1-1 By: Goodman (Senate Sponsor - West) H.B. No. 596
1-2 (In the Senate - Received from the House May 11, 2001;
1-3 May 11, 2001, read first time and referred to Committee on
1-4 Jurisprudence; May 11, 2001, reported favorably by the following
1-5 vote: Yeas 6, Nays 0; May 11, 2001, sent to printer.)
1-6 A BILL TO BE ENTITLED
1-7 AN ACT
1-8 relating to suits affecting the parent-child relationship and the
1-9 modification of an order rendered in a suit; providing penalties.
1-10 BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
1-11 SECTION 1. Section 153.008, Family Code, is amended to read
1-12 as follows:
1-13 Sec. 153.008. CHILD'S CHOICE OF MANAGING CONSERVATOR. If the
1-14 child is 12 [10] years of age or older, the child may, by writing
1-15 filed with the court, choose the managing conservator, subject to
1-16 the approval of the court.
1-17 SECTION 2. Sections 153.009(b) and (d), Family Code, are
1-18 amended to read as follows:
1-19 (b) When the issue of managing conservatorship is contested,
1-20 on the application of a party, the court shall interview a child 12
1-21 [10] years of age or older and may interview a child under 12 [10]
1-22 years of age. Interviewing a child does not diminish the
1-23 discretion of the court.
1-24 (d) On the motion of a party or on the court's own motion,
1-25 the court shall cause a record of the interview to be made when the
1-26 child is 12 [10] years of age or older. A record of the interview
1-27 shall be part of the record in the case.
1-28 SECTION 3. Section 156.006(b), Family Code, is amended to
1-29 read as follows:
1-30 (b) While a suit for modification is pending, the court may
1-31 not render a temporary order that has the effect of changing the
1-32 designation of the person who has the exclusive right to determine
1-33 the primary residence of the child under the [a sole or joint
1-34 managing conservator appointed in a] final order unless:
1-35 (1) the order is necessary because the child's present
1-36 living environment may endanger the child's physical health or
1-37 significantly impair the child's emotional development;
1-38 (2) the person designated in the final order [child's
1-39 managing conservator] has voluntarily relinquished the primary
1-40 [actual] care[, control,] and possession of the child for more than
1-41 six months and the temporary order is in the best interest of the
1-42 child; or
1-43 (3) the child is 12 [10] years of age or older and has
1-44 filed with the court in writing the name of the person who is the
1-45 child's preference to have the exclusive right to determine the
1-46 primary residence of the child [choice for managing conservator]
1-47 and the temporary order designating [naming] that person [as
1-48 managing conservator] is in the best interest of the child.
1-49 SECTION 4. The heading for Subchapter B, Chapter 156, Family
1-50 Code, is amended to read as follows:
1-51 SUBCHAPTER B. MODIFICATION OF [SOLE MANAGING] CONSERVATORSHIP,
1-52 POSSESSION AND ACCESS, OR DETERMINATION OF RESIDENCE
1-53 SECTION 5. Section 156.101, Family Code, is amended to read
1-54 as follows:
1-55 Sec. 156.101. GROUNDS FOR MODIFICATION OF ORDER ESTABLISHING
1-56 [SOLE MANAGING] CONSERVATORSHIP OR POSSESSION AND ACCESS. [(a)]
1-57 The court may modify an order or portion of a decree that provides
1-58 for the appointment of a [designates a sole managing] conservator
1-59 of a child, that provides the terms and conditions of
1-60 conservatorship, or that provides for the possession of or access
1-61 to a child [of any age] if modification would be in the best
1-62 interest of the child and:
1-63 (1) the circumstances of the child, a [sole managing]
1-64 conservator, [possessory conservator,] or other party affected by
2-1 the order have materially and substantially changed since the date
2-2 of the rendition of the order; [and]
2-3 (2) the child is at least 12 years of age and has
2-4 filed with the court, in writing, the name of the conservator who
2-5 is the child's preference to have the exclusive right to determine
2-6 the primary residence of [the appointment of the new sole managing
2-7 conservator would be a positive improvement for] the child; or
2-8 (3) the conservator who has the exclusive right to
2-9 establish the primary residence of the child has voluntarily
2-10 relinquished the primary care and possession of the child to
2-11 another person for at least six months.
