Section 102.0031 Affidavit Controls Nonparent Standing | In re L.S. Jr. (2026)

In re L.S. Jr., 02-26-00574-CV, October 06, 2026.

On appeal from 78th District Court of Wichita County, Texas

Synopsis

Texas Family Code Section 102.0031 applies to a nonparent modification suit that remained pending on the statute’s September 1, 2025 effective date, even though the suit was filed earlier. A nonparent’s standing cannot rest on an affidavit that fails to satisfy the new statute; however, when the trial court has not ruled on a request for leave to amend, mandamus requires vacatur of the jurisdictional ruling and a decision on that unresolved request.

Relevance to Family Law

In re L.S. Jr. materially changes the threshold analysis in custody litigation brought by stepparents, grandparents, relatives, and other nonparents relying on actual care, control, and possession. In every pending or newly filed SAPCR or modification proceeding implicating Section 102.0031, counsel must treat the statutory affidavit as a jurisdictional instrument—not merely as an evidentiary preview of the conservatorship merits.

The case also reinforces the separation between standing and the merits. Evidence that a child prefers the nonparent, that the nonparent has served as the child’s psychological parent, or that removing the child from the nonparent could cause emotional harm may be highly relevant to conservatorship and the parental presumption. But favorable temporary orders, an in-chambers interview, and findings concerning significant impairment do not excuse noncompliance with the affidavit requirements governing standing.

Although the decision arises from custody litigation rather than the property division component of divorce, it affects case strategy whenever a divorce or post-divorce proceeding includes intervention or affirmative conservatorship claims by a nonparent. Litigators should resolve standing before investing heavily in discovery, custody evaluations, temporary-order hearings, or trial preparation.

Case Summary

Fact Summary

Mother and Father were joint managing conservators of their child, with Mother holding the right to designate the child’s primary residence. Mother married Stepfather in 2017, and Mother, Stepfather, and the child thereafter lived together as a family. Mother died in January 2025.

On June 26, 2025, Stepfather filed a petition to modify the parent–child relationship. He asserted standing under the then-existing version of Texas Family Code Section 102.003(a)(9), alleging that he had exercised actual care, control, and possession of the child for the required period. He attached an affidavit supporting that allegation.

Stepfather sought appointment as a conservator and requested the exclusive right to designate the child’s primary residence. The trial court interviewed the child in chambers under Section 153.009. In a July 28, 2025 letter, the court found that Stepfather had standing and that appointing Father as the child’s primary custodian would cause significant emotional impairment. The court therefore concluded that Stepfather had overcome the fit-parent presumption.

Section 102.0031 became effective on September 1, 2025. Under its enabling legislation, the new statute applied not only to suits filed on or after that date but also to suits pending on the effective date. Stepfather’s modification proceeding remained pending, but he did not file an amended affidavit addressing Section 102.0031.

The litigation continued. In November 2025, the trial court entered temporary orders appointing Father and Stepfather temporary joint managing conservators and giving Stepfather the exclusive right to designate the child’s primary residence. The court made detailed findings about Father’s absence, the child’s lack of a substantial bond with Father, Stepfather’s role as caregiver, the trauma associated with Mother’s death, and the emotional consequences of removing the child from Stepfather.

In March 2026, Father filed a plea to the jurisdiction and motion to dismiss. He argued that Stepfather’s pre-effective-date affidavit did not comply with Section 102.0031’s heightened requirements. Stepfather responded that his original affidavit was sufficient, but he alternatively requested leave to amend if the court disagreed.

The trial court found the original affidavit sufficient and denied Father’s jurisdictional plea. Because of that ruling, it did not decide Stepfather’s alternative request for leave to amend. Father then sought mandamus relief.

Issues Decided

• Whether Section 102.0031 applies to a nonparent modification suit filed before September 1, 2025, but still pending on that date.

• Whether Stepfather’s original affidavit satisfied Section 102.0031 and could support nonparent standing.

• Whether the trial court abused its discretion by denying Father’s plea to the jurisdiction and motion to dismiss.

• Whether mandamus relief was available to correct the erroneous standing determination.

• What relief was appropriate when Stepfather had requested leave to amend but the trial court had never ruled on that request.

Rules Applied

• Texas Family Code Section 102.003(a)(9): The provision under which Stepfather originally asserted standing based on his exercise of actual care, control, and possession of the child for the statutory period.

• Texas Family Code Section 102.0031: The subsequently effective statute imposing additional requirements on the nonparent standing showing and its supporting affidavit. The enabling legislation made the statute applicable to suits pending on September 1, 2025.

