Material and Substantial Change(from recent caselaw)

Generally, a court may modify a conservatorship and possession orders affecting the parent-child relationship only if the “modification [is] in the best interest of the child[ren] and ... the circumstances of the child[ren], a conservator, or other party affected by the order have materially and substantially changed since ... the date of the rendition of the order.” Tex. Fam. Code § 156.101(a)(1)(A). However, “[t]he best interest of the child[ren] shall always be the primary consideration of the court in determining the issues of conservatorship and possession of and access to the child[ren].” Tex. Fam. Code § 153.002(a).[1] Accordingly, the Supreme Court of Texas has held that “[t]echnical rules of practice and pleadings are of little importance in determining issues concerning the custody of children.” Leithold v. Plass, 413 S.W.2d 698, 701 (Tex. 1967).

Texas Family Code Chapter 156 provides that there are two circumstances under which a court may modify an order that provides for the support of a child when the order rendered differs from the amount that would have been rendered in accordance with the statutory guidelines. First, the court may modify an order for the support of a child if 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. Tex. Fam. Code § 156.401(a)(2). Second, 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. Tex. Fam. Code § 156.401(a-1).

In original suits affecting the parent-child relationship (where there are no prior final orders), there is no requirement to establish a material and substantial change before deviating from a prior temporary order. E.g., Brown v. Brown, No. 02-25-00209-CV, 2026 WL 1993056, at *6 (Tex. App.—Fort Worth Jul. 9, 2026, no pet. h.).

A modification suit cannot be the basis for a collateral attack of the prior order. Khandria v. Al-Muslim, No. 14-25-00253-CV, 2026 WL 1180117, at *2 (Tex. App.—Houston [14th Dist.] 2026, no pet.) (mem. op.). Whether the old order was compliant with the Texas Family Code cannot be litigated through a modification suit. Id.

When a party pleads for specific changes with respect to possession and access or child support, that pleading opens the door—and puts the other party on notice—that any general changes relating to those topics can be made, so long as there is evidence of a material and substantial change and that the change is in the best interest of the child. In re S.D.F., No. 06-25-00060-CV, 2026 WL 698284, at 3 (Tex. App.—Texarkana 2026, no pet.) (mem. op.). If the court makes an explicit finding that there has been no material and substantial change, the court cannot render a modification order, regardless of any best interest analysis. Dillon v. Bamford, No. 03-25-00457-CV, 2026 WL 1171912, at 4, 9–10.

The evidence of a material and substantial change does not by itself support modification; there must also be evidence that the requested change is in the best interest of the child. See Kahandria, 2026 WL 1180117, at 2; In re P.R.M., No. 14-24-00809-CV, 2025 WL 3677317, at 4 (Tex. App.—Houston [14th Dist.] 2025, no pet.) (mem. op.). Evidence of increased costs for a child is not, logically speaking, a reason to reduce the obligor’s child support obligation. Kahandria, 2026 WL 1180117, at 3. Moreover, there is no statutory requirement that the requested modification be specifically tailored to the change in circumstances, only that the change be in the best interest of the child. P.R.M., 3677317, at 4.

The party seeking modification bears the burden to establish a material and substantial change. See e.g., In re O.A., No. 05-25-00480-CV, 2026 WL 1040798, at *2 (Tex. App.—Dallas 2026, no pet.) (mem.op). The change-in-circumstances requirement is a threshold issue for the trial court and is based on a policy of preventing constant re-litigation with respect to a child. In re A.L.E., 279 S.W.3d 424, 428 (Tex. App.—Houston [14th Dist.] 2009, no pet.).

Establishing a change in circumstances requires presenting evidence at both the time of the prior order and the time of the modification. O.A., 2026 WL 1040798, at 2–3. Without evidence of the circumstances at the time of the prior order, the court cannot determine whether a change exists and cannot grant the requested relief. Id. at *3.

If both parties seek modification and allege a material and substantial change has occurred to support modification, they have judicial admitted to the grounds to support the other parties’ request. Filla v. Filla, No. 03-14-00502-CV, 2016 WL 4177236, at *4 (Tex. App.—Austin 2016, pet. denied) (mem. op.). Note that a request to modify child support does not constitute a judicial admission of a material and substantial change to support modifying conservatorship and possession—and vice versa. Tex. Fam. Code § 156.007.

