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.
_______________________________ _______________________________
President of the Senate Speaker of the House
I certify that H.B. No. 596 was passed by the House on May
11, 2001, by a non-record vote.
_______________________________
Chief Clerk of the House
I certify that H.B. No. 596 was passed by the Senate on May
22, 2001, by the following vote: Yeas 30, Nays 0, 1 present, not
voting.
_______________________________
Secretary of the Senate
APPROVED: __________________________
Date
__________________________
Governor