Texas Family Law Updates for SIJS Practitioners

Under Texas Family Code § 102.0031, a non-parent petitioner in a SAPCR must now execute and serve with the petition an affidavit that states denying the relief being sought would significantly impair the child’s physical health or emotional development. The affidavit should include facts supporting why this impairment would occur and be based on either the non-parent’s personal knowledge or any representations made to the non-parent by someone else with personal knowledge of the matter. The court can deny the relief being sought if the affidavit is missing or if it does not contain sufficient supporting facts. The affidavit is also going to be necessary to overcome the new presumptions about when being with a parent is in the best interests of the child, which were added to Texas Family Code § 153.002 as part of the same senate bill and are explained further below. These new requirements come from S.B. 2052, 89th Leg., R.S., Ch. 236, Sec. 1, eff. September 1, 2025.

In SIJS cases filed by a non-parent, it is important to include this affidavit with the initial filing materials. The affidavit must be filed by non-parent petitioners in both original SAPCRs and cases seeking to modify a prior order. Texas Law Help created a sample “Affidavit for Standing of Nonparent” that is meant to address these new requirements in Texas Family Code § 102.0031 and is available online here. Note that the affidavit should be notarized. See also Texas Law Help, “General Affidavits” (explaining that affidavits in Texas are generally notarized).

Texas Family Code § 153.002—the section of the code discussing the best interests of the child—was amended to add a rebuttal presumption in subsection (b) that “a parent acts in the best interest of the parent’s child” and “it is in the best interest of a child to be in the care, custody, and control of a parent.” The statute specifies that these presumptions apply in suits between a parent and a nonparent. Subsection (c) explains how a non-parent petitioner can overcome the presumption by providing clear and convincing evidence that “denial of the relief requested by the nonparent would significantly impair the child's physical health or emotional development.” In granting relief to the non-parent, the court is required under Texas Family Code § 153.002(c)(1)-(2) to state in the order that the parental presumption has been overcome and to identify the facts supporting the findings that denying the requested relief would significantly impair the child’s physical health or emotional development.

In addition, Texas Family Code § 156.008 was added to address how this new presumption applies in modification cases involving a parent and non-parent. Section 156.008 is called “Additional Requirements in Suit for Modification Between Parent and Nonparent” and states that a non-parent in a modification case who is required to overcome the presumptions in Texas Family Code § 153.002(b) must do so by clear and convincing evidence and that they cannot overcome the presumption based on a prior order granting relief to the non-parent if the parent previously agreed to the prior order. The new presumptions for original SAPCRs and modification cases and how to overcome them were enacted by S.B. 2052, 89th Leg., R.S., Ch. 236, Sec. 2, eff. September 1, 2025.

As a practical matter, the affidavit that the non-parent is now required to file with the petition under Texas Family Code § 102.0031 (see above) should contain the necessary facts to rebut the presumption in Texas Family Code § 153.002. The proposed order in a non-parent case will also need to address the presumption and should contain a statement that the presumption has been rebutted along with identifying the facts that show how denying relief would significantly impair the child’s physical health or emotional development. While these code provisions are new, there is prior caselaw in family cases involving a non-parent discussing what may constitute a significant impairment to the child’s physical health or emotional development. See e.g., Rolle v. Hardy, 527 S.W.3d 405, 420 (Tex. App.—Houston [1st Dist.] 2017, no pet.); In re L.D.F., 445 S.W.3d 823, 830 (Tex. App.—El Paso 2014, no pet.).

Texas Family Code § 102.004 was amended to broaden the scope of family members who have standing to file a SAPCR for managing conservatorship. These standing changes come from H.B. 2350, 89th Leg., R.S., Ch. 402, Sec. 2, eff. September 1, 2025. The previous version of the code limited standing for an original suit for managing conservatorship to relatives within the third degree of consanguinity. Now the code provides that anyone related to the child within the fourth degree of consanguinity may file an original suit requesting managing conservatorship if the court finds the requested relief is necessary because “the child’s present circumstances would significantly impair the child’s physical health or emotional development” or because “both parents, the surviving parent, or the managing conservator or custodian either filed the petition or consented to the suit.” Texas Family Code § 102.003(a)(12) similarly changed when a relative has standing to file a SAPCR if the child’s parents are deceased from the third to the fourth degree of consanguinity. Relatives in the fourth degree of consanguinity include first cousins, grandnieces/grandnephews, and great-great grandchildren. See Texas Health and Human Services, “Appendix XIII, Definition of the Term ‘Relative’” (revision effective June 23, 2021).

In addition, Texas Family Code § 102.003 changed when someone may have standing because the child has been in their care and custody for a certain period of time. Subsection (a)(9) previously conferred standing based on at least 6 months of “actual”  care, control, and possession of the child. The code now requires “exclusive” care, control, and possession of the child. It remains to be seen how the court will interpret what it is required to show exclusive care, control and possession of the child for purposes of establishing standing. The revised code provisions do not define the term exclusivity, although it will likely be interpreted as a higher standard than the “actual” care, custody, and possession required to establish standing under the previous version of subsection (a)(9).

