Subsection (a) of Texas Family Code section 156.102, entitled “Modification of Exclusive Right to Determine Primary Residence of Child Within One Year of Order,” provides:

“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 Subsection (b).

Tex. Fam. Code Ann. §156.102(a). Subsection (b) requires that the affidavit contain, along with supporting allegations, at least one of the following allegations:

(1) that the child’s present environment may endanger the child’s physical health or significantly impair the child’s emotional development;

(2) that 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

(3) that 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).

What if a primary conservator files suit within one year to vacate a geographic restriction? Must she file allege a significant impairment by affidavit per (b)(1) above? Or can she consent to the suit without meeting the elevated standard per (b)(2)?

The Fort Worth Court of Appeals conclusively addressed this argument and held that where a parent who has the exclusive right to designate the primary residence of the child within a defined geographic area seeks to vacate that geographic restriction within one year of the prior order, that parent must allege significant impairment under §156.102(b)(1). In re A.S.M., 172 S.W.3d 710, 713–14 (Tex. App. – 2005, no pet.).

In A.S.M., the Mother was appointed as the parent with the exclusive right to establish the child’s primary residence within Tarrant and continuous counties. Id. at 712. One month following the entry of the divorce decree, Mother sought to modify the order by vacating the geographic restriction. Id. She argued that she was excused from complying with 156.102(b)(1)’s significant impairment standard because she was the primary conservator filing suit under 156.102(b)(2). Id. Father sought dismissal of her cause of action and sanctions for frivolous filing. Id. The trial court agreed with Father, dismissed Mother’s suit for modification filed within one year of the prior order, and awarded sanctions against Mother. Id. at 713. Mother appealed.

The Fort Worth Court of appeals affirmed the trial court’s decision. The court looked to the public policy underlying Title V of the Texas Family Code in general and specifically the specific public policy underlying 156.102:

“The purpose of section 156.102 in particular is to “promote stability in the conservatorship of children by preventing the re-litigation of custodial issues within a short period of time after the custody order is entered.”

Id. at 715, citing In re R.C.S., 167 S.W.3d 145 (Tex. App. — Dallas 2005, pet. denied), cert. denied, 547 U.S. 1055 (2006). The court examined other cases interpreting §156.102 related to imposing a geographic restriction where none existed before, finding similarity between a case seeking to impose a geographic restriction and the case at bar seeking to vacate a geographic restriction:

“…[T]he Waco court has interpreted the provision broadly, to include not only a suit seeking to change the person with the exclusive right to determine a child’s primary residence, but also a suit seeking to change the scope, or terms, of the then-existing designation without changing the identity of the person. We believe that this interpretation of section 156.102(a) is consistent with the underlying purposes of the statute and the public policy applicable to suits affecting the parent-child relationship in general.”

Id., citing In re A.C.S., 157 S.W.3d 9, 17–19 (Tex. App.-Waco 2004, no pet.). The court rejected Mother’s contention that there is a difference between imposing a new geographic restriction and vacating an existing one:

“Appellant attempts to draw a distinction between a suit seeking to eliminate a restriction and a suit seeking to impose a restriction, but we do not believe there to be any meaningful distinction between the two. Granting relief in either situation has the potential to disrupt the status quo of the child’s living arrangements, a result that Texas public policy attempts to avoid except in cases in which the child’s physical or emotional health is in danger.”

Id. at 716, hn 6, citing Tex. Fam. Code. §153.001; R.C.S., 167 S.W.3d at 148; Burkhart v. Burkhart, 960 S.W.2d 321, 323 (Tex.App.-Houston [1st Dist.] 1997, pet. denied); Mobley v. Mobley, 684 S.W.2d 226, 229 (Tex.App.—Fort Worth 1985, writ dism’d).

The Fort Worth Court of Appeals conclusively held that a suit to modify and vacate a geographic restriction brought by the person having the right to determine the child’s primary residence falls within §156.102(a), requiring an affidavit and initial showing of significant impairment to proceed and subject to dismissal without such.

“Thus, we hold that a suit seeking to eliminate or modify the terms of a geographical restriction on a person having the exclusive right to determine a child’s primary residence is a “suit seeking to modify the designation of the person having the exclusive right to designate the primary residence of a child” for purposes of section 156.102(a).”

Id. at 716. Therefore, the Mother was required to file an affidavit alleging significant impairment with her petition/amended petition. Id. The trial court acted properly in dismissing Mother’s suit where no significant impairment was alleged to support vacating a geographic restriction.

Plus, attorney’s fees are mandatory where the modification is dismissed. Where a suit for modification is brought for the sole purpose of harassment, the trial court has authority to award attorney’s fees to the responding party. Tex. Fam. Code §156.005. Specifically, where a party fails to meet the initial pleading requirements of §156.102 showing a significant impairment which results in dismissal of the suit for modification, attorney’s fees are warranted. The Houston 14th Court of Appeals applied §156.005’s mandate to award of attorney’s fees to a dismissal for failure to file a §156.102 affidavit in a modification suit. Stashak v. Stashak, 2003 WL 21230406, at *3 (Tex. App. – Houston [14th Dist.] 2003, no pet.). Further, such attorney fee award must be taxed as court costs and subject to collection as such. Tex. Fam. Code §156.005.

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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.