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A BILL TO BE ENTITLED
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AN ACT
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relating to genetic testing in the determination of parentage and |
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to a proceeding to vacate an order of paternity or child support. |
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BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS: |
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SECTION 1. Section 102.008, Family Code, is amended by |
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amending Subsection (b) and adding Subsection (c) to read as |
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follows: |
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(b) The petition must include: |
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(1) a statement that the court in which the petition is |
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filed has continuing, exclusive jurisdiction or that no court has |
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continuing jurisdiction of the suit; |
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(2) the name and date of birth of the child, except |
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that if adoption of a child is requested, the name of the child may |
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be omitted; |
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(3) the full name of the petitioner and the |
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petitioner's relationship to the child or the fact that no |
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relationship exists; |
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(4) the names of the parents, except in a suit in which |
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adoption is requested; |
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(5) the name of the managing conservator, if any, or |
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the child's custodian, if any, appointed by order of a court of |
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another state or country; |
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(6) the names of the guardians of the person and estate |
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of the child, if any; |
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(7) the names of possessory conservators or other |
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persons, if any, having possession of or access to the child under |
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an order of the court; |
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(8) the name of an alleged father of the child or a |
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statement that the identity of the father of the child is unknown; |
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(9) a full description and statement of value of all |
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property owned or possessed by the child; |
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(10) a statement describing what action the court is |
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requested to take concerning the child and the statutory grounds on |
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which the request is made; [and] |
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(11) notice to an alleged or presumed father of the |
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child, if any, of the right to request paternity testing; and |
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(12) any other information required by this title. |
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(c) The notice described by Subsection (b)(11) must include |
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the following statement printed in boldfaced type, in capital |
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letters, or underlined: |
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"YOU HAVE THE RIGHT TO REQUEST GENETIC TESTING TO DETERMINE |
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THE PARENTAGE OF THE CHILD NAMED IN THIS SUIT. YOUR REQUEST FOR |
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GENETIC TESTING MUST BE IN WRITING AND FILED WITH THE CLERK OF THE |
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COURT IN WHICH THIS SUIT IS FILED. ANY ALLEGED OR PRESUMED FATHER |
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WHO DOES NOT REQUEST GENETIC TESTING SHALL BE BARRED FROM BRINGING |
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AN ACTION TO VACATE A CHILD SUPPORT ORDER OR A PARENTAGE ORDER." |
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SECTION 2. Chapter 105, Family Code, is amended by adding |
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Section 105.0035 to read as follows: |
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Sec. 105.0035. PATERNITY TESTING. (a) In an original suit |
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affecting the parent-child relationship, the court shall order |
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genetic testing on the request of an alleged or presumed father. |
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(b) Except as provided by Subsection (e), a court may not |
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render in a suit affecting the parent-child relationship a child |
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support order, an order finding paternity, or an order for |
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possession of or access to a child unless the court finds that the |
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man named as the father in the suit: |
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(1) is, based on court-ordered genetic testing that |
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complies with Section 160.503, rebuttably identified as the father |
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of the child in accordance with Section 160.505(a); |
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(2) is an adoptive parent of the child; |
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(3) was served with notice of the suit, including the |
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notice required by Section 102.008(b)(11), and failed to answer the |
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suit; |
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(4) was ordered by the court to submit to genetic |
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testing under Chapter 160 and failed to comply with the court's |
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order; |
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(5) is the presumed father of the child and the man |
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does not deny paternity as an affirmative defense; or |
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(6) has filed an affidavit acknowledging paternity. |
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(c) If the court makes a finding under Subsection (b), the |
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court may render an order declaring the man to be the biological |
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father of the child. The man may not challenge the adjudication of |
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paternity based on a finding under Subsections (b)(1) through (5) |
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in a subsequent proceeding under Subchapter J, Chapter 160, unless: |
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(1) the court entered a default judgment against the |
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man; and |
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(2) the man was served notice of the suit by |
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publication. |
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(d) Payment of the costs of genetic testing under this |
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section is governed by Chapter 160. |
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(e) The court may render a temporary order for child support |
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to be paid by a presumed father pending the outcome of a genetic |
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test to determine paternity. |
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SECTION 3. Chapter 160, Family Code, is amended by adding |
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Subchapter J to read as follows: |
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SUBCHAPTER J. PROCEEDINGS TO VACATE COURT ORDER |
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Sec. 160.801. SUIT TO VACATE COURT ORDER. (a) A person |
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identified in a court order as the father of a child may file a |
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petition not later than the child's 18th birthday requesting the |
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court to vacate a court order that: |
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(1) states that the person identified in the order as |
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the father of the child is the father of the child identified in the |
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motion; or |
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(2) requires the person identified in the order as the |
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father of the child to pay child support for the child. |
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(b) The petition to vacate a court order must be accompanied |
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by: |
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(1) an affidavit stating: |
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(A) facts that show the court order was obtained |
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by fraud or material mistake of fact; or |
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(B) that the person did not receive the notice |
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required by Section 102.008(b)(11); and |
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(2) a certified copy of the court order to be vacated. |
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(c) The court may not grant a petition to vacate a court |
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order under this section if the person identified in the court order |
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as the father of the child: |
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(1) is the child's adoptive father; |
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(2) consented to assisted reproduction by his wife |
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under Subchapter H; |
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(3) was an intended father under a gestational |
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agreement confirmed by a court under Subchapter I; or |
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(4) filed the petition under this section after the |
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180th day after the date the person received the results of a |
