TEXAS MODIFICATION OF

Child Support, Custody, & Visitation in Texas

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The information available at this site is excerpted from the books and publications published by Pro Se Publications (unless otherwise noted) and is provided for educational purposes.

  • Why Modify?

    Nothing is forever - Thank Goodness ! What seemed to make perfect sense at the time of your divorce or support & custody orders may be totally impractical or unworkable now.

    Things Change! What ever the reason, child support (and often custody) must almost certainly be 'modified' (changed) at some time before the child is grown. The parent paying child support may have a significantly higher (or lower) income now than they did when the child support was calculated. The needs of the children may have (and usually do) increase as they grow older. There are additional expenses for sports and other extracurricular activities. Clothes just plain cost more for older children that are sure they will no doubt 'die' if they don't have some designer's name on the back side of their blue jeans. Inflation alone may reduce the 'real buying power' of the child support amount based on the income of the parent as calculated several years ago at the time of the order.

    One of the most common reasons for modifying child support payments and custody is simply because the child now lives with the parent who was originally ordered to pay child support. Unless the original order for child support is modified (changed) the parent originally ordered to pay the support will still be liable for the ordered payments, and the monthly child support will still be withheld from the parent's pay checks, even though the child now lives with that parent.

    You can't simply pick up the phone and call the child support collection agency and tell them to stop withholding child support from your pay check becasue the child now lives with you. Until a modification order is filed, the parent legally responsible for the payment of support is required to keep on making regular child support payments. Even if the parent simply stops sending the child support payments, the balance continues to add up - with interest - as an arrearage. Sooner or later, the arrearage must be paid (with the interest) since child support cannot be changed (raised or lowered) retroactively. Employers are under a court order to withhold child support from earnings until they receive a court order otherwise.

    Delaying making a change child support to reflect current circumstances can have a profound impact on you and your children whether you are the payor (Obligor) or the payee (Obligee).

    Real World Examples: Four years ago, David was ordered to pay Debbie child support for their 2 children of $400 per month. David has now completed his degree and has a much better paying job that he had 4 years ago. Using the state guidelines to calculate child support for 2 children at 25% of David's net disposable income, he would now be required to pay $600 per month. Since child support cannot be raised or lowered retroactively, Debbie and the children are loosing $200 per month each and every month that she does not have the child support order modified. That's $200 per month that the children are entitled to and will never receive.

    David has been paying $600 per month to Debbie as child support for their 2 children. Last month David and Debbie decided that it would be best for the oldest child to live with David and go to high school. They also agreed that since each parent now has primary responsibility for 1 child, David should not pay child support anymore. David simply stops sending in the $600 child support payments to the local collection registery. David is still obligated to pay the $600 per month in child support until a court order is issued to the contrary. Since he is not making the payments, an arrearage is accumulating at 10% interest that he will eventually have to pay since child support cannot be modified retroactively.

    The Process of Modifying A Court's Prior Order

    There are only 3 procedural steps to modifying a court's prior order;

    Any party affected by the child support order may file the motion seeking to modify (change) a court's prior order for child support or change of conservator (custody and visitation).

    Each party whose rights, duties, powers or privileges may be affected by the requested modification must be notified that a motion for modification has been filed. Usually, only the 'other' parent must be notified.

    The Party Requesting (filing the motion) a change is required to show that there has been "a Substantial and Material Change" in the circumstances which Makes the Requested Modification Necessary.

    Substantial and Material Change:

      Examples:
    • 1. Substantial increase or decrease in the parent's income.
    • 2. Increased needs of the children ie: children are older and require more support
    • 3. change in the child's residence. The child may now be living with the "other" parent.

    Where The Suit To Modify Must Be Filed:

    If the order was issued after Jan. 1, 1974, the modification must be brought in the court with continuing jurisdiction over the parties and the subject matter - The court where the original child support order was issued (it may have been part of the divorce decree), unless the child(ren) has/have moved (and lived in the new county for 6 months) and a Transfer of jurisdiction is requested when the modification is filed.

    dollar Filing Fees:

    A Modification, like any other court proceeding, requires a filing fee. You pay the same fees that lawyers pay. The filing fee for modification of a prior order is currently $15.00. If the modification is by agreement the $15 fee will be your only court expense. (you can call the local distrcit court clerk and ask what the fee for modication of child support and/or custody.

