By Goodman                                             H.B. No. 596
                                A BILL TO BE ENTITLED
 1-1                                   AN ACT
 1-2     relating to suits affecting the parent-child relationship and the
 1-3     modification of an order rendered in a suit; providing penalties.
 1-4           BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
 1-5           SECTION 1.  Section 153.008, Family Code, is amended to read
 1-6     as follows:
 1-7           Sec. 153.008.  CHILD'S CHOICE OF MANAGING CONSERVATOR. If the
 1-8     child is 12 [10] years of age or older, the child may, by writing
 1-9     filed with the court, choose the managing conservator, subject to
1-10     the approval of the court.
1-11           SECTION 2.  Sections 153.009(b) and (d), Family Code, are
1-12     amended to read as follows:
1-13           (b)  When the issue of managing conservatorship is contested,
1-14     on the application of a party, the court shall interview a child 12
1-15     [10] years of age or older and may interview a child under 12 [10]
1-16     years of age.  Interviewing a child does not diminish the
1-17     discretion of the court.
1-18           (d)  On the motion of a party or on the court's own motion,
1-19     the court shall cause a record of the interview to be made when the
1-20     child is 12 [10] years of age or older.  A record of the interview
1-21     shall be part of the record in the case.
1-22           SECTION 3.  Section 156.006(b), Family Code, is amended to
1-23     read as follows:
1-24           (b)  While a suit for modification is pending, the court may
 2-1     not render a temporary order that has the effect of changing the
 2-2     designation of the person who has the exclusive right to determine
 2-3     the primary residence of the child under the [a sole or joint
 2-4     managing conservator appointed in a] final order unless:
 2-5                 (1)  the order is necessary because the child's present
 2-6     living environment may endanger the child's physical health or
 2-7     significantly impair the child's emotional development;
 2-8                 (2)  the person designated in the final order [child's
 2-9     managing conservator] has voluntarily relinquished the primary
2-10     [actual] care[, control,] and possession of the child for more than
2-11     six months and the temporary order is in the best interest of the
2-12     child; or
2-13                 (3)  the child is 12 [10] years of age or older and has
2-14     filed with the court in writing the name of the person who is the
2-15     child's preference to have the exclusive right to determine the
2-16     primary residence of the child [choice for managing conservator]
2-17     and the temporary order designating [naming] that person [as
2-18     managing conservator] is in the best interest of the child.
2-19           SECTION 4.  The heading for Subchapter B, Chapter 156, Family
2-20     Code, is amended to read as follows:
2-21       SUBCHAPTER B.  MODIFICATION OF [SOLE MANAGING] CONSERVATORSHIP,
2-22            POSSESSION AND ACCESS, OR DETERMINATION OF RESIDENCE
2-23           SECTION 5.  Section 156.101, Family Code, is amended to read
2-24     as follows:
2-25           Sec. 156.101.  GROUNDS FOR MODIFICATION OF ORDER ESTABLISHING
2-26     [SOLE MANAGING] CONSERVATORSHIP OR POSSESSION AND ACCESS.  [(a)]
2-27     The court may modify an order or portion of a decree that provides
 3-1     for the appointment of a [designates a sole managing] conservator
 3-2     of a child, that provides the terms and conditions of
 3-3     conservatorship, or that provides for the possession of or access
 3-4     to a child [of any age] if modification would be in the best
 3-5     interest of the child and:
 3-6                 (1)  the circumstances of the child, a [sole managing]
 3-7     conservator, [possessory conservator,] or other party affected by
 3-8     the order have materially and substantially changed since the date
 3-9     of the rendition of the order; [and]
3-10                 (2)  the child is at least 12 years of age and has
3-11     filed with the court, in writing, the name of the conservator who
3-12     is the child's preference to have the exclusive right to determine
3-13     the primary residence of [the appointment of the new sole managing
3-14     conservator would be a positive improvement for] the child; or
3-15                 (3)  the conservator who has the exclusive right to
3-16     establish the primary residence of the child has voluntarily
3-17     relinquished the primary care and possession of the child to
3-18     another person for at least six months.
3-19           [(b)  The court may modify an order that designates a sole
3-20     managing conservator of a child 10 years of age or older if:]
3-21                 [(1)  the child has filed with the court in writing the
3-22     name of the person who is the child's choice for managing
3-23     conservator; and]
3-24                 [(2)  the court finds that the appointment of the named
3-25     person is in the best interest of the child.]
