By: Harris of Tarrant S.B. No. 1416
A BILL TO BE ENTITLED
AN ACT
1-1 relating to the rights and privileges of a conservator of a child
1-2 and to the terms and conditions of orders providing for the
1-3 possession of a child, including guidelines.
1-4 BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
1-5 SECTION 1. Subsections (a), (b), and (c), Section 14.032,
1-6 Family Code, are amended to read as follows:
1-7 (a) Policy and Application <Child Three Years of Age or
1-8 Older>. The guidelines for the possession of a child by a parent
1-9 named as a possessory conservator in this chapter are intended to
1-10 guide the courts in determining the terms and conditions for
1-11 possession of a child by a parent named as a possessory conservator
1-12 in any suit affecting the parent-child relationship. It is the
1-13 policy of this state to encourage frequent contact between a child
1-14 and each parent for periods of possession that optimize the
1-15 development of a close and continuing relationship between each
1-16 parent and child. It is preferable for all children in a family to
1-17 be together during periods of possession. The standard possession
1-18 order is <These guidelines are> designed to apply to a child three
1-19 years of age or older.
1-20 (b) Child Less Than Three Years of Age <Old>. In rendering
1-21 an order for possession of a child less than three years of age,
1-22 the court shall make an order appropriate under the circumstances
1-23 considering the factors listed in Subsection (c) of this section.
1-24 The <old, the court may either render a "standard possession
2-1 order," as defined in Section 14.033 of this code, or an order
2-2 appropriate under the circumstances considering the age of the
2-3 child. If a standard possession order is not rendered, the> court
2-4 shall also render a prospective order to take effect on the child's
2-5 third birthday, which presumptively will be the standard possession
2-6 order.
2-7 (c) Factors. In determining the terms of possession of a
2-8 child, the court shall be guided by the guidelines and may
2-9 consider<, in varying from or following the guidelines>:
2-10 (1) the age, developmental status, circumstances,
2-11 needs, and best interest of the child;
2-12 (2) the circumstances of the managing conservator and
2-13 of the parent named as a possessory conservator; and
2-14 (3) any other relevant factor.
2-15 SECTION 2. Subsections (b), (c), (d), (e), (f), (g), (h),
2-16 (i), (j), and (m), Section 14.033, Family Code, are amended to read
2-17 as follows:
2-18 (b) Mutual Agreement or Specified Terms for Possession. The
2-19 court shall expressly state in a standard order that the parties
2-20 may have possession of the child at any and all times mutually
2-21 agreed to in advance by the parties and, in the absence of a
2-22 <failing> mutual agreement, shall have possession of the child
2-23 under the specified terms set out in the standard order.
2-24 (c) Parents Who Reside 100 Miles or Less Apart. Except as
2-25 otherwise explicitly provided, if the possessory conservator
2-26 resides 100 miles or less from the primary residence of the child,
2-27 the possessory conservator shall have the right to possession of
3-1 the child as follows:
3-2 (1) on weekends beginning at <from> 6 p.m. on the
3-3 first, third, and fifth Friday of each month and ending at <until>
3-4 6 p.m. on the following Sunday or, at the possessory conservator's
3-5 election made before or at the time of the rendition of the
3-6 original or modification order, and as specified in the original or
3-7 modification order, beginning at <from> the time the child's school
3-8 is regularly dismissed and ending at <day ends, if any, until> 6
3-9 p.m. on the following Sunday; and
3-10 (2) on Wednesdays of each week during the regular
3-11 school term beginning at <from> 6 p.m. and ending at <until> 8
3-12 p.m., or, at the possessory conservator's election made before or
3-13 at the time of the rendition of the original or modification order,
3-14 and as specified in the original or modification order, beginning
3-15 at <from> the time the child's school is regularly dismissed and
3-16 ending at <day ends, if any, until> 8 p.m.
3-17 (d) Weekend Possession Extended by Holiday. Except as
3-18 otherwise explicitly provided, if a weekend period of possession of
3-19 the possessory conservator coincides with a school holiday during
3-20 the regular school term or with a federal, state, or local holiday
3-21 during the summer months in which school is not in session, the
3-22 weekend possession shall end at <extend until> 6 p.m. on a Monday
3-23 holiday or school holiday or shall begin at 6 p.m. Thursday for a
3-24 Friday holiday or school holiday, as applicable, or, at the
3-25 possessory conservator's election made before or at the time of
3-26 rendition of the original or modification order, and as specified
3-27 in the original or modification order, shall begin at the time the
4-1 child's school is regularly dismissed.
