When sweeping changes to Texas family law took effect on September 1, 2025, family law practitioners across the state began encountering real-world consequences that no statute could fully anticipate. In this solo episode, Holly Draper shares what Texas family lawyers are actually seeing in courtrooms — and what those on-the-ground experiences reveal about the gaps, ambiguities, and unintended consequences embedded in the new parent versus non-parent custody framework.

From sua sponte dismissals before respondents are even served, to courts treating the new affidavit requirement as a threshold jurisdictional gate, to grandparents facing near-impossible burdens in modification proceedings — Holly breaks down what practitioners are seeing and offers her own clear-eyed analysis of where the legislation got it right, where it fell short, and what advocates should do in the meantime.

Whether you represent parents or non-parents, this episode is packed with urgent, practical guidance you cannot afford to miss. Holly also issues a call to action: if you’re seeing these issues play out in court, she wants to hear from you — because the feedback loop between practitioners and lawmakers may be what ultimately fixes this legislation.

In this episode you’ll discover:

• Why courts are dismissing non-parent suits sua sponte
• What the affidavit actually has to say to survive
• Holly’s strong stance on agreed orders
• The modification trap facing long-term non-parent caregivers
• The unresolved res judicata problem
• Practical takeaways for both sides of the docket

Mentioned in this episode:

• Texas Family Law Code
• Fit Parent Presumption
• Non-Parent
• Custody
• Modifications
• Appeals
• Grandparent
• Conservatorship
• Section 102.0031
• Standing
• Affidavit
• In re CJC
• In re SH
• Sua Sponte Dismissal
• Res Judicata
• Mandamus

Transcript

Holly Draper | Episode 141 What We’re Seeing in the Wild: Updates in Parent vs. Non-Parent Custody Litigation

Holly Draper:  Why would we need to include findings in a prior agreed order that the presumption had been overcome if now we’re saying that doesn’t mean the presumption has been overcome and the presumption still survives?

Announcer:  You’re listening to the Texas Family Law Insiders Podcast, your source for the latest news and trends in family law in the state of Texas.

Now, here’s your host, Attorney Holly Draper

Holly Draper:  Hi everyone! Welcome back to the Texas Family Law Insiders podcast. I am your host, Holly Draper, and today I wanted to come at you with some updates in the area of parent versus non-parent child custody litigation. Specifically, I asked other Texas family lawyers what they were actually seeing with respect to the new statutory changes we saw taking effect September 1 of 2025 in the parent versus non-parent custody arena.

What they came back with was pretty eye-opening, and it shows us where the gaps are in this legislation and what kind of problems people are actually seeing out there, in the wild, in courts in Texas. So today, we’re going to go through some of those issues and maybe brainstorm some solutions, and I’ll give you my insights into what I think should be the case and what I think people should be doing.

So this is about the actual implementation and what people are actually seeing and the real-world consequences of these legislative changes. This is not a repeat of my September 2025 episode that explained the statutory changes. So, if you need a primer on what these changes were, you can go back and find episode 122, called Parental Rights Gain Ground in New Custody Laws, and you can hear my original deep dive into these legislative changes.

But today, we’re going to kind of focus on a couple of big themes, specifically what is happening with this affidavit requirement related to non-parent standing and the kind of issues that people are seeing in the modification context. Without doing another deep dive, I want to give you just a quick little refresher about some of the big changes that took effect September 1st.

One was that we had a change to the standing statute of 102.003(9), which now requires exclusive care, control, and possession of a child rather than actual care, control, and possession of a child for a non-parent to have standing

Another big change was the requirement of an affidavit for non-parent standing, any non-parent standing, under 102.0031. That’s the specific affidavit statute.

And finally, the other really big change was that the legislature codified and extended the constitutional presumption from in re CJC, basically saying in statute that a fit parent’s decisions about their child are presumed to be in the child’s best interest.

These changes have flipped some of our burdens, especially with respect to modifications, and the burden is really going to be completely on the non-parent, whether it’s an original suit or a modification of an agreed order. And this standard is more than best interest. It requires a showing that the parent is unfit or that the parent’s decision would significantly impair the child.

So, let’s start by talking a little bit about the affidavit requirement. So specifically, this was added: Section 102.0031 of the Family Code requires an affidavit for standing of a non-parent. The affidavit must attest, one, denying the relief sought would significantly impair the child’s physical health or emotional development, and two, contain facts supporting the allegation under number one.

It goes on to say that a 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 that denying the relief sought would significantly impair the child. So this statute requires it to be filed with the initial pleading of a party.