3-26           SECTION 6.  Section 156.102, Family Code, is amended to read
3-27     as follows:
 4-1           Sec. 156.102.  MODIFICATION OF EXCLUSIVE RIGHT TO DETERMINE
 4-2     PRIMARY RESIDENCE OF CHILD [SOLE MANAGING CONSERVATORSHIP] WITHIN
 4-3     ONE YEAR OF ORDER. (a)  If a suit seeking to modify the designation
 4-4     of the person having the exclusive right to determine the primary
 4-5     residence of a child [sole managing conservatorship] is filed not
 4-6     later than one year after the date of rendition of the order, the
 4-7     person filing the suit shall execute and attach an affidavit as
 4-8     provided by Subsection (b).
 4-9           (b)  The affidavit must contain, along with supporting facts,
4-10     at least one of the following allegations:
4-11                 (1)  that the child's present environment may endanger
4-12     the child's physical health or significantly impair the child's
4-13     emotional development;
4-14                 (2)  that the person who has the exclusive right to
4-15     determine the primary residence of the child [sole managing
4-16     conservator] is the person seeking or consenting to the
4-17     modification and the modification is in the best interest of the
4-18     child; or
4-19                 (3)  that the person who has the exclusive right to
4-20     determine the primary residence of the child [child's sole managing
4-21     conservator] has voluntarily relinquished the primary [actual]
4-22     care[, control,] and possession of the child for at least [not less
4-23     than] six months and the modification is in the best interest of
4-24     the child.
4-25           (c)  The court shall deny the relief sought and refuse to
4-26     schedule a hearing for modification under this section unless the
4-27     court determines, on the basis of the affidavit, that facts
 5-1     adequate to support an allegation listed in Subsection (b) are
 5-2     stated in the affidavit.  If the court determines that the facts
 5-3     stated are adequate to support an allegation, the court shall set a
 5-4     time and place for the hearing.
 5-5           SECTION 7.  Section 156.103, Family Code, is amended to read
 5-6     as follows:
 5-7           Sec. 156.103.  INCREASED EXPENSES BECAUSE OF CHANGE OF
 5-8     RESIDENCE.  (a)  If a change of residence results in increased
 5-9     expenses for a party having possession of or access to a child, the
5-10     court may render appropriate orders to allocate those increased
5-11     expenses on a fair and equitable basis, taking into account the
5-12     cause of the increased expenses and the best interest of the child.
5-13           (b)  The payment of increased expenses by the party whose
5-14     residence is changed is rebuttably presumed to be in the best
5-15     interest of the child.
5-16           (c)  The court may render an order without regard to whether
5-17     another change in the terms and conditions for the possession of or
5-18     access to the child is made.  [VOLUNTARY RELINQUISHMENT. The court
5-19     may modify an order that designates a sole managing conservator if
5-20     the sole managing conservator has voluntarily relinquished actual
5-21     care, control, and possession of the child for a period of not less
5-22     than six months and the modification is in the best interest of the
5-23     child.]
5-24           SECTION 8.  Section 156.104, Family Code, is amended to read
5-25     as follows:
5-26           Sec. 156.104.  MODIFICATION OF ORDER ON CONVICTION FOR CHILD
5-27     ABUSE;  PENALTY.  (a)  Except as provided by Section 156.1045, the
 6-1     conviction of a conservator, or an order deferring adjudication
 6-2     with regard to the conservator, for an offense involving the abuse
 6-3     of a child under Section 21.11, 22.011, or  22.021, Penal Code, is
 6-4     a material and substantial change of circumstances sufficient to
 6-5     justify a temporary order and modification of an existing court
 6-6     order or portion of a decree that provides for the appointment of a
 6-7     conservator or that sets the terms and conditions of
 6-8     conservatorship or for the possession of or access to a child.