4-2 (e) Vacations and Holidays. The following provisions govern
4-3 possession of the child for vacations and for certain specific
4-4 holidays and supersede any conflicting weekend or Wednesday periods
4-5 of possession provided by Subsections (c) and (d) of this section.
4-6 The possessory conservator and managing conservator shall have
4-7 rights of possession of the child as follows:
4-8 (1) the possessory conservator shall have possession
4-9 of the child in even-numbered years beginning at <from> 6 p.m. on
4-10 the <last school> day school for the child is dismissed for
4-11 <before> the Christmas school vacation and ending at <begins until>
4-12 noon on December 26th, and the managing conservator shall have
4-13 possession for the same period in odd-numbered years;
4-14 (2) the possessory conservator shall have possession
4-15 of the child in odd-numbered years beginning at <from> noon on
4-16 December 26th and ending at <until> 6 p.m. on the day before school
4-17 resumes after that vacation, and the managing conservator shall
4-18 have possession for the same period in even-numbered years;
4-19 (3) the possessory conservator shall have possession
4-20 of the child in odd-numbered years beginning at <from> 6 p.m. on
4-21 the day school for the child is dismissed <Wednesday> before
4-22 Thanksgiving and ending at <until> 6 p.m. on the following Sunday,
4-23 and the managing conservator shall have possession for the same
4-24 period in even-numbered years;
4-25 (4) the possessory conservator shall have possession
4-26 of the child in even-numbered years beginning at <from> 6 p.m. on
4-27 the <last school> day school for the child is dismissed for
5-1 <before> the school's spring vacation and ending at <begins until>
5-2 6 p.m. on the day before school resumes after that vacation, and
5-3 the managing conservator shall have possession for the same period
5-4 in odd-numbered years;
5-5 (5) if the possessory conservator:
5-6 (A) gives the managing conservator written
5-7 notice by May 1 of each year specifying an extended period or
5-8 periods of summer possession, the possessory conservator shall have
5-9 possession of the child for 30 days beginning no earlier than the
5-10 day after the child's school is dismissed for the summer vacation
5-11 and ending no later than seven days before school resumes at the
5-12 end of the summer vacation <between June 1 and August 31>, to be
5-13 exercised in no more than two separate periods of at least seven
5-14 consecutive days each; or
5-15 (B) does not give the managing conservator
5-16 written notice by May 1 of each year specifying an extended period
5-17 or periods of summer possession, the possessory conservator shall
5-18 have possession of the child for 30 consecutive days beginning at
5-19 6 p.m. on July 1 and ending at 6 p.m. on July 31;
5-20 (6) if the managing conservator gives the possessory
5-21 conservator written notice by June 1 <May 15> of each year <or
5-22 gives the possessory conservator 14 days' written notice on or
5-23 after May 16 of each year>, the managing conservator shall have
5-24 possession of the child on any one weekend beginning on <from>
5-25 Friday at 6 p.m. and ending at <to> 6 p.m. on the following Sunday
5-26 during any one period of possession by the possessory conservator
5-27 under Subdivision (5) of this subsection, provided that the
6-1 managing conservator picks up the child from the possessory
6-2 conservator and returns the child to that same place;
6-3 (7) if the managing conservator gives the possessory
6-4 conservator written notice by May 15 of each year or gives the
6-5 possessory conservator 14 days' written notice on or after May 16
6-6 of each year, the managing conservator may designate one weekend
6-7 beginning no earlier than the day after the child's school is
6-8 dismissed for the summer vacation and ending no later than seven
6-9 days before school resumes at the end of the summer vacation
6-10 <between June 1 and August 31>, during which an otherwise scheduled
6-11 weekend period of possession by the possessory conservator will not
6-12 take place, provided that the weekend so designated does not
6-13 interfere with the possessory conservator's period or periods of
6-14 extended summer possession or with Father's Day if the possessory
6-15 conservator is the father of the child;
6-16 (8) the parent not otherwise entitled under this
6-17 standard order to present <in> possession of a child on the child's