I have heard from some people who are concerned that if this was a pending suit and you filed, you know, before September 1st of 2025, and you didn’t have this affidavit because it wasn’t required, and you had no idea it was going to be required, and that you can’t amend to add it. I think that’s wrong. I think if they did not intend for you to be able to amend, surely the legislature had no intention of dismissing every single pending suit involving a non-parent that was pending on September 1, 2025.

That’s just not something that they would have ever intended, logically, to happen. But it is super important for any case that was pending to immediately amend to include that required affidavit. So, we heard from a lot of attorneys saying that cases are being dismissed by courts in Texas sua sponte, all on their own.

They’re being dismissed before a respondent even gets served. We had somebody say, in Harris County, a court found a petitioner lacked standing in a docket entry. There was no appearance. There was no service on the respondent. There was no hearing. Nobody asked for it to be dismissed. The court, all on its own, just looked at that pleading, said it was insufficient, and dismissed it.  

Another practitioner in Montgomery County said there was a situation where the Office of the Attorney General filed a suit affecting the parent-child relationship for a grandparent who had possession of the child, but did not include a supporting affidavit.

That makes sense because the Office of the Attorney General’s job is related to child support. They are not supposed to be getting into contested custody issues. The court in Montgomery County dismissed the OAG’s suit for not including the supporting affidavit. So, the new statute forces, at least in some courts, is forcing the OAG into a position where they either, they have to allege parental unfitness in the affidavit, which is really outside of their lane, or risk that these suits be dismissed.

Another practitioner in Montgomery County said that another court dismissed a case all on its own prior to a DUOP date based solely on the insufficiency of an affidavit. So, the bottom line here of what people are actually seeing out in the wild is that don’t assume that you have time to amend. Amend immediately, because courts are treating the affidavit as a threshold jurisdictional gate, and it can act on it without anybody requesting it, and they can do it immediately.

So, let’s say, for example, that you had a suit pending on September 1st, 2025. Nothing’s really been happening with it, so you didn’t bother to file the affidavit, and the court, through whatever reason, decides they’re going to check out this case, they see there’s no affidavit, and they dismiss it.

Somebody who might have had standing on September 1st of 2025 under 102.003(a)(9) for having actual care, control, and possession might not have standing today for having exclusive care, control, and possession. So, if you don’t get that affidavit filed in time and the case gets dismissed, that may be fatal to the non-parent’s claim.

So, if you have a suit pending out there where you represent the non-parent, take action immediately to get an affidavit filed that is going to meet this requirement. If you are representing the parent and the other side has not taken that action of amending, you don’t need to wait for the court to do something with it because some courts will never do anything with it unless you specifically request it.

You should be filing a motion to dismiss, plea to the jurisdiction, to say they haven’t met the requirements, and the case should be dismissed. Now, that being said, when you file that, it’s likely the other side is going to amend, but you should file it anyway. And if their affidavit is not sufficient, amend your motion or plea to the jurisdiction to allege that the facts are now insufficient rather than that the affidavit is missing.

So, what does that affidavit have to actually say in order to get through this very difficult gate of standing now? There has been one court of appeals case that I’m aware of that has come out addressing this issue. It is in re SH out of the Fort Worth Court of Appeals. It was a late 2025 case. The Court of Appeals granted mandamus for the mother, where it found the non-parent’s affidavit was conclusory and failed to satisfy the statute’s requirements, depriving the non-parent of standing and the trial court of subject matter jurisdiction.

It’s really important to note that the Court of Appeals looked to the grandparent access cases for guidance. The significant impairment standard is not new. It has been in all of the case law related to constitutional parental rights, grandparent access, parent versus non-parent cases for many, many years.

The new affidavit requirement is very similar to the one that has been there for a long time in the grandparent access cases. The court looked to those cases, found what did and did not meet the threshold for grandparent access… newsflash, very little is going to meet that threshold, and applied it to this new non-parent standing statute.

The Fort Worth Court of Appeals also held that this requirement applies retroactively to all cases pending in a trial court on or after September 1st, 2025. So, a non-parent who originally had standing may lose it while the case is pending if they do not comply with the new statute and get this affidavit filed.

The affidavit must allege current specific facts, not conclusions, not fears, not beliefs, not hearsay. The court has to determine the affidavit is sufficient to confer standing before anything else can be happening in the case. Some examples of where other family lawyers were saying, uh, the affidavit was not sufficient would be, you know, claims that a parent had a history of drug use without current evidence of use.

Allegations against a parent that was living with a convicted felon, and that was not the case anymore. Generalized concerns about a parent’s lifestyle, moving frequently, having multiple partners, yelling in the home, not sufficient. The standard of significant impairment is not the grand- the non-parent could do better, or the grandparent can do, could do better, because let’s be honest, a lot of times that is probably true.Courts consistently hold this is a very, very high burden to meet, and you have to show true, true impairment to the child.

