Changing a Custody Order Is More Difficult Than Obtaining the Original Order
Texas law recognizes that children benefit from stability. Once a court has entered a final order determining conservatorship, possession, and access, that order is intended to remain in effect unless there is a legally sufficient reason to change it. Parents frequently experience changes in employment, finances, relationships, or living arrangements, but not every change justifies reopening a custody case.

For that reason, a parent seeking to modify custody must satisfy the requirements of Chapter 156 of the Texas Family Code. Unlike an original custody proceeding, the court is not deciding the case on a blank slate. Instead, the court begins with the presumption that the existing order should remain in place unless the statutory requirements for modification have been met.

Texas Family Code § 156.101
The primary statute governing custody modifications is Texas Family Code § 156.101. Under that section, a court may modify an order establishing conservatorship or possession only if two requirements are satisfied.

First, the requested modification must be in the child’s best interest.

Second, one of the statutory grounds must exist. In most cases, that means the circumstances of the child, a conservator, or another person affected by the order have materially and substantially changed since the prior order was rendered or since the mediated settlement agreement upon which the order was based was signed. The statute also authorizes modification in certain circumstances when a child who is at least twelve years old expresses a custodial preference in chambers, or when the parent with the exclusive right to designate the child’s primary residence has voluntarily relinquished primary care and possession for at least six months.

What Is a “Material and Substantial Change”?
The Texas Family Code intentionally does not define the phrase “material and substantial change.” Instead, Texas appellate courts have repeatedly explained that the determination is necessarily fact-intensive and must be made on a case-by-case basis.

The Texas Supreme Court has recognized that the inquiry is committed largely to the trial court’s discretion because no two families are alike. What constitutes a sufficient change depends upon the circumstances existing when the prior order was entered and the circumstances existing when modification is sought. See In re V.L.K., 24 S.W.3d 338 (Tex. 2000). Likewise, the Texas Supreme Court has emphasized that the child’s best interest remains the court’s overriding consideration in custody disputes. See Lenz v. Lenz, 79 S.W.3d 10 (Tex. 2002).

Examples of changes that may support modification include a parent’s relocation, significant changes in a child’s educational or medical needs, substance abuse, family violence, repeated interference with the other parent’s possession, deterioration of a parent’s ability to care for the child, or other developments that materially affect the child’s welfare. Whether any particular fact is sufficient depends upon the evidence presented and the totality of the circumstances.

Best Interest of the Child Remains the Controlling Standard
Even if a material and substantial change is established, modification is not automatic. Section 156.101 still requires the court to determine that the requested modification is in the child’s best interest.

Texas courts continue to rely upon the factors identified by the Texas Supreme Court in Holley v. Adams, 544 S.W.2d 367 (Tex. 1976), when evaluating a child’s best interest. Although Holley involved termination of parental rights, its best-interest factors are frequently considered in conservatorship and modification cases. Those factors include the child’s emotional and physical needs, each parent’s parenting abilities, the stability of each proposed home, the plans each parent has for the child, and any acts or omissions indicating that an existing parent-child relationship may not be appropriate.

No single factor controls every case. Rather, the trial court considers all of the evidence in determining whether modifying the prior order would better serve the child’s long-term welfare.

Temporary Orders During a Modification Proceeding
Many custody modification cases require temporary orders while the lawsuit is pending. However, Texas law places significant restrictions on a trial court’s authority to temporarily change the parent who has the exclusive right to designate the child’s primary residence.

Under Texas Family Code § 156.006, a court generally may not enter temporary orders changing that right unless one of three statutory circumstances exists. The court must find that the temporary change is in the child’s best interest and either that the child’s present circumstances would significantly impair the child’s physical health or emotional development, that the designated conservator has voluntarily relinquished primary care for more than six months, or that a child at least twelve years of age has expressed a custodial preference in chambers under Section 153.009. In cases alleging significant impairment, the statute also requires a supporting affidavit before a hearing may even be scheduled.

These statutory protections reflect the Legislature’s policy that a child’s primary residence should not be temporarily changed absent compelling circumstances.

Every Modification Case Is Different
Because Chapter 156 intentionally leaves many issues to judicial discretion, there is no checklist guaranteeing success or failure in a custody modification. The outcome depends upon the facts of the particular case, the quality of the evidence presented, and whether the statutory requirements have been satisfied.

Whether you are seeking to modify conservatorship, change the parent with the exclusive right to determine the child’s residence, alter possession schedules, or defend against a modification filed by the other parent, experienced legal representation is often critical. A thorough understanding of Chapter 156, the applicable case law, and the evidentiary burdens can make a substantial difference in the outcome of a modification proceeding.