration
While any number of factors potentially affecting the child's welfare may be considered in ruling on positive improvement, the focus of these factors will be on the potential positive impact on the child if the modification is granted, rather than the harm to the child if the managing conservator is retained. However, the removal of a negative factor in the existing environment may be sufficient to show positive improvement. For example, the elimination of a daughter's emotional distress caused by living with her father was sufficient to support a finding that giving her mother custody would be a positive improvement. Similarly, the more stable home life of the person seeking managing conservatorship, as compared to the unstable environment with the present managing conservator, may make the modification a positive improvement