CHAPTER 156. MODIFICATION - Texas Statutes

FAMILY CODE

TITLE 5. THE PARENT-CHILD RELATIONSHIP AND THE SUIT AFFECTING THE

PARENT-CHILD RELATIONSHIP

SUBTITLE B. SUITS AFFECTING THE PARENT-CHILD RELATIONSHIP

CHAPTER 156. MODIFICATION

SUBCHAPTER A. GENERAL PROVISIONS

Sec. 156.001. ORDERS SUBJECT TO MODIFICATION. A court with

continuing, exclusive jurisdiction may modify an order that

provides for the conservatorship, support, or possession of and

access to a child.

Added by Acts 1995, 74th Leg., ch. 20, Sec. 1, eff. April 20,

1995.

Sec. 156.002. WHO CAN FILE. (a) A party affected by an order

may file a suit for modification in the court with continuing,

exclusive jurisdiction.

(b) A person or entity who, at the time of filing, has standing

to sue under Chapter 102 may file a suit for modification in the

court with continuing, exclusive jurisdiction.

(c) The sibling of a child who is separated from the child

because of the actions of the Department of Family and Protective

Services may file a suit for modification requesting access to

the child in the court with continuing, exclusive jurisdiction.

Added by Acts 1995, 74th Leg., ch. 20, Sec. 1, eff. April 20,

1995.

Amended by:

Acts 2009, 81st Leg., R.S., Ch.

1113, Sec. 26, eff. September 1, 2009.

Sec. 156.003. NOTICE. A party whose rights and duties may be

affected by a suit for modification is entitled to receive notice

by service of citation.

Added by Acts 1995, 74th Leg., ch. 20, Sec. 1, eff. April 20,

1995. Amended by Acts 1999, 76th Leg., ch. 178, Sec. 9, eff. Aug.

30, 1999.

Sec. 156.004. PROCEDURE. The Texas Rules of Civil Procedure

applicable to the filing of an original lawsuit apply to a suit

for modification under this chapter.

Added by Acts 1995, 74th Leg., ch. 20, Sec. 1, eff. April 20,

1995.

Sec. 156.005. FRIVOLOUS FILING OF SUIT FOR MODIFICATION. If the

court finds that a suit for modification is filed frivolously or

is designed to harass a party, the court shall tax attorney's

fees as costs against the offending party.

Added by Acts 1995, 74th Leg., ch. 20, Sec. 1, eff. April 20,

1995.

Sec. 156.006. TEMPORARY ORDERS. (a) Except as provided by

Subsection (b), the court may render a temporary order in a suit

for modification.

(b) While a suit for modification is pending, the court may not

render a temporary order that has the effect of changing the

designation of the person who has the exclusive right to

designate the primary residence of the child under the final

order unless the temporary order is in the best interest of the

child and:

(1) the order is necessary because the child's present

circumstances would significantly impair the child's physical

health or emotional development;

(2) the person designated in the final order has voluntarily

relinquished the primary care and possession of the child for

more than six months; or

(3) the child is 12 years of age or older and has expressed to

the court in chambers as provided by Section 153.009 the name of

the person who is the child's preference to have the exclusive

right to designate the primary residence of the child.

(c) Subsection (b)(2) does not apply to a conservator who has

the exclusive right to designate the primary residence of the

child and who has temporarily relinquished the primary care and

possession of the child to another person during the

conservator's military deployment, military mobilization, or

temporary military duty, as those terms are defined by Section

153.701.

Added by Acts 1995, 74th Leg., ch. 20, Sec. 1, eff. April 20,

1995. Amended by Acts 1999, 76th Leg., ch. 1390, Sec. 15, eff.

Sept. 1, 1999; Acts 2001, 77th Leg., ch. 1289, Sec. 3, eff. Sept.

1, 2001; Acts 2003, 78th Leg., ch. 1036, Sec. 18, eff. Sept. 1,

2003.

Amended by:

Acts 2005, 79th Leg., Ch.

916, Sec. 17, eff. June 18, 2005.

Acts 2009, 81st Leg., R.S., Ch.

727, Sec. 2, eff. September 1, 2009.

Acts 2009, 81st Leg., R.S., Ch.

1113, Sec. 27, eff. September 1, 2009.

