In the
Court of Appeals
Second Appellate District of Texas
at Fort Worth
No. 02-26-00574-CV
IN RE L.S. JR., Relator
Original Proceeding
78th District Court of Wichita County, Texas
Trial Court No. 178,018-B
Before Womack, Wallach, and Walker, JJ.
Memorandum Opinion by Justice Wallach
MEMORANDUM OPINION
In this original proceeding, Relator L.S. Jr. (Father)1 asserts that the trial court
abused its discretion by denying his plea to the jurisdiction and motion to dismiss
Stepfather’s petition to modify the parent–child relationship for lack of standing.
Father contends that Stepfather’s affidavit supporting his petition was insufficient to
comply with Section 102.0031 of the Texas Family Code, a standing statute that
became effective about two months after Stepfather filed his suit. See Tex. Fam. Code
§ 102.0031. We agree with Father, conditionally grant his petition for writ of
mandamus, and order the trial court to vacate its order denying his plea to the
jurisdiction and motion to dismiss. However, Stepfather asked for leave to amend his
affidavit if the trial court held that it was insufficient. Because the trial court held that
it was sufficient, it never ruled on Stepfather’s request. Accordingly, we remand this
matter to the trial court with instructions to rule on Stepfather’s request for leave to
amend his supporting affidavit.
I. BACKGROUND
Father and Mother had a child, Lucy, in 2011. In 2012, they were parties to a
Child Support Review Order. Father and Mother were named joint managing
conservators with Mother being designated the primary conservator.
To protect the child’s identity, we use an alias when referring to her and refer
1
to the parties by their relationship to her. See Tex. Fam. Code § 109.002(d); Tex. R. App. P. 9.8(b)(2).
2
Mother married Stepfather in 2017, and Mother, Lucy, and Stepfather
thereafter lived together as a family. On January 14, 2025, however, Mother passed
away.
On June 26, 2025, Stepfather filed a petition to modify the parent–child
relationship. For standing, Stepfather relied on former Section 102.003(9) of the
Texas Family Code, that is, he asserted that he had exercised actual care, control, and
possession of Lucy for at least six months ending not more than 90 days preceding
the date of the filing of the petition. See Act of May 30, 1999, 76th Leg., R.S., ch.
1390, § 2, 1999 Tex. Gen. Laws 4696 (amended 2025) (current version at Tex. Fam.
Code § 102.003(9)).2 Stepfather supported his petition with an affidavit. Father never
contested Stepfather’s standing under former Section 102.003(9).
Because Stepfather sought to be appointed a conservator and because he also
sought to be appointed the conservator with the exclusive right to designate Lucy’s
primary residence, he relied on Section 156.101(a)(2) and Section 153.009 of the
Texas Family Code; in other words, he asserted that Lucy was at least twelve years old
and that he wanted the court to interview her in chambers so that she could tell the
court herself whom she wanted to have the exclusive right to designate her primary
The current version applies only to suits filed on or after September 1, 2025.
2
Act of May 21, 2025, 89th Leg., R.S., ch. 402, H.B. 2350, §§ 1, 7, 8; see Benedict v. Hill, No. 03-24-00307-CV, 2026 WL 1992323, at *4 n.5 (Tex. App.—Austin July 10, 2026, no pet.).
3
residence. See Tex. Fam. Code §§ 153.009 (“Interview of Child in Chambers”),
156.101(a)(2) (providing grounds for modification).
Complying with this request, the trial court interviewed Lucy on July 23, 2025.3
In a July 28, 2025 letter to counsel, the trial court made the following findings:
Having considered the evidence, arguments, [Lucy’s] wishes, and
the law applicable to this case, I have determined the following:
1. [Stepfather] has standing to bring this modification suit as he
has been the person with actual care, control, and possession of [Lucy]
for the requisite period required.
2. The parental presumption is overcome in this case because
appointing [Father] as primary custodian would cause significant
emotional impairment to [Lucy] such that awarding him custody would
result in emotional harm to [Lucy].
With this letter, the trial court told the parties that Stepfather had overcome the
fit-parent presumption. See In re C.J.C., 603 S.W.3d 804, 818–20 (Tex. 2020) (orig.
proceeding). Under the Texas Family Code, this letter constituted a rendition. See Tex.
