H.B. No. 307
AN ACT
relating to court-ordered representation in suits affecting the
parent-child relationship.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
SECTION 1. Sections 107.002(b), (c), and (e), Family Code,
are amended to read as follows:
(b) A guardian ad litem appointed for the child under this
chapter shall:
(1) within a reasonable time after the appointment,
interview:
(A) the child in a developmentally appropriate
manner, if the child is four years of age or older;
(B) each person who has significant knowledge of
the child's history and condition, including any foster parent of
the child; and
(C) the parties to the suit;
(2) seek to elicit in a developmentally appropriate
manner the child's expressed objectives [of representation];
(3) consider the child's expressed objectives [of
representation] without being bound by those objectives;
(4) encourage settlement and the use of alternative
forms of dispute resolution; and
(5) perform any specific task directed by the court.
(c) A guardian ad litem appointed for the child under this
chapter [is not a party to the suit but] is entitled to:
(1) receive a copy of each pleading or other paper
filed with the court in the case in which the guardian ad litem is
appointed;
(2) receive notice of each hearing in the case;
(3) participate in case staffings by an authorized
agency concerning the child;
(4) attend all legal proceedings in the case but may
not call or question a witness or otherwise provide legal services
unless the guardian ad litem is a licensed attorney who has been
appointed in the dual role;
(5) review and sign, or decline to sign, an agreed
order affecting the child; and
(6) explain the basis for the guardian ad litem's
opposition to the agreed order if the guardian ad litem does not
agree to the terms of a proposed order.
(e) Unless the guardian ad litem is an attorney who has been
appointed in the dual role and subject to the Texas Rules of
Evidence, the court shall ensure in a hearing or in a trial on the
merits that a guardian ad litem has an opportunity to testify
regarding, and is permitted to [or] submit a report regarding, the
guardian ad litem's recommendations relating to [regarding]:
(1) the best interests of the child; and
(2) the bases for the guardian ad litem's
recommendations.
SECTION 2. Section 107.003, Family Code, is amended to read
as follows:
Sec. 107.003. POWERS AND DUTIES OF ATTORNEY AD LITEM FOR
CHILD AND AMICUS ATTORNEY. An attorney ad litem appointed to
represent a child or an amicus attorney appointed to assist the
court:
(1) shall:
(A) subject to Rules 4.02, 4.03, and [Rule] 4.04,
Texas Disciplinary Rules of Professional Conduct, and within a
reasonable time after the appointment, interview:
(i) the child in a developmentally
appropriate manner, if the child is four years of age or older;
(ii) each person who has significant
knowledge of the child's history and condition, including any
foster parent of the child; and
(iii) the parties to the suit;
(B) seek to elicit in a developmentally
appropriate manner the child's expressed objectives of
representation;
(C) consider the impact on the child in
formulating the attorney's presentation of the child's expressed
objectives of representation to the court;
(D) investigate the facts of the case to the
extent the attorney considers appropriate;
(E) [(C)] obtain and review copies of relevant
records relating to the child as provided by Section 107.006;
(F) [(D)] participate in the conduct of the
litigation to the same extent as an attorney for a party;
(G) [(E)] take any action consistent with the
child's interests that the attorney considers necessary to expedite
the proceedings; [and]
(H) [(F)] encourage settlement and the use of
alternative forms of dispute resolution; and
(I) review and sign, or decline to sign, a
proposed or agreed order affecting the child;
(2) must be trained in child advocacy or have
experience determined by the court to be equivalent to that
training; and
(3) is entitled to:
(A) request clarification from the court if the
role of the attorney is ambiguous;
(B) request a hearing or trial on the merits;
(C) consent or refuse to consent to an interview
of the child by another attorney;
(D) receive a copy of each pleading or other
paper filed with the court;
(E) [(B)] receive notice of each hearing in the
suit;
(F) [(C)] participate in any case staffing
concerning the child conducted by an authorized agency; and
(G) [(D)] attend all legal proceedings in the
suit.