• In re S.N., No. 02-25-00525-CV, 2025 WL 3713587 (Tex. App.—Fort Worth Dec. 22, 2025, orig. proceeding): The Fort Worth court’s prior authority recognizing that Section 102.0031 applies to cases pending on its effective date and adds a requirement to the former Section 102.003(a)(9) framework.

• Texas Family Code Sections 153.009 and 156.101(a)(2): Provisions concerning the child’s in-chambers interview and modification based on the preference of a child who is at least twelve years old.

• In re C.J.C., 603 S.W.3d 804 (Tex. 2020) (orig. proceeding): The controlling authority concerning the constitutional fit-parent presumption in nonparent conservatorship disputes.

• In re Team Rocket, L.P., 256 S.W.3d 257 (Tex. 2008) (orig. proceeding), and In re Prudential Insurance Co. of America, 148 S.W.3d 124 (Tex. 2004) (orig. proceeding): Mandamus requires a clear abuse of discretion and the absence of an adequate appellate remedy. A trial court has no discretion to misapply controlling law.

• SAPCR standing authorities: An erroneous refusal to dismiss a SAPCR for lack of standing is reviewable through mandamus because forcing a party to continue litigating a suit brought by a person without statutory standing is not adequately remedied by an ordinary appeal.

Application

Stepfather filed his modification petition before Section 102.0031 became effective. That fact did not preserve the former standing framework for the life of the case. Because the modification proceeding remained pending on September 1, 2025, the Legislature’s applicability provision subjected it to Section 102.0031.

The original affidavit had been prepared to establish standing under former Section 102.003(a)(9), not the additional requirements imposed by Section 102.0031. Once the new statute became applicable, Stepfather needed an affidavit sufficient under the new standard. He did not amend his affidavit before Father filed the jurisdictional challenge.

The extensive proceedings on conservatorship did not cure the affidavit defect. The trial court had interviewed the child, entered temporary orders, and made findings that removing the child from Stepfather could cause substantial emotional harm. Those matters addressed the conservatorship merits and the parental presumption, but they did not make a statutorily insufficient standing affidavit sufficient.

The trial court therefore misapplied the law when it concluded that Stepfather’s original affidavit complied with Section 102.0031. Because standing determines the court’s authority to adjudicate the nonparent’s claims, the erroneous denial of Father’s plea to the jurisdiction was subject to mandamus review.

The appellate court did not, however, direct the trial court simply to dismiss the case. Stepfather had expressly requested leave to amend if the trial court found his affidavit deficient. The trial court never reached that alternative request because it incorrectly found the affidavit sufficient. The court of appeals therefore required the trial court to vacate its ruling and decide the unresolved amendment request in the first instance.

Holding

Section 102.0031 applied to Stepfather’s modification suit. Although he filed the suit before September 1, 2025, it remained pending on the statute’s effective date and consequently fell within the Legislature’s express applicability provision.

Stepfather’s original affidavit did not satisfy Section 102.0031 and could not support his standing under the governing statutory framework. The trial court abused its discretion by holding otherwise and by denying Father’s plea to the jurisdiction and motion to dismiss on that basis.

Mandamus was appropriate because an ordinary appeal was not an adequate remedy for the erroneous refusal to dismiss a SAPCR brought without a sufficient statutory showing of standing. The court conditionally granted relief and ordered the trial court to vacate the order denying Father’s jurisdictional challenge.

The court did not foreclose amendment. Because Stepfather had requested leave to amend and the trial court had not ruled on that request, the matter was returned with instructions for the trial court to decide whether leave should be granted.

Practical Application

Audit pending nonparent cases immediately. Counsel should identify every pending SAPCR or modification in which a nonparent relies on actual care, control, and possession. If the case was pending on September 1, 2025, pre-effective-date pleading and affidavit practices may no longer be sufficient.

Do not rely on the filing date alone. The operative question is not merely when the petition was filed. Under In re L.S. Jr., a case pending on the effective date is subject to Section 102.0031 even if it began under the former statute.

Treat the affidavit as a stand-alone jurisdictional document. The affidavit should expressly address every applicable statutory requirement through concrete, admissible facts based on personal knowledge. Counsel should not assume that allegations elsewhere in the petition, evidence introduced at temporary orders, or facts contained in a custody evaluation will repair omissions in the affidavit.