Acts 2009, 81st Leg., R.S., Ch.

1118, Sec. 2, eff. September 1, 2009.

SUBCHAPTER B. MODIFICATION OF CONSERVATORSHIP, POSSESSION AND

ACCESS, OR DETERMINATION OF RESIDENCE

Sec. 156.101. GROUNDS FOR MODIFICATION OF ORDER ESTABLISHING

CONSERVATORSHIP OR POSSESSION AND ACCESS. (a) The court may

modify an order that provides for the appointment of a

conservator of a child, that provides the terms and conditions of

conservatorship, or that provides for the possession of or access

to a child if modification would be in the best interest of the

child and:

(1) the circumstances of the child, a conservator, or other

party affected by the order have materially and substantially

changed since the earlier of:

(A) the date of the rendition of the order; or

(B) the date of the signing of a mediated or collaborative law

settlement agreement on which the order is based;

(2) the child is at least 12 years of age and has expressed to

the court in chambers as provided by Section 153.009 the name of

the person who is the child's preference to have the exclusive

right to designate the primary residence of the child; or

(3) the conservator who has the exclusive right to designate the

primary residence of the child has voluntarily relinquished the

primary care and possession of the child to another person for at

least six months.

(b) Subsection (a)(3) does not apply to a conservator who has

the exclusive right to designate the primary residence of the

child and who has temporarily relinquished the primary care and

possession of the child to another person during the

conservator's military deployment, military mobilization, or

temporary military duty, as those terms are defined by Section

153.701.

Added by Acts 1995, 74th Leg., ch. 20, Sec. 1, eff. April 20,

1995. Amended by Acts 1995, 74th Leg., ch. 751, Sec. 47, eff.

Sept. 1, 1995; Acts 1999, 76th Leg., ch. 1390, Sec. 16, eff.

Sept. 1, 1999; Acts 2001, 77th Leg., ch. 1289, Sec. 5, eff. Sept.

1, 2001; Acts 2003, 78th Leg., ch. 1036, Sec. 19, eff. Sept. 1,

2003.

Amended by:

Acts 2009, 81st Leg., R.S., Ch.

727, Sec. 3, eff. September 1, 2009.

Acts 2009, 81st Leg., R.S., Ch.

1113, Sec. 28, eff. September 1, 2009.

Acts 2009, 81st Leg., R.S., Ch.

1118, Sec. 3, eff. September 1, 2009.

Sec. 156.102. MODIFICATION OF EXCLUSIVE RIGHT TO DETERMINE

PRIMARY RESIDENCE OF CHILD WITHIN ONE YEAR OF ORDER. (a) If a

suit seeking to modify the designation of the person having the

exclusive right to designate the primary residence of a child is

filed not later than one year after the earlier of the date of

the rendition of the order or the date of the signing of a

mediated or collaborative law settlement agreement on which the

order is based, the person filing the suit shall execute and

attach an affidavit as provided by Subsection (b).

(b) The affidavit must contain, along with supporting facts, at

least one of the following allegations:

(1) that the child's present environment may endanger the

child's physical health or significantly impair the child's

emotional development;

(2) that the person who has the exclusive right to designate the

primary residence of the child is the person seeking or

consenting to the modification and the modification is in the

best interest of the child; or

(3) that the person who has the exclusive right to designate the

primary residence of the child has voluntarily relinquished the

primary care and possession of the child for at least six months

and the modification is in the best interest of the child.

(c) The court shall deny the relief sought and refuse to

schedule a hearing for modification under this section unless the

court determines, on the basis of the affidavit, that facts

adequate to support an allegation listed in Subsection (b) are

stated in the affidavit. If the court determines that the facts

stated are adequate to support an allegation, the court shall set

a time and place for the hearing.

(d) Subsection (b)(3) does not apply to a person who has the

exclusive right to designate the primary residence of the child

and who has temporarily relinquished the primary care and

possession of the child to another person during the

conservator's military deployment, military mobilization, or

temporary military duty, as those terms are defined by Section

153.701.

Added by Acts 1995, 74th Leg., ch. 20, Sec. 1, eff. April 20,

1995. Amended by Acts 2001, 77th Leg., ch. 1289, Sec. 6, eff.

Sept. 1, 2001; Acts 2003, 78th Leg., ch. 1036, Sec. 20, eff.

