By: Moncrief S.B. No. 168
A BILL TO BE ENTITLED
AN ACT
1-1 relating to the use of alternative dispute resolution procedures in
1-2 suits affecting the parent-child relationship.
1-3 BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
1-4 SECTION 1. Subsection (b), Section 11.08, Family Code, is
1-5 amended to read as follows:
1-6 (b) The petition must include:
1-7 (1) a statement that the court in which the petition
1-8 is filed has continuing jurisdiction or that no court has
1-9 continuing jurisdiction of the suit;
1-10 (2) the name, sex, place and date of birth, and place
1-11 of residence of the child, except that if adoption of a child is
1-12 sought, the name of the child may be omitted;
1-13 (3) the full name, age, and place of residence of the
1-14 petitioner and his relationship to the child or the fact that no
1-15 relationship exists;
1-16 (4) the names, ages, and place of residence of the
1-17 parents, except in a suit in which adoption is sought;
1-18 (5) the name and place of residence of the managing
1-19 conservator, if any, or the child's custodian, if any, appointed by
1-20 an order of the court before January 1, 1974, or by order of a
1-21 court of another state or nation;
1-22 (6) the names and places of residence of the guardians
1-23 of the person and estate of the child, if any;
2-1 (7) the names and places of residence of possessory
2-2 conservators or other persons, if any, having access to the child
2-3 under an order of the court;
2-4 (8) the name and place of residence of the alleged
2-5 father or probable father of the child or a statement that the
2-6 identity of the father of the child is unknown;
2-7 (9) a full description and statement of value of all
2-8 property owned or possessed by the child;
2-9 (10) a statement describing what action the court is
2-10 requested to make concerning the child, including but not limited
2-11 to a request that the court order mediation of any disputes
2-12 concerning conservatorship, and the statutory grounds on which the
2-13 request is made; and
2-14 (11) any other information required by other
2-15 provisions of this subtitle.
2-16 SECTION 2. Subsection (a), Section 11.11, Family Code, is
2-17 amended to read as follows:
2-18 (a) In a suit affecting the parent-child relationship, the
2-19 court may make any temporary order, including the modification of a
2-20 prior temporary order, for the safety and welfare of the child,
2-21 including but not limited to an order:
2-22 (1) for the temporary conservatorship of the child;
2-23 (2) for the temporary support of the child;
2-24 (3) restraining any party from molesting or disturbing
2-25 the peace of the child or another party;
3-1 (4) prohibiting a person from removing the child
3-2 beyond a geographical area identified by the court; <or>
3-3 (5) requiring the mediation of each contested issue
3-4 which relates to the child; or
3-5 (6) for payment of reasonable attorney's fees<,> and
3-6 expenses.
3-7 SECTION 3. Chapter 11, Family Code, is amended by adding
3-8 Subchapter C to read as follows:
3-9 SUBCHAPTER C. MANDATORY MEDIATION
3-10 Sec. 11.81. COURT TO ORDER MEDIATION. (a) Prior to setting
3-11 a case for final hearing, a court shall order the mediation of each
3-12 contested issue that relates to access to or possession or
3-13 conservatorship of a child in a suit affecting the parent-child
3-14 relationship that:
3-15 (1) is joined, as required by Section 3.55 of this
3-16 code, with a suit for divorce, for annulment, or to declare a
3-17 marriage void;
3-18 (2) is brought, pursuant to Chapter 13 of this code,
3-19 to establish paternity of a child; or
3-20 (3) seeks modification of a decree or order related to
3-21 access to or possession or conservatorship of a child.
3-22 (b) The court may, on its own motion, and the court shall,
3-23 at the request of any party, order the mediation of each contested
3-24 issue that relates to support of a child in a suit affecting the
3-25 parent-child relationship that:
4-1 (1) is joined, as required by Section 3.55 of this
4-2 code, with a suit for divorce, for annulment, or to declare a
4-3 marriage void;
4-4 (2) is brought, pursuant to Chapter 13 of this code,
4-5 to establish paternity of a child; or
4-6 (3) seeks modification of a decree or order related to
4-7 support of a child.
4-8 Sec. 11.82. APPOINTMENT OF MEDIATOR. (a) The court shall
4-9 appoint as a mediator an impartial third party who meets the
4-10 qualifications of Section 154.052, Civil Practice and Remedies
4-11 Code.
4-12 (b) The parties or their attorneys of record shall select a
4-13 mediator at the earlier of:
4-14 (1) the hearing on a motion for temporary orders; or
4-15 (2) within 10 days of the filing of the respondent's
4-16 answer.
4-17 (c) If the parties or their attorneys of record fail to
4-18 select a mediator within 10 days of the filing of the respondent's
4-19 answer, the court shall appoint a mediator.
4-20 (d) Nothing in this section shall preclude a party from
4-21 filing an objection to the referral to mediation and requesting a
4-22 hearing on the issue of the referral pursuant to Section 154.022,
4-23 Civil Practice and Remedies Code.
