Unreported / Non-Citable
Background
After the child’s mother died in January 2025, her stepfather petitioned to modify the parent–child relationship. He alleged that he had cared for the child for years and sought appointment as a conservator with the exclusive right to designate her primary residence. The trial court later entered temporary orders naming the stepfather and the child’s father joint managing conservators, giving the stepfather the right to designate the child’s primary residence, and limiting the father to supervised visitation.
While the case was pending, Texas Family Code Section 102.0031 took effect and imposed an additional affidavit requirement on a nonparent seeking relief against a parent. The father challenged the stepfather’s standing, arguing that the affidavit filed with the original petition lacked sufficiently specific facts showing that denial of the requested relief would significantly impair the child’s physical health or emotional development. The trial court found the affidavit sufficient and denied the father’s plea to the jurisdiction and motion to dismiss.
The Court’s Holding
The Second Court of Appeals held that the trial court abused its discretion by finding that the stepfather’s affidavit satisfied Section 102.0031. Although the affidavit described the stepfather’s longstanding caregiving role, the father’s limited contact with the child, and the child’s desire to remain in her current home, its assertions of serious harm were too general and depended on inferential speculation rather than specific supporting facts.
The court conditionally granted the father’s petition for writ of mandamus and directed the trial court to vacate its order denying the jurisdictional plea and dismissal motion. But it did not order the suit dismissed outright. Because the stepfather had requested leave to amend his affidavit if it was found insufficient—and the trial court had never ruled on that alternative request—the appellate court instructed the trial court to decide whether amendment should be allowed and then proceed consistently with the opinion.
Key Takeaways
- A nonparent’s affidavit under Texas Family Code Section 102.0031 must provide specific facts supporting significant impairment, not merely generalized allegations or speculative inferences of harm.
- A trial court may not use evidence gathered outside the affidavit, including a child’s in-chambers interview, to cure deficiencies in the statutory standing affidavit.
- The ruling did not require immediate dismissal because the stepfather’s unresolved request for leave to file an amended affidavit remained for the trial court to decide.
Why It Matters
The decision emphasizes that Section 102.0031 creates a threshold jurisdictional requirement for nonparents seeking custody-related relief against a parent. Even evidence sufficient to overcome the parental presumption later in the proceeding does not excuse an affidavit that fails to state adequate supporting facts.
The opinion also leaves room for amendment when properly requested. Practitioners representing nonparents should therefore plead specific facts showing how denial of relief would significantly impair the child, while parents may challenge statutory standing at any stage because it implicates subject-matter jurisdiction.