Originally published by Michelle O'Neil.
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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