Generally, when a parent seeks modification of a Texas custody or visitation order, they must show that they modification would be in the child’s best interest and that there has been a material and substantial change in circumstances since the earlier of the prior order’s rendition or the date the mediated or collaborative law settlement agreement upon which the prior order was based was signed. Tex. Fam. Code 156.101. Whether there have been material and substantial changes is a significant issue in many modification cases. In a recent case, a father challenged an order granting a no-evidence summary judgment in favor of the mother and disposing of his claims for modification.
Pursuant to the parents’ mediated settlement agreement and agreed order, neither had the exclusive right to designate the primary residence of the child, but instead each parent had the right to establish the primary residence during their possession periods within 15 miles of the child’s school. The mother, however, was permitted to establish the primary residence during her possession at her home until she moved. Possession alternated weekly during the school year and every two weeks during the summer break.
Father Seeks Modification
In January 2021, the father moved to modify the order, alleging material and substantial changes in circumstances. He requested the exclusive right to designate the child’s primary residence and to make a number of decisions, including to enroll the child in team sports. He also asked that the mother be enjoined from enrolling the child in extracurricular activities that would occur during his possession. He also asked for the right of first refusal and an expansion of the geographic restriction to two counties.
The mother alleged the modification suit was frivolous and “designed to harass” her. She filed a no-evidence motion for summary judgment. The father attached a declaration to his response. The trial court granted the mother’s motion and disposed of all the father’s claim. The father appealed.
The Father’s Appeal
The father argued the trial court erred in granting the no-evidence summary judgment. He argued the mother’s motion was defective and that he had presented evidence that raised a genuine issue of material fact.
A no-evidence motion for summary judgment must specifically state which elements of the claim lack evidence. This is to give the other party, who has the burden of producing evidence, adequate information to oppose the motion. Summary judgment is not proper if the other party produces evidence sufficient to raise a genuine issue of material fact.
The father argued the mother’s motion made an improper rebuttal argument, relied on extrinsic evidence, referred to claims that were not at issue when the parties entered the mediated settlement agreement, and failed to identify a specific element of the claim that did not have evidence.
The appeals court noted that when considering a no-evidence motion under Tex. R. Civ. Pro. 166a(i), the court should not consider any evidence that is attached. The court does not have to disregard the motion, however. In this case, the mother had not attached any evidence, but relied on extrinsic evidence in making her argument. The appeals court concluded that it did not need to disregard the motion.
The father argued the mother had not identified the specific element of his claims she was challenging. A petitioner seeking modification of a custody or visitation order must show that the modification is in the child’s best interest and that there has been a material and substantial change in circumstances since the parties signed the mediated settlement agreement. The mother’s motion specifically argued that the father’s petition sought changes that were not supported by a material and substantial change in circumstances. The appeals court concluded the mother had met the requirement and specifically challenged the element requiring a change in circumstances.
The father also argued the trial court erred because there was a genuine issue of material fact regarding the existence of a material and substantial change in circumstances. To withstand a no-evidence motion for summary judgment under Rule 166a(i), the nonmovant must produce evidence that raises a genuine issue of material fact regarding the elements that have been challenged. To show there has been a material and substantial change in circumstances, a party must show the conditions when the prior order or mediated settlement agreement was signed as well as the material and substantial changes that have occurred since.
In the declaration attached to his response, the father stated the parties knew since the mediated settlement agreement that the child would start school but did not anticipate he would have problems. He stated the child “struggled academically” and they discussed placing him in a program for struggling learners. The father stated the child was “very embarrassed” about these issues and had “anxiety” and “sadness” regarding his grades. He stated the child did not complete his homework while in the care of his mother and had a history of poor grades and tardiness. He also stated the child had become more involved in team sports as he got older. He said the child experienced apparent stress and anxiety when he missed practice or games due to the distance and commute. The father also stated that the child had a strong bond with his new sister, and a new brother was expected.
The appeals court concluded the father had presented evidence of material changes to the child’s academic circumstances, extracurricular activities, and family composition since the mediated settlement agreement. For his claims to survive the motion, the father only needed to present more than a scintilla of evidence raising a genuine issue of material fact. When the evidence in the father’s favor was taken as true, it constituted more than a scintilla of evidence of a material and substantial change in circumstances. The trial court therefore erred in granting the mother’s motion.
The appeals court reversed the trial court’s order and remanded the case.
Contact a Skilled Custody Modification Lawyer at 214.692.8200
Whether a material and substantial change in circumstances has occurred is highly fact-dependent. The appeals court in this case determined the father produced enough evidence for the case to proceed, but it is still uncertain whether the trial court will grant the requested modifications. If you need a modification of your custody order, you should seek the advice of an experienced Texas custody attorney. Call McClure Law Group to set up a consultation to discuss your case.