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These are difficult times for parents in Texas, especially those who are subject to a child custody or child support order. These kinds of orders deal with issues like where the child or children will live, how the parents may make decisions regarding the children, and who must pay child support. The COVID-19 pandemic and the ongoing efforts to protect public health have resulted in lost jobs, people working from their homes, and people working with the risk of exposure to the coronavirus. Texas residents are encouraged to remain at home whenever possible, which can interfere with parents’ usual custody schedules. Job losses, furloughs, and cuts in hours can affect parents’ ability to pay child support. Modification of a child custody or child support order requires further court involvement.
An order that establishes child custody and child support must name individuals, known as “conservators,” who will be responsible for the child’s welfare. These are usually the child’s parents. The order will also identify the parent, known as the “obligor,” who must pay child support to the other parent, the “obligee.” A parent who wants to modify the terms of a custody or child support order must file a “motion to modify” and obtain a new order.
Under Texas law, the court that has “continuing, exclusive jurisdiction” over the existing order may modify its terms. This is typically the same court that issued the original order. A different court could gain continuing, exclusive jurisdiction in certain situations, such as if the child moves to a different county within Texas, or moves to Texas from another state.
The court must determine that any modification of the existing order is in the best interest of the child. It can reject an agreement between the parents if it concludes that the agreement does not serve the child’s best interests.
Because of the COVID-19 pandemic, many courts across Texas are operating on a limited schedule, and are holding hearings and other proceedings via remote technology when possible. This could affect new motions to modify that have been filed because of circumstances related to COVID.
Texas law identifies four areas in which a court can modify a child custody order:
For the first three areas listed above, a court can modify the existing order based on a “material and substantial change in the circumstances” of the child or either parent. The change must have occurred after the date of the original order.
A court can modify the designation of the person who may determine the child’s residence with the consent of the person who currently has that designation, or if the other parent can show “that the child's present environment may endanger [their] physical health or significantly impair [their] emotional development.” It is also grounds for modification of the order if the parent with the exclusive right to designate the child’s residence “has voluntarily relinquished the primary care and possession of the child” for six months or longer.
Modifying a child support order also requires a material and substantial change in circumstances that has occurred after the date of the original order. Even if the parties agree to a modified order that is different from the amount the obligor would pay under the state’s child support guidelines, the court cannot grant the modification unless it finds that circumstances have changed. An order modifying child support can only be retroactive to a date shortly after the motion to modify was filed.
Loss of a job is a common material and substantial change in circumstances claimed in motions to modify child support. If a court concludes that an obligor’s income is reduced “because of intentional unemployment or underemployment,” it can apply the child support guidelines to the amount of income that matches the obligor’s “earning potential.”
The COVID-19 pandemic presents new challenges for Texas family courts. The state has not faced a pandemic of this scale in more than a century, so there are no recent Texas court decisions on modifications of custody orders that directly address current concerns.
Parents around the country have sought to modify custody because of alleged concerns over children’s safety. Some parents have argued that the other parent’s job as a first responder, in health care, or in other areas puts them at greater risk of exposure to COVID-19, and therefore puts the child at greater risk during visitation periods. A parent might worry that the other parent is not practicing social distancing or taking other precautions, putting themselves and the child at risk. The parent raising concerns such as these may also worry about the risk to themselves and other members of their household, since the child could be exposed and bring the virus to their home.
These concerns require careful consideration before filing a motion to modify. Under emergency orders issued by the Texas Supreme Court on April 27 and May 26, 2020, all current custody orders and possession schedules remain in effect despite any stay-at-home or shelter-in-place orders. Courts might be reluctant to modify child custody orders without compelling reasons to do so.
Courts generally hesitate to modify child support orders because of an obligor’s reduced income unless there is reason to believe that the reduction in income will continue for a long time. A person who has lost their job because of the pandemic might not be able to reduce their child support obligation if they expect to be able to find a similar job when life returns to something resembling “normal.” If the person lost their job in an industry that might never recover after the pandemic, or if they are unable to work at the same capacity as before because of the effect of the virus, they will probably have a strong claim for modification.
Stacey Valdez is a board-certified family law attorney who practices in Clear Lake and throughout the greater Houston, Texas area. Our clients and their families are our top priority at Stacey Valdez & Associates. We are dedicated to helping our clients through divorce, child custody disputes, and other difficult ordeals with compassion and tireless advocacy. To schedule a confidential consultation to see how we can help you, please contact us today online, or give us a call at (281) 218-0900. Your first meeting with us is free in most cases.
Stacey Holley Valdez Attorney Stacey Holley Valdez is among the one percent of attorneys in Texas to have achieved Board Certification in the practice area of family law. This certification is awarded to only those attorneys who demonstrate significant experience in family law, the highest ethical principles, and a comm… Read More 
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