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H.B. No. 260
AN ACT
relating to suits affecting the parent-child relationship,
protective orders, and collaborative law.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
SECTION 1. Section 6.603, Family Code, is amended by adding
Subsection (h) to read as follows:
(h) The provisions for confidentiality of alternative
dispute resolution procedures as provided in Chapter 154, Civil
Practice and Remedies Code, apply equally to collaborative law
procedures under this section.
SECTION 2. Chapter 81, Family Code, is amended by adding
Section 81.009 to read as follows:
Sec. 81.009. APPEAL. (a) Except as provided by Subsections
(b) and (c), a protective order rendered under this subtitle may be
appealed.
(b) A protective order rendered against a party in a suit
for dissolution of a marriage may not be appealed until the time the
final decree of dissolution of the marriage becomes a final,
appealable order.
(c) A protective order rendered against a party in a suit
affecting the parent-child relationship may not be appealed until
the time an order providing for support of the child or possession
of or access to the child becomes a final, appealable order.
SECTION 3. Section 102.004, Family Code, is amended to read
as follows:
Sec. 102.004. STANDING FOR GRANDPARENT OR OTHER PERSON.
(a) In addition to the general standing to file suit provided by
Section 102.003[(13)], a grandparent may file an original suit
requesting managing conservatorship if there is satisfactory proof
to the court that:
(1) the order requested is necessary because the
child's present circumstances would significantly impair
[environment presents a serious question concerning] the child's
physical health or emotional development [welfare]; or
(2) both parents, the surviving parent, or the
managing conservator or custodian either filed the petition or
consented to the suit.
(b) An original suit requesting possessory conservatorship
may not be filed by a grandparent or other person. However, the
court may grant a grandparent or other person deemed by the court to
have had substantial past contact with the child leave to intervene
in a pending suit filed by a person authorized to do so under this
subchapter if there is satisfactory proof to the court that
appointment of a parent as a sole managing conservator or both
parents as joint managing conservators would significantly impair
the child's physical health or emotional development.
(c) Possession of or access [Access] to a child by a
grandparent is governed by the standards established by Chapter
153.
SECTION 4. Section 102.009(a), Family Code, is amended to
read as follows:
(a) Except as provided by Subsection (b), the following are
entitled to service of citation on the filing of a petition in an
original suit:
(1) a managing conservator;
(2) a possessory conservator;
(3) a person having possession of or access to the
child under an order;
(4) a person required by law or by order to provide for
the support of the child;
(5) a guardian of the person of the child;
(6) a guardian of the estate of the child;
(7) each parent as to whom the parent-child
relationship has not been terminated or process has not been waived
under Chapter 161;
(8) an alleged father, unless there is attached to the
petition an affidavit of waiver of interest in a child executed by
the alleged father as provided by Chapter 161 or unless the
petitioner has complied with the provisions of Section
161.002(b)(2) or (b)(3);
(9) a man who has filed a notice of intent to claim
paternity as provided by Chapter 160;
(10) the Department of Family and Protective [and
Regulatory] Services, if the petition requests that the department
be appointed as managing conservator of the child; [and]
(11) the Title IV-D agency, if the petition requests
the termination of the parent-child relationship and support rights
have been assigned to the Title IV-D agency under Chapter 231;
(12) a prospective adoptive parent to whom standing
has been conferred under Section 102.0035; and
(13) a person designated as the managing conservator
in a revoked or unrevoked affidavit of relinquishment under
Chapter 161 or to whom consent to adoption has been given in writing
under Chapter 162.
SECTION 5. Section 105.008(a), Family Code, is amended to
read as follows:
(a) The clerk of the court shall provide the state case
registry with a record of a court order for child support [as
required by procedures adopted under Section 234.003]. The record
of an order shall include information provided by the parties on a
form developed by the Title IV-D agency. The form shall be
completed by the petitioner and submitted to the clerk at the time
the order is filed for record.
SECTION 6. Section 105.009, Family Code, is amended by
adding Subsection (m) to read as follows:
(m) A course under this section must be available in both
English and Spanish.