6-18 birthday shall have possession of the child beginning at <from> 6
6-19 p.m. and ending at <to> 8 p.m. on that day, provided that the
6-20 parent not entitled to the two hours in possession picks up the
6-21 child from the <child's> residence of the conservator entitled to
6-22 possession of the child immediately before the two-hour possession
6-23 begins and returns the child to that same place;
6-24 (9) if a conservator, the father shall have possession
6-25 of the child beginning at 6 p.m. on the Friday preceding Father's
6-26 Day and ending on Father's Day at <from 9 a.m. to> 6 p.m., provided
6-27 that, if he is not otherwise entitled under this standard order to
7-1 present <in> possession of the child, he picks up the child from
7-2 the <child's> residence of the conservator entitled to possession
7-3 of the child immediately before the Father's Day possession begins
7-4 and returns the child to that same place; and
7-5 (10) if a conservator, the mother shall have
7-6 possession of the child beginning at 6 p.m. on the Friday preceding
7-7 Mother's Day and ending on Mother's Day at <from 9 a.m. to> 6 p.m.,
7-8 provided that, if she is not otherwise entitled under this standard
7-9 order to present <in> possession of the child, she picks up the
7-10 child from the <child's> residence of the conservator entitled to
7-11 possession of the child immediately before the Mother's Day
7-12 possession begins and returns the child to that same place.
7-13 (f) Parents Who Reside Over 100 Miles Apart. Except as
7-14 otherwise explicitly provided, if the possessory conservator
7-15 resides more than 100 miles from the residence of the child, the
7-16 possessory conservator shall have the right to possession of the
7-17 child as follows:
7-18 (1) either regular weekend possession beginning on the
7-19 first, third, and fifth Friday as provided under the terms of
7-20 Subsection (c)(1) of this section, or not more than one weekend per
7-21 month of the possessory conservator's choice beginning at 6 p.m. on
7-22 the day school recesses for the weekend and ending at 6 p.m. on the
7-23 day before school resumes after the weekend, provided that the
7-24 possessory conservator gives the managing conservator seven days'
7-25 written or telephonic notice preceding a designated weekend, and
7-26 provided that the possessory conservator elects an option for this
7-27 possession either before the rendition of the original or
8-1 modification order or by written notice given to the managing
8-2 conservator within 90 days after the parties begin to reside more
8-3 than 100 miles apart, as applicable, and provided that the weekend
8-4 possessions do not conflict with Subsections (e)(1) through (3) and
8-5 (e)(8) through (10) of this section;
8-6 (2) the terms of Subsections (e)(1) through (3) and
8-7 (e)(8) through (10) of this section are applicable when the
8-8 possessory conservator resides more than 100 miles from the
8-9 residence of the child;
8-10 (3) each year beginning <every spring school vacation
8-11 from 6 p.m.> on the day school for the child is dismissed for the
8-12 school's spring vacation and ending at <recesses until> 6 p.m. on
8-13 the day before school resumes after that vacation;
8-14 (4) if the possessory conservator:
8-15 (A) gives the managing conservator written
8-16 notice by May 1 of each year specifying an extended period or
8-17 periods of summer possession, the possessory conservator shall have
8-18 possession of the child for 42 days beginning no earlier than the
8-19 day after the child's school is dismissed for the summer vacation
8-20 and ending no later than seven days before school resumes at the
8-21 end of the summer vacation <between June 1 and August 31>, to be
8-22 exercised in no more than two separate periods of at least seven
8-23 consecutive days each; or
8-24 (B) does not give the managing conservator
8-25 written notice by May 1 of each year specifying an extended period
8-26 or periods of summer possession, the possessory conservator shall
8-27 have possession of the child for 42 consecutive days beginning at
9-1 6 p.m. on June 15 and ending at 6 p.m. on July 27;
9-2 (5) if the managing conservator gives the possessory
9-3 conservator written notice by June 1 <May 15> of each year <or
9-4 gives the possessory conservator 14 days' notice on or after May 16
9-5 of each year>, the managing conservator shall have possession of
9-6 the child on any one weekend beginning at <from> Friday at 6 p.m.