Fam. Code § 101.026; In re G.X.H., 627 S.W.3d 288, 298 (Tex. 2021). Father did not
object to these findings or otherwise contest Stepfather’s standing.
Thereafter, on September 1, 2025, Section 102.0031 of the Texas Family Code
became effective. Section 102.0031 raised the standard for nonparent standing, and it
applied both to those cases filed on or after its effective date—September 1, 2025—
and to those cases pending on its effective date. See In re S.N., No. 02-25-00525-CV,
3
The reporter’s record of that interview is part of our record.
4
2025 WL 3713587, at *5 (Tex. App.—Fort Worth Dec. 22, 2025, orig. proceeding).
Section 102.0031 effectively added an additional requirement to former Section
102.003(a)(9). Id. at *3 n.2. Because Stepfather’s suit was still pending on September 1,
2025, Section 102.0031 applied to his case.
Father did not, however, immediately challenge Stepfather’s standing based on
Section 102.0031 and its revised standard. Instead, Stepfather’s case proceeded
unchallenged. Stepfather, for his part, did not file an amended affidavit to comply
with Section 102.0031.
The trial court entered temporary orders on November 21, 2025, making
Stepfather and Father temporary joint managing conservators and awarding
Stepfather the exclusive right to designate Lucy’s primary residence without regard to
geographic area. It also permitted Father one supervised visit per month and ordered
him to pay Stepfather $431 in child support and an additional $125 in medical
support.
Within this order, the trial court made additional findings that amplified on its
July 28, 2025 letter to counsel specifying how Stepfather had overcome the parental
presumption set out in C.J.C.:
The Court finds that [Lucy] has expressed to the Court in
chambers as provided by Section 153.009 of the Texas Family Code the
name of the person who is the child’s preference to have the exclusive
right to designate the primary residence of the child.
The parent [Father] has been significantly absent from the child’s
life prior to mother’s death. During visits . . . where father lives, which is
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not in Wichita County [where Stepfather and Lucy live], the visits did
not include significant time spent with parent [Father], but other family
members instead. As a result[,] the child lacks a bond or even close
familiarity with the parent [Father]. The child’s friends, activities, and
other supportive community exist[] in Wichita County and do[] not exist
in the parent’s [Father’s] location.
The nonparent [Stepfather] was the caregiver before and sole
caregiver after [M]other’s death. The nonparent [Stepfather] has
developed and maintains a strong bond with the child and has
established the role of father, even though he is not biologically related
to the child.
Mother’s death was significantly traumatic for the child and
moving the child away from the nonparent, her perceived father, to a
home in which she has no established bond with the parent [Father]
would be further traumatizing to her.
The child expressed a strong desire to remain with the nonparent
[Stepfather] and was visibly emotional when discussing that choice with
the Court.
For these reasons, the Court finds by clear and convincing
evidence that the change in custody from the nonparent [Stepfather] to
the parent [Father] would significantly impair the child’s emotional
development and the nonparent has overcome the parental presumption
in Texas Family Code § 153.002.[4]
The following temporary orders are for the safety and welfare and
are in the best interest of the child.
4
The version of Section 153.002 in effect on July 28, 2025, provided only, “The best interest of the child shall always be the primary consideration of the court in determining the issues of conservatorship of and access to the child.” Act of April 6, 1995, 74th Leg., R.S., ch. 20, § 1, 1995 Tex. Gen. Laws 113, 147 (amended 2025) (current version at Tex. Fam. Code § 153.002). The legislature amended Section 153.002, effective September 1, 2025, and the amendment applies to all cases pending on September 1, 2025. Act of May 15, 2025, 89th Leg, R.S., ch. 236, S.B. 2052, §§ 2, 4, 5; see In re P.J., No. 14-26-00072-CV, 2026 WL 2052123, at *4 (Tex. App.—Houston [14th Dist.] July 16, 2026, no pet. h.). Although the amended version was not yet in effect, the trial court drafted its findings to comply with the amended version.
6
Finally, on March 9, 2026—a little over three months after the trial court had
entered temporary orders, a little over six months after Section 102.0031 had become
effective, and a little over eight months after Stepfather had filed his suit—Father filed
his plea to the jurisdiction and motion to dismiss for lack of standing based on
Section 102.0031. Father argued that Stepfather’s supporting affidavit, filed before
Section 102.0031 became effective, failed to comply with Section 102.0031’s higher
standard.
