Affidavit Alleging Abuse Sufficient

Normally, in a custody suit, the trial court designates a person who will have the right to designate a child’s primary residence. In effect, this designation appoints the person who will have “custody” of the child. However, the designation of that person is, like other parts of decrees in suits affecting the parent-child relationship, subject to modification by the trial court.

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Affidavit Required If Suit Within One Year

Sometimes parties want to relitigate a custody decision right away. To prevent constant, back-and-forth custody litigation, Section 156.102 of the Texas Family Code imposes an affidavit requirement if a person seeks to relitigate custody within one year after the court signed the prior decree. In that event, the party who wants to relitigate custody must file an affidavit. One of the things the affidavit can allege to change custody is “that the child’s present environment may endanger the child’s physical health or significantly impair the child’s emotional development.” Unless such an affidavit is filed, the court is not supposed to hear the request to change custody.

Affidavit Allegations

In In re A.D., No. 14-12-00914-CV (Tex. App. – Houston [14th Dist.] May 6, 2014), the Fourteenth Court of Appeals considered whether a father’s Section 156.102 affidavit was sufficient for the court to go forward. The affidavit recited that the child’s mother, who had custody, falsely and repeatedly accused the father of sexually abusing the child. The affidavit concluded that the mother’s “continued harassment” caused stress and trauma to the two-year-old child and that the mother’s actions presented “a clear and present danger to the child’s safety and welfare.”

Affidavit Sufficient

The mother responded that she had simply acted as a responsible parent by reporting suspected child abuse and that harassment of the father did not amount to stressing or traumatizing the child. But the court of appeals disagreed: All such an affidavit must do is allege facts – not prove them – that the child’s present environment may endanger the child’s physical health or significantly impair the child’s emotional development. The father’s affidavit met this test. The court of appeals affirmed the trial court’s decision to change custody to the father and to require supervised visitation when the mother saw the child.

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