Modifying a Child Custody Order in Travis County: What You Have to Show
An existing custody order is not permanent in the sense that it can never change — but it is also not something a parent can simply ask the court to revisit because circumstances have shifted or because the arrangement has become inconvenient. Texas law sets a specific legal standard for modifying conservatorship, possession and access, and child support, and understanding what that standard requires — and what it does not — is the starting point for anyone considering a modification in Travis County.
The Underlying Principle: Stability Matters
Before getting into the specific legal standard, it helps to understand why Texas law makes modification harder than the original determination. Once a custody order is in place, a child has built a life around it — a school, a routine, relationships with each parent shaped by the existing schedule. Texas courts recognize that disrupting an established arrangement carries its own costs to the child, separate from whatever benefits a new arrangement might offer.
This is why the standard for modification is not simply “what would be best for the child if we were deciding this for the first time today.” If that were the standard, custody orders would never provide stability — either parent could seek to relitigate the arrangement anytime they believed they had a better case. Instead, Texas law requires a showing that justifies disrupting the existing order, on top of showing that the new arrangement serves the child’s best interest.
The Material and Substantial Change Standard
Texas Family Code § 156.101 sets out the primary basis for modifying conservatorship or possession and access. The court may modify an order if modification would be in the best interest of the child and the circumstances of the child, a conservator, or another party affected by the order have materially and substantially changed since the date of the order’s rendition — or the date of a mediated or collaborative law settlement agreement on which the order is based.
“Materially and substantially changed” is doing significant work in this standard. Texas courts have addressed what kinds of changes meet this bar, and the analysis is fact-specific, but some patterns are well established. A parent’s relocation — particularly one that affects the practicality of the existing possession schedule or the child’s school situation — is commonly a material and substantial change. A significant change in either parent’s work schedule that makes the existing possession schedule impractical can qualify. A child’s evolving needs as they age — particularly when the original order was entered when the child was very young and the arrangement no longer fits the child’s developmental stage — can support modification. A parent’s remarriage, a new household composition, a significant change in either parent’s health, or evidence of issues that have developed since the original order — substance abuse, instability, or conduct affecting the child’s welfare — can all be material and substantial changes depending on the specifics.
What does not typically qualify is a change that was reasonably foreseeable at the time of the original order, or a change that reflects one parent simply having a different view of what arrangement would be better without any actual shift in circumstances. A parent who agreed to an arrangement and later decides they wish they had asked for more generally cannot use modification to revisit that decision absent an actual change in circumstances.
Alternative Bases for Modifying Primary Residence
In addition to the material and substantial change standard, § 156.101 provides two other specific bases that apply to modifying which conservator has the exclusive right to designate the child’s primary residence. First, the child is at least 12 years of age and has filed with the court, in writing, the name of the conservator the child prefers to have this right — though this is not simply the child stating a preference informally; it involves a specific procedural step, and even when met, the court still applies the best interest standard. Second, the conservator who currently has the exclusive right to designate the child’s primary residence has voluntarily relinquished the primary care and possession of the child to another person for at least six months — and this basis does not apply if the relinquishment was due to military deployment.
These alternative bases exist alongside the material and substantial change standard, not instead of it — a modification petition can be based on any of these grounds, and in practice the material and substantial change standard is the one most commonly relied upon.
Modifying Child Support
Child support modifications are governed by Texas Family Code § 156.401, which provides two distinct paths. The first mirrors the conservatorship standard: the circumstances of the child or a person affected by the order have materially and substantially changed since the order was rendered. The second is specific to support and does not require showing changed circumstances in the same sense — if it has been three years since the order was rendered or last modified, and the monthly amount of support under the current order differs from the amount that would be awarded under the current child support guidelines by either 20 percent or $100, whichever is less restrictive, that alone supports modification.
This second basis exists because incomes change, the statutory guideline calculations are tied to net resources, and over time even a properly-calculated original order can drift significantly from what current guidelines would produce — without any single dramatic change in circumstances. A parent whose income has increased gradually over several years, for example, may find that the cumulative effect supports a modification under this three-year provision even without pointing to one specific triggering event.