The trial court conducted a hearing on Father’s motion on April 28, 2026.
Father acknowledged that Section 102.0031 applied retroactively, but he also pointed
out that Stepfather could have filed an amended affidavit to comply with Section
102.0031 but did not. Stepfather responded that his original June 26, 2025 affidavit
was sufficient to comply with Section 102.0031, but in the event that it was not
sufficient, he asked for leave to amend it. The trial court agreed with Stepfather that
his affidavit was sufficient, denied Father’s plea to the jurisdiction, and made Lucy’s
in-chambers interview part of the record. Because the trial court found Stepfather’s
affidavit sufficient, he never amended it.
Four months later, on August 28, 2026, Father filed this petition for writ of
mandamus attacking the trial court’s April 28, 2026 order denying his plea to the
jurisdiction and motion to dismiss for lack of standing.5
5
A mandamus proceeding has no hard-and-fast filing deadline, but delay alone can be the basis for denying a petition. See In re Timberlake, 501 S.W.3d 105, 107 (Tex.
7
II. DISCUSSION
A. Standard of Review
We grant mandamus relief only when the trial court has clearly abused its
discretion and the relator lacks an adequate remedy at law. In re Team Rocket, L.P.,
256 S.W.3d 257, 259 (Tex. 2008) (orig. proceeding); see In re State, 355 S.W.3d 611,
613 (Tex. 2011) (orig. proceeding). A trial court has no discretion when determining
what the law is or when applying the law to the particular facts. In re Prudential Ins. Co.
of Am., 148 S.W.3d 124, 135 (Tex. 2004) (orig. proceeding).
B. Standing
When a trial court erroneously denies a motion to dismiss a suit affecting the
parent–child relationship (SAPCR) for lack of standing, mandamus is permissible. In
re A.G., No. 02-24-00548-CV, 2025 WL 294159, at *2 (Tex. App.—Fort Worth Jan.
24, 2025, orig. proceeding) (mem. op.); In re Clay, No. 02-18-00404-CV,
2019 WL 545722, at *3 (Tex. App.—Fort Worth Feb. 12, 2019, orig. proceeding
[mands. denied]); In re McDaniel, 408 S.W.3d 389, 396 (Tex. App.—Houston [1st
Dist.] 2011, orig. proceeding). Thus, we must determine whether the trial court clearly
misapplied the law regarding standing when denying a motion to dismiss. Clay,
2019 WL 545722, at *3.
App.—Houston [14th Dist] 2015, orig. proceeding). Delay is not an impediment when, as here, the complaint is lack of jurisdiction. See id. at 108.
8
Standing is a question of law that appellate courts review de novo. In re H.S.,
550 S.W.3d 151, 155 (Tex. 2018). A party’s lack of standing deprives the trial court of
subject-matter jurisdiction. In re Russell, 321 S.W.3d 846, 856 (Tex. App.—Fort Worth
2010, orig. proceeding [mand. denied]). Parties can raise subject matter jurisdiction at
any time. Bizzle v. Baker, 683 S.W.3d 44, 48 (Tex. App.—Fort Worth 2022), aff’d on
other grounds, 687 S.W.3d 285 (Tex. 2024). Actions by a court without jurisdiction are
void. Russell, 321 S.W.3d at 856. If a petitioner lacks standing, the trial court must
dismiss the petitioner’s claim for lack of jurisdiction. Heckman v. Williamson Cnty.,
369 S.W.3d 137, 153 (Tex. 2012); In re H.L., 613 S.W.3d 722, 724 (Tex. App.—Fort
Worth 2020, no pet.).
C. Did Stepfather’s affidavit sufficiently comply with Section 102.0031?
Father contends that Stepfather’s affidavit failed to comply with Section
102.0031. He thus concludes that the trial court abused its discretion by denying his
plea to the jurisdiction and motion to dismiss for lack of standing.
