By: Goodman, Dutton (Senate Sponsor - Harris) H.B. No. 913
(In the Senate - Received from the House April 25, 2003;
April 28, 2003, read first time and referred to Committee on
Jurisprudence; May 19, 2003, reported favorably by the following
vote: Yeas 6, Nays 0; May 19, 2003, sent to printer.)
A BILL TO BE ENTITLED
AN ACT
relating to the conservatorship of, and the possession of and
access to, a child.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
SECTION 1. Sections 105.001(a) and (c), Family Code, are
amended to read as follows:
(a) In a suit, the court may make a temporary order,
including the modification of a prior temporary order, for the
safety and welfare of the child, including an order:
(1) for the temporary conservatorship of the child;
(2) for the temporary support of the child;
(3) restraining a party from [molesting or] disturbing
the peace of the child or another party;
(4) prohibiting a person from removing the child
beyond a geographical area identified by the court; or
(5) for payment of reasonable attorney's fees and
expenses.
(c) Except on a verified pleading or an affidavit in
accordance with the Texas Rules of Civil Procedure, an order may not
be rendered:
(1) attaching the body of the child;
(2) taking the child into the possession of the court
or of a person [parent] designated by the court; or
(3) excluding a parent from possession of or access to
a child.
SECTION 2. Section 105.002(c), Family Code, is amended to
read as follows:
(c) In a jury trial:
(1) a party is entitled to a verdict by the jury and
the court may not contravene a jury verdict on the issues of:
(A) the appointment of a sole managing
conservator;
(B) the appointment of joint managing
conservators;
(C) the appointment of a possessory conservator;
[and]
(D) the determination of which joint managing
conservator has the exclusive right to designate the primary
residence of the child;
(E) the determination of whether to impose a
restriction on the geographic area in which a joint managing
conservator may designate the child's primary residence; and
(F) if a restriction described by Paragraph (E)
is imposed, the determination of the geographic area within which
the joint managing conservator must designate the child's primary
residence; and
(2) the court may not submit [a party is not entitled]
to the [a] jury questions [verdict] on the issues of:
(A) [child] support under Chapter 154 or Chapter
159;
(B) a specific term or condition of possession of
or access to the child; or
(C) any right or duty of a [possessory or
managing] conservator, other than the determination of which joint
managing conservator has the exclusive right to designate the
[issue of] primary residence of the child [determined] under
Subdivision (1)(D)[; and
[(3) the court may submit to the jury an issue
described by Subdivision (2)].
SECTION 3. Section 151.001(a), Family Code, is amended to
read as follows:
(a) A parent of a child has the following rights and duties:
(1) the right to have physical possession, to direct
the moral and religious training, and to designate [establish] the
residence of the child;
(2) the duty of care, control, protection, and
reasonable discipline of the child;
(3) the duty to support the child, including providing
the child with clothing, food, shelter, medical and dental care,
and education;
(4) the duty, except when a guardian of the child's
estate has been appointed, to manage the estate of the child,
including the right as an agent of the child to act in relation to
the child's estate if the child's action is required by a state, the
United States, or a foreign government;
(5) except as provided by Section 264.0111, the right
to the services and earnings of the child;
(6) the right to consent to the child's marriage,
enlistment in the armed forces of the United States, medical and
dental care, and psychiatric, psychological, and surgical
treatment;
(7) the right to represent the child in legal action
and to make other decisions of substantial legal significance
concerning the child;
(8) the right to receive and give receipt for payments
for the support of the child and to hold or disburse funds for the
benefit of the child;
(9) the right to inherit from and through the child;
(10) the right to make decisions concerning the
child's education; and
(11) any other right or duty existing between a parent
and child by virtue of law.