9-7 and ending at <to> 6 p.m. on the following Sunday during any one
9-8 period of possession by the possessory conservator under
9-9 Subdivision (4) of this subsection, provided that if a period of
9-10 possession by the possessory conservator exceeds 30 days, the
9-11 managing conservator may have possession of the child under the
9-12 terms of this subdivision on any two nonconsecutive weekends during
9-13 that time period, and further provided that the managing
9-14 conservator picks up the child from the possessory conservator and
9-15 returns the child to that same place; and
9-16 (6) if the managing conservator gives the possessory
9-17 conservator written notice by May 15 of each year or gives the
9-18 possessory conservator 30 days' written notice on or after May 16
9-19 of each year, the managing conservator may designate 21 days
9-20 beginning no earlier than the day after the child's school is
9-21 dismissed for the summer vacation and ending no later than seven
9-22 days before school resumes at the end of the summer vacation
9-23 <between June 1 and August 31>, to be exercised in no more than two
9-24 separate periods of at least seven consecutive days each, during
9-25 which the possessory conservator shall not have possession of the
9-26 child, provided that the period or periods so designated do not
9-27 interfere with the possessory conservator's period or periods of
10-1 extended summer possession or with Father's Day if the possessory
10-2 conservator is the father of the child.
10-3 (g) General Terms and Conditions. Except as otherwise
10-4 explicitly provided, terms and conditions of possession of a child
10-5 that apply irrespective of the distance between the residence of a
10-6 parent and the child are as follows:
10-7 (1) the managing conservator shall surrender the child
10-8 to the possessory conservator at the beginning of each period of
10-9 the possessory conservator's possession at the residence of the
10-10 managing conservator;
10-11 (2) if the possessory conservator elects to begin a
10-12 period of possession at the time the child's school is regularly
10-13 dismissed, the managing conservator shall surrender the child to
10-14 the possessory conservator at the beginning of each of those
10-15 periods of possession at the school in which the child is enrolled;
10-16 (3) the possessory conservator shall be ordered to do
10-17 one of the following:
10-18 (A) the possessory conservator shall surrender
10-19 the child to the managing conservator at the end of each period of
10-20 possession at the residence of the possessory conservator; or
10-21 (B) <, in the alternative,> the possessory
10-22 conservator shall return the child to the residence of the managing
10-23 conservator at the end of each period of possession, except that
10-24 the order shall provide that if the possessory conservator's county
10-25 of domicile remains the same after the rendition of the order
10-26 establishing terms and conditions of possession and access and if
10-27 the managing conservator's county of domicile should change,
11-1 effective on the date of the change of domicile by the managing
11-2 conservator, the possessory conservator shall surrender the child
11-3 to the managing conservator at the end of each period of possession
11-4 at the residence of the possessory conservator;
11-5 (4) if the possessory conservator elects to end a
11-6 period of possession at the time the child's school resumes, the
11-7 possessory conservator shall surrender the child to the managing
11-8 conservator at the end of each period of possession at the school
11-9 in which the child is enrolled;
11-10 (5) <(3)> each conservator shall return with the child
11-11 the personal effects that the child brought at the beginning of the
11-12 period of possession;
11-13 (6) <(4)> either parent may designate any competent
11-14 adult to pick up and return the child, as applicable; a parent or a
11-15 designated competent adult shall be present when the child is
11-16 picked up or returned;
11-17 (7) <(5)> a parent shall give notice to the person in
11-18 possession of the child on each occasion that the parent will be
11-19 unable to exercise that parent's right of possession for any
11-20 specified period; repeated failure of a parent to give notice of an
11-21 inability to exercise possessory rights may be considered as a
11-22 factor in a modification of those possessory rights;
11-23 (8) <(6)> written notice shall be deemed to have been
11-24 timely made if received or postmarked before or at the time that
11-25 notice is due; and
11-26 (9) <(7)> if a conservator's time of possession of a
11-27 child ends at the time school resumes and for any reason the child
12-1 is not or will not be returned to school, the conservator in
12-2 possession of the child shall immediately notify the school and the
12-3 other conservator that the child will not be or has not been
12-4 returned to school.