    If you are having the 'other' parent notified by service of process (ie. they won't sign agreeing to the changes you requested; you will be required to pay the additional fees for service of citation (sumons). The fee varies slightly from one county to another, but is generally in the range of $50, making your total court house cost about $65.

    Notice

    When both parents agree to the change(s) there is no need for 'notice', and in many situations, the entire process of modification can be completed in 1 or 2 days without the fomality of a court hearing by simply having the judge sign the order 'ex parte' (ie. in the judge's office).

    All parties to be affected by the requested modification of the child support order are entitled to notice - by "service" (delivery) of a citation and a command to appear on the date of the hearing to determine whether or not the requested modification should be granted. If the modification is by agreement , the 'other' parent can simply sign a Waiver of formal service and consent to the requested modification.

    If the modification is not by mutual agreement , notice, or service of citation, may be made by:
    Agreement, signing a waiver of formal service of citation Personal Delivery of the citation and copies of the motion to modify by a sheriff's deputy, constable. Certified mail sent from the Clerk's office with delivery restricted to addressee only

    As noted above in the 'fee' section, there is an additional fee for service of citation of approximately $50 in addition to the $15 filing fee, making courthouse costs approximately $65.

    Hearing

    After all the parties have been "notified" (received service), and been given an opportunity to "answer" (respond) (approx. 30 days), there is a hearing to determine whether to grant the modification. At the hearing, both "sides" will be given a chance to "tell the judge" why the requested modification should be granted, or not granted; ie: to prove that there has been a substantial and material change in circumstances that warrants a change in prior orders. for example: he/she is now making $4 an hour more than when the divorce was granted and the child support orders issued, or, the child is now living with the parent ordered to pay child support and therefore child support should be stopped or the other parent should pay child support.

  • Texas Child Support Guidelines

    Texas has guidelines set out in the Texas Family Code that are presumed to be in the child's best interest . Unless both parents agree to an amount other than that calculated using the guidelines, child support must based on the guidelines as a percentage of the parent who will pay the support's disposable (net) income.

    Number of Children In Support Order
    1 = 20% 2 = 25% 3 = 30% 4 = 35% 5 = 40% 6 = 45%

    The income of a "New" spouse cannot be used in determining child support. Since a 'new' spouse has no legal obligation to support the children of their spouse, their income cannot be factored into the calculation determining child support.

    Withholding Child Support From Earnings:

    If the original child support order did not provide for the child support to be withheld directly from the earnings of the Obligor , the modification will also order that the future payments be withheld from earnings (just like income tax) and paid through an agency of the Attorney General. This makes it much easier on all the parties to pay and receive child support. NOTE: To have income withholding established, the Obligor must currently be at least 30 days in arrears for some portion of the ordered child support.

    Online Printable Order Form Just: Point - Click - Print!

    Change in Custody: Managing Conservatorship

    Most often a change of managing conservatorship or custody is done when the child is now living with the 'other parent' the parent that is legally the Possessory Conservator with visitation, and usually is paying child support. When the child changes residency and lives with the Possessory Conservator, it is necessary to have the designation of managing and possessory conservators changed , or change the designation to Joint Managing Conservators with the parent with whom the child resides designated as the 'primary' joint managing conservator.

    When the child changes residency, and lives with the designated Possessory Conservator, who is ordered to pay child support, the child support obligation continues until the Court's order is changed . The Possessory Conservator is obligated to pay child support, even when the child has moved in with that parent, until the child support order is changed by the court.

    Generally, when the child has changed residence from one parent to the other, it is with the agreement of both parents. For that reason, the parents are usually both in agreement about changing the designation of Conservator and ending the child support an obligation of that parent.

    Agreed Modification

     

    In an agreed modification, one spouse files the papers at the court house where the original or most recent orders were issued, and gives the other spouse a copy of the filed modification papers. That spouse then signs a waiver of official service of citation which basically acknowledges that they have received a copy of the papers and that they consent to the modification , allowing the cause to proceed without them having to do anything else or even having to appear at the hearing.