SECTION 4. Section 152.209(a), Family Code, is amended to
read as follows:
(a) Except as provided by Subsection (e) or unless each
party resides in this state, in a child custody proceeding, each
party, in its first pleading or in an attached affidavit, shall give
information, if reasonably ascertainable, under oath as to the
child's present address or whereabouts, the places where the child
has lived during the last five years, and the names and present
addresses of the persons with whom the child has lived during that
period. The pleading or affidavit must state whether the party:
(1) has participated, as a party or witness or in any
other capacity, in any other proceeding concerning the custody of
or visitation with the child and, if so, identify the court, the
case number, and the date of the child custody determination, if
any;
(2) knows of any proceeding that could affect the
current proceeding, including proceedings for enforcement and
proceedings relating to domestic violence, protective orders,
termination of parental rights, and adoptions and, if so, identify
the court, the case number, and the nature of the proceeding; and
(3) knows the names and addresses of any person not a
party to the proceeding who has physical custody of the child or
claims rights of legal custody or physical custody of, or
visitation with, the child and, if so, the names and addresses of
those persons.
SECTION 5. Section 153.008, Family Code, is amended to read
as follows:
Sec. 153.008. CHILD'S PREFERENCE [CHOICE] OF PERSON TO
DESIGNATE RESIDENCE [MANAGING CONSERVATOR]. A [If the] child [is]
12 years of age or older may file [, the child may, by writing filed]
with the court in writing[, choose] the name of the person who is
the child's preference to have the exclusive right to designate the
primary residence of the child [managing conservator], subject to
the approval of the court.
SECTION 6. Section 153.073(a), Family Code, is amended to
read as follows:
(a) Unless limited by court order, a parent appointed as a
conservator of a child has at all times the right:
(1) [as specified by court order:
[(A)] to receive information from any [the] other
conservator of the child [parent] concerning the health, education,
and welfare of the child; [and]
(2) [(B)] to confer with the other parent to the
extent possible before making a decision concerning the health,
education, and welfare of the child;
(3) [(2)] of access to medical, dental,
psychological, and educational records of the child;
(4) [(3)] to consult with a physician, dentist, or
psychologist of the child;
(5) [(4)] to consult with school officials concerning
the child's welfare and educational status, including school
activities;
(6) [(5)] to attend school activities;
(7) [(6)] to be designated on the child's records as a
person to be notified in case of an emergency;
(8) [(7)] to consent to medical, dental, and surgical
treatment during an emergency involving an immediate danger to the
health and safety of the child; and
(9) [(8)] to manage the estate of the child to the
extent the estate has been created by the parent or the parent's
family.
SECTION 7. Section 153.074, Family Code, is amended to read
as follows:
Sec. 153.074. RIGHTS AND DUTIES DURING PERIOD OF
POSSESSION. Unless limited by court order, a parent appointed as a
conservator of a child has the following rights and duties during
the period that the parent has possession of the child:
(1) the duty of care, control, protection, and
reasonable discipline of the child;
(2) the duty to support the child, including providing
the child with clothing, food, shelter, and medical and dental care
not involving an invasive procedure;
(3) the right to consent for the child to medical and
dental care not involving an invasive procedure; and
(4) [the right to consent for the child to medical,
dental, and surgical treatment during an emergency involving
immediate danger to the health and safety of the child; and
[(5)] the right to direct the moral and religious
training of the child.
SECTION 8. Section 153.076, Family Code, is amended to read
as follows:
Sec. 153.076. [PARENTS'] DUTY TO PROVIDE INFORMATION. (a)
The [If both parents are appointed as conservators of the child,
the] court shall order that each conservator of a child [parent]
has a duty to inform the other conservator of the child [parent] in
a timely manner of significant information concerning the health,
education, and welfare of the child.
(b) The [If both parents are appointed as conservators of a
child, the] court shall order that each conservator of a child
[parent] has the duty to inform the other conservator of the child
[parent] if the conservator [parent] resides with for at least 30
days, marries, or intends to marry a person who the conservator
[parent] knows:
(1) is registered as a sex offender under Chapter 62,
Code of Criminal Procedure [, as added by Chapter 668, Acts of the
75th Legislature, Regular Session, 1997]; or
(2) is currently charged with an offense for which on
conviction the person would be required to register under that
chapter.