12-5 (h) Means of Travel. In an order providing for the terms
12-6 and conditions of possession <possessory conservatorship> of a
12-7 child the court may restrict the means of travel of the child by a
12-8 legal mode of transportation only after a showing of good cause
12-9 contained in the record and a finding by the court that the
12-10 restriction is in the best interest of the child. Further, the
12-11 court shall set forth in its order the specific duties of the
12-12 conservators to provide appropriate transportation to and from the
12-13 relevant transportation facilities.
12-14 (i) Alternative Possession Times. If a child is enrolled in
12-15 school, and the possessory conservator consents before or at the
12-16 time of the rendition of the original or a modified order<, and the
12-17 court finds that it is in the best interest of the child>, the
12-18 standard order may expressly provide that the possessory
12-19 conservator's period of possession shall begin or end, or both, at
12-20 a different time expressly set in the standard order under and
12-21 within the range of alternative times provided by one or both of
12-22 the following subdivisions:
12-23 (1) instead of a period of possession by a possessory
12-24 conservator beginning at 6 p.m. on the day school recesses, the
12-25 period of possession may be set in the standard order to begin at
12-26 the time the child's school is regularly dismissed <recesses> or at
12-27 any time between the time the child's school is regularly dismissed
13-1 <recesses> and 6 p.m.; and
13-2 (2) instead of a period of possession by a possessory
13-3 conservator ending at 6 p.m. on the day before school resumes, the
13-4 period of possession may be set in the standard order to end at the
13-5 time school resumes or at <any time between> 6 p.m. on the day
13-6 before school resumes <and the time that school resumes>.
13-7 (j) Application of Alternative Possession Times. The
13-8 alternative possession times provided by Subsection (i) of this
13-9 section may be applied to regular weekend possession under
13-10 Subsections (c)(1) and (f)(1) of this section and to holiday
13-11 possession under Subsections (e)(1) through (4) and Subsections
13-12 (f)(2) and (3) of this section, but Subsection (i)(2) of this
13-13 section may not be applied to Christmas school vacation under
13-14 Subsection (e)(1) of this section or Wednesday evening possession
13-15 under Subsection (c)(2) of this section, and Subsection (i)(1) of
13-16 this section may not be applied to Christmas school vacation under
13-17 Subsection (e)(2) of this section. Subsection (i)(1) of this
13-18 section <but> may <not> be applied to Wednesday evening possession
13-19 under Subsection (c)(2) of this section.
13-20 (m) Unusual Circumstances. If the work schedule or other
13-21 special circumstances of the managing conservator, the possessory
13-22 conservator, or the child, or the child's year-round school
13-23 schedule, make the standard possession order unworkable or
13-24 inappropriate, the court shall render an order that grants periods
13-25 of possession of the child as similar as possible to those provided
13-26 by the standard order.
13-27 SECTION 3. Subsection (a), Section 14.01, Family Code, is
14-1 amended to read as follows:
14-2 (a) In any suit affecting the parent-child relationship, the
14-3 court may appoint a sole managing conservator or may appoint joint
14-4 managing conservators<, and shall order reasonable terms and
14-5 conditions for the implementation of the managing conservatorship>.
14-6 A managing conservator must be a suitable, competent adult, or a
14-7 parent, or an authorized agency. If the court finds that the
14-8 parents are or will be separated, the court shall appoint at least
14-9 one <joint or sole> managing conservator.
14-10 SECTION 4. Subsection (a), Section 14.021, Family Code, is
14-11 amended to read as follows:
14-12 (a) It is the policy of this state to assure that children
14-13 will have frequent and continuing contact with parents who have
14-14 shown the ability to act in the best interest of the child, to
14-15 provide a stable environment for the child, and to encourage
14-16 parents to share in the rights and responsibilities of raising
14-17 their children after the parents have separated or dissolved their
14-18 marriage.