    In many agreed situations, a formal hearing is never held . After the 'other' parent signs the waiver and consent, the filing parent simply 'finds' the judge and asks the judge to approve the change. The judge looks over the paperwork. and signs the order making the change 'official' , 'exparte' (without a  hearing).

    I personally know of several agreed modifications that were completed from filing the initial motion to the judge's signature in under 1 hour. The scenerio went something like this. John was paying Jane child support. They agreed that the child should now live with John. Both parents went to the clerk's office at the court house and filed the paperwork, Jane then signed her waiver and consent, and both parents went to the judge's office, telling his clerk they had an agreed modification they needed to get the judge's signature on. The judge's secretary took the paperwork into the judge's office who reviewed the paperwork and signed his/her name. On their way out of the courthouse, the parents stopped back by the clerk's office and filed the 'new' orders appointing John as Primary conservator and ending his child support obligation.

    Some judges insist on the formality of a hearing and require that even in an agreed modification, the filing parent make a formal appearance. If a hearing is required, it will usually take no more than 10-20 days to get on the court's calander and schedule the hearing where the judge will review the paperwork, approve the change, and sign his name making the change official.

    Default Modification

    In a default modification, only one parent (the one filing the paperwork and asking for the change) is required to sign anything. One parent files the motion to modify, and has the other parent notified by personal service by a constable, sheriff or certified mail sent from the clerk's office. The parent being "served" with the papers is not required to sign anything. All that is required is proof that they were notified - not proof that they gave their consent.

    If service is made by a constable, the constable completes a return of service stating that he/she personally handed the papers to the party. If service is by certified mail from the clerk's office, the 'green signature card' everyone signs when picking up a certified letter is returned to the clerk's office as proof that the notice was in fact received.

    Twenty days after the other parent is notified, you can schedule the hearing. If the 'other' parent does not show up at the hearing, they risk loosing by default. If they do appear at the hearing, both parents will 'tell' the judge why the modification should or should not be made, and the judge will make the ultimate decision based on the evidence i.e. check stubs to document income etc.

    Joint Custody

    Many states are now 'urging' parents to work together for the benefit of the children and reach a 'joint custody' agreement. Joint custody is seldom a 50:50 time sharing of children. It is more accurately a 50:50 sharing of responsibility and participating in the decision making process in matters that affect the children. Generally, one parent is named as the 'primary' joint custodian and the other parent is granted visitation "at all times mutually agreed" and failing agreement, under the terms of the state's standard visitation policy. The primary joint custodian typically retains the decision making authority to determine the child's primary residence and school; and to designate such things as the child's primary physician.

    About The National Divorce & Bankruptcy Center

    The National Divorce & Bankruptcy Center is a division of Pro Se Publications, Self-Help Center, which began in May of 1994 and provides the public with easy and inexpensive access to the courts without the expense of hiring a lawyer. We help you better inform yourself about laws and legal procedures so that you can make your own informed decisions - about the legal actions that affect your life. We provide services at low cost because we are not lawyers and do not give legal advice . Instead, our service is limited to providing you with self-help information and providing quality legal document preparation.

    IN SHORT - We Help Our Customers Solve Their Own Legal Problems Without The Expense of Hiring A Lawyer.

    Document Preparation; The Paperwork

    Once you have made the decision to modify, the next step is to complete the Modification information form, indicating your decisions about the modifications you want included in your paperwork. Simply return your completed informational form, to our office with a copy of the last order entered (the one you want modified) and the $200 document processing fee. Your completed paperwork, will be return mailed to you - ready to be signed and filed within 3 business days (most within 48 hours), along with the necessary procedural information to 'guide' you through the process of modifying your current court order for child support, custody, and or visitation .
    In order to ensure prompt processing, payment is limited to Money Order or Bank Cashier's Check made payable to:
    Pro Se Publications
    3707 Herring Lane
    Wichita Falls, TX 76302

  • (940)691-5383 Fax: (940)691-5389 (M-F 9:00-5:00 divorcehelp)

    Online Order Form Point - Click - Print!

