What are Material and Substantial Changes in Custody Modifications?

A court that has continuing and exclusive jurisdiction over a child may modify custody orders at any time. Tex. Fam. Code § 156.001. However, it can do so only in certain limited circumstances. In Texas, a child custody order can be modified if modification is in the best interest of the child and: 1) the custodial parent voluntarily gives custody of the child to another person; 2) a child who is at least twelve years old has told the court that he or she wants to change the agreement; or 3) “the circumstances of the child, a conservator, or other party affected by the order have materially and substantially changed” since either the date the order was rendered or the date on which a mediated settlement agreement was signed. Tex. Fam. Code § 156.101 (a). The statute leads to the obvious question, “what does it mean for circumstances to have materially and substantially changed?”

Although the family code does not define “material” or “substantial,” Texas courts have found material and substantial changes in a wide variety of situations. “Material changes may include (1) remarriage by a party, (2) poisoning of the child’s mind by a party, (3) change in the home surroundings, (4) mistreatment of the child by a parent or step-parent, and (5) a parent’s becoming an improper person to exercise custody.” In re P.H.R., No. 01-14-00101, 2014 Tex. App. LEXIS 13905 at *12 (Tex. App.—Houston [1st Dist.] Dec. 30, 2014, no pet. hist.). Of course, every situation is different, and courts often must interpret specific factual situations in order to reach a proper decision even when the change alleged may not be obvious or objective. See In re S.N.Z., 421 S.W.3d 899, (Tex. App.—Dallas 2014, pet. denied) (question is whether trial judge made a reasonable decision or erred in his application of discretion).


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