1. Section 102.0031
Section 102.0031 sets out what a nonparent must show to have standing in a
suit affecting the parent–child relationship:
(a) A nonparent who files or intervenes in a suit affecting the parent–
child relationship in which another party to the suit is a parent of the
child shall execute and serve with the nonparent’s initial pleading an
affidavit that:
(1) attests, based on the nonparent’s personal knowledge or
representations made to the nonparent by a person with personal
9
knowledge of the matter, that denying the relief sought would
significantly impair the child’s physical health or emotional
development; and
(2) contains facts that support the allegation under Subdivision
(1).
(b) The court shall deny the relief sought and dismiss the suit or strike
the intervention, as applicable, unless the court determines, based on the
affidavit, that the affidavit contains facts adequate to support the
allegation under Subsection (a)(1).
Tex. Fam. Code § 102.0031.
2. Section 153.002
Section 102.0031 and Section 153.002 of the Texas Family Code are remarkably
similar. Section 153.002 provides,
(a) The best interest of the child shall always be the primary
consideration of the court in determining the issues of conservatorship
and possession of and access to the child.
(b) In a suit between a parent and a nonparent, it is a rebuttable
presumption that:
(1) a parent acts in the best interest of the parent’s child; and
(2) it is in the best interest of a child to be in the care, custody,
and control of a parent.
(c) In a suit between a parent and a nonparent, the nonparent may
overcome the presumption under Subsection (b) by proving by clear and
convincing evidence that denial of the relief requested by the nonparent
would significantly impair the child’s physical health or emotional
development. If the court renders an order in the suit granting relief to
the nonparent, the court shall state in the order:
(1) the specific facts that support the court’s finding that denying
the relief requested by the nonparent would significantly impair
the child’s physical health or emotional development; and
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(2) the extent to which the nonparent has overcome the
presumption under Subsection (b).
Id. § 153.002.6 Specifically, Section 102.0031(a)(1) and Section 153.002(c) seek the
identical factual finding.
The trial court made the Section 153.002(c) finding in its November 21,
2025 temporary order. Father has never contested that finding.
3. Stepfather’s affidavit
We present Stepfather’s affidavit in entirety:
[]I am currently in possession of the child that is the subject of this suit.
I have had possession since I married her mother in 2017. My wife who
was the primary conservator and mother of the child passed away in
January 2025 after a long illness. Due to my wife’s illness and for the
past two years, I have had primary care, possession, and control of my
stepdaughter [Lucy]. I have handled all of her daily care and parenting
including but not limited to basic clothing and feeding, helping with her
schooling, handling any medical issues, discipline, and providing for her
needs.
[]An order enjoining [Father] from removing the child from her
primary residence here in Wichita Falls is necessary to protect the safety
and welfare of the child. He has recently called and threatened to come
and take the child from where she has lived for the past 8 years and take
her to his home in Dallas. He has only had irregular visits with the child
for the past several years and only in the presence of the child’s aunt.
The child is afraid to go and has stated that she barely knows him.
[]I believe that the removal of the child from my home is a serious
and immediate threat to the child’s physical health and emotional
development. Her brother (who is now 18 years of age and out of high
6
This is the version that became effective September 1, 2025, and that applied to all cases pending in the trial court on or after that date. Act of May 15, 2025, 89th Leg, R.S., ch. 236, S.B. 2052, §§ 2, 4, 5; see P.J., 2026 WL 2052123, at *4.
11
school) resides with me. It is very important to keep the children
together, especially given the death of their mother.
[][Lucy] will express to the Court in chambers, as provided by
Section 153.009 of the Texas Family Code, the conservator the child
prefers to have the exclusive right to designate the primary residence of
the child.
4. Analysis
Stepfather submitted the affidavit before Section 102.0031 became effective. At
that time, Stepfather had no reason to format his affidavit to conform to Section
102.0031’s requirements.
After September 1, 2025, however, he did. “A party seeking relief in a suit
affecting the parent–child relationship must allege and establish standing within the
parameters of the language used in the relevant Family Code statute. . . . If the party
fails to do so, the trial court must dismiss the suit.” In re H.L., 613 S.W.3d 722,
724 (Tex. App.—Fort Worth 2020, no pet.).