2-12 [(b) The court may modify an order that designates a sole
2-13 managing conservator of a child 10 years of age or older if:]
2-14 [(1) the child has filed with the court in writing the
2-15 name of the person who is the child's choice for managing
2-16 conservator; and]
2-17 [(2) the court finds that the appointment of the named
2-18 person is in the best interest of the child.]
2-19 SECTION 6. Section 156.102, Family Code, is amended to read
2-20 as follows:
2-21 Sec. 156.102. MODIFICATION OF EXCLUSIVE RIGHT TO DETERMINE
2-22 PRIMARY RESIDENCE OF CHILD [SOLE MANAGING CONSERVATORSHIP] WITHIN
2-23 ONE YEAR OF ORDER. (a) If a suit seeking to modify the designation
2-24 of the person having the exclusive right to determine the primary
2-25 residence of a child [sole managing conservatorship] is filed not
2-26 later than one year after the date of rendition of the order, the
2-27 person filing the suit shall execute and attach an affidavit as
2-28 provided by Subsection (b).
2-29 (b) The affidavit must contain, along with supporting facts,
2-30 at least one of the following allegations:
2-31 (1) that the child's present environment may endanger
2-32 the child's physical health or significantly impair the child's
2-33 emotional development;
2-34 (2) that the person who has the exclusive right to
2-35 determine the primary residence of the child [sole managing
2-36 conservator] is the person seeking or consenting to the
2-37 modification and the modification is in the best interest of the
2-38 child; or
2-39 (3) that the person who has the exclusive right to
2-40 determine the primary residence of the child [child's sole managing
2-41 conservator] has voluntarily relinquished the primary [actual]
2-42 care[, control,] and possession of the child for at least [not less
2-43 than] six months and the modification is in the best interest of
2-44 the child.
2-45 (c) The court shall deny the relief sought and refuse to
2-46 schedule a hearing for modification under this section unless the
2-47 court determines, on the basis of the affidavit, that facts
2-48 adequate to support an allegation listed in Subsection (b) are
2-49 stated in the affidavit. If the court determines that the facts
2-50 stated are adequate to support an allegation, the court shall set a
2-51 time and place for the hearing.
2-52 SECTION 7. Section 156.103, Family Code, is amended to read
2-53 as follows:
2-54 Sec. 156.103. INCREASED EXPENSES BECAUSE OF CHANGE OF
2-55 RESIDENCE. (a) If a change of residence results in increased
2-56 expenses for a party having possession of or access to a child, the
2-57 court may render appropriate orders to allocate those increased
2-58 expenses on a fair and equitable basis, taking into account the
2-59 cause of the increased expenses and the best interest of the child.
2-60 (b) The payment of increased expenses by the party whose
2-61 residence is changed is rebuttably presumed to be in the best
2-62 interest of the child.
2-63 (c) The court may render an order without regard to whether
2-64 another change in the terms and conditions for the possession of or
2-65 access to the child is made. [VOLUNTARY RELINQUISHMENT. The court
2-66 may modify an order that designates a sole managing conservator if
2-67 the sole managing conservator has voluntarily relinquished actual
2-68 care, control, and possession of the child for a period of not less
2-69 than six months and the modification is in the best interest of the
3-1 child.]
3-2 SECTION 8. Section 156.104, Family Code, is amended to read
3-3 as follows:
3-4 Sec. 156.104. MODIFICATION OF ORDER ON CONVICTION FOR CHILD
3-5 ABUSE; PENALTY. (a) Except as provided by Section 156.1045, the
3-6 conviction of a conservator, or an order deferring adjudication
3-7 with regard to the conservator, for an offense involving the abuse
3-8 of a child under Section 21.11, 22.011, or 22.021, Penal Code, is
3-9 a material and substantial change of circumstances sufficient to
3-10 justify a temporary order and modification of an existing court
3-11 order or portion of a decree that provides for the appointment of a
3-12 conservator or that sets the terms and conditions of
3-13 conservatorship or for the possession of or access to a child.
