Can Your Custody Order Be Modified While Your Case Is Under Appeal? A Texas Court of Appeals Analysis
When you’re in the middle of a custody dispute in Dallas, the stakes feel impossibly high. Every decision your family law attorney makes could impact your relationship with your children for years to come. But what happens if you’ve already appealed your custody order and circumstances change dramatically? Can the trial court still modify the order while your appeal is pending? A recent Texas Court of Appeals decision in In re R. provides critical guidance that every Dallas resident involved in child custody matters should understand.
Per the published opinion, the Beaumont Court of Appeals recently ruled on a jurisdictional question that affects thousands of Texas families: whether a trial court maintains authority to modify a child custody order when an appeal is already pending. This case demonstrates the complex interplay between trial court jurisdiction and appellate court jurisdiction in family law matters. If you’re facing a contested custody modification or are considering an appeal in Dallas, understanding this precedent could significantly impact your case strategy and realistic expectations for outcomes.
A Dallas divorce attorney with extensive family law experience can explain how appellate jurisdiction works and whether your situation might benefit from seeking modifications at the trial court level. The answer isn’t always straightforward, which is why working with a best divorce lawyer in Dallas who understands both trial and appellate procedure is essential. This analysis breaks down what the R. decision means for Dallas families and why the jurisdictional questions it addresses matter to your case.
Case Background: The Facts Behind the Appellate Dispute
The R. case originated in the 418th District Court of Montgomery County with a suit to modify a parent-child relationship (SAPCR). The trial court had issued a final custody order on February 27, 2025, that established possession and access arrangements for the children involved. However, shortly after that order was rendered, one parent filed a notice of appeal on May 1, 2025, which gave the Court of Appeals exclusive plenary jurisdiction over the trial court’s decision.
After the appeal was filed, the circumstances of the case changed significantly. The parent seeking the modification alleged that Access Builds Children, a service provider, had terminated his ability to exercise possession and access through their platform. This substantial change in circumstances, a material development that directly affected the family’s ability to implement the existing custody order, prompted him to file a motion back in the trial court seeking either clarification of possession arrangements or, alternatively, modification of the order based on changed circumstances.
The trial court initially recognized the jurisdictional complexity of the situation. On September 23, the trial court issued an Order to Show Cause requiring the parties to appear and present legal authority regarding whether the trial court still had jurisdiction to consider the modification motion while the appeal was pending. This procedural step demonstrated the trial court’s appropriate caution about stepping into territory that might belong exclusively to the appellate court. However, after hearing arguments on this jurisdictional question on October 8, the trial court proceeded to schedule the matter for trial on December 15.
The parent opposing the modification, and supporting continuation of the appeal, filed a petition for a writ of prohibition with the Court of Appeals. She argued that the trial court had no authority to proceed with modification while she had an active appeal pending with the appellate court. For Dallas families working with a Dallas child custody lawyer, this procedural dispute illustrates how appellate strategy must be coordinated with trial court developments. Understanding these jurisdictional issues is essential when you’re represented by an experienced Dallas family law attorney who can identify when appellate action might prevent modifications you don’t support.
Legal Analysis: Understanding Trial Court Jurisdiction During Appeals
The central question before the Beaumont Court of Appeals was whether the trial court’s jurisdiction to modify a custody order becomes exclusively vested in the appellate court once an appeal is perfected and filed. The petitioner relied on In re E.W.N., 482 S.W.3d 150 (Tex. App.—El Paso 2015), which appeared to support the argument that once exclusive plenary jurisdiction passes to the appellate court, the trial court’s ability to grant a new trial or modify the judgment expires after 30 days.
However, the R. court distinguished E.W.N. based on a critical feature of Texas Family Code Section 156.101. Unlike general civil cases governed by the Texas Rules of Civil Procedure, family law matters involving SAPCR, suits affecting parent-child relationships, are explicitly governed by different standards. The Family Code grants trial courts “continuing, exclusive jurisdiction” over custody matters under Texas Family Code Section 155.001(a). This continuing jurisdiction means the trial court never entirely loses its authority to consider modification requests based on material and substantial changes in circumstances.