The trial court nevertheless found Stepfather’s affidavit sufficient. When doing
so, the trial court appeared to have retrofitted the information that it had gathered
from its in-camera interview with Lucy to the affidavit. It made the reporter’s record
of the interview part of the record. We note that the trial court had previously relied
on the interview when determining that Stepfather had overcome the fit-parent
presumption and when making its Section 153.002 determination. Yet the narrow
question before us is whether Stepfather’s affidavit complied with Section 102.0031.
12
With a broad brush, the affidavit appears to allege that Father had effectively
constructively abandoned Lucy, that Lucy opposed his current efforts to gain custody,
and that his efforts were destabilizing her life and harming her. An affidavit must raise
more than a surmise or suspicion of possible harm. See In re J.O.L., 668 S.W.3d 160,
166 (Tex. App.—San Antonio 2023), pet. denied, 702 S.W.3d 358 (Tex. 2024).
Emotional distress caused by a change in circumstances—without more—may not
rise to the level of significant impairment. See In re Derzapf, 219 S.W.3d 327, 333–
34 (Tex. 2007) (orig. proceeding); In re A.K.B., No. 04-25-00338-CV,
2026 WL 1409991, at *3 (Tex. App.—San Antonio May 20, 2026, no pet.). The
affidavit notes that in Father’s absence, Lucy had established a bonded, familial
relationship with Stepfather through his marriage with Mother over the past eight
years. Stepfather was describing something more than the close relationships that
grandparents might share with grandchildren. See In re J.M.G., 553 S.W.3d 137,
143 (Tex. App.—El Paso 2018, orig. proceeding). Construing his affidavit generously,
he might have been suggesting that removal would be devastating or akin to a
psychological amputation or would cause Lucy serious psychological damage, but the
affidavit amounted to inferential speculation. See In re J.C., 346 S.W.3d 189, 195 (Tex.
App.—Houston [14th Dist.] 2011, no pet.). The affidavit’s general nature makes it
difficult to tell. As we read Section 102.0031, it requires more than generalities. Courts
have required affidavits under the grandparent-standing statute, which is comparable
to Section 102.0031, to be specific. See H.L., 613 S.W.3d at 724–25 (addressing Tex.
13
Fam. Code § 153.432). The affidavit must make the necessary allegations and support
them with facts. In re Sullender, No. 12-12-00058-CV, 2012 WL 2832542, at *3 (Tex.
App.—Tyler July 11, 2012, orig. proceeding). We hold that Stepfather’s affidavit failed
to support its general allegations with sufficient facts to meet the statute’s
requirements.
We hold that the trial court abused its discretion by ruling that Stepfather’s
affidavit complied with Section 102.0031. Accordingly, we conditionally grant Father’s
petition. We do not, however, grant him all the relief that he requested.
At the April 28, 2026 hearing, Stepfather asked the trial court for leave to file
an amended affidavit if his affidavit was insufficient.7 Because the trial court ruled in
Stepfather’s favor, it did not rule on Stepfather’s request. We remand this matter to
the trial court with instructions to rule on Stepfather’s request to file an amended
affidavit.8
7
By the time Father filed his plea to the jurisdiction on March 9, 2026, Stepfather effectively already had his Section 102.0031(a)(1) finding by virtue of the trial court’s Section 153.002(c) finding in its November 21, 2025 temporary order.
8
This court has broad discretion to remand a case in the interest of justice after reversing a trial court’s judgment, especially if there is a possibility that the case has not been fully developed. Union Pac. R.R. Co. v. Seber, 477 S.W.3d 424, 435 (Tex. App.—Houston [14th Dist.] 2015, no pet.); Innovate Tech. Sols., L.P. v. Youngsoft, Inc., 418 S.W.3d 148, 153 (Tex. App.—Dallas 2013, no pet.).
14
III. CONCLUSION
Having held that the trial court abused its discretion by concluding that
Stepfather’s affidavit complied with Section 102.0031, we conditionally grant Father’s
petition for writ of mandamus and instruct the trial court to vacate its April 28,
2026 order denying Father’s plea to the jurisdiction and motion to dismiss for lack of
standing. We further instruct the trial court to rule on Stepfather’s request for leave to
file an amended affidavit and thereafter proceed in a manner not inconsistent with
this opinion. Our writ will issue only if the trial court does not comply.
/s/ Mike Wallach
Mike Wallach
Justice
Delivered: October 6, 2026
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