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).

For example, in In re A.M.B.V., No. 13-13-00081-CV, 2015 Tex. App. LEXIS 59, (Tex. App.—Corpus Christi Jan. 8, 2015, no pet. hist.), the Court modified the parties’ agreement that gave the child’s mother the unlimited ability to designate the residence of her child and limited her ability to do so to the county in which the child lived and surrounding counties because the court found a substantial change in the father’s relationship with the child in the intervening years. But see Zeifman v. Michels, 212 S.W.3d 582, 594 (Tex. App.—Austin 2006, pet. denied) (child’s application and admission to certain private school did not constitute substantial change because decree contemplated that child would age and go to school). Trial courts have a wide discretion to determine whether a substantial and material change has occurred because they are in the best position to hear all of the evidence and make judgments about the witnesses’ credibility. A.M.B.V., 2015 LEXIS 59 at *10 (noting that it is not an abuse of discretion to base decision on conflicting evidence).

However, a family court does not have unlimited discretion in modifying custody. For instance, it may be error for a court to make changes to a custody arrangement if it does not make a finding of a material and substantial change as required by the statute. Additionally, the court must receive evidence and make factual findings as to the original circumstances, the changes in circumstances, and the current circumstances in order to find that a material and substantial change has occurred. See In re C.C.J., 244 S.W.3d 811, 919 (Tex. App.—Dallas 2008, no pet.). “[T]he record must contain both historical and current evidence of the relevant circumstances. Without both sets of data, the court has nothing to compare and cannot determine whether a change has occurred.” Zeifman, 212 S.W.3d at 589.

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