Child-in-Danger-SignWhen filing a modification suit regarding children and seeking temporary orders to change the designation of the person who has the exclusive right to designate the primary residence of the child, a new law requires that an affidavit be filed with the initial pleading setting out the grounds for the request. This law went into effect 9/1/15. The standard for changing primary conservator on temporary orders in modification remains the same – whether the child’s present circumstances would significantly impair the child’s physical health or emotional development. Now, the party seeking the change must file an affidavit right out of the box containing facts based on the person’s personal knowledge that support the allegation. In absence of such affidavit or where the affidavit fails to rise to the level of proof required, the court (in Dallas County family law courts, that will be the associate judge) must refuse to set a temporary hearing and deny the relief sought. This determination is made based solely on the allegations contained in the affidavit before a hearing is held or a witness is called.

The difficulty of this new rule is that it forces the party seeking a change to lay out all cards on the table when the suit is filed and doesn’t provide any window of time for discovery. Bottom line, it makes it much more difficult to seek to change custody of a child. A party is forced to either lay out all the cards right up front – proving the child is virtually in danger with the other parent – or file a modification suit and proceed suing for custody while the child remains in a less –than-desirable, but maybe not dangerous, environment. It also leaves the judges less discretion in deciding the child’s best interest.

On another note, because the rule provides for a pre-hearing ruling as to whether the pleadings make a prima facie showing sufficient to set a hearing, I think it opens up the possibility of mandamus to review the judge’s initial determination.

Read the enrolled version of the new law here.

 

Print:
EmailTweetLikeLinkedIn
Photo of Michelle O'Neil Michelle O'Neil

Michelle May O’Neil has 27 years’ experience representing small business owners, professionals, and individuals in litigation related to family law matters such as divorce, child custody, and complex property division. Described by one lawyer as “a lethal combination of sweet-and-salty”, Ms. O’Neil exudes…

Michelle May O’Neil has 27 years’ experience representing small business owners, professionals, and individuals in litigation related to family law matters such as divorce, child custody, and complex property division. Described by one lawyer as “a lethal combination of sweet-and-salty”, Ms. O’Neil exudes genuine compassion for her client’s difficulties, yet she can be relentless when in pursuit of a client’s goals. One judge said of Ms. O’Neil, “She cannot be out-gunned, out-briefed, or out-lawyered!”

Family Law Specialist

Ms. O’Neil became a board-certified family law specialist by the Texas Board of Legal Specialization in 1997 and has maintained her certification since that time. While representing clients in litigation before the trial court is an important part of her practice, Ms. O’Neil also handles appellate matters in the trial court, courts of appeals and Texas Supreme Court. Lawyers frequently consult with Ms. O’Neil on their litigation cases about specialized legal issues requiring particularized attention both at the trial court and appellate levels. This gives her a unique perspective and depth of perception that benefits both her litigation and appellate clients.

Top Lawyers in Texas and America

Ms. O’Neil has been named to the list of Texas SuperLawyers for many years, 2011-2018, a peer-voted honor given to only about 5% of the lawyers in the state of Texas. In 2014-2018, Ms. O’Neil received the special honor of being named by Texas SuperLawyers as one of the Top 50 Women Lawyers in Texas, Top 100 Lawyers in Texas, and Top 100 Lawyers in DFW. She was named one of the Best Lawyers in America for 2016 and received an “A-V” peer review rating by Martindale-Hubbell Legal Directories for the highest quality legal ability and ethical standards.

Author and Speaker

A noted author, Ms. O’Neil released her second book Basics of Texas Divorce Law in November 2010, with a second edition released in 2013, and a third edition expected in 2015.  Her first book, All About Texas Law and Kids, was published in September 2009 by Texas Lawyer Press. In 2012, Ms. O’Neil co-authored the booklets What You Need To Know About Common Law Marriage In Texas and Social Study Evaluations.  The State Bar of Texas and other providers of continuing education for attorneys frequently enlist Ms. O’Neil to provide instruction to attorneys on topics of her expertise in the family law arena.