SECTION 7. Section 153.0071, Family Code, is amended by
adding Subsection (e-1) to read as follows:
(e-1) Notwithstanding Subsections (d) and (e), a court may
decline to enter a judgment on a mediated settlement agreement if
the court finds that:
(1) a party to the agreement was a victim of family
violence, and that circumstance impaired the party's ability to
make decisions; and
(2) the agreement is not in the child's best interest.
SECTION 8. Section 153.0072, Family Code, is amended by
adding Subsection (h) to read as follows:
(h) The provisions for confidentiality of alternative
dispute resolution procedures as provided in Chapter 154, Civil
Practice and Remedies Code, apply equally to collaborative law
procedures under this section.
SECTION 9. Section 153.009, Family Code, is amended to read
as follows:
Sec. 153.009. INTERVIEW OF CHILD IN CHAMBERS. (a) In a
nonjury trial or at a hearing, on the application of a party, the
amicus attorney, or the attorney ad litem for the child, the court
shall [may] interview [the child] in chambers a child 12 years of
age or older and may interview in chambers a child under 12 years of
age to determine the child's wishes as to conservatorship or as to
the person who shall have the exclusive right to determine the
child's primary residence. The court may also interview a child in
chambers on the court's own motion for a purpose specified by this
subsection.
(b) In a nonjury trial or at a hearing, on the application of
a party, the amicus attorney, or the attorney ad litem for the child
or on the court's own motion, the court may interview the child in
chambers to determine the child's wishes as to possession, access,
or any other issue in the suit affecting the parent-child
relationship [When the issue of managing conservatorship is
contested, on the application of a party, the court shall interview
a child 12 years of age or older and may interview a child under 12
years of age].
(c) Interviewing a child does not diminish the discretion of
the court in determining the best interests of the child.
(d) In a jury trial, the court may not interview the child in
chambers regarding an issue on which a party is entitled to a jury
verdict.
(e) In any trial or hearing, the [(c) The] court may permit
the attorney for a party, the amicus attorney, the guardian ad litem
for the child, or the attorney ad litem for the child to be present
at the interview.
(f) [(d)] On the motion of a party, the amicus attorney, or
the attorney ad litem for the child, or on the court's own motion,
the court shall cause a record of the interview to be made when the
child is 12 years of age or older. A record of the interview shall
be part of the record in the case.
SECTION 10. Section 153.132, Family Code, is amended to
read as follows:
Sec. 153.132. RIGHTS AND DUTIES OF PARENT APPOINTED SOLE
MANAGING CONSERVATOR. Unless limited by court order, a parent
appointed as sole managing conservator of a child has the rights and
duties provided by Subchapter B and the following exclusive rights:
(1) the right to designate the primary residence of
the child;
(2) the right to consent to medical, dental, and
surgical treatment involving invasive procedures;
(3) the right [, and] to consent to psychiatric and
psychological treatment;
(4) [(3)] the right to receive and give receipt for
periodic payments for the support of the child and to hold or
disburse these funds for the benefit of the child;
(5) [(4)] the right to represent the child in legal
action and to make other decisions of substantial legal
significance concerning the child;
(6) [(5)] the right to consent to marriage and to
enlistment in the armed forces of the United States;
(7) [(6)] the right to make decisions concerning the
child's education;
(8) [(7)] the right to the services and earnings of
the child; and
(9) [(8)] except when a guardian of the child's estate
or a guardian or attorney ad litem has been appointed for the child,
the right to act as an agent of the child in relation to the child's
estate if the child's action is required by a state, the United
States, or a foreign government.
SECTION 11. Section 153.134(a), Family Code, is amended to
read as follows:
(a) If a written agreement of the parents is not filed with
the court, the court may render an order appointing the parents
joint managing conservators only if the appointment is in the best
interest of the child, considering the following factors:
(1) whether the physical, psychological, or emotional
needs and development of the child will benefit from the
appointment of joint managing conservators;
(2) the ability of the parents to give first priority
to the welfare of the child and reach shared decisions in the
child's best interest;
(3) whether each parent can encourage and accept a
positive relationship between the child and the other parent;
(4) whether both parents participated in child rearing
before the filing of the suit;
(5) the geographical proximity of the parents'
residences;
(6) if the child is 12 years of age or older, the
child's preference, if any, regarding the person to have the
exclusive right to designate the primary residence of the child
[appointment of joint managing conservators]; and
(7) any other relevant factor.
