Six Risks in Child Custody Modification Lawsuits in Texas

When a Texas family court issues a custody order in a divorce with children or child custody case the court makes decisions based upon the facts of the family at that time. As parents start living separate lives and children grow older their lives change and sometimes that requires revisiting the original court order. If the parents cannot agree informally to alter the possession schedule or conservator rights and duties then they must return to court. Under the Texas Family Code this process is known as a modification suit.

A modification suit is a new lawsuit filed with the family court asserting that a significant change in circumstances requires the court to throw out the old custody orders and create new orders. Modification suits can change possession schedules, child support payments and the rights and duties of each parent. Everything is open to change depending upon the circumstances of the parents, the children and what changed since the court ordered the current custody orders.

Parents should not take modification suits lightly because they come with risks of unintended consequences and costs. Often they are a combination of litigating new issues and re-litigating the same problems that led to the divorce or first custody case. They can be more complex, more expensive and ultimately more dissatisfying to everybody involved.

1. Modification suits typically increase hostility between the parents

There are two common reasons why parents file modification suits in their child custody case:

  1. The parent who pays child support (the obligor parent) makes more money and the parent receiving child support (the obligee parent) seeks an increase in child support payments; or
  2. Problems between the parents have made the current child custody orders unworkable.

Neither situation is comforting to a parent who views his or her custody time, money, or parental risks at risk of loss in a modification suit. Often parents discuss these issues before filing suit and those discussions did not resolve the conflict. The co-parenting relationship may even be worse as a result of arguing over the children or child support payments. Filing a modification suit may pour gasoline on the fire and make the conflict worse.

A modification suit also creates opportunities to dredge up old problems and mix them up with new issues. Often at the end of a contentious divorce or child custody case the parents have lingering unhappiness about old issues. These may be part of the current disagreement or may be separate. Putting the parents back in an adverse forum can bring up all the unresolved feelings from the past and give the parents permission to re-litigate all those unresolved problems. The outcome of that is likely going to be a new custody order or child support order without any real change to the feelings between the parents. The unresolved hostility may revive itself again and again until the children become adults.

2. The other parent will likely file their own modification suit against you.

Often when one parent files a modification suit the other parent will take up the advice of their family law attorney and file their own petition to modify in the same proceeding. There are tactical procedural reasons why the other parent’s attorney wants to file their own petition in response. Practically, this keeps the modification open even if you decide midstream you no longer have an appetite for continuing your modification suit. Once you and your attorney are in a modification suit, you’re in. You can’t back out because you ran out of money to pay your attorney or decide the facts are less favorable to you.

In a sizable number of modification suits the parent filing to modify, especially in a custody case, may find themselves wanting to get out because they can’t afford the attorney’s fees or the case became messier than expected. If the other parent can continue to pay for an attorney or feels the facts support their side, then that parent may seize the opportunity to win a lopsided battle. Modification suits can be very expensive, especially with your attorney’s fees, so this is a real possibility. If the other parent filed a counter-petition to modify, then you cannot back out and pretend like it never happened.

3. The modification custody or child support orders may be radically different than what you expected

In a child support or custody modification suit in Texas, everything is fair game to modify. Your attorney may file a petition to modify with a limited goal but by the time you reach a conclusion to the case the outcome may be significantly different. You may win some issues and lose others, win it all, or lose it all.

In a modification suit the presumptions under the Texas Family Code favoring a more cooperative co-parenting relationship generally go away. If you need to modify the orders then those presumptions proved incorrect. The judge has wide latitude to come up with new orders which may not be quite what you expected. Even if the modification suit ends in an agreement the journey to an agreement may take you somewhere different than what you expected when your attorney filed to modify. Factors that may influence the new orders in a modification suit:

  • The judge in your case;
  • Problems the modification needs to solve;
  • The best interests of your children;
  • How the lives of the parents and children changed since the original custody or child support orders;
  • The degree of hostility between the parents;
  • What each parent thinks is the solution to the problems in the co-parenting relationship;
  • The attorneys involved and their approach to resolving your case.

Parents considering modifying child support or custody should think carefully about whether they want to risk the current arrangement for a potentially less advantageous order. You should talk to your family law attorney early in discussions about modification about probable outcomes and whether your attorney advises that the risk is worth pursuing your goals.

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4. Modification will likely be more complex than the Texas divorce or child custody case

As discussed above, in a child support or custody modification suit virtually everything is fair game to change. Judges have fewer presumptions they can rely upon to apply standardized solutions like the standard possession order or assume shared parental rights are best for the children. If your modification suit requires a trial to reach a resolution it can require more work developing cases, presenting evidence and more experts to dig into why the original orders failed and what needs to be the solution.

Often in child custody cases or divorces the marriage or relationship comes to an end and the parents may be eager to see that relationship come to a close. That can help bring the case to an agreed resolution. In a modification that eagerness usually is gone. The parents know the co-parenting relationship will last until the final child reaches eighteen so they may be in for the long haul. That lack of motivation to think practically about resolving a case can lead one or both parent to feel like they need to lay it all on the line and make the modification a bigger and more complex case than it may need to be.

5. Modification suits are often expensive in Texas

A more complex case usually will be more expensive. The more time your attorney puts into the case the more attorney’s fees you will pay. Your attorney may also need to hire experts which can be very expensive. While a divorce with children may reach a resolution for $5000 or less it is easy to spend more than $10,000 per side in a contested modification suit where there are substantive disagreements. That is a lot of money that could be used to craft alternative solutions to problems between the parents. A strictly child support modification may be far less expensive, even with an attorney, but you always run the risk that a child support modification expands into a custody modification. Remember, the other parent’s attorney will likely file a counter-petition to modify and you may find yourself stuck in a bigger and more expensive battle than you planned.

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6. Not hiring an experienced Texas family law attorney can make your modification suit more difficult and less productive

Parents who pursued a Texas divorce with children or child custody case without an attorney may be surprised by how different their experience will be in a modification. In divorces and custody cases the judges often see parents without attorneys and know they have to usher them through the judicial process. Many Texas counties require parents without attorneys to attend classes or have their legal documents reviewed before they can have their day in court.

In a modification suit the family courts are less helpful to pro se parents without attorneys. Judges cannot do the work for the parents to develop their cases and argue what each side thinks is the right solution. This can leave parents feeling adrift and helpless in a convoluted legal system. The outcome of those feelings can be more frustration about the other parent. The parents may agree to a new custody arrangement just to come up with something that brings the modification suit to an end. The arrangement may be just as unproductive as the last and the parents may be back in court shortly.

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