14-19 SECTION 5. Subsections (c) and (d), Section 14.08, Family
14-20 Code, are amended to read as follows:
14-21 (c) After a hearing, the court may modify an order or
14-22 portion of a decree that:
14-23 (1) designates a sole managing conservator if:
14-24 (A) the circumstances of the child, sole
14-25 managing conservator, possessory conservator, or other party
14-26 affected by the order or decree have materially and substantially
14-27 changed since the date of the rendition of the order or decree to
15-1 be modified; and
15-2 (B) the retention of the present sole managing
15-3 conservator would be injurious to the welfare of the child; and
15-4 (C) the appointment of the new sole managing
15-5 conservator would be a positive improvement for the child; or
15-6 (2) provides for the support of a child if the
15-7 circumstances of the child or a person affected by the order or
15-8 portion of the decree to be modified have materially and
15-9 substantially changed since the date of its rendition, except that
15-10 a support order may be modified only as to obligations accruing
15-11 after the earlier of the date of service of citation or an
15-12 appearance on the motion to modify; or
15-13 (3) sets the terms and conditions for possession of or
15-14 access to a child, or prescribes the relative rights, privileges,
15-15 duties, and powers of conservators if:
15-16 (A) the circumstances of the child or a person
15-17 affected by the order or portion of the decree to be modified have
15-18 materially and substantially changed since the date of the
15-19 rendition of the order or decree; or
15-20 (B) the order or portion of the decree to be
15-21 modified has become unworkable or inappropriate under existing
15-22 circumstances; or
15-23 (C) the notice required by Section 14.031 of
15-24 this code was not given, or there was a change in a conservator's
15-25 residence to a place outside the jurisdiction of the court. If a
15-26 change of residence results in increased expenses for any party
15-27 having possession of or access to a child, the court may enter
16-1 appropriate orders to allocate those increased costs on a fair and
16-2 equitable basis, taking into account the cause of the increased
16-3 costs and the best interests of the child. The payment of
16-4 increased costs by the party whose residence is changed is
16-5 rebuttably presumed to be in the best interest of the child. Such
16-6 an order may be entered without regard to whether any other change
16-7 in the terms and conditions of possession of or access to the child
16-8 is made; or
16-9 (4) designates a sole managing conservator if the sole
16-10 managing conservator has voluntarily relinquished possession and
16-11 control of the child for a period of more than six months and the
16-12 modification is in the best interest of the child; or
16-13 (5) designates a sole managing conservator if a parent
16-14 of the child requests appointment as a joint managing conservator,
16-15 and the court finds that:
16-16 (A) the circumstances of the child or the sole
16-17 managing conservator have materially and substantially changed
16-18 since the rendition of the order or decree to be modified;
16-19 (B) retention of a sole managing conservatorship
16-20 would be detrimental to the welfare of the child; and
16-21 (C) the appointment of the parent as a joint
16-22 managing conservator would be a positive improvement for and in the
16-23 best interest of the child.
16-24 (d) If the motion is filed for the purpose of changing the
16-25 designation of the sole managing conservator and is filed within
16-26 one year after the date of the rendition of the order or decree to
16-27 be modified, there shall be attached to the motion an affidavit
17-1 executed by the person making the motion. The affidavit must
17-2 contain, along with supporting facts, at least one of the following
17-3 allegations that <along with the supportive facts>:
17-4 (1) <that> the child's present environment may
17-5 endanger his physical health or significantly impair his emotional
17-6 development; <or>
17-7 (2) <that> the sole managing conservator is the person
17-8 seeking the modification or consents to the modification, and the
17-9 modification is in the best interest of the child; or
17-10 (3) the child's sole managing conservator has
17-11 voluntarily relinquished the actual care, control, and possession
17-12 of the child for more than six months and the modification is in
17-13 the best interest of the child.
17-14 SECTION 6. (a) This Act takes effect September 1, 1993.
17-15 (b) This Act applies to an original or modified order in a
17-16 suit affecting the parent-child relationship under Title 2, Family
17-17 Code, made on or after that date. The change made by this Act to
17-18 Subsection (d), Section 14.08, Family Code, applies only to a
17-19 proceeding under that section in which a hearing has not been held
17-20 before the effective date of this Act.
17-21 (c) The enactment of the amendments made by this Act does
17-22 not affect the validity or obligations, terms, and conditions of an
17-23 order in a suit affecting the parent-child relationship made before
17-24 the effective date of this Act, and this Act does not constitute a
17-25 change of circumstances under Section 14.08, Family Code.
17-26 SECTION 7. The importance of this legislation and the
17-27 crowded condition of the calendars in both houses create an
18-1 emergency and an imperative public necessity that the
18-2 constitutional rule requiring bills to be read on three several
18-3 days in each house be suspended, and this rule is hereby suspended.