77R8315 JMM-F                           
         By Goodman                                             H.B. No. 596
         Substitute the following for H.B. No. 596:
         By Naishtat                                        C.S.H.B. No. 596
                                A BILL TO BE ENTITLED
 1-1                                   AN ACT
 1-2     relating to the modification of an order in a suit affecting the
 1-3     parent-child relationship; providing a penalty.
 1-4           BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
 1-5           SECTION 1.  Section 156.006(b), Family Code, is amended to
 1-6     read as follows:
 1-7           (b)  While a suit for modification is pending, the court may
 1-8     not render a temporary order that has the effect of changing the
 1-9     designation of the person who has the exclusive right to determine
1-10     the primary residence of the child under the [a sole or joint
1-11     managing conservator appointed in a] final order unless:
1-12                 (1)  the order is necessary because the child's present
1-13     living environment may endanger the child's physical health or
1-14     significantly impair the child's emotional development;
1-15                 (2)  the person designated in the final order [child's
1-16     managing conservator] has voluntarily relinquished the primary
1-17     [actual] care[, control,] and possession of the child for more than
1-18     six months and the temporary order is in the best interest of the
1-19     child; or
1-20                 (3)  the child is 10 years of age or older and has
1-21     filed with the court in writing the name of the person who is the
1-22     child's preference to have the exclusive right to determine the
1-23     primary residence of the child [choice for managing conservator]
1-24     and the temporary order designating [naming] that person [as
 2-1     managing conservator] is in the best interest of the child.
 2-2           SECTION 2.  The heading for Subchapter B, Chapter 156, Family
 2-3     Code, is amended to read as follows:
 2-4       SUBCHAPTER B.  MODIFICATION OF [SOLE MANAGING] CONSERVATORSHIP,
 2-5            POSSESSION AND ACCESS, OR DETERMINATION OF RESIDENCE
 2-6           SECTION 3.  Section 156.101, Family Code, is amended to read
 2-7     as follows:
 2-8           Sec. 156.101.  GROUNDS FOR MODIFICATION OF ORDER ESTABLISHING
 2-9     [SOLE MANAGING] CONSERVATORSHIP OR POSSESSION AND ACCESS.  [(a)]
2-10     The court may modify an order or portion of a decree that provides
2-11     for the appointment of a [designates a sole managing] conservator
2-12     of a child, that provides the terms and conditions of
2-13     conservatorship, or that provides for the possession of or access
2-14     to a child [of any age] if modification would be in the best
2-15     interest of the child and:
2-16                 (1)  the circumstances of the child, a [sole managing]
2-17     conservator, [possessory conservator,] or other party affected by
2-18     the order have materially and substantially changed since the date
2-19     of the rendition of the order; [and]
2-20                 (2)  the child is at least 10 years of age and has
2-21     filed with the court, in writing, the name of the conservator who
2-22     is the child's preference to have the exclusive right to determine
2-23     the primary residence of [the appointment of the new sole managing
2-24     conservator would be a positive improvement for] the child; or
2-25                 (3)  the conservator who has the exclusive right to
2-26     establish the primary residence of the child has voluntarily
2-27     relinquished the primary care and possession of the child to
 3-1     another person for at least six months.
 3-2           [(b)  The court may modify an order that designates a sole
 3-3     managing conservator of a child 10 years of age or older if:]
 3-4                 [(1)  the child has filed with the court in writing the
 3-5     name of the person who is the child's choice for managing
 3-6     conservator; and]
 3-7                 [(2)  the court finds that the appointment of the named
 3-8     person is in the best interest of the child.]
 3-9           SECTION 4.  Section 156.102, Family Code, is amended to read
3-10     as follows:
3-11           Sec. 156.102.  MODIFICATION OF EXCLUSIVE RIGHT TO DETERMINE
3-12     PRIMARY RESIDENCE OF CHILD [SOLE MANAGING CONSERVATORSHIP] WITHIN
3-13     ONE YEAR OF ORDER. (a)  If a suit seeking to modify the designation
3-14     of the person having the exclusive right to determine the primary
3-15     residence of a child [sole managing conservatorship] is filed not
3-16     later than one year after the date of rendition of the order, the
3-17     person filing the suit shall execute and attach an affidavit as
3-18     provided by Subsection (b).
3-19           (b)  The affidavit must contain, along with supporting facts,
3-20     at least one of the following allegations:
3-21                 (1)  that the child's present environment may endanger
3-22     the child's physical health or significantly impair the child's
3-23     emotional development;
3-24                 (2)  that the person who has the exclusive right to
3-25     determine the primary residence of the child [sole managing
3-26     conservator] is the person seeking or consenting to the
3-27     modification and the modification is in the best interest of the
 4-1     child; or
 4-2                 (3)  that the person who has the exclusive right to
 4-3     determine the primary residence of the child [child's sole managing
 4-4     conservator] has voluntarily relinquished the primary [actual]
 4-5     care[, control,] and possession of the child for at least [not less
 4-6     than] six months and the modification is in the best interest of
 4-7     the child.