SECTION 3. Section 107.004, Family Code, is amended to read
as follows:
Sec. 107.004. ADDITIONAL DUTIES OF ATTORNEY AD LITEM FOR
CHILD. Except as otherwise provided by this chapter, the attorney
ad litem appointed for a child shall, in a developmentally
appropriate manner:
(1) [seek to elicit in a developmentally appropriate
manner the child's expressed objectives of representation;
[(2)] advise the child;
(2) [(3) provide guidance to the child;
[(4)] represent the child's expressed objectives of
representation and follow the child's expressed objectives of
representation during the course of litigation if the attorney ad
litem determines that the child is competent to understand the
nature of an attorney-client relationship and has formed that
relationship with the attorney ad litem;
[(5) consider the impact on the child in formulating
the attorney ad litem's presentation of the child's expressed
objectives of representation to the court;] and
(3) as appropriate, considering the nature of the
appointment, [(6)] become familiar with[:
[(A)] the American Bar Association's standards
of practice for attorneys who represent children in abuse and
neglect cases, [; and
[(B)] the suggested amendments to those
standards adopted by the National Association of Counsel for
Children, and the American Bar Association's standards of practice
for attorneys who represent children in custody cases.
SECTION 4. Section 107.005(b), Family Code, is amended to
read as follows:
(b) An amicus attorney shall, in a developmentally
appropriate manner:
(1) [seek to elicit in a developmentally appropriate
manner the child's expressed objectives of representation;
[(2)] with the consent of the child, ensure that the
child's expressed objectives of representation are made known to
the court;
(2) [(3) consider the impact on the child in
formulating the amicus attorney's presentation of the child's
expressed objectives of representation to the court;
[(4) review and sign, or decline to sign, an agreed
order affecting the child;
[(5) explain the basis for the amicus attorney's
opposition to the agreed order if the amicus attorney does not agree
to the terms of a proposed order;
[(6)] explain the role of the amicus attorney to the
child; [and]
(3) [(7)] inform the child that the amicus attorney
may use information that the child provides in providing assistance
to the court; and
(4) become familiar with the American Bar
Association's standards of practice for attorneys who represent
children in custody cases.
SECTION 5. Section 107.006, Family Code, is amended to read
as follows:
Sec. 107.006. ACCESS TO CHILD AND INFORMATION RELATING TO
CHILD. (a) Except as provided by Subsection (c), in conjunction
with an appointment under this chapter, other than an appointment
of an attorney ad litem for an adult or a parent, the court shall
issue an order authorizing the attorney ad litem, guardian ad litem
for the child, or amicus attorney to have immediate access to [:
[(1)] the child[;] and
[(2)] any [otherwise privileged or confidential]
information relating to the child.
(b) Without requiring a further order or release, the
custodian of any relevant records relating to the child, including
records regarding social services, [drug and alcohol treatment, or
medical or mental health evaluation or treatment of the child,] law
enforcement records, school records, records of a probate or court
proceeding, and records of a trust or account for which the child is
a beneficiary, shall provide access to a person authorized to
access the records under Subsection (a).
(c) A medical, mental health, or drug or alcohol treatment
record of a child [at least 12 years of age] that is privileged or
confidential under other law may be released to a person appointed
under Subsection (a) only in accordance with the other law.
SECTION 6. Sections 107.008(b) and (c), Family Code, are
amended to read as follows:
(b) An [Except as provided by Subsection (c), an] attorney
ad litem or an attorney appointed in the dual role who determines
that the child cannot meaningfully formulate the child's expressed
objectives of representation [under Subsection (a)] may present to
the court a position that the attorney determines will serve the
best interests of the child.
(c) If a guardian ad litem has been appointed for the child
in a suit filed by a governmental entity requesting termination of
the parent-child relationship or appointment of the entity as
conservator of the child, an [An] attorney ad litem [or attorney
appointed in the dual role] who determines that the child cannot
meaningfully formulate the child's expressed objectives of
representation [under Subsection (a) shall, if a guardian ad litem
has been appointed for the child]:
(1) shall consult with the guardian ad litem and,
without being bound by the guardian ad litem's opinion or
recommendation, ensure that the guardian ad litem's opinion and
basis for any recommendation regarding the best interests of the
child are presented to the court; and
(2) may present to the court a position that the
attorney determines will serve [present the child's objectives of
representation to the court based on the guardian ad litem's
opinion regarding] the best interests of the child.