The R. decision clarified that a suit to modify an existing SAPCR order based on material and substantial changed circumstances is treated as an “original lawsuit,” separate from the appeal of the original order. This is a crucial distinction for families in Dallas and surrounding areas including Irving, Richardson, Garland, Mesquite, DeSoto, and Grand Prairie. A Dallas child support lawyer or Dallas divorce attorney representing clients in modification proceedings should understand that filing such a suit doesn’t automatically stop the appellate process, and the trial court’s continuing jurisdiction doesn’t interfere with the appellate court’s jurisdiction either.
The court explained this by noting that although the appellate court has exclusive plenary jurisdiction to review the February 27 order based on the complete record of that original case, the appellate court cannot perform the functions that the trial court performs in modification proceedings. The appellate court cannot accept new pleadings, receive new evidence, make new factual findings about whether circumstances have changed since the original order, or decide how the order should be modified based on current best interest of the child standards. Those are uniquely trial court functions.
The R. decision drew on extensive precedent from multiple Texas appellate courts establishing this principle. The court cited In re B., B. v. B., In re E.O., In re J., In re F., In re R., B. v. N., and H. v. M., cases from appellate courts across Texas that consistently recognized trial court continuing jurisdiction. Additionally, Texas Family Code Section 156.004 explicitly states that “the Texas Rules of Civil Procedure applicable to the filing of an original lawsuit apply to a suit for modification under this chapter,” further supporting the concept that modification suits are treated as new original actions.
This distinction matters profoundly for Dallas families. If your circumstances have genuinely and materially changed since your custody order was rendered, you’re not automatically barred from seeking modification simply because an appeal is pending. However, this doesn’t mean the appeal becomes irrelevant. The two proceedings operate concurrently but address different issues. Your Dallas divorce attorney or Dallas family law attorney should evaluate whether seeking modification at the trial court level makes strategic sense given the specific facts of your situation and the arguments in your pending appeal.
The court emphasized that concurrent jurisdiction is not the same as equivalent jurisdiction. The trial court’s continuing jurisdiction and the appellate court’s appellate jurisdiction “are concurrent, they are not equivalent, and the exercise of one is not necessarily inconsistent with the existence of the other.” This means one parent cannot use the appeal to prevent the other parent from bringing a legitimate modification suit based on changed circumstances. Simultaneously, the trial court cannot use modification proceedings to circumvent appellate review of the original order.
For Dallas families working with experienced counsel, this principle creates both opportunities and risks. If you’re the parent seeking modification due to genuine changed circumstances, you may be able to pursue relief at the trial court level without waiting for the appeal to conclude. But if you’re the parent who appealed the original order and now faces a modification motion, you should understand that filing the appeal doesn’t automatically prevent the trial court from proceeding with hearing the modification request. Strategic coordination between trial and appellate counsel becomes essential in these situations.
Practical Implications for Dallas Custody Modifications
The R. decision has several practical implications for families in Dallas and the surrounding communities we serve, including Highland Park, Cockrell Hill, Lancaster, Seagoville, and Duncanville. First, if circumstances have materially and substantially changed since your custody order was rendered, you have a potential path to relief even if an appeal is pending. Changed circumstances might include relocation, employment changes, health developments, or, as in the R. case, the termination of a service that was fundamental to the custody arrangement.
Second, the decision confirms that filing an appeal of your custody order does not automatically prevent your former spouse from bringing a modification suit. This is important context for families who hoped that appellate action would freeze the status quo at the trial court level. While strategic delays might sometimes be possible, a wholesale prevention of modification proceedings based solely on the pendency of an appeal is not available under Texas law as clarified by this case.
Third, the decision underscores the importance of working with a best divorce lawyer in Dallas who understands appellate jurisdiction and can evaluate whether pursuing modification in the trial court is strategically beneficial in your specific situation. Different approaches might be appropriate depending on the strength of your appeal, the nature of the changed circumstances, and your overall litigation objectives. Some families might benefit from delaying modification proceedings until the appeal concludes, while others should move forward at the trial court level. These are strategic decisions that require sophisticated family law representation.
The R. court’s emphasis on the trial court’s power to “make factual determinations about whether circumstances have materially and substantially changed” and to “decide whether and how the final order’s possession and access provisions should be modified according to the best interest of the children” reflects the reality that trial courts are better positioned than appellate courts to handle these questions. The trial court can hear live testimony, observe witness credibility, and make nuanced factual findings that an appellate court reviewing a written record simply cannot replicate.
