Texas Divorce Attorney Blog
A court may clarify an order in a Texas suit affecting the parent-child relationship if it finds the order lacks sufficient specificity to be enforced through contempt. Tex. Fam. Code Ann. § 157.421. The court cannot make substantive changes through an order to clarify and such changes are not enforceable. Tex. Fam. Code § 157.423. Substantive changes must be pursued through a modification suit. Generally, to obtain a modification, a parent must show there has been a material and substantial change in circumstances and the modification will be in the child’s best interest.
Mother Appeals Clarification Order
A mother recently challenged a clarification order, arguing it had made a substantive change to the previous order. The parties entered into an agreed order regarding their children in December 2016. The father moved for clarification of language relating to extracurricular activities. The agreed order provided in relevant part that the parents would put each child in a single extracurricular activity at a time and have a written agreement regarding the extracurricular activity. The court granted the motion and revised the language to state that each parent may place each child in an extracurricular activity, but, instead of referencing an agreement, the clarified order provided there would be a written designation of the extracurricular activity.
The mother appealed, arguing the court erred in granting the motion because the language in the agreed order was not ambiguous or erroneous and that the revised language constituted a substantive change.
Appeals Court Finds “Clarification” Actually a Modification
The appeals court agreed that the trial court had made a substantive change. The agreed order referred to an “agreement,” but the clarification order removed that reference. The agreed order included obligations regarding transportation of the children to their extracurricular activities. The appeals court concluded the clarification order required the parents to transport each child, or provide notice so the other parent could transport the child, to an extracurricular activity the other parent had designated while the agreed order only imposed such transportation obligations on activities agreed upon by the parties. The court concluded this change was substantive and therefore unenforceable.
The mother also argued that the father had not brought a suit for modification, had not properly served her for a modification, and did not allege a material and substantial change in circumstances and that the modification would be in the best interest of the children. The father argued the clarification order was not a modification, but if the appeals court found it was a modification, it could affirm the order because modification had been tried by consent.
The appeals court found the change was substantive and therefore was a modification and not a clarification. The court pointed out the father had filed a motion for clarification and not a modification suit. He had not served the mother in the manner required for a modification suit. The father had not alleged a modification would be in the children’s best interest or that there had been a material and substantial change in circumstances.
The mother argued in her response to the motion that the father was seeking substantive changes which were impermissible through a clarification motion. The mother’s attorney argued at the hearing that it was not a modification suit. The appeals court found the mother had not consented to try the issue of modification.
The appeals court reversed the trial court’s clarification order and rendered judgment denying the father’s motion.
Seeking to Modify or Clarify Custody Rights? Call McClure Law Group Today
If you want to change or clarify custody or visitation, a skilled Texas child-custody lawyer can advise you of your options and the procedural requirements. Call 214.692.8200 to set up a consultation with McClure Law Group.