If you are trying to modify custody, possession, or child support in Texas, there is one phrase you need to get comfortable with: material and substantial change. Texas Family Code section 156.101 requires it, and I see people lose modification cases constantly because they walk into court with a story instead of evidence of an actual change.
“Things Are Different Now” Isn’t Enough
People come to me and say things like he got remarried, or she moved to a new apartment, or our son is a teenager now, things are just different. All of that might be true, and none of it, standing alone, is enough.
There is a Texas case that says this plainly: Zeifman v. Michels, 212 S.W.3d 582 (Tex. App.—Austin 2006). In that case the trial court had basically said the child is different, times are different, the parent remarried, life is different, and used that reasoning to modify the order. The appellate court reversed because vague, generalized statements about things being different are not evidence of a material and substantial change. You have to show specifically what conditions existed at the time of your last order, and specifically how those conditions have changed by the time of your modification hearing.
Build Your Case Around a Comparison
This matters because a lot of pro se litigants build their whole case around a feeling that something is unfair now, rather than around a comparison. The comparison is the whole ballgame.
Before you file, sit down and write out two columns:
Column one: what was true about income, schedules, the child’s needs, each parent’s living situation, and each parent’s conduct at the time the last order was signed.
Column two: what is true about those same categories right now.
Your modification case is built entirely out of the gaps between those two columns. If you cannot point to specific, provable differences in those categories, you do not have a modification case yet, no matter how strongly you feel that the current order isn’t working.
How This Changes Your Testimony
This also affects how you testify. Do not tell the judge things have changed. Tell the judge exactly what changed, when it changed, and how you can prove it, whether that is a job termination letter, a new work schedule, school records showing a change in the child’s needs, or medical records. Judges hear “things are different” from both sides in almost every modification case that walks through the door. What separates a win from a denial is specificity.
If you are gearing up for a modification and aren’t sure your facts actually clear this bar, it is worth working through it before you file rather than finding out at the hearing. That is exactly the kind of prep I do with clients.
Ben Schooley
ben@prosecoachtx.com
www.prosecoachtx.com