Sept. 1, 2003.

Amended by:

Acts 2009, 81st Leg., R.S., Ch.

727, Sec. 4, eff. September 1, 2009.

Acts 2009, 81st Leg., R.S., Ch.

1113, Sec. 29, eff. September 1, 2009.

Sec. 156.103. INCREASED EXPENSES BECAUSE OF CHANGE OF RESIDENCE.

(a) If a change of residence results in increased expenses for

a party having possession of or access to a child, the court may

render appropriate orders to allocate those increased expenses on

a fair and equitable basis, taking into account the cause of the

increased expenses and the best interest of the child.

(b) The payment of increased expenses by the party whose

residence is changed is rebuttably presumed to be in the best

interest of the child.

(c) The court may render an order without regard to whether

another change in the terms and conditions for the possession of

or access to the child is made.

Added by Acts 1995, 74th Leg., ch. 20, Sec. 1, eff. April 20,

1995. Amended by Acts 2001, 77th Leg., ch. 1289, Sec. 7, eff.

Sept. 1, 2001.

Sec. 156.104. MODIFICATION OF ORDER ON CONVICTION FOR CHILD

ABUSE; PENALTY. (a) Except as provided by Section 156.1045, the

conviction of a conservator for an offense under Section 21.02,

Penal Code, or the conviction of a conservator or an order

deferring adjudication with regard to the conservator, for an

offense involving the abuse of a child under Section 21.11,

22.011, or 22.021, Penal Code, is a material and substantial

change of circumstances sufficient to justify a temporary order

and modification of an existing court order or portion of a

decree that provides for the appointment of a conservator or that

sets the terms and conditions of conservatorship or for the

possession of or access to a child.

(b) A person commits an offense if the person files a suit to

modify an order or portion of a decree based on the grounds

permitted under Subsection (a) and the person knows that the

person against whom the motion is filed has not been convicted of

an offense, or received deferred adjudication for an offense,

under Section 21.02, 21.11, 22.011, or 22.021, Penal Code. An

offense under this subsection is a Class B misdemeanor.

Added by Acts 1995, 74th Leg., ch. 20, Sec. 1, eff. April 20,

1995. Amended by Acts 2001, 77th Leg., ch. 1289, Sec. 8, eff.

Sept. 1, 2001.

Amended by:

Acts 2007, 80th Leg., R.S., Ch.

593, Sec. 3.29, eff. September 1, 2007.

Sec. 156.1045. MODIFICATION OF ORDER ON CONVICTION FOR FAMILY

VIOLENCE. (a) The conviction or an order deferring adjudication

of a person who is a possessory conservator or a sole or joint

managing conservator for an offense involving family violence is

a material and substantial change of circumstances sufficient to

justify a temporary order and modification of an existing court

order or portion of a decree that provides for the appointment of

a conservator or that sets the terms and conditions of

conservatorship or for the possession of or access to a child to

conform the order to the requirements of Section 153.004(d).

(b) A person commits an offense if the person files a suit to

modify an order or portion of a decree based on the grounds

permitted under Subsection (a) and the person knows that the

person against whom the motion is filed has not been convicted of

an offense, or received deferred adjudication for an offense,

involving family violence. An offense under this subsection is a

Class B misdemeanor.

Added by Acts 2001, 77th Leg., ch. 1289, Sec. 9, eff. Sept. 1,

2001.

Sec. 156.105. MODIFICATION OF ORDER BASED ON MILITARY DUTY.

The military duty of a conservator who is ordered to military

deployment, military mobilization, or temporary military duty, as

those terms are defined by Section 153.701, does not by itself

constitute a material and substantial change of circumstances

sufficient to justify a modification of an existing court order

or portion of a decree that sets the terms and conditions for the

possession of or access to a child except that the court may

render a temporary order under Subchapter L, Chapter 153.

Added by Acts 2005, 79th Leg., Ch.

916, Sec. 18, eff. June 18, 2005.

Amended by:

Acts 2007, 80th Leg., R.S., Ch.

972, Sec. 14, eff. September 1, 2007.

Acts 2007, 80th Leg., R.S., Ch.

1041, Sec. 5, eff. June 15, 2007.