 4-8           (c)  The court shall deny the relief sought and refuse to
 4-9     schedule a hearing for modification under this section unless the
4-10     court determines, on the basis of the affidavit, that facts
4-11     adequate to support an allegation listed in Subsection (b) are
4-12     stated in the affidavit.  If the court determines that the facts
4-13     stated are adequate to support an allegation, the court shall set a
4-14     time and place for the hearing.
4-15           SECTION 5.  Section 156.103, Family Code, is amended to read
4-16     as follows:
4-17           Sec. 156.103.  INCREASED EXPENSES BECAUSE OF CHANGE OF
4-18     RESIDENCE.  (a)  If a change of residence results in increased
4-19     expenses for a party having possession of or access to a child, the
4-20     court may render appropriate orders to allocate those increased
4-21     expenses on a fair and equitable basis, taking into account the
4-22     cause of the increased expenses and the best interest of the child.
4-23           (b)  The payment of increased expenses by the party whose
4-24     residence is changed is rebuttably presumed to be in the best
4-25     interest of the child.
4-26           (c)  The court may render an order without regard to whether
4-27     another change in the terms and conditions for the possession of or
 5-1     access to the child is made.  [VOLUNTARY RELINQUISHMENT. The court
 5-2     may modify an order that designates a sole managing conservator if
 5-3     the sole managing conservator has voluntarily relinquished actual
 5-4     care, control, and possession of the child for a period of not less
 5-5     than six months and the modification is in the best interest of the
 5-6     child.]
 5-7           SECTION 6.  Section 156.104, Family Code, is amended to read
 5-8     as follows:
 5-9           Sec. 156.104.  MODIFICATION OF ORDER ON CONVICTION FOR CHILD
5-10     ABUSE;  PENALTY.  (a)  The conviction of a conservator, or an order
5-11     deferring adjudication with regard to the conservator, for an
5-12     offense involving the abuse of a child under Section 21.11, 22.011,
5-13     or  22.021, Penal Code, is a material and substantial change of
5-14     circumstances sufficient to justify a temporary order and
5-15     modification of an existing court order or portion of a decree that
5-16     provides for the appointment of a conservator or that sets the
5-17     terms and conditions of conservatorship or for the possession of or
5-18     access to a child.
5-19           (b)  A person commits an offense if the person files a suit
5-20     to modify an order or portion of a decree based on the grounds
5-21     permitted under Subsection (a) and the person knows that the person
5-22     against whom the motion is filed has not been convicted of an
5-23     offense, or received deferred adjudication for an offense, under
5-24     Section 21.11, 22.011, or 22.021, Penal Code.  An offense under
5-25     this subsection is a Class B misdemeanor.  [MODIFICATION FROM SOLE
5-26     MANAGING CONSERVATORSHIP TO JOINT MANAGING CONSERVATORSHIP.  (a)
5-27     The court may modify an order that designates a sole managing
 6-1     conservator if a parent of the child requests appointment as a
 6-2     joint managing conservator and the court finds that:]
 6-3                 [(1)  the circumstances of the child or the sole
 6-4     managing conservator have materially and substantially changed
 6-5     since the rendition of the order;]
 6-6                 [(2)  retention of a sole managing conservatorship
 6-7     would be detrimental to the welfare of the child; and]
 6-8                 [(3)  the appointment of the parent as a joint managing
 6-9     conservator would be a positive improvement for and in the best
6-10     interest of the child.]
6-11           [(b)  An order of joint conservatorship, in and of itself,
6-12     does not constitute grounds for modifying a support order.]
6-13           SECTION 7.  Section 156.409, Family Code, is amended to read
6-14     as follows:
6-15           Sec. 156.409.  CHANGE IN PHYSICAL POSSESSION.  If the sole
6-16     managing conservator of a child or the joint managing conservator
6-17     who has the exclusive right to determine [designates] the [child's]
6-18     primary residence of the child has voluntarily relinquished the
6-19     primary [actual] care[, control,] and possession of the child to
6-20     another person for at least six months, the court may modify an
6-21     order providing for the support of the child to provide that the
6-22     other person having physical possession of the child shall have the
6-23     right to receive and give receipt for payments of support for the
6-24     child and to hold or disburse money for the benefit of the child.
6-25           SECTION 8.  The following are repealed:
6-26                 (1)  Section 156.105, Family Code; and
6-27                 (2)  Subchapters C and D, Chapter 156, Family Code.
 7-1           SECTION 9.  This Act takes effect September 1, 2001, and
 7-2     applies to an action to modify an order in a suit affecting the
 7-3     parent-child relationship pending on that date or filed on or after
 7-4     that date.