Announcer:  This episode of the Texas Family Law Insiders Podcast is sponsored by the Draper Law Firm, providing family law appellate representation for non-parent custody cases, jurisdiction issues, property division, standing, conservatorship, possession and access, termination, parental rights, and grandparent access.

For more information, visit draperfirm.com or call 469-715-6801.

Holly Draper:  Another issue that has been brought to my attention, I think is a really, really big problem happening in some courts, and there are judges out there who are interpreting this affidavit requirement this particular way.

There are practitioners who see it that way. They are thinking that, as written, the affidavit requirement of 102.0031 appears to shut the door on cooperative agreements between parents and non-parents, saying that even if the parties are going to agree to an order that gives a non-parent rights or possession, that non-parent still has to file an affidavit saying things about the parent that no cooperative parent is going to agree to.

I wholeheartedly disagree with this position, and I’m going to tell you why… Oh, and there’s another piece to this, too. There’s now a requirement that the order includes findings of how this significant impairment standard threshold has been overcome. So, there are judges out there…there are practitioners out there… who believe the affidavit and findings in the order are required even when there is an agreement.

Once again, I wholeheartedly disagree with that. I think it is wrong. I think we…everybody… should stop doing that, and I’m going to explain to you why. First, all of these changes came into effect as an effort to protect the constitutional rights of parents to make decisions concerning the care, custody, and control of their children. So, if a parent is going to enter into an agreement with a non-parent to give them court-ordered rights or possession of their child, that parent is presumed to be fit and is presumed to have the authority to enter into that agreement on behalf of their child.

Number two, the legislature explicitly chose to state that the fit parent presumption survives and is still in effect for a parent when the prior order involving a non-parent was an agreed order.

Why would we need to include findings in a prior agreed order that the presumption had been overcome if now we’re saying that doesn’t mean the presumption has been overcome, and the presumption still survives?

I was involved in the prior legislative years discussing these suggested changes. I was not involved in this specific year, but based on the history of what I know of discussions and debates about these laws and what I know from the cases I’ve been involved with, and the way the courts ruled, I just cannot see any scenario other than a parent can consent to a non-parent having standing, and they can enter into an agreed order that does not include findings of significant impairment.

That is a hill I’m willing to die on. I do hope the legislature will make some changes to clarify that. But in the meantime, you know, if you have a case where a judge is requiring an affidavit or findings, please make these arguments to try and avoid it.

If you have a case where it’s been required and your client doesn’t like that, give me a call. Let’s take that up to the court of appeals. Let’s take that to the Texas Supreme Court. Let’s get them to clarify, more quickly than maybe the legislature would, to say that parties do have a right to agree without the affidavit, without the findings.

We do not want to discourage parents from seeking help when they need it. There are a lot of parents who go through a period of time where they are not able to care for their child for one reason or another, and it is appropriate for that parent to consent to a non-parent, a grandparent, whomever, having rights and possession of their child. And if we’re going to require affidavits and we’re going to require findings, it is going to discourage those parents from getting the help that they need.

The legislature has provided the protection that says, “Hey, parent, you’re still going to get the benefit of the fit parent presumption in a future case if you decide to agree now.” This is the way that I firmly believe it is and should be.

The next issue that I see coming up consistently from other practitioners in the wild relates to modifications. There were a lot of attorneys who were very concerned about situations where a grandparent or another non-parent has had custody of a child for many, many years under an agreed order. That child is thriving. There is nothing that’s going wrong in the household. Everything is, suggests that it would be, in the best interest of that child for it to remain the same.

The parent, who has since gotten their act together and no longer has the issues that led to that prior agreed order, files to modify under the new statute, that parent gets the benefit of the fit parent presumption, and it has effectively flipped the burden onto the non-parent in a modification to show that that parent is presently unfit.

It does not allow for an analysis that it is in the best interest of the child to remain with the non-parent that has had, you know, custody of this child for 10 years. As practitioners have put it, it defies common sense that the filing of a petition with no proof that there’s a problem means the child has to move unless the person who has been caring for them for years can prove the parent is unfit.

The statute, as written, flips the presumption in the modification context. The modification is granted unless the non-parent proves otherwise. The burden is more than best interest. This puts what could be almost an impossible burden on the non-parent.

This brings up another point that I think is really a big gap in the legislation. Res judicata is supposed to bar evidence of acts and omissions that occur before the most recent order, and only post-order conduct is available to meet the standard. Whether the last order contained findings that meet the new statutory standards may be determinative. If the order was not agreed and, you know, a non-parent has been awarded possession or rights, I would argue res judicata, the fit parent presumption no longer applies.