Acts 2009, 81st Leg., R.S., Ch.

727, Sec. 5, eff. September 1, 2009.

Acts 2009, 81st Leg., R.S., Ch.

1113, Sec. 30, eff. September 1, 2009.

SUBCHAPTER E. MODIFICATION OF CHILD SUPPORT

Sec. 156.401. GROUNDS FOR MODIFICATION OF CHILD SUPPORT. (a)

Except as provided by Subsection (a-1) or (b), the court may

modify an order that provides for the support of a child,

including an order for health care coverage under Section

154.182, if:

(1) the circumstances of the child or a person affected by the

order have materially and substantially changed since the earlier

of:

(A) the date of the order's rendition; or

(B) the date of the signing of a mediated or collaborative law

settlement agreement on which the order is based; or

(2) it has been three years since the order was rendered or last

modified and the monthly amount of the child support award under

the order differs by either 20 percent or $100 from the amount

that would be awarded in accordance with the child support

guidelines.

(a-1) If the parties agree to an order under which the amount of

child support differs from the amount that would be awarded in

accordance with the child support guidelines, the court may

modify the order only if the circumstances of the child or a

person affected by the order have materially and substantially

changed since the date of the order's rendition.

(b) A support order may be modified with regard to the amount of

support ordered only as to obligations accruing after the earlier

of:

(1) the date of service of citation; or

(2) an appearance in the suit to modify.

(c) An order of joint conservatorship, in and of itself, does

not constitute grounds for modifying a support order.

(d) Release of a child support obligor from incarceration is a

material and substantial change in circumstances for purposes of

this section if the obligor's child support obligation was

abated, reduced, or suspended during the period of the obligor's

incarceration.

Added by Acts 1995, 74th Leg., ch. 20, Sec. 1, eff. April 20,

1995. Amended by Acts 1997, 75th Leg., ch. 911, Sec. 16, eff.

Sept. 1, 1997; Acts 1999, 76th Leg., ch. 43, Sec. 1, eff. Sept.

1, 1999; Acts 2003, 78th Leg., ch. 1036, Sec. 21, eff. Sept. 1,

2003.

Amended by:

Acts 2005, 79th Leg., Ch.

916, Sec. 19, eff. June 18, 2005.

Acts 2007, 80th Leg., R.S., Ch.

363, Sec. 6, eff. September 1, 2007.

Acts 2007, 80th Leg., R.S., Ch.

972, Sec. 15, eff. September 1, 2007.

Sec. 156.402. EFFECT OF GUIDELINES. (a) The court may consider

the child support guidelines for single and multiple families

under Chapter 154 to determine whether there has been a material

or substantial change of circumstances under this chapter that

warrants a modification of an existing child support order if the

modification is in the best interest of the child.

(b) If the amount of support contained in the order does not

substantially conform with the guidelines for single and multiple

families under Chapter 154, the court may modify the order to

substantially conform with the guidelines if the modification is

in the best interest of the child. A court may consider other

relevant evidence in addition to the factors listed in the

guidelines.

Added by Acts 1995, 74th Leg., ch. 20, Sec. 1, eff. April 20,

1995. Amended by Acts 1999, 76th Leg., ch. 62, Sec. 6.22, eff.

Sept. 1, 1999; Acts 1999, 76th Leg., ch. 556, Sec. 12, eff. Sept.

1, 1999.

Sec. 156.403. VOLUNTARY ADDITIONAL SUPPORT. A history of

support voluntarily provided in excess of the court order does

not constitute cause to increase the amount of an existing child

support order.

Added by Acts 1995, 74th Leg., ch. 20, Sec. 1, eff. April 20,

1995.

Sec. 156.404. NET RESOURCES OF NEW SPOUSE. (a) The court may

not add any portion of the net resources of a new spouse to the

net resources of an obligor or obligee in order to calculate the

amount of child support to be ordered in a suit for modification.

(b) The court may not subtract the needs of a new spouse, or of

a dependent of a new spouse, from the net resources of the

obligor or obligee in a suit for modification.

Added by Acts 1995, 74th Leg., ch. 20, Sec. 1, eff. April 20,

1995.