SECTION 7. Section 107.009, Family Code, is amended to read
as follows:
Sec. 107.009. IMMUNITY. (a) A guardian ad litem, an
attorney ad litem, or an amicus attorney appointed under this
chapter is not liable for civil damages arising from an action
taken, a recommendation made, or an opinion given in the capacity of
guardian ad litem, attorney ad litem, or amicus attorney.
(b) Subsection (a) does not apply to an action taken, [or] a
recommendation made, or an opinion given:
(1) with conscious indifference or reckless disregard
to the safety of another;
(2) in bad faith or with malice; or
(3) that is grossly negligent or wilfully wrongful.
SECTION 8. Section 107.021, Family Code, is amended to read
as follows:
Sec. 107.021. DISCRETIONARY APPOINTMENTS. (a) In a suit in
which the best interests of a child are at issue, other than a suit
filed by a governmental entity requesting termination of the
parent-child relationship or appointment of the entity as
conservator of the child, the court may appoint one of the
following:
(1) an amicus attorney;
(2) an attorney ad litem; or
(3) a guardian ad litem.
(a-1) In a suit requesting termination of the parent-child
relationship that is not filed by a governmental entity, the court
shall, unless the court finds that the interests of the child will
be represented adequately by a party to the suit whose interests are
not in conflict with the child's interests, appoint one of the
following:
(1) an amicus attorney; or
(2) an attorney ad litem.
(b) In determining whether to make an appointment under this
section, the court:
(1) shall:
(A) give due consideration to the ability of the
parties to pay reasonable fees to the appointee; and
(B) balance the child's interests against the
cost to the parties that would result from an appointment by taking
into consideration the cost of available alternatives for resolving
issues without making an appointment;
(2) may make an appointment only if the court finds
that the appointment is necessary to ensure the determination of
the best interests of the child, unless the appointment is
otherwise required by this code; and
(3) may not require a person appointed under this
section to serve without reasonable compensation for the services
rendered by the person.
SECTION 9. Section 107.022, Family Code, is amended to read
as follows:
Sec. 107.022. CERTAIN PROHIBITED APPOINTMENTS. In a suit
other than a suit filed by a governmental entity requesting
termination of the parent-child relationship or appointment of the
entity as conservator of the child, the court may not appoint:
(1) an attorney to serve in the dual role; or
(2) a volunteer advocate to serve as guardian ad litem
for a child unless the training of the volunteer advocate is
designed for participation in suits other than suits filed by a
governmental entity requesting termination of the parent-child
relationship or appointment of the entity as conservator of the
child.
SECTION 10. Section 107.023, Family Code, is amended by
amending Subsection (a) and adding Subsection (d) to read as
follows:
(a) In a suit other than a suit filed by a governmental
entity requesting termination of the parent-child relationship or
appointment of the entity as conservator of the child, in addition
to the attorney's fees that may be awarded under Chapter 106, the
following persons are entitled to reasonable fees and expenses in
an amount set by the court and ordered to be paid by one or more
parties to the suit:
(1) an attorney appointed as an amicus attorney or as
an attorney ad litem for the child; and
(2) a professional who holds a relevant professional
license and who is appointed as guardian ad litem for the child,
other than a volunteer advocate.
(d) The court may determine that fees awarded under this
subchapter to an amicus attorney, an attorney ad litem for the
child, or a guardian ad litem for the child are necessaries for the
benefit of the child.
SECTION 11. Section 107.031, Family Code, is amended to
read as follows:
Sec. 107.031. VOLUNTEER ADVOCATES. (a) In a suit filed by
a governmental entity requesting termination of the parent-child
relationship or appointment of the entity as conservator of the
child, the court may appoint a charitable organization composed of
volunteer advocates whose charter mandates the provision of
services to allegedly abused and neglected children or an
individual who has received the court's approved training regarding
abused and neglected children and who has been certified by the
court to appear at court hearings as a guardian ad litem for the
child or as a volunteer advocate for the child.
