The first month of school is when people find out whether their order actually works. Not August. September, once the carpool line, the practice schedule and the Wednesday exchange have collided a few times.
So this is the season when I get the call that starts with some version of: this isn’t working anymore, can we change it. Sometimes the answer is yes. Often the honest answer is that what changed is real, and it still isn’t the thing Texas law is asking about.
Here is the standard, in plain terms.
What the court is actually looking for
Texas Family Code section 156.101 governs changes to conservatorship, possession and access. Those are three different things, and it helps to keep them straight. Conservatorship is decision-making authority: school, medical care, and which parent holds the exclusive right to designate where the child lives. Possession and access is the schedule, meaning who has the child and when.
To modify any of it, a court has to find two things. First, that the change is in the child’s best interest. Second, that one of these applies:
- The circumstances of the child, a conservator, or another party affected by the order have materially and substantially changed since the order was rendered, or since the signing of a mediated or collaborative settlement agreement the order was based on.
- The child is at least 12 and has told the judge, in chambers, which parent they would prefer to have the exclusive right to designate their primary residence.
- The parent holding that right has voluntarily given up primary care and possession of the child to someone else for at least six months. A temporary military deployment does not count.
Best interest is not a formality. It is half the test, and a change in circumstances on its own will not carry a modification without it.
What is not on that list
This is where most of these conversations land, so I want to be direct about it.
A schedule that has become inconvenient is not, by itself, a material and substantial change. Neither is a new partner you do not care for, a handful of late exchanges, an argument about screen time or haircuts, or the general fact that your child is older now than when the order was signed. Children growing up is expected. The order was written knowing it would happen.
The provision about a 12 year old is also narrower than people think. A child telling you they want to live with you is not the same as that child telling the judge in chambers. And even then, it is something the court weighs, not a decision the child gets to make. Best interest still governs.
What usually does qualify
The changes that tend to matter are structural and lasting. A parent relocating. A real and continuing change in a work schedule that makes the current possession order unworkable. A significant change in the child’s medical, educational or emotional needs. A remarriage or a change in who lives in the household. Evidence of family violence or substance use. A sustained pattern of one parent not following the order, though that is often an enforcement question as much as a modification one.
The word doing the work is lasting. A hard three months is usually not a material and substantial change. A new reality is.
If the order is less than a year old
There is a specific rule here worth knowing before anyone files. Under Texas Family Code section 156.102, if you are asking to change which parent has the exclusive right to designate the child’s primary residence, and you file within one year of the order, you have to attach a sworn affidavit. That affidavit has to allege at least one of three things: that the child’s present environment may endanger their physical health or significantly impair their emotional development, that the parent holding the right consents to the change and it is in the child’s best interest, or that the parent has voluntarily relinquished primary care of the child for at least six months.
If the affidavit does not allege enough facts to support one of those, the court denies the request and does not set a hearing at all. That is a real gate, and it catches people who file quickly after a decree they have come to regret.
Child support runs on a separate track
Support has its own standard, in Texas Family Code section 156.401, and it is more forgiving. A court can modify support either when circumstances have materially and substantially changed, or when it has been three years since the order was rendered or last modified and the current monthly amount differs by 20 percent or $100 from what the guidelines would produce today.
That second path is the reason September and October are worth a calendar note. If your support order is three years old or more, the arithmetic is worth running, and running it costs nothing. One caveat: where the parties agreed to an amount that already departs from the guidelines, that three year path generally is not available, and you are back to showing a material and substantial change.
Where to start
Bring the order itself, not your memory of it. The answer is often sitting in language nobody has read since the day it was signed. If you are not sure whether what changed is enough to meet the standard, that is a normal place to begin, and it is worth a short conversation before you spend anything on a filing. Here is more on how we handle modifications to existing custody and support orders for families in Collin, Dallas and Denton counties.
If your order no longer matches the way your family actually lives, it is worth having someone look at it with you.