Focusing on the Details to Establish a Material and Substantial Change
Updated: Jan 31, 2022
When seeking a modification of an order affecting the parent-child relationship, the base threshold requirement is to establish a material and substantial change in circumstances. Tex. Fam. Code §§ 156.101, 156.401. The rationale for the policy against repeated re-litigation of custody issues is that custody modifications disrupt the stability of the home and the surroundings of the child subject to the custody order. See Knowles v. Grimes, 437 S.W.2d 816, 817 (Tex. 1969); Smith v. Karanja, 546 S.W.3d 734, 738 (Tex. App—Houston [1st Dist.] 2018, no pet.)
There are no firm guidelines about what should qualify as a substantial and material change, but the courts generally have accepted the following changes:
remarriage by a party;
poisoning of the child’s mind by a party;
change in home surroundings;
mistreatment of the child by a parent or step-parent; and
a parent’s becoming an improper person to exercise custody.
Smith, 546 S.W.3d at 741. Examples of changed circumstances that have been found to not meet the threshold of a material or substantial change include:
a temporary loss of contact with the child;
a parent’s decreased participation in raising the child;
a parent’s desire, but inability, to have the child travel internationally; and
a parent’s desire to spend more time with the child.
See id. at 741–42; In re C.H.C., 392 S.W.3d 347, 351-52 (Tex. App.—Dallas 2013, no pet.) (mere desire to spend more time with child insufficient); Zeifman v. Michels, 212 S.W.3d 582, 593–94 (Tex. App.—Austin 2006, pet. denied) (listing additional examples).
When organizing your case for presentation to the court, remember the goal. Focus on the law and what you need to prove. Even if you do not agree with the prior order, your focus must be on what previous evidence was before the court to support the prior order and on how the circumstances have changed since then. It is not an opportunity to “appeal” a prior order. Arguing that an eight-year-old injunction against alcohol should never have been ordered in the first place is not going to get you anywhere in getting the injunction removed. See In re A.T.E., No. 01-19-00481-CV, 2020 WL 5790417 (Tex. App.—Houston [1st Dist.] 2020, no pet.) (mem. op.). Especially if half of your client’s Facebook feed is photographs of your client drinking. See id.
Also, it is always important to remember what elements are necessary to prove your claim and tie specific evidence to each specific requirement. Or, from the defensive perspective, if you want to disprove the other party’s claim, make sure you focus on the actual legal theory you are challenging. See In re J.R.L., No. 04-19-00049-CV, 2020 WL 2543315 (Tex. App.—San Antonio 2020, no pet.) (mem. op.). In J.R.L., Mother argued that Father failed to establish a material and substantial change because he did not show that any changes had negatively affected the Children. Id. However, the requirement is not to show “negative” change but a “material and substantial” one. Whether the change was negative or positive would go to the best interest question, which is an entirely separate inquiry.
Finally, be sure to put on evidence of the circumstances at the time of the order in comparison to the current circumstances and show that the current circumstances are a lasting change, rather than temporary one. See In re C.L.G., No. 04-19-00498-CV, 2020 WL 4607002 (Tex. App.—San Antonio 2020, no pet.) (mem. op.). Just because circumstances have changed does not mean that the change is material and substantial or that the change warrants a modification. See id.