3-14 (b) A person commits an offense if the person files a suit
3-15 to modify an order or portion of a decree based on the grounds
3-16 permitted under Subsection (a) and the person knows that the person
3-17 against whom the motion is filed has not been convicted of an
3-18 offense, or received deferred adjudication for an offense, under
3-19 Section 21.11, 22.011, or 22.021, Penal Code. An offense under
3-20 this subsection is a Class B misdemeanor. [MODIFICATION FROM SOLE
3-21 MANAGING CONSERVATORSHIP TO JOINT MANAGING CONSERVATORSHIP. (a)
3-22 The court may modify an order that designates a sole managing
3-23 conservator if a parent of the child requests appointment as a
3-24 joint managing conservator and the court finds that:]
3-25 [(1) the circumstances of the child or the sole
3-26 managing conservator have materially and substantially changed
3-27 since the rendition of the order;]
3-28 [(2) retention of a sole managing conservatorship
3-29 would be detrimental to the welfare of the child; and]
3-30 [(3) the appointment of the parent as a joint managing
3-31 conservator would be a positive improvement for and in the best
3-32 interest of the child.]
3-33 [(b) An order of joint conservatorship, in and of itself,
3-34 does not constitute grounds for modifying a support order.]
3-35 SECTION 9. Subchapter B, Chapter 156, Family Code, is
3-36 amended by adding Section 156.1045 to read as follows:
3-37 Sec. 156.1045. MODIFICATION OF ORDER ON CONVICTION FOR
3-38 FAMILY VIOLENCE. (a) The conviction or an order deferring
3-39 adjudication of a person who is a possessory conservator or a sole
3-40 or joint managing conservator for an offense involving family
3-41 violence is a material and substantial change of circumstances
3-42 sufficient to justify a temporary order and modification of an
3-43 existing court order or portion of a decree that provides for the
3-44 appointment of a conservator or that sets the terms and conditions
3-45 of conservatorship or for the possession of or access to a child to
3-46 conform the order to the requirements of Section 153.004(d).
3-47 (b) A person commits an offense if the person files a suit
3-48 to modify an order or portion of a decree based on the grounds
3-49 permitted under Subsection (a) and the person knows that the person
3-50 against whom the motion is filed has not been convicted of an
3-51 offense, or received deferred adjudication for an offense,
3-52 involving family violence. An offense under this subsection is a
3-53 Class B misdemeanor.
3-54 SECTION 10. Section 156.409, Family Code, is amended to read
3-55 as follows:
3-56 Sec. 156.409. CHANGE IN PHYSICAL POSSESSION. If the sole
3-57 managing conservator of a child or the joint managing conservator
3-58 who has the exclusive right to determine [designates] the [child's]
3-59 primary residence of the child has voluntarily relinquished the
3-60 primary [actual] care[, control,] and possession of the child to
3-61 another person for at least six months, the court may modify an
3-62 order providing for the support of the child to provide that the
3-63 other person having physical possession of the child shall have the
3-64 right to receive and give receipt for payments of support for the
3-65 child and to hold or disburse money for the benefit of the child.
3-66 SECTION 11. Chapter 42, Code of Criminal Procedure, is
3-67 amended by adding Article 42.23 to read as follows:
3-68 Art. 42.23. NOTIFICATION OF COURT OF FAMILY VIOLENCE
3-69 CONVICTION. (a) In this article, "family violence" has the meaning
4-1 assigned by Section 71.004, Family Code.
4-2 (b) If the attorney representing the state in a criminal
4-3 case involving family violence learns that the defendant is subject
4-4 to the jurisdiction of another court relating to an order that
4-5 provides for the appointment of a conservator or that sets the
4-6 terms and conditions of conservatorship or for possession of or
4-7 access to a child, the attorney representing the state shall notify
4-8 the court in which the defendant is being tried of the existence of
4-9 the order and the identity of the court of continuing jurisdiction.
4-10 (c) On the conviction or entry of an order deferring
4-11 adjudication of a defendant for an offense involving family
4-12 violence, the convicting court or the court entering the order
4-13 shall notify the court of continuing jurisdiction of the conviction
4-14 or deferred adjudication.
4-15 SECTION 12. The following are repealed:
4-16 (1) Section 156.105, Family Code; and
4-17 (2) Subchapters C and D, Chapter 156, Family Code.
4-18 SECTION 13. This Act takes effect September 1, 2001, and
4-19 applies to an action to modify an order in a suit affecting the
4-20 parent-child relationship pending on that date or filed on or after
4-21 that date.
4-22 * * * * *