Presumptions in Modifications
This article explores presumptions in modifications. A presumption is a legal standard imposed by statute that normally applies to a case unless it is rebutted. In original family law cases, these presumptions are found in Chapter 153 of the Texas Family Code. Frequently, a party will attempt to apply a Chapter 153 presumption to a Chapter 156 modification case. One of these is the parental presumption, which holds that it is in the child’s best interest for a parent to be appointed conservator over a non-parent. Another presumption is that a standard possession order provides reasonable minimum possession of a child for a parent named as a conservator and is in the best interest of the child. However, these presumptions, and others found in Chapter 153, are only intended to guide courts in original suits affecting the parent-child relationships, not modifications.
In modifications, different policy concerns are addressed, and the presumptions of Chapter 153, do not apply. This is demonstrated by the 2000 Supreme Court of Texas case In re V.L.K., where the Court unequivocally ruled that the parental presumption does not control in modification suits, affirming:
“Thus, any person who seeks to modify an existing custody order must show (1) changed circumstances and (2) that modification would be a positive improvement for the child. Chapter 156 does not provide for a parental presumption in modification suits. Likewise, this Court has held that the parental presumption does not control in modification suits.”
The standard possession order presumption also does not apply in modifications, as established in In re C.A.N.M., a 2005 appellate court memorandum opinion out of Fort Worth, which states:
“It is well settled that the presumptions in chapter 153 of the family code apply only to original custody suits; they do not apply in modification suits governed by chapter 156. Therefore, the trial court did not abuse its discretion by refusing to apply the rebuttable presumption in section 153.252 when it ruled on Maxine’s second motion to modify.”
The reasoning behind presumptions not applying in modifications is found in In re M.N.G., a 2003 appellate court case out of Fort Worth. Here, a father with minimal contact attempted to use the parental presumption to modify an order to obtain primary custody of a child from a non-parent managing conservator. The court held that the State of Texas has a compelling interest to protect the child’s need for stability and to prevent constant litigation in child custody cases, and as a result, a change in custody should be ordered only when the trial court is convinced that a change is to be a positive improvement for the child. In re M.N.G. demonstrates the reasoning behind the differing standards between original suits and modifications, specifically holding:
“a modification statute addresses different policy concerns than a statute governing an award of original custody.”
In re M.N.G. establishes that the reason original suit presumptions are not applicable in a modification is due to different policy concerns being applicable to modifications and original suits. Both original suits and modifications are focused on the safety, stability, and continuing relationship of a child and the child’s parents or conservators. In a modification, there was already a determination as to the safety, stability, and continuing relationship between the child and the parties, which is normally based on the Chapter 153 presumptions. After these presumptions have been applied, they cannot be presumed to apply again. Absent a material and substantial change in circumstances, the policy concerns in a modification require that the court guard the child’s best interest by prohibiting constant litigation, and one such method of preventing a child continuously being the subject of lawsuits is to bar the Chapter 153 presumptions from Chapter 156 modifications.
In conclusion, presumptions only apply to original suits affecting the parent-child relationship, do not apply to modifications, and are based on different policy concerns.