SECTION 12. Section 153.312(b), Family Code, is amended to
read as follows:
(b) The following provisions govern possession of the child
for vacations and certain specific holidays and supersede
conflicting weekend or Thursday [Wednesday] periods of possession.
The possessory conservator and the managing conservator shall have
rights of possession of the child as follows:
(1) the possessory conservator shall have possession
in even-numbered years, beginning at 6 p.m. on the day the child is
dismissed from school for the school's spring vacation and ending
at 6 p.m. on the day before school resumes after that vacation, and
the managing conservator shall have possession for the same period
in odd-numbered years;
(2) if a possessory conservator:
(A) gives the managing conservator written
notice by April 1 of each year specifying an extended period or
periods of summer possession, the possessory conservator shall have
possession of the child for 30 days beginning not earlier than the
day after the child's school is dismissed for the summer vacation
and ending not later than seven days before school resumes at the
end of the summer vacation, to be exercised in not more than two
separate periods of at least seven consecutive days each; or
(B) does not give the managing conservator
written notice by April 1 of each year specifying an extended period
or periods of summer possession, the possessory conservator shall
have possession of the child for 30 consecutive days beginning at 6
p.m. on July 1 and ending at 6 p.m. on July 31;
(3) if the managing conservator gives the possessory
conservator written notice by April 15 of each year, the managing
conservator shall have possession of the child on any one weekend
beginning Friday at 6 p.m. and ending at 6 p.m. on the following
Sunday during one period of possession by the possessory
conservator under Subdivision (2), provided that the managing
conservator picks up the child from the possessory conservator and
returns the child to that same place; and
(4) if the managing conservator gives the possessory
conservator written notice by April 15 of each year or gives the
possessory conservator 14 days' written notice on or after April 16
of each year, the managing conservator may designate one weekend
beginning not earlier than the day after the child's school is
dismissed for the summer vacation and ending not later than seven
days before school resumes at the end of the summer vacation, during
which an otherwise scheduled weekend period of possession by the
possessory conservator will not take place, provided that the
weekend designated does not interfere with the possessory
conservator's period or periods of extended summer possession or
with Father's Day if the possessory conservator is the father of the
child.
SECTION 13. Subchapter F, Chapter 153, Family Code, is
amended by adding Section 153.3161 to read as follows:
Sec. 153.3161. LIMITED POSSESSION DURING MILITARY
DEPLOYMENT. (a) In addition to the general terms and conditions of
possession required by Section 153.316, if a possessory conservator
or a joint managing conservator of the child without the exclusive
right to designate the primary residence of the child is currently a
member of the armed forces of the state or the United States or is
reasonably expected to join those forces, the court shall:
(1) permit that conservator to designate a person who
may exercise limited possession of the child during any period that
the conservator is deployed outside of the United States; and
(2) if the conservator elects to designate a person
under Subdivision (1), provide in the order for limited possession
of the child by the designated person under those circumstances,
subject to the court's determination that the limited possession is
in the best interest of the child.
(b) If the court determines that the limited possession is
in the best interest of the child, the court shall provide in the
order that during periods of deployment:
(1) the designated person has the right to possession
of the child on the first weekend of each month beginning at 6 p.m.
on Friday and ending at 6 p.m. on Sunday;
(2) the other parent shall surrender the child to the
designated person at the beginning of each period of possession at
the other parent's residence;
(3) the designated person shall return the child to
the other parent's residence at the end of each period of
possession;
(4) the child's other parent and the designated person
are subject to the requirements of Sections 153.316(5)-(9);
(5) the designated person has the rights and duties of
a nonparent possessory conservator under Section 153.376(a) during
the period that the person has possession of the child; and
(6) the designated person is subject to any provision
in a court order restricting or prohibiting access to the child by
any specified individual.
(c) After the deployment is concluded, and the deployed
parent returns to that parent's usual residence, the designated
person's right to limited possession under this section terminates
and the rights of all affected parties are governed by the terms of
any court order applicable when a parent is not deployed.
