Articles Posted in Parent who has exclusive right to designate primary residence of child

You just finalized your divorce or custody matter, however it seems like every time you turn around you think that your child should live with you instead of the other parent primarily of the time.  Even though it is has not even been a year yet since your final orders were rendered, it just seems as though something is constantly coming up and you are genuinely concerned.  The other parent may be endangering the child’s physical welfare or emotional development such as engaging in criminal activity, drug usage, physical/mental/sexual abuse, or overall endangerment of the child.  You want to change the custody orders now but you have been told that there are certain roadblocks in requesting the modification this soon.  What should you expect?

Less than One Year Requirements 

If you are filing your petition to change the parent who has the exclusive right to designate the child’s residence in less than one year, there are specific requirements that you must follow.  In fact, you must qualify within these statutory parameters to even file your case.  The most important and crucial requirement is the affidavit that must be attached to your petition.  In fact, Texas Family Code Section 156.102 mandates that an affidavit must be attached to your pleadings and “(b) must contain, along with supporting facts, 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 6 months and the modification is in the best interest of the child.”  Frequently, we see the first requirement being the grounds on which someone files a modification.  Allegations are made that something bad has happened in the other parent’s care and this is why that parent should no longer have possession of the child.  But, the key is that the allegations must be made in the affidavit.  Many people get hung up on this requirement and many times affidavits fall short on their face.