Separate standing from the parental presumption. A nonparent may possess compelling evidence that appointing a parent would significantly impair the child. That showing does not necessarily establish that the nonparent invoked the court’s jurisdiction in the manner required by Section 102.0031. Conversely, satisfying the standing statute does not establish entitlement to conservatorship.

Raise standing before litigating the merits. A parent defending against a nonparent claim should consider an early plea to the jurisdiction rather than waiting until after temporary orders. Although standing may remain subject to challenge, delay can complicate the procedural posture and allow disruptive temporary arrangements to remain in place during mandamus proceedings.

Request amendment in the alternative. Counsel for the nonparent should not stake the entire case on the sufficiency of the existing affidavit. A written request for leave to amend should be made expressly and preserved through a ruling. In re L.S. Jr. demonstrates that an unresolved amendment request can affect the scope of mandamus relief.

Obtain separate rulings. When the court finds an affidavit sufficient, ask it to rule conditionally or alternatively on the request for leave to amend. Otherwise, an appellate court may vacate the standing ruling and return the matter for another hearing rather than resolve the entire dispute.

Use caution in divorce-related interventions. A grandparent, stepparent, or other nonparent seeking conservatorship in connection with a divorce cannot rely solely on participation in the family unit or a close relationship with the child. Counsel must identify the precise statutory source of standing and satisfy any affidavit requirement applicable to that source.

Checklists

Filing a Nonparent SAPCR or Modification

• Identify the exact subsection of Chapter 102 supplying standing.
• Determine whether Section 102.0031 applies to the asserted standing theory.
• Confirm whether the case was pending on September 1, 2025.
• Attach the required affidavit at the procedurally appropriate time.
• Address each statutory requirement expressly rather than by implication.
• State concrete facts based on the affiant’s personal knowledge.
• Include relevant dates, caregiving responsibilities, living arrangements, and decision-making history.
• Distinguish jurisdictional facts from best-interest and conservatorship evidence.
• Verify that the petition and affidavit are factually consistent.
• Request leave to amend in the alternative if sufficiency is challenged.

Auditing a Case Filed Before September 1, 2025

• Review the petition’s original standing allegations.
• Review every affidavit previously filed in support of standing.
• Compare the affidavit line by line with Section 102.0031.
• Do not assume compliance with former Section 102.003(a)(9) establishes current compliance.
• Determine whether an amended or supplemental affidavit is necessary.
• File any necessary amendment before the standing issue is heard.
• Confirm that the court rules on both sufficiency and any request for leave to amend.
• Preserve all objections, offers, and rulings in the reporter’s record.

Challenging Nonparent Standing

• Identify the nonparent’s precise statutory standing theory.
• Obtain the operative petition and every supporting affidavit.
• Determine which statutory version applies.
• Challenge missing statutory allegations and missing affidavit facts separately.
• Explain why merits evidence does not substitute for statutory affidavit compliance.
• File a plea to the jurisdiction and motion to dismiss with sufficient time for a developed record.
• Obtain a written order resolving the jurisdictional challenge.
• Address any request for leave to amend at the hearing.
• Consider mandamus promptly if the trial court erroneously denies the jurisdictional plea.
• Explain why ordinary appeal would not provide an adequate remedy.

Preparing the Supporting Affidavit

• Use facts rather than statutory conclusions.
• Establish the affiant’s basis for personal knowledge.
• Provide a clear chronology of the child’s residence and caregiving arrangements.
• Identify the nonparent’s actual responsibilities for the child.
• Describe relevant parental involvement without exaggeration or speculation.
• Address every element required by the current statute.
• Avoid relying exclusively on the child’s preference.
• Avoid incorporating unidentified testimony or future evidence by reference.
• Confirm that all material assertions can be supported at an evidentiary hearing.
• Update the affidavit when statutory amendments alter the governing standard.

Preserving an Amendment Request

• Make the request for leave to amend in writing.
• Present it as an express alternative to the sufficiency argument.
• Tender the proposed amended affidavit when practicable.
• Explain how amendment would cure the identified defect.
• Request a ruling even if the court finds the original affidavit sufficient.
• Object if the court refuses to rule on the alternative request.
• Ensure the request, proposed amendment, and ruling appear in the appellate record.

Citation

In re L.S. Jr., No. 02-26-00574-CV (Tex. App.—Fort Worth Oct. 6, 2026, orig. proceeding) (mem. op.).

Full Opinion

Read the full opinion in In re L.S. Jr.

~~7a1a9827-6913-4133-84bb-47bf996db791~~