(b) In a suit other than a suit filed by a governmental
entity requesting termination of the parent-child relationship or
appointment of the entity as conservator of the child, the court may
appoint a charitable organization composed of volunteer advocates
whose training provides for the provision of services in private
custody disputes or a person who has received the court's approved
training regarding the subject matter of the suit and who has been
certified by the court to appear at court hearings as a guardian ad
litem for the child or as a volunteer advocate for the child. A
person appointed under this subsection is not entitled to fees
under Section 107.023.
(c) A court-certified volunteer advocate appointed under
this section may be assigned to act as a surrogate parent for the
child, as provided by 20 U.S.C. Section 1415(b), if:
(1) the child is in the conservatorship of the
Department of Family and Protective Services;
(2) the volunteer advocate is serving as guardian ad
litem for the child; and
(3) a foster parent of the child is not acting as the
child's parent under Section 29.015, Education Code.
SECTION 12. Section 2.103(e), Family Code, is amended to
read as follows:
(e) The court shall appoint an amicus attorney or an
attorney [a guardian] ad litem to represent the minor in the
proceeding [and to speak for or against the petition in the manner
the guardian ad litem believes to be in the best interest of the
minor]. The court shall specify a fee to be paid by the minor for
the services of the amicus attorney or attorney [guardian] ad
litem. The fee shall be collected in the same manner as other costs
of the proceeding.
SECTION 13. Section 31.002(b), Family Code, is amended to
read as follows:
(b) A parent of the petitioner must verify the petition,
except that if a managing conservator or guardian of the person has
been appointed, the petition must be verified by that person. If
the person who is to verify the petition is unavailable or that
person's whereabouts are unknown, the amicus attorney or attorney
[guardian] ad litem shall verify the petition.
SECTION 14. Section 31.004, Family Code, is amended to read
as follows:
Sec. 31.004. REPRESENTATION OF PETITIONER [GUARDIAN AD
LITEM]. The court shall appoint an amicus attorney or attorney [a
guardian] ad litem to represent the interest of the petitioner at
the hearing.
SECTION 15. Chapter 101, Family Code, is amended by adding
Sections 101.0017, 101.0018, and 101.0145 to read as follows:
Sec. 101.0017. AMICUS ATTORNEY. "Amicus attorney" has the
meaning assigned by Section 107.001.
Sec. 101.0018. ATTORNEY AD LITEM. "Attorney ad litem" has
the meaning assigned by Section 107.001.
Sec. 101.0145. GUARDIAN AD LITEM. "Guardian ad litem" has
the meaning assigned by Section 107.001.
SECTION 16. Section 105.004, Family Code, is amended to
read as follows:
Sec. 105.004. PREFERENTIAL SETTING. After a hearing, the
court may:
(1) grant a motion filed by a party or by the amicus
attorney or attorney [or guardian] ad litem for the child for a
preferential setting for a trial on the merits; and
(2) give precedence to that hearing over other civil
cases if the court finds that the delay created by ordinary
scheduling practices will unreasonably affect the best interest of
the child.
SECTION 17. Section 160.608(c), Family Code, is amended to
read as follows:
(c) In a proceeding involving the application of this
section, a child who is a minor or is incapacitated must be
represented by an amicus attorney or attorney [a guardian] ad
litem.
SECTION 18. Section 160.612(b), Family Code, is amended to
read as follows:
(b) The court shall appoint an amicus attorney or attorney
ad litem to represent a child who is a minor or is incapacitated if
the child is a party or the court finds that the interests of the
child are not adequately represented.
SECTION 19. Section 161.202, Family Code, is amended to
read as follows:
Sec. 161.202. PREFERENTIAL SETTING. In a termination suit,
after a hearing, the court shall grant a motion for a preferential
setting for a final hearing on the merits filed by a party to the
suit or by the amicus attorney or attorney [or guardian] ad litem
for the child and shall give precedence to that hearing over other
civil cases if:
(1) termination would make the child eligible for
adoption; and
(2) discovery has been completed or sufficient time
has elapsed since the filing of the suit for the completion of all
necessary and reasonable discovery if diligently pursued.