But if the prior order was agreed, what do we do about res judicata? If I am representing the non-parent and there was a prior agreed order, I am absolutely going to do everything I can to try to get in evidence of why that parent was unfit to begin with, and why that parent lost custody pursuant to an agreed order.

You know, they were a meth addict for years. They were beating their child. There could be any number of reasons why that parent was not fit when that agreed order was entered into, and some of those reasons might still be a valid reason why that parent shouldn’t have the child today. So, if, you know, that parent was a meth addict for 10 years and they’ve been clean for six months, I think a judge still ought to have some concerns and still should know that that person had 10 years of meth use in their history.

I haven’t actually had this res judicata issue come up yet in a case, but I know it is happening out there and I know it’s coming. But this provision about prior agreed orders and the fit parent presumption still being in effect, I think it really needs to get cleaned up and if I’m representing the non-parent, I’m going to argue you can’t use any evidence for the prior order. My parent or my client is currently fit.

Another practitioner brought up some ideas related to using the new statutory framework to seek removal of a non-parent who was appointed as a conservator in a prior agreed order. Someone I know has used this tactic to have a non-parent removed in temporary orders.

They haven’t been removed completely. They still have to have a final trial. You don’t get the non-parent removed on affidavit grounds because they’re already a party by virtue of the prior order, but that requirement is still there that the non-parent has to overcome the fit parent presumption if the prior order was agreed.

I think a lot of people are going to be testing this framework to try and kick out non-parents who may have been involved for a long time. The attorneys that I crowdsourced this to raised a lot of concerns about this issue. You know, what happens when a parent is technically fit despite a long history of not being, and then they relapse or they become unfit again?

Some non-parents who might have had standing before or who were very involved in the child’s life, they had custody for years If they’re not a relative, they know they’re not going to have standing. They’re not going to get back in. Their only hope would be maybe if CPS would get involved and place the child with them, but they’ve lost their ability to have standing.

Who is going to be able to step back in when that parent loses fitness again and take the child? The legislature made a policy choice here, and they have really swung the pendulum in favor of parental rights. There are a number of issues in these statutes that are going to take years for courts to sort out, and hopefully there will be some changes, amendments, updates to these legislative issues to try and help fix them.

But in the meantime, if you are seeing weird issues playing out or problematic issues playing out in court, please reach out to me and let me know what you’re seeing. I am still connected with a lot of people that have been involved with lobbying and with getting these statutes into the family code in the first place, and they’ve asked me, “When you see problems, tell us.”

So, if I don’t know, I can’t share it. If they don’t know, they can’t do anything about it. So if you are seeing problems, people who should have standing aren’t getting it, parents who really shouldn’t be getting their kids back are able to because of loopholes created by these statutes, definitely let me know, and I’ll keep doing the work in this area and see what we can do to tighten it up and help protect both constitutional parental rights and keep children safe and in the best place for them.

A few practical takeaways for all of you. Number one, if you represent the non-parent, the affidavit is mandatory. It is a high bar. It is required. Do it immediately.

Number two, if you’re representing a parent against a non-parent, if there is no affidavit, plead the jurisdiction or motion to dismiss. If there is an affidavit, challenge that affidavit immediately and specifically in the same way you would a grandparent case.

Do not wait for trial to raise these issues. If you have existing non-parent conservatorship orders, pull those orders now and see what findings are in them. Was it agreed? Is this going to allow you to kick out a non-parent? On the agreed arrangement problem, until the legislature fixes 102.0031, please take my advice and find that parents and non-parents can, by agreement, get agreed orders for non-parents without requiring the affidavit and without requiring findings in the order, because that is what is best for a lot of families.

And finally, preserve everything for appeal. There is going to be a lot of appellate case law forthcoming because there are so many issues with these statutes. If you are seeing these issues and you think you may have a mandamus or you may have an appeal, please reach out to me. I would love to discuss it with you, um, and either just give you my insight or help your client with a mandamus or an appeal if it is appropriate.

So, in closing, I want to thank all of the lawyers and Texas family lawyers that chimed in with feedback about what you’re seeing. Keep sending me your observations. Keep sending me your insight. This is an evolving area, and I’m sure this will not be the last update on parent versus non-parent custody litigation in Texas that you will hear from me.

As always, if you enjoyed this episode, please take a moment to leave us a review and subscribe to enjoy future episodes. Thanks, everybody.

Announcer:  The Texas Family Law Insiders Podcast is sponsored by the Draper Law Firm. We help people navigate divorce and child custody cases and handle family law and appellate matters.

For more information, visit our website at www.draperfirm.com.