When an initial order for child support is issued in a case, in addition to the application of the child support guidelines in the Texas Family Code, the court can consider other relevant factors at the time the order is made; i.e. who has custody of the child or children, the parties' income, the needs of the child or children, visitation schedules and cost thereof, and anything helpful to a determination of what amount of support is necessary and possible to achieve the best interest of the child or children.   

     What happens when the relevant factors that the original order was based on are no longer pertinent? Or, what happens when there are additional relevant factors that need to be considered in order to determine an amount of child support that will truly reflect the child’s needs? A child support modification can be sought. Modifications can only be done through court order, and not by agreement of the parties. Grounds for modification are:

     1.  A material and substantial change in the circumstances of the child or person 

          affected by the order since the earlier of the rendition of the order or the signing of a mediated settlement agreement or collaborative law agreement, or

     2.  Passage of three or more years since the last child support order and a difference

          in monthly payment by either 20% or $100 from child support guidelines.

If the parties had previously agreed to an amount of child support that is different from the amount that would be awarded in applying the child support guidelines, the court may only modify the order if the circumstances of the child or a person affected by the order have materially and substantially changed since the date of the order’s rendition (notice that if you make an agreement that is different from the child support guideline amount, then there is no requirement that there be a three year waiting period, not percentage or amount requirement; however, also note that the court will look from the date the order was rendered and will not consider when a mediated settlement agreement or collaborative law agreement was signed).

     When pursuing a modification of a child support order under the first ground, the common question is: "what constitutes a material and substantial change in circumstances" for purposes of changing the amount of support?  The first thing to keep in mind is that the court will not address the same issues considered in determining the original support order.  Even if parties feel that certain issues were not given the weight they deserved when the court decided the previous support order, a modification request is not a chance to re-litigate the same issues hoping for a different outcome.  The court can only consider things that have happened since the since the earlier of the rendition of the order or the signing of a mediated settlement agreement or collaborative law agreement.

     Some examples of what courts have held to constitute material and substantial change:

     1.  Increase or decrease in income

     2.  Large change in state child support guidelines

     3.  Change in child custody and/or visitation arrangements

     4.  Marriage to another person

     5.  Change in residence

     6.  Medical condition of parent or child

 

For more information on modifications to child support based on material and substantial change in circumstances, see your Collin County Divorce Attorney. 

     The second basis for a modification of a child support order is where, after a period of three years, there is a discrepancy between the child support order and monthly payments under the child support guidelines.  Child support guidelines are mathematical formulas used by courts to calculate the amount a noncustodial parent (NCP) will owe to the custodial parent for care of their child.  Although normally the calculations are based on the actual net resources of the NCP, if the court determines that the NCP is voluntarily under-employed or unemployed, then calculations can be based on earning potential.  If the difference between the monthly payments ordered and the guidelines exceeds either 20% or $100 monthly, then there is a basis for modification.  For more information on child support guidelines, consult your Collin County Divorce Attorney. 

     Although courts start by applying the child support guidelines, and the amount of child support established by the child support guidelines is presumed reasonable and in the best interest of the children, courts also have the discretion to consider circumstances in particular cases that may result in an amount of child support ordered that is not necessarily the same as that calculated under the guidelines. For example, if a child has special needs, if a parent is ill and unable to work, or if there is no regular visitation or participation by the NCP, the child support amount can be affected.  The overriding goal of child custody support orders is to do what is in the best interests of the child.  That is why courts have the discretion and indeed the obligation to deviate from the guidelines in order to address the facts of individual cases and determine a just support order.  

     If you have questions regarding modifications of child support, contact your Collin County Divorce Attorney at Nordhaus Walpole, PLLC today.