What Modification Does Not Do
A modification proceeding is not a chance to relitigate the underlying divorce or the original custody determination from scratch. The court is not asking “if we were deciding this today with no prior order, what would be best?” It is asking whether circumstances have changed enough, since the prior order, to justify changing that order — and if so, what change serves the child’s best interest given where things stand now.
This distinction matters practically. A modification case built around arguing that the original order was wrong, unfair, or based on incomplete information at the time generally does not succeed — because that is not the question before the court. A modification case built around what has actually changed since the order, and why that change warrants a different arrangement now, is the one that aligns with the legal standard.
Gathering Evidence of Changed Circumstances
Because the material and substantial change standard requires comparing the circumstances at the time of the prior order to the circumstances now, evidence in a modification case has a temporal dimension that an original custody case does not. Documenting what has changed — when a parent relocated and why, when a work schedule changed and how, when a child’s needs evolved and in what way, when any safety-related issues developed — requires establishing both the prior state of affairs and the current state of affairs, and the timeline connecting them.
This often means revisiting records and circumstances from years earlier alongside current evidence. A modification case is, in a sense, two cases layered together: first, establishing that the threshold for modification is met, and second, establishing what the new arrangement should be assuming that threshold is satisfied.
The Court That Has Continuing Jurisdiction
Modification petitions in Travis County are generally filed in the court of continuing, exclusive jurisdiction — typically the court that rendered the prior order, unless jurisdiction has been transferred. Under Texas Family Code Chapter 155, jurisdiction can be transferred to another county if the child has resided in that county for six months or longer, among other circumstances. For families where the child has moved to or from Travis County since the original order, determining which court has jurisdiction over a modification is itself sometimes a preliminary issue that has to be resolved before the substantive modification proceeds.
Temporary Orders Pending Modification
While a modification case is pending, either party can request temporary orders under Texas Family Code § 156.006, which allow the court to make interim changes to the existing order — though the standard for temporary orders pending modification is more restrictive than the standard for the final modification itself. Generally, temporary orders that change the designation of the person with the exclusive right to designate the child’s primary residence require a showing that the current environment may endanger the child’s physical health or significantly impair the child’s emotional development, or that the current conservator has voluntarily relinquished care of the child, or that both parties agree to the temporary change. This higher bar for temporary orders reflects the same underlying principle — disrupting an existing arrangement, even temporarily, requires more than a routine showing.
Modification by Agreement
Not every modification is contested. Parents whose circumstances have both changed and who agree that a different arrangement makes sense — a different possession schedule that better fits new work schedules, an updated child support amount reflecting income changes, a change in decision-making allocation as a child gets older — can present an agreed modification to the court. Even when modification is by agreement, it still must be reduced to a court order to be enforceable, for the same reasons that an original SAPCR order is necessary rather than relying on an informal understanding between parents.
An agreed modification still requires the court to find that the modification is in the child’s best interest, but when both parents agree and the agreement reflects a reasonable arrangement, this is typically straightforward.
What This Means for Parents Considering a Modification
The threshold question in any potential modification case is not “would a different arrangement be better” but “has something material and substantial actually changed since the existing order, and if so, what arrangement does that change point toward.” Parents considering a modification benefit from an honest assessment of whether their situation actually meets this threshold before filing, because filing a modification petition that does not meet the standard not only fails on its merits — it can also affect the dynamics of the broader co-parenting relationship and, in some cases, expose the filing party to the other party’s attorney’s fees.
Barton & Associates handles modification cases throughout Travis County from our Austin office, including modifications of conservatorship, possession schedules, and child support arising from relocation, changed work schedules, evolving children’s needs, and other changed circumstances.
If your circumstances have changed since your custody order was entered and you are considering a modification in Austin, call 512-THE-FIRM (843-3476) or use the Schedule a Free Consultation form on our website.