(c) The notice required to be made under Subsection (b) must
be made as soon as practicable but not later than the 40th day after
the date the conservator of the child [parent] begins to reside with
the person or the 10th day after the date the marriage occurs, as
appropriate. The notice must include a description of the offense
that is the basis of the person's requirement to register as a sex
offender or of the offense with which the person is charged.
(d) A conservator [person] commits an offense if the
conservator [person] fails to provide notice in the manner required
by Subsections (b) and (c). An offense under this subsection is a
Class C misdemeanor.
SECTION 9. Section 153.132, Family Code, is amended to read
as follows:
Sec. 153.132. RIGHTS AND DUTIES OF PARENT APPOINTED SOLE
MANAGING CONSERVATOR. Unless limited by court order, a parent
appointed as sole managing conservator of a child has the rights and
duties provided by Subchapter B and the following exclusive rights:
(1) the right to designate [establish] the primary
residence of the child;
(2) the right to consent to medical, dental, and
surgical treatment involving invasive procedures, and to consent to
psychiatric and psychological treatment;
(3) the right to receive and give receipt for periodic
payments for the support of the child and to hold or disburse these
funds for the benefit of the child;
(4) the right to represent the child in legal action
and to make other decisions of substantial legal significance
concerning the child;
(5) the right to consent to marriage and to enlistment
in the armed forces of the United States;
(6) the right to make decisions concerning the child's
education;
(7) the right to the services and earnings of the
child; and
(8) except when a guardian of the child's estate or a
guardian or attorney ad litem has been appointed for the child, the
right to act as an agent of the child in relation to the child's
estate if the child's action is required by a state, the United
States, or a foreign government.
SECTION 10. Section 153.133(a), Family Code, is amended to
read as follows:
(a) If a written agreement of the parents is filed with the
court, the court shall render an order appointing the parents as
joint managing conservators only if the agreement:
(1) designates the conservator who has the exclusive
right to designate [establish] the primary residence of the child
and:
(A) establishes, until modified by further
order, the geographic area within which the conservator shall
maintain the child's primary residence; or
(B) specifies that the conservator may designate
[establish] the child's primary residence without regard to
geographic location;
(2) specifies the rights and duties of each parent
regarding the child's physical care, support, and education;
(3) includes provisions to minimize disruption of the
child's education, daily routine, and association with friends;
(4) allocates between the parents, independently,
jointly, or exclusively, all of the remaining rights and duties of a
parent provided by Chapter 151;
(5) is voluntarily and knowingly made by each parent
and has not been repudiated by either parent at the time the order
is rendered; and
(6) is in the best interest of the child.
SECTION 11. Section 153.134(b), Family Code, is amended to
read as follows:
(b) In rendering an order appointing joint managing
conservators, the court shall:
(1) designate the conservator who has the exclusive
right to determine the primary residence of the child and:
(A) establish, until modified by further order, a
geographic area [consisting of the county in which the child is to
reside and any contiguous county thereto] within which the
conservator shall maintain the child's primary residence; or
(B) specify that the conservator may determine
the child's primary residence without regard to geographic
location;
(2) specify the rights and duties of each parent
regarding the child's physical care, support, and education;
(3) include provisions to minimize disruption of the
child's education, daily routine, and association with friends;
(4) allocate between the parents, independently,
jointly, or exclusively, all of the remaining rights and duties of a
parent as provided by Chapter 151; and
(5) if feasible, recommend that the parties use an
alternative dispute resolution method before requesting
enforcement or modification of the terms and conditions of the
joint conservatorship through litigation, except in an emergency.