SECTION 14. Sections 155.201(a) and (b), Family Code, are
amended to read as follows:
(a) On the filing of a motion showing that a suit for
dissolution of the marriage of the child's parents has been filed in
another court and requesting a transfer to that court, the court
having continuing, exclusive jurisdiction of a suit affecting the
parent-child relationship shall, within the time required by
Section 155.204, transfer the proceedings to the court in which the
dissolution of the marriage is pending. The motion must comply with
the requirements of Section 155.204(a).
(b) If a suit to modify or a motion to enforce an order is
filed in the court having continuing, exclusive jurisdiction of a
suit, on the timely motion of a party the court shall, within the
time required by Section 155.204, transfer the proceeding to
another county in this state if the child has resided in the other
county for six months or longer.
SECTION 15. Section 155.204, Family Code, is amended to
read as follows:
Sec. 155.204. PROCEDURE FOR TRANSFER. (a) A motion to
transfer under Section 155.201(a) may be filed at any time. The
motion must contain a certification that all other parties,
including the attorney general, if applicable, have been informed
of the filing of the motion.
(b) Except as provided by Subsection (a) or Section 262.203,
a motion to transfer by a petitioner or movant is timely if it is
made at the time the initial pleadings are filed. A motion to
transfer by another party is timely if it is made on or before the
first Monday after the 20th day after the date of service of
citation or notice of the suit or before the commencement of the
hearing, whichever is sooner.
(c) If a timely motion to transfer has been filed and no
controverting affidavit is filed within the period allowed for its
filing, the proceeding shall, not later than the 21st day after the
final date of the period allowed for the filing of a controverting
affidavit, be transferred [promptly] without a hearing to the
proper court.
(d) [(b)] On or before the first Monday after the 20th day
after the date of notice of a motion to transfer is served, a party
desiring to contest the motion must file a controverting affidavit
denying that grounds for the transfer exist.
(e) [(c)] If a controverting affidavit contesting the
motion to transfer is filed, each party is entitled to notice not
less than 10 days before the date of the hearing on the motion to
transfer.
(f) [(d)] Only evidence pertaining to the transfer may be
taken at the hearing.
(g) If the court finds after the hearing on the motion to
transfer that grounds for the transfer exist, the proceeding shall
be transferred to the proper court not later than the 21st day after
the date the hearing is concluded.
(h) [(e)] An order transferring or refusing to transfer the
proceeding is not subject to interlocutory appeal.
(i) [(f)] If a transfer order has been signed [rendered] by
a court exercising jurisdiction under Chapter 262, a party may file
the transfer order with the clerk of the court of continuing,
exclusive jurisdiction. On receipt and without a hearing, the
clerk of the court of continuing, exclusive jurisdiction shall
transfer the files as provided by this subchapter.
SECTION 16. Sections 155.207(a), (b), and (c), Family Code,
are amended to read as follows:
(a) On the signing [rendition] of an order of transfer, the
clerk of the court transferring a proceeding shall send to the
proper court in the county to which transfer is being made:
(1) the pleadings in the [complete files in all
matters affecting the child in any] pending proceeding and any
other document specifically requested by a party;
(2) certified copies of all entries in the minutes;
and
(3) [a certified copy of any order of dissolution of
marriage rendered in a suit joined with the suit affecting the
parent-child relationship; and
[(4)] a certified copy of each final order [rendered].
(b) The clerk of the transferring court shall keep a copy of
the transferred pleadings and other requested documents [files].
If the transferring court retains jurisdiction of another child who
was the subject of the suit, the clerk shall send a copy of the
pleadings and other requested documents [complete files] to the
court to which the transfer is made and shall keep the original
pleadings and other requested documents [files].
(c) On receipt of the pleadings [files], documents, and
orders from the transferring court, the clerk of the transferee
court shall docket the suit and shall notify all parties, the clerk
of the transferring court, and, if appropriate, the transferring
court's local registry that the suit has been docketed.
