When 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.