    Texas Family Code Concerning

    The Basics

    In Texas, as in most other states, the specifics of family proceedings are set out in the State Statutes. The following information was taken directly from the Texas Family Code and all statutory reference numbers are to that Code.

    CHILDREN, CONSERVATORSHIP, POSSESSION AND ACCESS:
    *Chapter citations are to TX 1995 Session Law Pamph #3-2; West Publishing; St. Paul, Mn.

    Definitions:

  • CONTINUING EXCLUSIVE JURISDICTION A court acquires continuing, exclusive jurisdiction over the matters provided for by this subtitle (Family Code) in connection with a child on the rendition of a final order. No other court may exercise jurisdiction over the subject matter or the parties.(155.001)

    MANAGING CONSERVATOR: The person with "custody" of a child (155.001). (.152.002)

    POSSESSORY CONSERVATOR: The Person with "visitation" privileges (.152.002)

    JOINT MANAGING CONSERVATORS: Sharing of the rights and duties of a parent by two parties, even if the sole right to make certain decisions may be awarded to one party" (a 'primary joint conservator').101.016.

    PUBLIC POLICY: The public policy of this state is to (1) assure that children will have frequent and continuing contact with parents who show the ability to act in the best interest of the child; (2) provide a stable environment for the child; and (3) encourage parents to share in the right and duties of raising their child after the parents have separated or dissolved their marriage. (.153.001)

    BEST INTEREST OF THE CHILD: "The best interests of the child shall always be the primary consideration of the court in determining the issues of conservatorship and possession of and access to the child."(.153.002)

    APPOINTMENT OF MANAGING CONSERVATORS: The court may appoint a sole managing conservator or may appoint joint managing conservators. .153.005(a)

    APPOINTMENT OF POSSESSORY CONSERVATOR: If a managing conservator is appointed, the court may appoint a possessory conservator. The court shall specify the rights and duties of a person appointed possessory conservator and shall expressly state in the order the times and conditions for possession or access to the child. .153.005

    AGREEMENT CONCERNING CONSERVATORSHIP: The parties may reach a written agreement containing provisions for conservatorship and possession of the child. (.153.007)

    RIGHTS AND DUTIES OF PARENTS AT ALL TIMES: (1) to receive information from the other parent concerning the health, education, and welfare of the child; (2) to confer with the other parent to the extent possible before making a decision concerning the health, education, and welfare of the child; (3) access to medical, dental and educational records of a child and to consult with the child's physician, dentist or psychologist. (4) to consult with school officials concerning the child's welfare and educational status, including school activities; (5) to attend school activities; (6) to be designated on the child's records as a person to be notified in case of an emergency; (7) to consent to medical, dental, and surgical treatment during an emergency involving an immediate danger to the health and safety of the child; and (8) to manage the estate of the child to the extent the estate has been created by the parent or the parent's family. .153.073.

    RIGHTS AND DUTIES OF PARENT APPOINTED SOLE MANAGING CONSERVATOR: [in addition to those of all parents at all times as listed above]
    (1) Establish the primary home of the child; (2) receive child support and to hold or disburse these funds for the benefit of the child. .153.132

    CHILD SUPPORT

    CHILD SUPPORT: The duty of a parent to support his or her child exists until the child reaches the age of 18 or graduates from high school, whichever occurs later or until the child is emancipated through marriage, removal of disabilities by court order, or other operation of law; or until the death of the child; .154.002

    OBLIGOR: paying support OBLIGEE: receiving support

    WITHHOLDING CHILD SUPPORT FROM INCOME: "...the court shall order that income be withheld from the disposable earnings of the obligor..." .154.007

    NET RESOURCES AVAILABLE FOR PAYMENT OF CHILD SUPPORT: The court shall calculate net resources to decide child support liability. Resources include: (1) 100% of all wage and salary income and other compensation for personal services (including commissions, overtime pay, tips, and bonuses); (2) interest, dividends, royalty income; (3) self-employment income (4) net rental income (after deducting operating expenses, mortgage payments) (5) All other income actually being received, including severance pay, retirement benefits, pensions, trust income, annuities, capital gains, social security benefits, unemployment benefits, disability and workers' compensation benefits, interest income from notes regardless of the source, gifts and prizes, spousal maintenance, and alimony. .154.062

    RESOURCE INFORMATION: The court shall require a party to: (1) produce copies of income tax returns for the past two years, a financial statement and current pay stubs. (2) furnish information sufficient to accurately identify that party's net resources and ability to pay child support. .154.063.

