Modifying Child Support, Custody, & Visitation in
Texas
Modifying Child Support, Custody, & Visitation in
Texas 
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.
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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.
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Substantial and Material Change:
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.
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 $15.00. If the modification is by agreement the $15 fee will be your
only court expense.
If you are having the 'other' parent notified by service of process, you will
be required to pay the additional fees for service of citation. 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.
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: 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), 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.
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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.
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 obligation of that parent.
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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'.
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 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.
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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.
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]
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. 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
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): 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
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Modifying Child Support, Custody, and
Visitation in Texas
Why Modify?
The Process of Modification
Fees
Real World
Examples Modification Requirements
Child Support
Custody
Agreed Modification
Default Modification
Joint Custody
About Us
Texas Family Code 
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Examples:
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Filing Fees:
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
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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.
1 = 20%
2 = 25%
3 = 30%
4 = 35%
5 = 40%
6 = 45% Online
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In an agreed modification, one spouse files the papers at the court house
where the original 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.
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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 their consent.
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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.
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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
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procedures so that you can make your own informed decisions - about the legal
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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
3707 Herring
Lane
Wichita Falls, TX 76302
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Texas Family
Code
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.
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CHILDREN, CONSERVATORSHIP,
POSSESSION AND ACCESS:
*Chapter citations are to TX 1995 Session Law Pamph #3-2; West Publishing;
St. Paul, Mn.
(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
(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
JOINT MANAGING CONSERVATORSHIP
2. designates each parent's rights and duties regarding the child's
physical care, support and education; .153.133
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 Cunningham
Dr
Wichita Falls, TX 76308
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