SECTION 17. Section 156.006(b), Family Code, is amended to
read as follows:
(b) While a suit for modification is pending, the court may
not render a temporary order that has the effect of changing the
designation of the person who has the exclusive right to designate
the primary residence of the child under the final order unless:
(1) the order is necessary because the child's present
circumstances would significantly impair [living environment may
endanger] the child's physical health or [significantly impair the
child's] emotional development;
(2) the person designated in the final order has
voluntarily relinquished the primary care and possession of the
child for more than six months and the temporary order is in the
best interest of the child; or
(3) the child is 12 years of age or older and has filed
with the court in writing the name of the person who is the child's
preference to have the exclusive right to designate the primary
residence of the child and the temporary order designating that
person is in the best interest of the child.
SECTION 18. Subchapter B, Chapter 156, Family Code, is
amended by adding Section 156.105 to read as follows:
Sec. 156.105. MODIFICATION OF ORDER BASED ON MILITARY
DEPLOYMENT. (a) The military deployment outside this country of a
person who is a possessory conservator or a joint managing
conservator without the exclusive right to designate the primary
residence of the child is a material and substantial change of
circumstances sufficient to justify a modification of an existing
court order or portion of a decree that sets the terms and
conditions for the possession of or access to a child.
(b) If the court determines that modification is in the best
interest of the child, the court may modify the order or decree to
provide in a manner consistent with Section 153.3161 for limited
possession of the child during the period of the deployment by a
person designated by the deployed conservator.
SECTION 19. Section 156.401, Family Code, is amended by
amending Subsections (a) and (d) and adding Subsection (a-1) to
read as follows:
(a) Except as provided by Subsection (a-1) or (b), the court
may modify an order that provides for the support of a child if:
(1) the circumstances of the child or a person
affected by the order have materially and substantially changed
since the earlier of:
(A) the date of the order's rendition; or
(B) the date of the signing of a mediated or
collaborative law settlement agreement on which the order is based;
or
(2) it has been three years since the order was
rendered or last modified and the monthly amount of the child
support award under the order differs by either 20 percent or $100
from the amount that would be awarded in accordance with the child
support guidelines.
(a-1) If the parties agree to an order under which the
amount of child support differs from the amount that would be
awarded in accordance with the child support guidelines, the court
may modify the order only if the circumstances of the child or a
person affected by the order have materially and substantially
changed since the date of the order's rendition.
(d) Release of a child support obligor from incarceration is
a material and substantial change in circumstances for purposes of
this section [Subsection (a)(1)] if the obligor's child support
obligation was abated, reduced, or suspended during the period of
the obligor's incarceration.
SECTION 20. Sections 156.410(a) and (c), Family Code, are
amended to read as follows:
(a) For purposes of Section 156.401 [156.401(a)(1)], the
fact that an obligor has been called into active military service in
any branch of the United States armed forces is a material and
substantial change in circumstances if that active military
service:
(1) is for at least 30 consecutive days; and
(2) results in a decrease in the obligor's net
resources during the period of service.
(c) Return of the obligor from the active military service
described by Subsection (a) is a material and substantial change in
circumstances for purposes of Section 156.401 [156.401(a)(1)] for
which an obligee may file a motion for modification of a child
support order if the court previously modified the order on the
grounds described by Subsection (a).
SECTION 21. Section 157.005(b), Family Code, is amended to
read as follows:
(b) The court retains jurisdiction to confirm the total
amount of child support arrearages and render judgment for past-due
child support if a motion for enforcement requesting a money
judgment is filed not later than the 10th anniversary after the
date:
(1) the child becomes an adult; or
(2) on which the child support obligation terminates
under the child support order or by operation of law [until the date
all current child support and medical support and child support
arrearages, including interest and any applicable fees and costs,
have been paid].
SECTION 22. Section 160.760, Family Code, is amended by
adding Subsection (d) to read as follows:
(d) If the intended parents fail to file the notice required
by Subsection (a), the gestational mother or an appropriate state
agency may file the notice required by that subsection. On a
showing that an order validating the gestational agreement was
rendered in accordance with Section 160.756, the court shall order
that the intended parents are the child's parents and are
financially responsible for the child.
SECTION 23. Section 162.017(d), Family Code, is amended to
read as follows:
(d) Nothing in this chapter precludes or affects the rights
of a biological or adoptive maternal or paternal grandparent to
reasonable possession of or access to a grandchild, as provided in
Chapter 153.