SECTION 20. Section 203.004(a), Family Code, is amended to
read as follows:
(a) A domestic relations office may:
(1) collect and disburse child support payments that
are ordered by a court to be paid through a domestic relations
registry;
(2) maintain records of payments and disbursements
made under Subdivision (1);
(3) file a suit, including a suit to:
(A) establish paternity;
(B) enforce a court order for child support or
for possession of and access to a child; and
(C) modify or clarify an existing child support
order;
(4) provide an informal forum in which:
(A) mediation is used to resolve disputes in an
action under Subdivision (3); or
(B) an agreed repayment schedule for delinquent
child support is negotiated as an alternative to filing a suit to
enforce a court order for child support under Subdivision (3);
(5) prepare a court-ordered social study;
(6) represent a child as an amicus attorney, an
attorney ad litem, or a guardian ad litem in a suit in which:
(A) termination of the parent-child relationship
is sought; or
(B) conservatorship of or access to a child is
contested;
(7) serve as a friend of the court;
(8) provide predivorce counseling ordered by a court;
(9) provide community supervision services under
Chapter 157;
(10) provide information to assist a party in
understanding, complying with, or enforcing the party's duties and
obligations under Subdivision (3); and
(11) provide, directly or through a contract,
visitation services, including supervision of court-ordered
visitation, visitation exchange, or other similar services.
SECTION 21. Section 231.109(e), Family Code, is amended to
read as follows:
(e) An attorney employed by the Title IV-D agency or as
otherwise provided by this chapter may not be appointed or act as an
amicus attorney [a guardian ad litem] or attorney ad litem for a
child or another party.
SECTION 22. Section 235.001(b), Family Code, is amended to
read as follows:
(b) The state case registry shall provide to a custodial
parent under Subsection (a) who makes a request for information or,
to the extent provided by federal law, to an amicus attorney,
attorney ad litem, friend of the court, guardian ad litem, or
domestic relations office designated by the parent any information
in the registry required by 42 U.S.C. Section 654a(e) concerning
the parent's case.
SECTION 23. Section 235.002, Family Code, is amended to
read as follows:
Sec. 235.002. REQUEST TO INCLUDE CASE IN REGISTRY. The case
of a custodial parent whose case would otherwise not be included in
the state case registry under 42 U.S.C. Section 654a may be included
in the state case registry by making a written request to the
registry either directly or through an amicus attorney, attorney ad
litem, friend of the court, guardian ad litem, or domestic
relations office designated by the custodial parent. The request
must be accompanied by a certified copy of the court order requiring
the payment of child support.
SECTION 24. Section 263.303(a), Family Code, is amended to
read as follows:
(a) Not later than the 10th day before the date set for each
permanency hearing other than the first permanency hearing, the
department or other authorized agency shall file with the court and
provide to each party, the child's attorney ad litem, the child's
guardian ad litem, and the child's volunteer advocate a permanency
progress report unless the court orders a different period for
providing the report.
SECTION 25. The changes in law made by this Act to Chapter
107, Family Code, apply only to a suit affecting the parent-child
relationship filed on or after the effective date of this Act. A
suit filed before the effective date of this Act is governed by the
law in effect on the date 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 Section
2.103, Family Code, apply only to a suit under that section filed on
or after the effective date of this Act. A suit filed before the
effective date of this Act is governed by the law in effect on the
date the suit was filed, and the former law is continued in effect
for that purpose.
SECTION 27. The changes in law made by this Act to Sections
31.002 and 31.004, Family Code, apply only to a suit under Chapter
31, Family Code, filed on or after the effective date of this Act. A
suit filed before the effective date of this Act is governed by the
law in effect on the date 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
160.608 and 160.612, Family Code, apply only to a proceeding under
Subchapter G, Chapter 160, Family Code, filed on or after the
effective date of this Act. A proceeding filed before the effective
date of this Act is governed by the law in effect on the date the
proceeding was filed, and the former law is continued in effect for
that purpose.
SECTION 29. This Act takes effect September 1, 2005.
______________________________ ______________________________
President of the Senate Speaker of the House
I certify that H.B. No. 307 was passed by the House on April
13, 2005, by a non-record vote.
______________________________
Chief Clerk of the House
I certify that H.B. No. 307 was passed by the Senate on May
12, 2005, by the following vote: Yeas 31, Nays 0.
______________________________
Secretary of the Senate
APPROVED: _____________________
Date
_____________________
Governor