    MINIMUM wages - 40 HOUR WEEK: Without evidence of the wage and salary income of a party, the court shall assume that the party has wages or salary equal to the federal minimum wage for a 40- hour week. .154.068.

    AGREEMENT CONCERNING CHILD SUPPORT: The parties may reach a written agreement containing provisions for support of the child, including varying from the guidelines. .154.124.

    HEALTH INSURANCE FOR THE CHILD: Health insurance is an additional support obligation of the Obligor and is besides the amount that the obligor is required to pay for child support under the guidelines. .154.183.
    (1) if health insurance is available for the child through the obligor's employment or membership in a union, trade association, or other organization, the court shall order the obligor to include the child in their health insurance; (2) If health insurance is not available for the child through the Obligor's employment, but is available through the Obligee's employment, the court may order the Obligee to provide health insurance for the child and shall order the Obligor to pay the actual cost of the health insurance as additional child support to be withheld from the Obligor's earnings. (3) If health insurance is not available for the child through either parent's employment, the court may order the obligee to provide health insurance for the child from another source .154.182

    FAILURE TO PROVIDE REQUIRED HEALTH INSURANCE: A parent ordered to provide health insurance who fails to do so is liable for necessary medical expenses of the child. .154.1149.

    LOCAL CHILD SUPPORT REGISTRY: An agency or entity operated under the authority of the district clerk ... that receives child support payments, maintains records of payments, and distributes payments as required by law to the appropriate recipient within two working days of receipt..101.018, 154.241. (listing of TX. child support agencies attached.)

    JOINT MANAGING CONSERVATORSHIP

    JOINT MANAGING CONSERVATORSHIP AGREEMENT: If a written agreement of the parents is filed with the court, the court shall appoint the parents as joint managing conservators IF THE

    AGREEMENT: 1. Designates the county of the child's home and identifies the conservator to have the sole right to establish the primary home of the child; (Until further order of the court):
    2. designates each parent's rights and duties regarding the child's physical care, support and education; .153.133

    CHILD SUPPORT: The appointment of joint managing conservators does not limit the authority of the court to order a joint managing conservator to pay child support to the other joint managing conservator. .153.138

    AGREEMENT CONCERNING CHILD SUPPORT: The parties may reach a written agreement containing provisions for support of the child, including varying from the guidelines. .154.124.

    EQUAL POSSESSION NOT REQUIRED: Joint managing conservatorship does not require the award of equal or nearly equal periods of physical possession of and access to the child to each conservator.

    GUIDELINES FOR THE POSSESSION OF CHILD BY PARENT NAMED AS JOINT MANAGING CONSERVATOR. The Standard Possession order provides for a minimum amount of time for possession of a child by a parent named as a joint managing conservator who is not awarded the primary physical residence of the child in a suit. .153.137

    View the complete Standard Visitation Schedule

    RECEIPT OF A.F.D.C.( PUBLIC ASSISTANCE) BY JOINT CONSERVATOR: If one parent receives public assistance on behalf of the child, the court shall designate that parent as the primary care taking parent unless the court finds that it is in the best interest of the child to designate the other parent. .153.139

    Document Preparation; The Paperwork

    Once you have made the decision to modify, the next step is to complete the Modification information form, indicating your decisions about the modifications you want included in your paperwork. Simply teturn your completed informational form, to our office with a copy of the last order entered (the one you want modified) and the $200 document processing fee. Your completed paperwork, will be return mailed to you - ready to be signed and filed within 3 business days (most within 48 hours), along with the necessary procedural information to 'guide' you through the process of modifying your current court order for child support, custody, and or visitation.

    In order to ensure prompt processing, payment is limited to Money Order or Bank Cashier's Check made payable to:
    Pro Se Publications
    3037 F Cunninghham Dr
    Wichita Falls, TX 76308

    Online Order Form Point - Click - Print!


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