E. Petitions to Modify the Parent-Child Relationship

1. Procedural Requirements

If a suit seeking to modify the designation of the person having the exclusive right to designate the primary residence of a child is filed not later than one year after the earlier of the date of the rendition of the order or the date of the signing of a mediated or collaborative law settlement agreement on which the order is based, the person filing the suit shall execute and attach an affidavit as provided by Tex. Fam. Code § 156.102(b). Tex. Fam. Code § 156.102(a).

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;

•   The person who has the exclusive right to designate the primary residence of the child is the person seeking or consenting to the modification and the modification is in the best interest of the child; or

•   The person who has the exclusive right to designate the primary residence of the child has voluntarily relinquished the primary care and possession of the child for at least six months and the modification is in the best interest of the child. Tex. Fam. Code § 156.102(b).

The court shall deny the relief sought and refuse to schedule a hearing for modification under this section unless the court determines, on the basis of the affidavit, that facts adequate to support an allegation listed in Tex. Fam. Code § 156.102(b) are stated in the affidavit. If the court determines that the facts stated are adequate to support an allegation, the court shall set a time and place for the hearing. Tex. Fam. Code § 156.102(c). In a jury trial, a jury verdict regarding the right to determine the child's primary residence for a joint or sole managing conservator may be authorized by the court. Tex. Fam. Code § 105.002(c).

2. Modifications of Termination Orders in CPS Proceedings

Modifications must include a sworn affidavit that shows that the child's present environment may endanger the child's physical health or emotional development.

Grandparents filed Petition to Modify the Parent-Child Relationship immediately following the termination of parent-child relationship proceeding to which they were not parties and cited Tex. Fam. Code § 102.006(c) as basis for standing. No affidavit was attached. DFPS filed a Motion to Dismiss based on failure to attach the required affidavit under Tex. Fam. Code § 156.102. Trial court dismissed suit and 4th Court of Appeals upheld dismissal, finding that Tex. Fam. Code § 102.006 did not confer standing and the procedural requirements of Tex. Fam. Code §156.102 applied in cases where a modification of the Department's conservatorship of a child is sought. (In re N.A.D., 397 S.W.3d 747 (Tex. App. – San Antonio 2013, no pet.)).

•   Modification of an order entered only 90 days earlier may require facts that establish that the child's present environment may endanger the child's physical health or significantly impair the child's emotional development.

•   Modification facts may be difficult to establish if, as part of trial court findings at termination of parent rights proceedings, that the child's current placement is meeting the child's needs and continuation is in the best interest of the child.