BILL ANALYSIS

C.S.H.B. 1151

By: Thompson

Judiciary & Civil Jurisprudence

Committee Report (Substituted)

BACKGROUND AND PURPOSE

The Family Code currently permits a child 12 years of age or older to file a statement in a custody hearing naming the person who is the child's preference to have the exclusive right to designate the primary residence of the child. This statement is intended to permit the child to express a preference without subjecting the child to the additional stress that may arise in family litigation. Such statements are usually seen in the form of a notarized affidavit submitted to the court. It is general practice for the family courts to consider the child's best interest in determining the child's primary residence and placement. Similarly, it is general practice for family courts to shield children from the conflicts that may arise from between adults during custody litigation. However, the language of the current statute has resulted in parents placing children in the middle of their dispute, often with each side pressuring the child to choose one parent over the other.

This bill permits the child to express the child's wishes in custody litigation through means already permitted by law. The bill removes the requirement that the child's wishes be expressed in writing and replaces that requirement with methods that permit a child to express a preference without the emotional stressors that may result when a child feels a sense of loyalty to one parent and pressure from that parent to sign whatever statement the parent provides. The bill eliminates a common situation of "dueling affidavits" in which the child signs an affidavit of preference with one parent and then signs an opposing one with the other parent. The bill ultimately maintains the original intent of the applicable law, continues to recognize that the child's preference is one of many important factors to consider, and reduces the likelihood of abuse and undue influence in family litigation.

C.S.H.B. 1151 clarifies procedures by which a child is authorized to express the child's wishes regarding any issue over which the court has jurisdiction and revises procedures relating to rendering a temporary order that effectively changes the designation of the person with the exclusive right to designate the primary residence of a child 12 years of age or older.

RULEMAKING AUTHORITY

It is the committee's opinion that this bill does not expressly grant any additional rulemaking authority to a state officer, department, agency, or institution.

ANALYSIS

C.S.H.B. 1151 amends the Family Code to authorize a child 12 years of age or older to express to the court the child's preference regarding any issue over which the court has jurisdiction, rather than authorizing the child to file with the court in writing the name of the person the child prefers to have the exclusive right to designate the primary residence of the child, subject to the approval of the court.  The bill authorizes the child to express the child's preference in an interview of the child by the court in chambers, to a mental health professional in family counseling, to an appointed parenting coordinator, or to an appointed guardian ad litem, attorney ad litem, amicus attorney, or social study evaluator.

C.S.H.B. 1151 revises the conditions under which the court is authorized to render, while a suit for modification is pending, a temporary order that effectively changes the designation of the person who has the exclusive right to designate the primary residence of a child 12 years of age or older to include the fact that the circumstances of the child, a conservator, or other party affected by the order have materially and substantially changed since 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 bill clarifies that such a temporary order must be in the best interest of the child.

EFFECTIVE DATE

September 1, 2009.

COMPARISON OF ORIGINAL AND SUBSTITUTE

C.S.H.B. 1151 authorizes a child 12 years of age or older to express to the court the child's preference regarding any issue over which the court has jurisdiction, whereas the original authorizes the same and provides that such issues include the name of the person who is the child's preference to have the exclusive right to designate the primary residence of the child, subject to the approval of the court.  The substitute adds a provision not in the original to include an attorney ad litem, an amicus attorney, or a social study evaluator as individuals to whom a child may express the child's preference regarding any issue over which the court has jurisdiction.