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| | Modification Suit Filed Within One Year of Prior Order |
Requirement of Affidavit
If a suit seeking to modify a sole managing conservatorship is filed within one year of rendition of the order to be modified, the person filing the suit must execute an affidavit and attach it to the petition. This requirement embodies the legislative intent of promoting stability in the conservatorship of children of divorced parents. To that end, relitigation of custodial issues within a short period of time after the custody order is discouraged through the imposition of a heightened standard of verified pleading. Public policy disfavors disruption of custodial arrangements within the first year, except in cases in which the child's physical health or emotional development is imperiled. The affidavit is required regardless of whether the most recent prior order was rendered following adversary proceedings.
Contents of affidavit.
The affidavit must contain, along with supporting facts, at least one of the following allegations:
- That the child's present environment may endanger the child's physical health or significantly impair the child's emotional development.
- That the sole managing conservator is the person seeking or consenting to the modification and the modification is in the child's best interest.
- That the child's sole managing conservator has voluntarily relinquished the actual care, control, and possession of the child for not less than six months and the modification is in the child's best interest.
Latest order starts one-year period.
The most recent valid order that contains the custody award triggers the start of the one-year period. The period is not started by an intervening order that is invalid or that addresses issues unrelated to custody
Ruling on Sufficiency of Affidavit.
If the court determines that the facts stated in the affidavit are adequate to support one of the required grounds, the court will set a time and place for the hearing. Absent a proper affidavit, however, the court must deny the relief sought and refuse to schedule a hearing. The court must make a timely ruling either setting the petition for a hearing on the merits or denying the requested relief. Mandamus is the proper remedy if the judge refuses to do so.
Facts adequate to support allegation of endangered health or impaired development.
Case law provides somewhat conflicting guidelines as to what facts are adequate to support an allegation that the child's present environment may endanger the child's physical health or significantly impair the child's emotional development. One court has stated that the affidavit need only show the possibility of harm, rather than the actual existence of harm. On the other hand, another court has held that a father's ``unadorned'' statement that all the adults in his child's household smoked inside the house was too nebulous to justify a modification hearing in the absence of allegations specifically pointing to endangerment of the child's health, such as frequent smoking in the child's presence which aggravated a heightened sensitivity to respiratory distress. Allegations that the mother was unemployed and that the state retained a portion of the father's child support payments to offset welfare benefits paid to the mother were insufficient in the absence of allegations that the child was hungry, unclothed, or otherwise harmed as a result. In some instances, the fact that the managing conservator has moved outside of Texas with the child has been held sufficient in itself to meet the endangerment requirement. On the other hand, a father's allegation that the managing conservator moved with the child to California, thus depriving the father of significant contact important to the child's proper development, was deemed inadequate where the decree gave the mother the right to determine the child's domicile. An affidavit stating only that the petitioner has had actual custody of the child since the order was rendered (whereas the other parent was appointed managing conservator) has been held insufficient as a matter of law
Waiver of Affidavit
When both parties seek modification within one year, the trial court has discretion to set the suit for hearing even though no affidavit has been filed.
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