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| | Establishing Material and Substantial Change |
In General
The court may modify the terms of possession of or access to a child or the rights and duties of conservators if the circumstances of the child or a person affected by the order or decree have materially and substantially changed since the date the order was rendered.
Change affecting child's interest.
Although the material change in circumstances may relate to either the child or a person affected by the prior order, such as the managing or possessory conservators or another person with rights of access to or possession of the child.
NOTE: Any facts that bear on the child's physical, mental, emotional, educational, social, and moral welfare may be considered. But, only a slight change in circumstances will not justify modification.
Timing of change.
The change must have occurred since the order sought to be modified was rendered. Thus, to show a change of conditions, the petitioner must show the conditions that existed at the time of the prior order as well as the conditions that exist at the time of filing.
When Existing Possession Order Varies From Standard Possession Order
The court may consider the guidelines for a standard possession order to determine if there has been a material and substantial change in circumstances. The court may modify an order for possession of and access to a child that does not substantially conform to the standard possession order if the modification is in the child's best interest .
Party's Remarriage
The remarriage of a parent, by itself, does not constitute a material change. But remarriage may be coupled with other factors to constitute a material change in circumstances. For example, the remarriage of parent combined with showing the emotional condition of children immediately before and after the father's exercise of visitation rights justified reducing the youngest children's long visitations during summer vacation
Child's Increasing Age
The child's increasing age may be considered a material change for purposes of modifying visitation.
Conviction of Crime Involving Child Abuse
The conviction, or an order deferring adjudication, of a managing or possessory conservator for a criminal offense involving child abuse constitutes a material and substantial change of circumstances sufficient to justify a modification of the terms of possession and access.
Caution: It is a Class B misdemeanor to seek modification based on such a conviction or order knowing that the conservator against whom modification is sought has not actually been convicted of, or received deferred adjudication for, a child abuse offense
Change in Work Schedule
A change in the possessory conservator's work schedule that makes visitation more onerous may constitute a material change. On the other hand, a change in the managing conservator's work schedule that makes the managing conservator more reluctant to give up the child for visitation does not constitute material change
Parent's or Child's Desires
The desire of the child, the parent, or both to spend more time together is not enough to show a material change in circumstances.
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