SECTION 24. Section 81.009, Family Code, as added by this
Act, applies only to a protective order rendered on or after the
effective date of this Act. A protective order rendered before the
effective date of this Act is governed by the law in effect on the
date the order was rendered, and the former law is continued in
effect for that purpose.
SECTION 25. The changes in law made by this Act to Sections
102.004 and 102.009, Family Code, apply only to an original suit
affecting the parent-child relationship filed on or after the
effective date of this Act. An original suit affecting the
parent-child relationship filed before the effective date of this
Act is governed by the law in effect on the date that the suit was
filed, and the former law is continued in effect for that purpose.
SECTION 26. The changes in law made by this Act to Sections
153.0071 and 153.009, Family Code, apply only to a suit affecting
the parent-child relationship pending before a trial court on or
filed on or after the effective date of this Act.
SECTION 27. The change in law made by this Act to Section
153.134, Family Code, applies only to an original suit affecting
the parent-child relationship or a suit for modification filed on
or after the effective date of this Act. An original suit affecting
the parent-child relationship or a suit for modification filed
before the effective date of this Act is governed by the law in
effect on the date that the suit was filed, and the former law is
continued in effect for that purpose.
SECTION 28. The changes in law made by this Act to Sections
155.201, 155.204, and 155.207, Family Code, apply only to a motion
to transfer a suit affecting the parent-child relationship filed on
or after the effective date of this Act. A motion to transfer a suit
affecting the parent-child relationship filed before the effective
date of this Act is governed by the law in effect on the date that
the motion was filed, and the former law is continued in effect for
that purpose.
SECTION 29. Section 153.3161, Family Code, as added by this
Act, applies only to a suit affecting the parent-child relationship
pending in a trial court on or filed on or after the effective date
of this Act.
SECTION 30. The change in law made by this Act to Section
156.006, Family Code, applies only to a suit for modification filed
on or after the effective date of this Act. A suit for modification
filed before the effective date of this Act is governed by the law
in effect on the date that the suit was filed, and the former law is
continued in effect for that purpose.
SECTION 31. Section 156.105, Family Code, as added by this
Act, applies only to an action to modify an order in a suit
affecting the parent-child relationship pending in a trial court on
or filed on or after the effective date of this Act.
SECTION 32. The change in law made by this Act to Section
156.401, Family Code, applies only to a suit for modification
pending before a trial court on or filed on or after the effective
date of this Act.
SECTION 33. The change in law made by this Act to Section
157.005, Family Code, relating to the enforcement of a child
support order rendered before the effective date of this Act
applies only to a proceeding for enforcement that is commenced on or
after the effective date of this Act. A proceeding for enforcement
that is commenced before the effective date of this Act is governed
by the law in effect on the date the proceeding was commenced, and
the former law is continued in effect for that purpose.
SECTION 34. This Act takes effect immediately if it
receives a vote of two-thirds of all the members elected to each
house, as provided by Section 39, Article III, Texas Constitution.
If this Act does not receive the vote necessary for immediate
effect, this Act takes effect September 1, 2005.
______________________________ ______________________________
President of the Senate Speaker of the House
I certify that H.B. No. 260 was passed by the House on May 10,
2005, by the following vote: Yeas 142, Nays 0, 2 present, not
voting; that the House refused to concur in Senate amendments to
H.B. No. 260 on May 27, 2005, and requested the appointment of a
conference committee to consider the differences between the two
houses; and that the House adopted the conference committee report
on H.B. No. 260 on May 29, 2005, by the following vote: Yeas 139,
Nays 0, 2 present, not voting.
______________________________
Chief Clerk of the House
I certify that H.B. No. 260 was passed by the Senate, with
amendments, on May 25, 2005, by the following vote: Yeas 31, Nays
0; at the request of the House, the Senate appointed a conference
committee to consider the differences between the two houses; and
that the Senate adopted the conference committee report on H.B. No.
260 on May 29, 2005, by the following vote: Yeas 31, Nays 0.
______________________________
Secretary of the Senate
APPROVED: __________________
Date
__________________
Governor