This form may be used as a basis for obtaining service of citation by publication and as a basis for obtaining extraordinary relief. The affidavit should state the basis for the affiant’s personal knowledge of the facts alleged. See the practice notes at section 8.58 concerning affidavits generally.
Tex. R. Civ. P. 99 and 103–119 and Tex. Fam. Code §§ 102.009 and 102.010 govern the requirements of citation and notice. Citation is required only once. Tex. R. Civ. P. 109 requires an affidavit for citation by publication.
Except on a verified pleading or an affidavit in accordance with the Texas Rules of Civil Procedure, an order may not be entered attaching the body of the child, taking the child into the possession of the court or of a person designated by the court, or excluding a parent from possession of or access to a child. Tex. Fam. Code § 105.001(c).
If a suit seeking to modify the designation of the person who has the exclusive right to determine the child’s primary residence is filed within a year after the prior order was rendered or the date of a mediated or collaborative law settlement agreement on which the order is based, the person filing the suit must execute and attach an affidavit stating certain facts. Tex. Fam. Code § 156.102.
If temporary orders are sought changing the designation of the person who has the exclusive right to designate the primary residence of the child on the basis of Tex. Fam. Code § 156.006(b)(1) (impairment of child’s physical health or emotional development), the person filing the suit must execute and attach an affidavit stating certain facts. Tex. Fam. Code § 156.006(b–1). In general, an affidavit must “positively and unqualifiedly represent the facts as disclosed in the affidavit to be true and within the affiant’s personal knowledge.” Humphreys v. Caldwell, 888 S.W.2d 469, 470 (Tex. 1994). An affidavit under Tex. Fam. Code § 156.006(b–1), however, may be based on the affiant’s personal knowledge or on the affiant’s belief based on representations made to the affiant by a person with personal knowledge.
Tex. Fam. Code § 152.209 requires that certain information be provided in any child custody proceeding if any party resides outside Texas. See form 56-1 for an affidavit for this purpose.
An unsworn declaration may be used in place of an affidavit. See section 8.58 and form 8-27.
NOTICE: THIS DOCUMENT
CONTAINS SENSITIVE DATA
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See § 6 of the Introduction in volume 1 of this manual concerning protection of sensitive data in filed documents. |
[Caption. See § 3 of the Introduction in volume 1 of this manual.]
Petitioner’s Supporting Affidavit
[Name of petitioner] appeared in person before me today and stated under oath:
“My name is [name of petitioner]. I am above the age of eighteen years, and I am fully competent to make this affidavit. The facts stated in this affidavit are within my personal knowledge [include if applicable for affidavit supporting only a request for temporary order pursuant to Tex. Fam. Code § 156.006(b–1): or belief based on representations made to me by a person with personal knowledge] and are true and correct.
“I am the Petitioner in this case.
1.Citation by Publication
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Allege specific facts showing due diligence regarding attempts at personal service and continue with one of the following. |
1.A.Residence Unknown
TRCP 109
“The residence of [name of person entitled to citation], a party in this case, is unknown to me. I have exercised due diligence to locate the whereabouts of this party and have been unable to do so.[”]
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Or |
1.B.Transient
TRCP 109
“[Name of person entitled to citation], a party in this case, is a transient person. I have exercised due diligence to locate the whereabouts of this party and have been unable to do so.[”]
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Or |
1.C.Absent from State
TRCP 109
“[Name of person entitled to citation], a party in this case, is absent from the state. I have attempted to obtain personal service of nonresident notice on this party as provided for in rule 108 of the Texas Rules of Civil Procedure and have been unable to do so.[”]
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Or |
1.D.Nonresident
TRCP 109
“[Name of person entitled to citation], a party in this case, is a nonresident of this state. I have attempted to obtain personal service of nonresident notice on this party as provided for in rule 108 of the Texas Rules of Civil Procedure and have been unable to do so.[”]
2.Extraordinary Relief
§ 105.001(c)
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If extraordinary relief is sought regarding attaching a child, taking a child into the possession of the court or of a person designated by the court, or excluding a parent from the possession of a child, then, placing the statements in quotation marks, describe in detail, in the words of the affiant, the specific acts and threats of the respondent about harm to the child(ren) or removal of the child(ren). State facts that will inform the court who is principally caring for the child(ren) at this time. |
3.Change of Designation of Person with Right to Designate Primary Residence within 1 Year
§ 156.102
3.A.Present Environment
§ 156.102(b)(1)
“I am well acquainted with the present environment of the child[ren] [name[s] of child[ren]]. The child[ren]’s present environment may endanger [his/her/their] physical health or significantly impair [his/her/their] emotional development. Specific facts that support the above are [state, within quotation marks, specific allegations of supportive facts].”
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Or |
3.B.Consent of Person with Right to Designate
§ 156.102(b)(2)
“I am the person who has the exclusive right to designate the primary residence of [name[s] of child[ren]]. I [seek/consent to] the modification requested in this suit. The modification requested is in the best interest of the child[ren]. Specific facts that support the above are [state, within quotation marks, specific allegations of supportive facts].”
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Or |
3.C.Voluntary Relinquishment
§ 156.102(b)(3)
“The person who has the exclusive right to designate the primary residence of [name[s] of child[ren]] has voluntarily relinquished the primary care and possession of the child[ren] for not less than six months, the voluntary relinquishment is not a result of the conservator’s military deployment, military mobilization, or temporary military duty as those terms are defined in section 153.701 of the Texas Family Code, and the modification requested is in the best interest of the child[ren]. Specific facts that support the above are [state, within quotation marks, specific allegations of supportive facts].”
4.Temporary Order Changing Designation of Person with Right to Designate Primary Residence Based on Impairment
§ 156.006(b–1)
“[I am well acquainted with the present circumstances of the child[ren] [name[s] of child[ren]]/I believe the representations made by [name], a person with personal knowledge of the present circumstances of the child[ren] [names of child[ren]] to be credible]. The child[ren]’s present circumstances would significantly impair [his/her/their] physical health or emotional development. Specific facts that support the above are [state, within quotation marks, specific allegations of supportive facts].”
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Continue with the following. |
[Name of petitioner]
SIGNED under oath before me on ______________________________.
Notary Public, State of Texas