4-24 (e) The court may enjoin the parties' attorneys of record
4-25 from participating in the mediation unless the participation is
5-1 requested by either party.
5-2 Sec. 11.83. DUTIES AND AUTHORITY OF MEDIATOR. A mediator
5-3 shall:
5-4 (1) facilitate communication between the parties to
5-5 promote an agreement concerning contested issues;
5-6 (2) communicate to the parties information regarding
5-7 the effect the dissolution of a marriage can have on children, the
5-8 effect the litigation of issues related to access to or possession,
5-9 conservatorship, or support of a child can have on children, and
5-10 possible ways to ameliorate the detrimental aspects of such
5-11 lawsuits; and
5-12 (3) report promptly to the parties' attorneys of
5-13 record the terms of an agreement reached by the parties.
5-14 Sec. 11.84. CASES OF ALLEGED VIOLENCE OR ABUSE. (a) Any
5-15 person who is a party to a suit involving custody, possession, or
5-16 support of a child may request a separate meeting with the
5-17 mediator.
5-18 (b) In a case in which violence has been alleged by a party,
5-19 the mediator may, in the mediator's discretion, and shall, at the
5-20 request of a party, meet separately with the parties.
5-21 (c) In a case in which child abuse has been alleged during
5-22 the mediation and the mediator has cause to believe that there is a
5-23 factual foundation for the allegation, the mediator shall:
5-24 (1) notify the parties of the requirement in Chapter
5-25 34 of this code to report suspected child abuse; and
6-1 (2) report to the proper agency in accordance with
6-2 Chapter 34 of this code.
6-3 Sec. 11.85. CONFIDENTIALITY OF COMMUNICATIONS. Except as
6-4 otherwise specifically provided, a communication made by a
6-5 participant in a mediation proceeding under this subchapter is
6-6 confidential in the manner provided by Section 154.073, Civil
6-7 Practice and Remedies Code.
6-8 Sec. 11.86. EFFECT OF AGREEMENT. The memorandum of
6-9 mediation agreement, if any, is not binding on the parties. The
6-10 court may incorporate an agreement reached through mediation into
6-11 an order of the court only if each party, or the party's attorney
6-12 of record, affirms the agreement in open court or by written
6-13 stipulation.
6-14 Sec. 11.87. COMPENSATION OF MEDIATOR. In any proceeding in
6-15 which the court refers a case to mediation pursuant to this
6-16 subchapter, the court may set a reasonable fee for the services of
6-17 the mediator. Reasonable mediator's fees may be taxed as costs and
6-18 may be ordered paid directly to the mediator, who may enforce the
6-19 order for fees in his or her own name.
6-20 SECTION 4. Subsections (a) and (b), Section 14.08, Family
6-21 Code, are amended to read as follows:
6-22 (a) A court order or the portion of a decree that provides
6-23 for the support of a child or the appointment of a conservator or
6-24 that sets the terms and conditions of conservatorship for, support
6-25 for, or access to a child may be modified only by the filing of a
7-1 motion in the court having continuing, exclusive jurisdiction of
7-2 the suit affecting the parent-child relationship as provided by
7-3 Section 11.05 of this code. Any party affected by the order or the
7-4 portion of the decree to be modified may file the motion or may,
7-5 when there is no serious and immediate question concerning the
7-6 welfare of the child, request that the parties attempt mediation
7-7 prior to final hearing.
7-8 (b) The provisions of the Texas Rules of Civil Procedure
7-9 applicable to the filing of an original lawsuit and the provisions
7-10 of Subchapter C of Chapter 11 of this code apply to a motion to
7-11 modify under this section and to a petition requesting further
7-12 action under Section 11.07 of this code. Each party whose rights,
7-13 privileges, duties, or powers may be affected by the motion to
7-14 modify or by the petition requesting further action is entitled to
7-15 receive notice by the service of citation commanding the person to
7-16 appear by filing a written answer. After the filing of an answer,
7-17 the proceedings are referred to mediation under Section 11.81 of
7-18 this code. After completion of mediation, the proceedings are
7-19 conducted in the same general manner as in other civil cases.
7-20 SECTION 5. Subchapter A, Chapter 154, Civil Practice and
7-21 Remedies Code, is amended by adding Section 154.004 to read as
7-22 follows:
7-23 Sec. 154.004. IMPLEMENTATION OF STATE POLICY. Each court
7-24 shall plan and implement a system for the referral of cases to an
7-25 alternative dispute resolution procedure that will carry out the
8-1 policy stated under Section 154.002.
8-2 SECTION 6. The change in law made by this Act applies only
8-3 to a suit affecting the parent-child relationship commenced on or
8-4 after the effective date of this Act.
8-5 SECTION 7. This Act takes effect September 1, 1995.
8-6 SECTION 8. The importance of this legislation and the
8-7 crowded condition of the calendars in both houses create an
8-8 emergency and an imperative public necessity that the
8-9 constitutional rule requiring bills to be read on three several
8-10 days in each house be suspended, and this rule is hereby suspended.