Featured Question: When Can You Modify a Custody Order During an Appeal?
Can you modify a custody order while an appeal is pending? Yes, under Texas law as clarified by In re R., a trial court may accept and consider a motion to modify a custody order even while an appeal of the original order is pending. However, you must demonstrate that circumstances have “materially and substantially changed” since the date the original order was rendered or since a mediated settlement agreement on which the order was based. This is not an automatic right; it requires meeting the statutory standard in Texas Family Code Section 156.101(a).
The trial court cannot modify an order simply because you disagree with it or want to relitigate issues that were decided in the original order. The changed circumstances must be objective, material, and substantial, not speculative or based on arguments that essentially retry the case the trial court already decided. Working with a Dallas family law attorney who can evaluate whether your specific situation meets this demanding standard is essential before investing resources in a modification suit.
Key Takeaways: What Dallas Families Need to Know
For Dallas residents involved in custody disputes, the R. decision provides important clarity about your rights and limitations during the appellate process. The first key takeaway is that an appeal does not automatically freeze the trial court’s jurisdiction or prevent modification suits based on changed circumstances. If your custody arrangement has become unworkable due to material changes since the order was rendered, you may have recourse at the trial court level.
The second takeaway is that having an active appeal does not prevent your former spouse from bringing a modification motion against you. Strategic timing of appeals and modifications can affect your litigation objectives, so coordinating with experienced counsel becomes critical. The third takeaway is that a Dallas divorce attorney’s ability to evaluate concurrent jurisdiction and advise on whether to pursue trial court relief or rely on appellate strategy represents substantial value in contested cases.
Understanding these principles can help families avoid costly mistakes, such as assuming an appeal prevents all trial court activity or missing opportunities to address changed circumstances quickly. The R. decision confirms that Texas family law recognizes the unique ongoing nature of custody orders and the reality that circumstances often change after orders are rendered.
Strategic Considerations: Working with Experienced Family Law Counsel
Different strategic approaches might be appropriate depending on your specific situation. If you’re the parent seeking modification based on genuine changed circumstances, your Dallas divorce attorney might advise moving forward with a modification suit at the trial court level, recognizing that appellate jurisdiction over the original order doesn’t prevent you from raising new issues based on new facts. Alternatively, in some cases, coordination between trial counsel and appellate counsel might suggest waiting for appellate resolution before pursuing modification.
If you’re the parent defending an original order on appeal while facing a modification motion, your strategy might involve arguing that the alleged changed circumstances don’t meet the material and substantial standard, or alternatively, that the trial court should stay its modification proceedings pending appellate resolution. These are sophisticated strategic decisions that require counsel familiar with both trial and appellate practice.
The R. case demonstrates that Texas courts recognize the practical reality of family law: circumstances change, orders become unworkable, and rigid procedural rules that prevent courts from addressing new facts aren’t appropriate in the family law context. Balancing this recognition against the need for finality and preventing relitigation of decided issues requires experienced judgment.
How Our Dallas Family Law Firm Can Help
With over 25 years of experience serving Dallas families, including those in Irving, Richardson, Garland, Mesquite, DeSoto, Grand Prairie, Lakewood, Highland Park, Cockrell Hill, Lancaster, Seagoville, and Duncanville, we understand how custody and modification disputes affect your family’s future. We provide honest assessments of what’s realistic in your situation rather than false promises, and we combine strategic legal expertise with compassionate representation.
If you’re facing a custody modification or considering appealing a custody order, understanding your rights under Texas law is the first step. Whether the R. decision applies to your situation depends on the specific facts of your case, the timing of your appeal, and your overall litigation objectives. We can help you evaluate whether modification proceedings make sense in your circumstances and coordinate strategy between trial and appellate representation.
Contact our Dallas divorce attorney today for a confidential consultation about your custody modification or appellate questions. We serve families throughout the Dallas area and understand the unique complexities of family law in Montgomery County and surrounding jurisdictions. Call us to discuss how the principles in R. might affect your case and what realistic outcomes you can expect from your modification or appeal strategy.