 6-9           (b)  A person commits an offense if the person files a suit
6-10     to modify an order or portion of a decree based on the grounds
6-11     permitted under Subsection (a) and the person knows that the person
6-12     against whom the motion is filed has not been convicted of an
6-13     offense, or received deferred adjudication for an offense, under
6-14     Section 21.11, 22.011, or 22.021, Penal Code.  An offense under
6-15     this subsection is a Class B misdemeanor.  [MODIFICATION FROM SOLE
6-16     MANAGING CONSERVATORSHIP TO JOINT MANAGING CONSERVATORSHIP.  (a)
6-17     The court may modify an order that designates a sole managing
6-18     conservator if a parent of the child requests appointment as a
6-19     joint managing conservator and the court finds that:]
6-20                 [(1)  the circumstances of the child or the sole
6-21     managing conservator have materially and substantially changed
6-22     since the rendition of the order;]
6-23                 [(2)  retention of a sole managing conservatorship
6-24     would be detrimental to the welfare of the child; and]
6-25                 [(3)  the appointment of the parent as a joint managing
6-26     conservator would be a positive improvement for and in the best
6-27     interest of the child.]
 7-1           [(b)  An order of joint conservatorship, in and of itself,
 7-2     does not constitute grounds for modifying a support order.]
 7-3           SECTION 9.  Subchapter B, Chapter 156, Family Code, is
 7-4     amended by adding Section 156.1045 to read as follows:
 7-5           Sec. 156.1045.  MODIFICATION OF ORDER ON CONVICTION FOR
 7-6     FAMILY VIOLENCE. (a)  The conviction or an order deferring
 7-7     adjudication of a person who is a possessory conservator or a sole
 7-8     or joint managing conservator for an offense involving family
 7-9     violence is a material and substantial change of circumstances
7-10     sufficient to justify a temporary order and modification of an
7-11     existing court order or portion of a decree that provides for the
7-12     appointment of a conservator or that sets the terms and conditions
7-13     of conservatorship or for the possession of or access to a child to
7-14     conform the order to the requirements of Section 153.004(d).
7-15           (b)  A person commits an offense if the person files a suit
7-16     to modify an order or portion of a decree based on the grounds
7-17     permitted under Subsection (a) and the person knows that the person
7-18     against whom the motion is filed has not been convicted of an
7-19     offense, or received deferred adjudication for an offense,
7-20     involving family violence.  An offense under this subsection is a
7-21     Class B misdemeanor.
7-22           SECTION 10.  Section 156.409, Family Code, is amended to read
7-23     as follows:
7-24           Sec. 156.409.  CHANGE IN PHYSICAL POSSESSION.  If the sole
7-25     managing conservator of a child or the joint managing conservator
7-26     who has the exclusive right to determine [designates] the [child's]
7-27     primary residence of the child has voluntarily relinquished the
 8-1     primary [actual] care[, control,] and possession of the child to
 8-2     another person for at least six months, the court may modify an
 8-3     order providing for the support of the child to provide that the
 8-4     other person having physical possession of the child shall have the
 8-5     right to receive and give receipt for payments of support for the
 8-6     child and to hold or disburse money for the benefit of the child.
 8-7           SECTION 11. Chapter 42, Code of Criminal Procedure, is
 8-8     amended by adding Article 42.23 to read as follows:
 8-9           Art. 42.23.  NOTIFICATION OF COURT OF FAMILY VIOLENCE
8-10     CONVICTION. (a)  In this article, "family violence" has the meaning
8-11     assigned by Section 71.004, Family Code.
8-12           (b)  If the attorney representing the state in a criminal
8-13     case involving family violence learns that the defendant is subject
8-14     to the jurisdiction of another court relating to an order that
8-15     provides for the appointment of a conservator or that sets the
8-16     terms and conditions of conservatorship or for possession of or
8-17     access to a child, the attorney representing the state shall notify
8-18     the court in which the defendant is being tried of the existence of
8-19     the order and the identity of the court of continuing jurisdiction.
8-20           (c)  On the conviction or entry of an order deferring
8-21     adjudication of a defendant for an offense involving family
8-22     violence, the convicting court or the court entering the order
8-23     shall notify the court of continuing jurisdiction of the conviction
8-24     or deferred adjudication.
8-25           SECTION 12.  The following are repealed:
8-26                 (1)  Section 156.105, Family Code; and
8-27                 (2)  Subchapters C and D, Chapter 156, Family Code.
 9-1           SECTION 13.  This Act takes effect September 1, 2001, and
 9-2     applies to an action to modify an order in a suit affecting the
 9-3     parent-child relationship pending on that date or filed on or after
 9-4     that date.