Sec. 156.405. CHANGE IN LIFESTYLE. An increase in the needs,

standard of living, or lifestyle of the obligee since the

rendition of the existing order does not warrant an increase in

the obligor's child support obligation.

Added by Acts 1995, 74th Leg., ch. 20, Sec. 1, eff. April 20,

1995.

Sec. 156.406. USE OF GUIDELINES FOR CHILDREN IN MORE THAN ONE

HOUSEHOLD. In applying the child support guidelines in a suit

under this subchapter, if the obligor has the duty to support

children in more than one household, the court shall apply the

percentage guidelines for multiple families under Chapter 154.

Added by Acts 1995, 74th Leg., ch. 20, Sec. 1, eff. April 20,

1995. Amended by Acts 1999, 76th Leg., ch. 62, Sec. 6.23, eff.

Sept. 1, 1999; Acts 1999, 76th Leg., ch. 556, Sec. 13, eff. Sept.

1, 1999.

Sec. 156.407. ASSIGNMENT OF CHILD SUPPORT RIGHT. A notice of

assignment filed under Chapter 231 does not constitute a

modification of an order to pay child support.

Added by Acts 1995, 74th Leg., ch. 20, Sec. 1, eff. April 20,

1995.

Sec. 156.408. MODIFICATION OF SUPPORT ORDER RENDERED BY ANOTHER

STATE. (a) Unless both parties and the child reside in this

state, a court of this state may modify an order of child support

rendered by an appropriate tribunal of another state only as

provided by Chapter 159.

(b) If both parties and the child reside in this state, a court

of this state may modify an order of child support rendered by an

appropriate tribunal of another state after registration of the

order as provided by Chapter 159.

Added by Acts 1995, 74th Leg., ch. 20, Sec. 1, eff. April 20,

1995. Amended by Acts 2001, 77th Leg., ch. 1023, Sec. 13, eff.

Sept. 1, 2001.

Sec. 156.409. CHANGE IN PHYSICAL POSSESSION. (a) The court

shall, on the motion of a party or a person having physical

possession of the child, modify an order providing for the

support of the child to provide that the person having physical

possession of the child for at least six months shall have the

right to receive and give receipt for payments of support for the

child and to hold or disburse money for the benefit of the child

if the sole managing conservator of the child or the joint

managing conservator who has the exclusive right to determine the

primary residence of the child has:

(1) voluntarily relinquished the primary care and possession of

the child;

(2) been incarcerated or sentenced to be incarcerated for at

least 90 days; or

(3) relinquished the primary care and possession of the child in

a proceeding under Title 3 or Chapter 262.

(a-1) If the court modifies a support order under this section,

the court shall order the obligor to pay the person or entity

having physical possession of the child any unpaid child support

that is not subject to offset or reimbursement under Section

157.008 and that accrues after the date the sole or joint

managing conservator:

(1) relinquishes possession and control of the child, whether

voluntarily or in a proceeding under Title 3 or Chapter 262; or

(2) is incarcerated.

(a-2) This section does not affect the ability of the court to

render a temporary order for the payment of child support that is

in the best interest of the child.

(a-3) An order under this section that modifies a support order

because of the incarceration of the sole or joint managing

conservator of a child must provide that on the conservator's

release from incarceration the conservator may file an affidavit

with the court stating that the conservator has been released

from incarceration, that there has not been a modification of the

conservatorship of the child during the incarceration, and that

the conservator has resumed physical possession of the child. A

copy of the affidavit shall be delivered to the obligor and any

other party, including the Title IV-D agency if appropriate. On

receipt of the affidavit, the court on its own motion shall order

the obligor to make support payments to the conservator.

(b) Notice of a motion for modification under this section may

be served in the manner for serving a notice under Section

157.065.

Added by Acts 1999, 76th Leg., ch. 556, Sec. 14, eff. Sept. 1,

1999. Amended by Acts 2001, 77th Leg., ch. 1023, Sec. 14, eff.

Sept. 1, 2001; Acts 2001, 77th Leg., ch. 1289, Sec. 10, eff.

Sept. 1, 2001.

Amended by:

Acts 2005, 79th Leg., Ch.

261, Sec. 1, eff. May 30, 2005.

Acts 2007, 80th Leg., R.S., Ch.

972, Sec. 16, eff. September 1, 2007.