SECTION 12. Section 153.137, Family Code, is amended to
read as follows:
Sec. 153.137. GUIDELINES FOR THE POSSESSION OF CHILD BY
PARENT NAMED AS JOINT MANAGING CONSERVATOR. The standard
possession order provided by Subchapter F constitutes a presumptive
minimum amount of time for possession of a child by a parent named
as a joint managing conservator who is not awarded the exclusive
right to designate the primary [physical] residence of the child in
a suit.
SECTION 13. Section 153.312(a), Family Code, is amended to
read as follows:
(a) If the possessory conservator resides 100 miles or less
from the primary residence of the child, the possessory conservator
shall have the right to possession of the child as follows:
(1) on weekends beginning at 6 p.m. on the first,
third, and fifth Friday of each month and ending at 6 p.m. on the
following Sunday or, at the possessory conservator's election made
before or at the time of the rendition of the original or
modification order, and as specified in the original or
modification order, beginning at the time the child's school is
regularly dismissed and ending at 6 p.m. on the following Sunday;
and
(2) on Thursdays [Wednesdays] of each week during the
regular school term beginning at 6 p.m. and ending at 8 p.m., or, at
the possessory conservator's election made before or at the time of
the rendition of the original or modification order, and as
specified in the original or modification order, beginning at the
time the child's school is regularly dismissed and ending at the
time the child's school resumes, unless the court finds that
visitation under this subdivision is not in the best interest of the
child.
SECTION 14. Section 153.314, Family Code, is amended to
read as follows:
Sec. 153.314. HOLIDAY POSSESSION UNAFFECTED BY DISTANCE
PARENTS RESIDE APART. The following provisions govern possession
of the child for certain specific holidays and supersede
conflicting weekend or Thursday [Wednesday] periods of possession
without regard to the distance the parents reside apart. The
possessory conservator and the managing conservator shall have
rights of possession of the child as follows:
(1) the possessory conservator shall have possession
of the child in even-numbered years beginning at 6 p.m. on the day
the child is dismissed from school for the Christmas school
vacation and ending at noon on December 26, and the managing
conservator shall have possession for the same period in
odd-numbered years;
(2) the possessory conservator shall have possession
of the child in odd-numbered years beginning at noon on December 26
and ending at 6 p.m. on the day before school resumes after that
vacation, and the managing conservator shall have possession for
the same period in even-numbered years;
(3) the possessory conservator shall have possession
of the child in odd-numbered years, beginning at 6 p.m. on the day
the child is dismissed from school before Thanksgiving and ending
at 6 p.m. on the following Sunday, and the managing conservator
shall have possession for the same period in even-numbered years;
(4) the parent not otherwise entitled under this
standard order to present possession of a child on the child's
birthday shall have possession of the child beginning at 6 p.m. and
ending at 8 p.m. on that day, provided that the parent picks up the
child from the residence of the conservator entitled to possession
and returns the child to that same place;
(5) if a conservator, the father shall have possession
of the child beginning at 6 p.m. on the Friday preceding Father's
Day and ending on Father's Day at 6 p.m., provided that, if he is not
otherwise entitled under this standard order to present possession
of the child, he picks up the child from the residence of the
conservator entitled to possession and returns the child to that
same place; and
(6) if a conservator, the mother shall have possession
of the child beginning at 6 p.m. on the Friday preceding Mother's
Day and ending on Mother's Day at 6 p.m., provided that, if she is
not otherwise entitled under this standard order to present
possession of the child, she picks up the child from the residence
of the conservator entitled to possession and returns the child to
that same place.
SECTION 15. Section 153.317, Family Code, is amended to
read as follows:
Sec. 153.317. ALTERNATIVE POSSESSION TIMES. If a child is
enrolled in school and the possessory conservator elects before or
at the time of the rendition of the original or modification order,
the standard order must expressly provide that the possessory
conservator's period of possession shall begin or end, or both, at a
different time expressly set in the standard order under and within
the range of alternative times provided by one or both of the
following subdivisions:
(1) instead of a period of possession by a possessory
conservator beginning at 6 p.m. on the day school recesses, the
period of possession may be set in the standard possession order to
begin at the time the child's school is regularly dismissed or at
any time between the time the child's school is regularly dismissed
and 6 p.m.; and
(2) except for Thursday [Wednesday] evening
possession, instead of a period of possession by a possessory
conservator ending at 6 p.m. on the day before school resumes, the
period of possession may be set in the standard order to end at the
time school resumes.
