Court orders affecting children are never a perfect solution. People evolve, children grow up, and life happens. To adjust a prior court order for children affecting either child support, conservatorship, or possession and access, modification of a Suit Affecting the Parent Child Relationship (SAPCR) is your vehicle. This article will go over some of the basics of modifications and why they are sometimes necessary.
Who Can File and Where?
A modification can be filed by any party that directly is affected by the order. This petition must be filed in the court with continuing exclusive jurisdiction, i.e. with the same court where the original SAPCR was filed. It must be noted that any party whose rights & duties are affected by such modification has the legal right to receive notice by service of citation (Texas Family Code § 156.003). Practically speaking, this means that sometimes even the Office of the Attorney General or some other agency you may not be expecting may be entitled to notice if they have an interest in the case.
What If the situation is Urgent?
While your case is pending, people often have situations involving their children, the other parent, or property that needs immediate action. Whether it’s a disagreement on child support, inability to co-parent with the other parent, or a danger to the child, a temporary order can help. Either party in a family law case can ask for temporary orders by filing a motion for temporary orders. These are often filed with any modification suit but can be filed anytime that they are necessary. Once the request is filed with the court, the judge will have a temporary order hearing where you and the other party can present your arguments for what you want. Be cautious, though. Every court and county may have specific rules that make these hearings tricky. For example, there is a Texas county where each party is limited to no more than 30 minutes for their entire case. The last thing you want when fighting for the best interests of your children is to be cut off mid-sentence for not following the court’s rules. After arguments are heard and evidence is presented, the judge will then make rulings on the temporary orders. The temporary orders will last until a final order is signed by the judge (or the temporary orders are changed by the judge).
**Practice tip: Every case does not need temporary orders. However, temporary orders can be an extremely effective tool in litigation of some family cases. In every temporary hearing, parties are typically presenting their best selves, and their best evidence because the issues being decided can be very important. If a judge heard parties argue and present evidence for three hours about why the husband should have the children, live with husband, and wife will pay child support, why would the judge change that decision later? Judges can have surprisingly good memories and rarely change their decisions after their rulings on temporary orders. Keep this in mind when you think about conceding possession of your children to the other parent on a “temporary basis”, or agreeing to certain amounts of child support, or other parenting decisions that may come back to haunt you further down the road in your case.
When can I file?
Generally speaking, a modification suit can be filed at any time should the need arise. However, there are situations when a modification is requested within one year of final order. In those situations, the petitioner must also file an affidavit with certain allegations attached to their petition. This affidavit must include allegations including but not limited to:
- the physical health or emotional development of the child is at risk in the current living environment;
- custodial parent who has the right to decide on the primary residence of the child is seeking or agreeing to such modification and these changes are in the best interest of the child;
- the custodial parent has voluntarily handed over the primary care as well as possession of the child for a period of more than six months and these changes are in the best interest of the child;
- Public policy considerations.
If the court deems the affidavit insufficient, then the court can deny hearing of the modification.
What are the Courts looking for?
A modification suit can be filed for any number of reasons. These reasons can include but are not limited to:
- if the requested modification is in the best interest of the child;
- there has been a material and substantial change in circumstances of the child conservator, or any other party affected by the order from the earlier of date of final order or signing date of mediated or collaborative law settlement agreement based on which final order was given;
- the child being of 12 years or older has told the court in chambers what his/her preference is related to who should have the exclusive right to finalize his/her primary residence;
- or the custodial parent has voluntarily handed over the primary care as well as possession of the child for a period of more than six months.
Disclaimer: The legal information presented herein should not be construed to be formal legal advice nor the formation of a lawyer/client relationship. General advice should always be tested by the particular facts and circumstances of each case. Legal advice is almost always case specific. Statues, ordinances, legal procedures, case law and rules of evidence are often revised.