E. Petitions to Modify the Parent-Child Relationship

The court may modify an order that provides for the appointment of a conservator of a child, that provides the terms and conditions of conservatorship, or that provides for the possession of or access to a child must show that the modification is in the child's best interest and:

•   The circumstances of the child, a conservator, or other party affected by the order have materially and substantially changed since the earlier of:

◦   the date of the rendition of the order; or

◦   the date of the signing of a mediated or collaborative law settlement on which the order is based;

•   The child is at least 12 years of age and has expressed to the court in chambers as provided by Section 153.009 the name of the person who is the child's preference to have the exclusive right to designate the primary residence of the child; or

•   The conservator who has the exclusive right to designate the primary residence of the child has voluntarily relinquished the primary care and possession of the child to another person for at least six months. Tex. Fam. Code § 156.101(a).

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 Tex. Fam. Code § 156.102(b). Tex. Fam. Code § 156.102(a).

The affidavit must contain, along with supporting facts, at least one of the following allegations that:

•   The child's present environment may endanger the child's physical health or significantly impair the child's emotional development;

•   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

•   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).

The court shall deny the relief sought and refuse to schedule a hearing for modification under this section unless the court determines, on the basis of the affidavit, that facts adequate to support an allegation listed in Tex. Fam. Code § 156.102(b) are stated in the affidavit. If the court determines that the facts stated are adequate to support an allegation, the court shall set a time and place for the hearing. Tex. Fam. Code § 156.102(c). In a jury trial, a jury verdict regarding the right to determine the child's primary residence for a joint or sole managing conservator may be authorized by the court. Tex. Fam. Code § 105.002(c).

A modification of the right to determine primary residence must include a sworn affidavit that shows that the child's present environment may endanger the child's physical health or emotional development. See In re N.A.D., 397 S.W.3d 747 (Tex. App.—San Antonio 2013, no pet.). (Holding that Tex. Fam. Code § 102.006 did not confer standing and the procedural requirements of Tex. Fam. Code § 156.102 applied in cases where a modification of the Department's conservatorship of a child is sought).