SECTION 16. Section 153.371, Family Code, is amended to
read as follows:
Sec. 153.371. RIGHTS AND DUTIES OF NONPARENT APPOINTED AS
SOLE MANAGING CONSERVATOR. Unless limited by court order or other
provisions of this chapter, a nonparent, licensed child-placing
agency, or authorized agency appointed as a managing conservator of
the child has the following rights and duties:
(1) the right to have physical possession and to
direct the moral and religious training of the child;
(2) the duty of care, control, protection, and
reasonable discipline of the child;
(3) the duty to provide the child with clothing, food,
shelter, education, and medical, psychological, and dental care;
(4) the right to consent for the child to medical,
psychiatric, psychological, dental, and surgical treatment and to
have access to the child's medical records;
(5) the right to receive and give receipt for payments
for the support of the child and to hold or disburse funds for the
benefit of the child;
(6) the right to the services and earnings of the
child;
(7) the right to consent to marriage and to enlistment
in the armed forces of the United States;
(8) the right to represent the child in legal action
and to make other decisions of substantial legal significance
concerning the child;
(9) except when a guardian of the child's estate or a
guardian or attorney ad litem has been appointed for the child, the
right to act as an agent of the child in relation to the child's
estate if the child's action is required by a state, the United
States, or a foreign government;
(10) the right to designate [establish] the primary
residence of the child and to make decisions regarding the child's
education; and
(11) if the parent-child relationship has been
terminated with respect to the parents, or only living parent, or if
there is no living parent, the right to consent to the adoption of
the child and to make any other decision concerning the child that a
parent could make.
SECTION 17. Section 155.301(a), Family Code, is amended to
read as follows:
(a) A court of this state with continuing, exclusive
jurisdiction over a child custody proceeding under Chapter 152 or a
[suit or an action for] child support proceeding under Chapter 159
shall transfer the proceeding to the county of residence of the
resident party if one party is a resident of this state and all
other parties including the child or all of the children affected by
the proceeding [proceedings] reside outside this state.
SECTION 18. Section 156.006(b), Family Code, is amended to
read as follows:
(b) While a suit for modification is pending, the court may
not render a temporary order that has the effect of changing the
designation of the person who has the exclusive right to designate
[determine] the primary residence of the child under the final
order unless:
(1) the order is necessary because the child's present
living environment may endanger the child's physical health or
significantly impair the child's emotional development;
(2) the person designated in the final order has
voluntarily relinquished the primary care and possession of the
child for more than six months and the temporary order is in the
best interest of the child; or
(3) the child is 12 years of age or older and has filed
with the court in writing the name of the person who is the child's
preference to have the exclusive right to designate [determine] the
primary residence of the child and the temporary order designating
that person is in the best interest of the child.
SECTION 19. Section 156.101, Family Code, is amended to
read as follows:
Sec. 156.101. GROUNDS FOR MODIFICATION OF ORDER
ESTABLISHING CONSERVATORSHIP OR POSSESSION AND ACCESS. The court
may modify an order [or portion of a decree] that provides for the
appointment of a conservator of a child, that provides the terms and
conditions of conservatorship, or that provides for the possession
of or access to a child if modification would be in the best
interest of the child and:
(1) the circumstances of the child, a conservator, or
other party affected by the order have materially and substantially
changed since the earlier of:
(A) the date of the rendition of the order; or
(B) the date of the signing of a mediated or
collaborative law settlement agreement on which the order is based;
(2) the child is at least 12 years of age and has filed
with the court, in writing, the name of the person [conservator] who
is the child's preference to have the exclusive right to designate
[determine] the primary residence of the child; or
(3) the conservator who has the exclusive right to
designate [establish] the primary residence of the child has
voluntarily relinquished the primary care and possession of the
child to another person for at least six months.
