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Is a parent’s subsequent marriage a material and substantial change?

On Behalf of | Mar 22, 2019 | Firm News

Section 156.101(a)(1) of the Texas Family Code states that before an order in a Suit Affecting the Parent-Child Relationship may be modified, there must be shown that “the circumstances of the child, a conservator, or other party affected by the order have materially and substantially changed” from the time the order sought to be modified was signed or rendered. The Court of Appeals of Waco noted a split among Texas appellate courts on the issue of whether a parent’s subsequent marriage is a material and substantial change that would allow for the modification of a SAPCR. In re S.R.O, 143 S.W.3d 237 (Tex. App.—Waco 2004, no pet.) There, the parents were appointed joint managing conservators of their children. Id. at 239. Less than a year later after their divorce decree was signed, both parents filed petitions to modify the order asking to be named their children’s sole managing conservator. Id. The mother alleged that circumstances have materially and substantially changed due to her remarriage. Id. In determining that the mother’s remarriage constituted a material and substantial change, the Waco court examined the history of the statute. Id. at 245-47.

The Waco court studied the precursor to the modern § 156.101 enacted in 1935. Id. at 245. The early statute gave the court the power to “alter or change such judgments, or suspend the same, as the facts and circumstances and justice may require.” Id. at 245. Though the statute did not mention whose circumstances must be changed before a modification may be made, the Supreme Court of Texas held “the law writes into each of such judgments, in substance, that its finality ends when and if conditions affecting the welfare of the child have materially changed.” Goldsmith v. Salkey, 112 S.W.2d 165, 168 (Tex. 1938).

The Texas legislature codified the Supreme Court’s holding in 1973 in § 14.08(c) of the Family Code, writing into law that a custody order could only be modified “on a finding that the circumstances of the child have materially and substantially changed.” In re S.R.O., 143 S.W.3d at 245. Yet only two years later, the legislature enacted § 14.08(c)(1) allowing a court to consider the changed circumstances of a parent or a person affected by the order in considering a modification. Id. at 245-46.

The Waco court determined that allowing a trial court to consider the remarriage of a parent to be a material and substantial change was consistent with the repeated amendments to the statute. Id. Remarriage may be considered a material and substantial change that would allow for a modification should the other statutory requirements—such as a finding that the modification would be in the best interest of the child—be met. Id.

Not all appellate courts agree with Waco. In In re P.M.B., the mother presented evidence that she had remarried, returned from military service, and had another child. 2 S.W.3d 618, 622 (Tex. App.—Houston [14th Dist.] 1999, no pet.). Yet the Fourteenth Court of Appeals in Houston held that “these circumstances are also not material and substantial changes dictating a change in conservatorship.” Id. In making this determination, the Houston Court based its decision in part on case law decided before the amendments to the statute allowing courts to consider the changes to the parents’ circumstances were enacted. See id. at n.5. (citing reliance on the holding in Heiskell v. Heiskell, 412 S.W.2d 774, 776 (Tex. Civ. App.—Amarillo 1967, no writ) that the parent’s remarriage was not a material and substantial change.)

To confuse the matter more, the First Court of Appeals in Houston may have reached the opposite conclusion of its nearby sister court. In Wallace v. Fitch, the Houston court affirmed the judgment of the trial court finding a parent’s remarriage constituted a material and substantial change. 533 S.W.2d 164, 166 (Tex. Civ. App.—Houston 1976, no writ). In Blum v. Mott, the Houston court cited itself for the proposition that remarriage “could support a modification of conservatorship.”) 664 S.W.2d 741, 744 n.* (Tex. Civ. App.—Houston [1st Dist.] 1983, no writ).

Yet more recently, the First Court of Appeals considered the remarriage of a parent only in an evaluation of whether the modification was in the child’s best interest and not as to whether it was a material and substantial change, writing “[t]he remarriage of a parent is also a consideration in determining a child’s best interest.” Garcia v. Harding, No. 01-07-01049 (Tex. App.—Houston [1st Dist.] Nov. 20, 2008, no pet.) (mem. op.). This was done possibly because of the shock value in the case—the mom remarried a registered sex offender. Id. Though the court acknowledged that a finding of a material and substantial change was required before a modification could take place, the court analyzed the mother’s remarriage only to the extent that it was a factor determining the best interest of the child and seemed to avoid any analysis of a material and substantial change in circumstances., possibly taking it for granted that living with a sex offender was a material and substantial change in circumstances. Id.

Thus there appears to be no simple answer to the stated question. It seems as though whether or not a parent’s remarriage is a material and substantial change—and whether that change will allow a modification of a custody order—depends on where in Texas the parent lives.