What is a material and substantial change?
The Texas Family Code allows for a modification of a suit affecting the parent-child relationship if modification would be in the best interest of the child and the circumstances of the child, a conservator, or other party affected by the order have materially and substantially changed since the date of the order or the date of the signing of the mediated settlement agreement that the order is based off of. Material and Substantial change is not defined in the code, but obviously this is a term that has been dealt with by Texas Courts extensively. Material and Substantial change may sound like a high standard, but in actuality the courts give very broad discretion to trial court judges in their assessment of what a material and substantial change is.
What have appellate courts said about material and substantial change?
The issue was recently addressed in, In the Interest of E.A.D.P., J.T.C.P. and C.E.P., children, by the Court of Appeals Fifth District of Texas at Dallas. In this case, the court looked to factors that had previously been set out as their guide in deciding what is a material and substantial change and holding that, “a parent’s remarriage and a change in home surroundings have been held to constitute a material change of circumstances justifying modification of conservatorship.” The court re-affirmed that material changes include all aspects of a child’s physical, mental, emotional, and moral well-being. They also held that while a change in age alone may not be a material change, the differing needs not being met that have arisen because of a change in age can be a material change in circumstances.
How do you decide if a Trial Court ruled correctly?
When deciding whether the Trial Court was correct in deciding whether a material and substantial change has occurred the appellate court will view the evidence in the light most favorable to the judgment and disregard all evidence to the contrary. In doing this the court will only look to whether there is a scintilla (an extremely small amount) of evidence to support the finding. If under this extremely lenient test the court determines that the Trial Court had any evidence that could indicate that there was a material and substantial change then the Trial Court’s holding that there was a material and substantial change will be upheld.
What does this mean for your case?
Since the trial courts have such broad discretion in deciding what is a material and substantial change for modification, using an attorney who is familiar with what most judges consider a material and substantial change can increase your chances of being successful in the trial court greatly. Since trial court opinions are difficult to track, it is extremely helpful if you can consult with an attorney who is local and familiar with the judge who will be deciding your case because they should be best able to predict what the judge will do in the future based on previous rulings they’ve seen.
Contact Guest & Gray today to schedule your divorce consult. We can discuss any issues you may have, how this issue might affect your case, and what your options are. We look forward to meeting with you.