SECTION 20. Sections 156.102(a) and (b), Family Code, are
amended to read as follows:
(a) If a suit seeking to modify the designation of the
person having the exclusive right to designate [determine] the
primary residence of a child is filed not later than one year after
the earlier of the date of the rendition of the order or the date of
the signing of a mediated or collaborative law settlement agreement
on which the order is based, the person filing the suit shall
execute and attach an affidavit as provided by Subsection (b).
(b) The affidavit must contain, along with supporting
facts, at least one of the following allegations:
(1) that the child's present environment may endanger
the child's physical health or significantly impair the child's
emotional development;
(2) that the person who has the exclusive right to
designate [determine] the primary residence of the child is the
person seeking or consenting to the modification and the
modification is in the best interest of the child; or
(3) that the person who has the exclusive right to
designate [determine] the primary residence of the child has
voluntarily relinquished the primary care and possession of the
child for at least six months and the modification is in the best
interest of the child.
SECTION 21. Section 156.401(a), Family Code, is amended to
read as follows:
(a) Except as provided by Subsection (b), the court may
modify an order that provides for the support of a child if:
(1) the circumstances of the child or a person
affected by the order have materially and substantially changed
since the earlier of:
(A) the date of the order's rendition; or
(B) the date of the signing of a mediated or
collaborative law settlement agreement on which the order is based;
or
(2) it has been three years since the order was
rendered or last modified and the monthly amount of the child
support award under the order differs by either 20 percent or $100
from the amount that would be awarded in accordance with the child
support guidelines.
SECTION 22. Sections 105.002(d) and 153.136, Family Code,
are repealed.
SECTION 23. (a) This Act takes effect September 1, 2003.
(b) The changes in law made by this Act to Sections
105.001(a) and (c), Family Code, apply only to an order rendered in
a suit affecting the parent-child relationship on or after the
effective date of this Act. An order rendered in a suit affecting
the parent-child relationship before the effective date of this Act
is governed by the law in effect on the date the order was rendered,
and the former law is continued in effect for that purpose.
(c) The changes in law made by this Act to Sections
105.002(c) and 153.008, Family Code, apply only to a suit affecting
the parent-child relationship filed on or after the effective date
of this Act. A suit affecting the parent-child relationship filed
before the effective date of this Act is governed by the law in
effect on the date that the suit was filed, and the former law is
continued in effect for that purpose.
(d) The changes in law made by this Act to Sections
152.209(a) and 155.301(a), Family Code, apply only to a child
custody proceeding under Chapter 152, Family Code, filed on or
after the effective date of this Act. A child custody proceeding
under Chapter 152, Family Code, filed before the effective date of
this Act is governed by the law in effect on the date that the
proceeding was filed, and the former law is continued in effect for
that purpose.
(e) The changes in law made by this Act to Sections 153.076,
153.312(a), 153.314, and 153.317, Family Code, apply only to a
court order providing for possession of or access to a child
rendered on or after that date. A court order rendered before the
effective date of this Act is governed by the law in effect on the
date the order was rendered, and the former law is continued in
effect for that purpose.
(f) The change in law made by this Act to Section
153.134(b), Family Code, applies only to a court order appointing
joint managing conservators rendered on or after the effective date
of this Act. A court order appointing joint managing conservators
rendered before the effective date of this Act is governed by the
law in effect on the date the order was rendered, and the former law
is continued in effect for that purpose.
(g) The changes in law made by this Act to Sections 156.101,
156.102(a) and (b), and 156.401(a), Family Code, apply only to an
action to modify an order in a suit affecting the parent-child
relationship pending on the effective date of this Act or filed on
or after that date.
* * * * *