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Standard of Proof to Modify Temporary Orders

On August 13, 2018

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A common situation litigants face in a complex divorce is multiple temporary orders hearings.  The family code is not clear on what standard of poof is necessary to modify a prior temporary order.  The 14th Court of Appeals has addressed the issue in In re McPeak.  In the McPeak case a temporary order was rendered requiring the mother relocate from Thorndale to Brazoria County.  After the order was rendered the mother found employment in Thorndale and argued that this material and substantial change justified a new temporary order.  “Material and substantial change,” is the standard used to modify a prior final order.  The appeals court found that the use of the “material and substantial” standard was only applicable to the modification of prior final orders and the standard to be applied was “necessary for the safety and welfare of the child.”  The latter is the standard of proof required for any temporary order per TFC 105.001.  The end result is the standard to modify a temporary order is much lower than modifying a prior final order.

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