Moreover, a relative now has standing to file an original suit under subsection (a)(11). The legislature decided to remove a previous ground for standing that had allowed certain persons who had resided with a child and the child’s guardian or parent to file an original suit when the guardian or parent was deceased.

Texas Family Code § 102.008 addresses the contents for filing a petition. Subsection (c-1) was recently added and requires the petitioner in a SAPCR to “submit to the court a certified copy of the child's birth certificate if available to the petitioner.” When certified copies are not available or if the certified copy does not name both of the child’s parents, “the court may request from any party at any time during the pendency of the suit alternative proof of the identity of the child's parents.” The new code provision further provides that “the court shall seal or otherwise keep confidential any certificate or other proof submitted under this subsection.” This new requirement was enacted by H.B. 1973, 89th Leg., R.S., Ch. 1076, Sec. 1, eff. September 1, 2025.

It is common for a child seeking SIJS determinations to not have a certified copy of their birth certificate, and it remains to be seen what courts will consider to be suitable alternative proof of the identity. Most likely the requirements will vary by jurisdiction. If applicable, petitioners should plan to explain to the judge why a certified copy of the birth certificate is not available and may want to include an explanation in the petition to ensure compliance with these new filing requirements of Texas Family Code § 102.008.

Sections 107.024, 107.0245, 107.025, 107.0255, 107.026, and 107.0265 are all new sections of the Texas Family Code that give the court authority to appoint an amicus attorney to ensure the determination of the best interests of the child. The provisions include the qualifications for who may serve as an amicus attorney as well as the amicus attorney’s standard of care, powers, and duties. Amicus attorneys are meant to provide legal services to the court and differ from an attorney ad litem. See Texas Law Help, “Attorneys Ad Litem and Amicus Attorneys in Family Law Cases.” The court is required to consider the costs to the parties before appointing an amicus attorney. See Texas Family Code § 107.024(b)(1)(B). The new provisions about amicus attorneys were added by H.B. 2530, 89th Leg., R.S., Ch. 594 (), Sec. 6, eff. September 1, 2025.

Many SIJS cases are uncontested and may not require an amicus attorney for the court to determine what is in the best interest of the child. It is recommended to consider the potential costs and case delays before asking the court to appoint an amicus attorney.

The legislature changed the definitions of abuse and neglect under the Texas Family Code to address when a parent refuses to affirm a child’s gender perception or expression of sexual orientation. These changes come from H.B. 1151, 89th Leg., R.S., Ch. 215 (), Sec. 2, and H.B. 1106, 89th Leg., R.S., Ch. 555, Sec. 1. Under Texas Family Code § 261.001(1-a), the definition of abuse now does not include “the refusal by a person responsible for a child's care, custody, or welfare to affirm: (A)  a child's perception of the child's gender, including a refusal to use a child's preferred name or pronouns, regardless of whether the child's name has been legally changed; or (B) a child's expressed sexual orientation.” Under Texas Family Code § 261.001(4)(B), the definition of neglect now does not include “(iv)  the refusal by a person responsible for a child's care, custody, or welfare to affirm: (a)  a child's perception of the child's gender, including a refusal to use a child's preferred name or pronouns, regardless of whether the child's name has been legally changed; or (b) a child's expressed sexual orientation.” The definition of “neglect” was also amended to specify that it does not include: “(v) choosing a recognized alternative health care treatment or therapy for the child that could be considered as new, emerging, or nonstandard, unless the treatment or therapy: (a) presents a substantial risk of death, disfigurement, or bodily injury to the child; or (b) results in an observable and material impairment to the growth, development, or functioning of the child.”

Similarly, HB 1151 changed Texas Family Code § 161.001 to specify that it is generally not grounds to terminate the parent-child relationship when a parent refuses to administer or consent to psychotropic medications or chooses alternative health care treatments unless they present substantial risks.

A more minor change to the code may apply in cases seeking to protect certain information from being disclosed in the final order due to safety concerns. Texas Family Code § 105.006 sets forth general information about the parties that the court usually must include in a final order for a SAPCR. Subsection (c) allows the court to order that certain information not be included if disclosing that information to another party “is likely to cause the child or a conservator harassment, abuse, serious harm, or injury, or to subject the child or a conservator to family violence.” The new code provision in subsection (c-1) states that if the court prohibits the disclosure of information under subsection (c) then the party must provide an e-mail address to include in the final order for notice and service of process of subsequent motions, petitions, or other legal pleadings using the electronic filing systems, along with any other required notice of legal documents. This addition comes from S.B. 1404, 89th Leg., R.S., Ch. 828, Sec. 1, eff. September 1, 2025.