Even if a pleading would constitute a judicial admission, a nonsuit of that pleading removes the judicial admission and places the burden on the remaining moving party to establish a material and substantial change in circumstances. Dillon, 2026 WL 1171912, at 9. While the Texas Rules of Civil Procedure require seven days’ notice of amended pleadings (without leave of court), if a party amends a pleading at trial and the opposing party does not object, any complaint about the trial amendment would be waived. Id.; Tex. R. Civ. P. 63. In Dillon, although the mother had a counter-petition on file, at trial, she asked the court to keep the possession schedule the same as it was in the prior order. 2026 WL 1171912, at 9. Because the father did not object to this untimely change in stance, he waived the ability to complain on appeal that the mother had judicially admitted to a material and substantial change. Id. The burden was on the father, as the remaining moving party, to prove the statutory grounds to support his requested change. Id.

Anticipated changes generally cannot constitute a material and substantial change. E.g., In re A.T.E., No. 01-19-00481-CV, 2020 WL 5790417, at 5 (Tex. App.—Houston [1st Dist.] 2020, no pet.) (mem. op.); In re H.N.T., 367 S.W.3d 901, 905 (Tex. App.—Dallas 2012, no pet.); Farish v. Farish, 921 S.W.2d 538, 545 (Tex. App.—Beaumont 1996, no writ). However, if other circumstances establish a material and substantial change, the fact that one of those circumstances will not preclude modification. P.R.M., 2025 WL 3677317, at 4.

If there is no material and substantial change in circumstances, the respondent can file a motion for summary judgment claiming such and requesting dismissal. In re S.W.R., No. 05-24-01237-CV, 2026 WL 1802806, at 2 (Tex. App.—Dallas 2026, no pet.) (mem. op.). If the MSJ movant meets her burden of establishing she is entitled to judgment as a matter of law based on the facts presented, the burden shifts to the nonmovant to present a genuine issue of material fact. Tex. R. Civ. P. 166a(h)(2). If the nonmovant fails to respond at all, the MSJ movant is entitled to judgment as a matter of law. Tex. R. Civ. P. 166a(h)(2); S.W.R., 2026 WL 1802806, at 2. If there is no other pleaded basis for relief, the entire modification suit should then be dismissed. S.W.R., 2026 WL 1802806, at *2; see also Tex. Fam. Code § 156.401.

The party seeking modification can rely on evidence occurring during the proceedings to support a requested change. Loria v. Loria, No. 03-25-00920-CV, 2026 WL 1250433, at *5 (Tex. App.—Austin 2026, no pet.) (mem. op.). The relevant points of time for comparison are (1) the time of the prior order; and (2) the time of the modification order. Id. Thus, taking Loria and S.W.R. together, it is advisable to seek summary judgment early if there is no material and substantial change at the time of filing.

A parent’s desire for a better relationship between the child and the other parent is not, by itself, a judicial admission of a material and substantial change. Khandria, 2026 WL 1180117, at 2. Normal co-parenting conflicts, alone, do not support a finding of a material and substantial change in circumstances. In re D.P.R., No. 13-24-00302-CV, 2025 WL 1587758, at 6 (Tex. App.—Corpus Christi–Edinburg 2025, no pet.) (mem. op.). Recent evidence supporting a finding of a material and substantial change has included:

• new work schedules and remarriages of the parents, increased distance between the parents’ homes, mother’s financial stabilization along with increased work flexibility, P.R.M., 2026 WL 3677317 at *3;

• the child being diagnosed with a brain tumor and requiring numerous medical appointments, P.R.M., 2026 WL 3677317 at *3; and

• the mother’s deteriorating mental health and refusal to acknowledge the deterioration, In re M.S., No. 02-25-00526-CV, 2026 WL 120064, at *7 (Tex. App.—Fort Worth, 2026, no pet.) (mem. op.).

[1] On a side note, if you haven’t looked at Section 153.002 recently, it is about five times longer due to additions relating to the fit-parent presumption.