Modification of Conservatorship in Texas

Conservatorship is the Texas term for the legal rights and duties a parent has with respect to a child. A conservatorship order determines who has the right to make decisions about the child’s life, including where the child lives, what school the child attends, and what medical care the child receives. Modifying an existing conservatorship order is among the most complex proceedings in Texas family law.This page addresses conservatorship modification under Texas law. For related post-decree issues, see our pages on modification of child support and modification of possession and access orders. Our full family law solutions page describes all the family law services we offer.

Types of Conservatorship in Texas

Texas family law distinguishes between joint managing conservatorship (JMC), in which both parents share rights and duties with respect to the child, and sole managing conservatorship (SMC), in which one parent holds the primary decision-making rights. In most Texas cases, both parents are named joint managing conservators, but one is designated as having the exclusive right to designate the child’s primary residence. This designation is, as a practical matter, what most people mean when they talk about “primary custody.”

The Legal Standard

Modifying a conservatorship order requires satisfying a two-part test under Texas Family Code Section 156.101. The court must find that:

• The circumstances of the child, a conservator, or another party affected by the order have materially and substantially changed since the earlier of the date of the order’s rendition or the date of the signing of a written agreement on which the order is based, and
• The modification is in the best interest of the child.

Both elements must be satisfied. A demonstrated change in circumstances that would not benefit the child is not sufficient. And a modification that would benefit the child is not available without the threshold showing of changed circumstances.

The One-Year Rule

When a conservatorship modification petition is filed within one year of the prior order, additional requirements apply. The petitioner must file an affidavit with the petition containing specific facts that support at least one of the following:

• The child’s present environment may endanger the child’s physical health or significantly impair the child’s emotional development
• The conservator with the right to designate the child’s primary residence is the one seeking to modify the order
• The conservator with the right to designate the primary residence has voluntarily relinquished primary care and possession of the child for at least six months

If the affidavit requirements are not met, the court must dismiss the petition. The one-year rule is designed to protect children and families from repeated litigation shortly after an order is entered.

What Constitutes a Material and Substantial Change

The material and substantial change standard requires demonstrating that something meaningful has changed since the prior order was entered. Courts evaluate the totality of the circumstances. Situations that Texas courts have recognized as potentially supporting a conservatorship modification include:

• Relocation of a parent that significantly affects the existing arrangement
• A change in the child’s needs, including new educational, medical, or therapeutic requirements
• Evidence that a parent’s circumstances have changed in ways that affect their fitness or availability as a primary conservator, including remarriage, a new partner in the household, changes in work schedule, or substance abuse concerns
• Evidence of neglect, abuse, or domestic violence in the child’s current primary household
• A parent’s repeated violations of the existing possession order
• A significant change in the child’s relationship with each parent

A court that recently entered a conservatorship order did so based on the circumstances as they existed at that time. Modification requires showing that something has changed, not that the original order was wrong.

The Child’s Preference

Under Texas Family Code Section 153.009, a child who is twelve years of age or older may be interviewed by the judge in chambers regarding the child’s preference as to the person who shall have the right to designate the primary residence. The interview is not public, and the judge is not bound by the child’s preference. The child’s wishes are one factor in the best interest analysis, not a determinative one.

A child younger than twelve may also be interviewed at the court’s discretion. Factors including the child’s maturity and the circumstances under which the preference was formed are relevant to the weight the court will give to the child’s stated wishes.

The Best Interest of the Child

Even where the threshold change-in-circumstances test is satisfied, the court must find that the modification is in the best interest of the child. Texas courts evaluate best interest based on a non-exclusive set of factors drawn from the landmark case Holley v. Adams, including the child’s desires, the child’s emotional and physical needs now and in the future, the parenting abilities of the parties, the programs available to assist each parent, the stability of the proposed home, the acts or omissions of each parent that indicate the existing parent-child relationship is improper, and any excuse for those acts or omissions.

Practical Considerations

Conservatorship modification cases are more legally and emotionally demanding than most other family law proceedings. The evidentiary record is critical, and the arguments must be well-developed to succeed. Cases involving relocation, substance abuse, domestic violence, or parental alienation require careful documentation and strategic planning from the beginning. For cases that involve parallel child support issues, see our page on modification of child support.