It has been a few months since you’ve finalized your divorce or suit affecting the parent-child relationship and you either realize that you’re not happy with what was ordered, or the other parent hasn’t been complying with the orders. In particular, let’s say you do not like the conservatorship ordered, and it has been less than a year.
You contact your attorney at Guest & Gray who informs you that we can file a petition to modify. However, there is a specific requirement with these types of pleadings. Your attorney must attach an affidavit on your behalf which is signed and notarized and this affidavit must set out the facts and establish that either (1) the present environment endangers the child’s physical health or impairs the child’s emotional development or (2) the primary conservator agrees to the modification and the modification is in the best interests of the child.
The key is that the affidavit must be sworn to (signed by affiant) and notarized. If it’s not, it’s fatally flawed and the petition can be thrown out. However, the the other side must catch this flaw. This is based on the recent opinion in Serafn v. Seal by the Austin Court of Appeals wherein the Court set a deadline for when this affidavit is considered fatally flawed–designating when an issue with the affidavit must be brought to the court’s attention. The Court held that you must object in the very beginning if you notice an issue with the affidavit. If you don’t, and you wait until appeal of the case, according to the Austin Court of Appeals, you will have waived your complaint of the defective affidavit. So, two lessons here–first make sure that your affidavit is in compliance with the rules. And two, if you’re the Respondent in the matter, be timely in your objections.