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genetic test described by Section 160.802(b)(3). |
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Sec. 160.802. GENETIC TESTING. (a) In a proceeding under |
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this subchapter, if the court finds that the affidavit filed with |
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the petition under Section 160.801 establishes a prima facie case |
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that the court order was obtained by fraud or material mistake of |
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fact, the court shall order the child and the person identified in |
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the court order as the father of the child to submit to genetic |
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testing not later than the 30th day after the date the order |
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requiring genetic testing is rendered. |
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(b) A person establishes a prima facie case that a court |
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order was obtained by fraud or material mistake of fact if the |
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person's affidavit states that the person: |
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(1) was the presumed father of the child or was induced |
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by representations made by the child's mother to believe that the |
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person was the child's father; |
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(2) at the time the court order was rendered, did not |
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know that he was not the father of the child; and |
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(3) took a genetic test after the date the court order |
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sought to be vacated was rendered that establishes that the person |
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is not rebuttably identified as the father of the child in |
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accordance with Section 160.505. |
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(c) Genetic testing under this section is governed by |
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Subchapter F. |
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(d) If the affidavit filed with the petition does not |
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establish a prima facie case, the court shall, on a motion by the |
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respondent, dismiss the petition. |
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Sec. 160.803. FAILURE TO SUBMIT TO GENETIC TEST. (a) If |
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the person who has been awarded the exclusive right to designate the |
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child's primary residence fails to allow the child to be |
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genetically tested under Section 160.802, the court may suspend the |
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legal obligation of the person identified in the court order as the |
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father of the child to pay child support until the child is |
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genetically tested. |
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(b) If the person identified in the court order as the |
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father of the child fails to submit to a genetic test ordered under |
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Section 160.802, the court shall dismiss the person's petition to |
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vacate with prejudice. |
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Sec. 160.804. GROUNDS FOR VACATING ORDER. (a) Except as |
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otherwise provided by this section, the court shall vacate an order |
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described by Section 160.801(a) if the court finds that the court |
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order was obtained by fraud or material mistake of fact, or that the |
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person did not receive the notice required by Section |
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102.008(b)(11), and the person identified in the court order as the |
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father of the child: |
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(1) was the presumed father of the child or was induced |
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by representations made by the child's mother to believe that the |
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person was the child's father; |
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(2) at the time the order was rendered, did not know |
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that he was not the father of the child; |
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(3) based on genetic testing, is not rebuttably |
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identified as the father of the child in accordance with Section |
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160.505; |
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(4) is not the child's adoptive parent; |
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(5) is not the intended father of the child under a |
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gestational agreement confirmed by a court under Subchapter I; and |
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(6) did not consent to assisted reproduction by his |
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wife under Subchapter H. |
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(b) The court may not vacate an order under this section if |
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the court finds that at any time the person identified in the court |
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order as the father of the child knew that he was not the child's |
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biological parent and: |
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(1) consented to his name being entered as the child's |
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biological father on the child's birth certificate; |
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(2) was determined to be the child's father in a |
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proceeding to determine parentage; or |
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(3) filed an acknowledgment of paternity with the |
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bureau of vital statistics. |
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Sec. 160.805. POSSESSION ORDER; CHILD SUPPORT ARREARAGE. |
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(a) If the court vacates a parentage or child support order in a |
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proceeding under this subchapter and the person identified in the |
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court order as the father of the child is also entitled under an |
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order to the possession of or access to the child who is the subject |
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of the vacated order, the court shall determine whether the |
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possession order should be terminated, modified, or continued based |
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on the best interest of the child. |
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(b) If the court modifies or continues the possession order |
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under Subsection (a), the person identified in the court order as |
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the father of the child shall have the rights and duties provided by |
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Section 153.074 during the period he has possession of the child. |
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(c) If the court vacates a child support order under this |
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subchapter and an arrearage exists under that child support order, |
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the court may reduce the amount of the arrearage to zero. If the |
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court eliminates an arrearage under this subsection, the court |
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shall issue an order stating that the child support obligation, |
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including any arrearage, is terminated. |
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(d) The elimination of an arrearage under a child support |
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order that is vacated as provided by this subchapter is for purposes |
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of correcting an act induced by fraud or material mistake of fact |
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and is not a retroactive modification. |
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(e) If the court vacates a parentage order in a proceeding |
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under this subchapter, the court may order: |
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(1) the child or any party to participate in |
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counseling with a licensed mental health professional who: |
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(A) has a background in family therapy; and |
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(B) holds a professional license that requires |
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the person to possess at least a master's degree; and |
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(2) any party to pay the cost of counseling. |
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(f) If a person possessing the qualifications of Subsection |
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(e)(1) is not available in the county in which the court presides, |
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the court may appoint a person the court believes is qualified to |
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conduct the counseling under Subsection (e). |
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Sec. 160.806. ATTORNEY'S FEES AND COURT COSTS. If the court |
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vacates a parentage order or a child support order in a proceeding |
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under this subchapter, the court may award reasonable attorney's |
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fees to the petitioner. If the court does not grant the petition to |
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vacate a parentage order or a child support order under this |
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subchapter, the court shall order the petitioner to pay the costs of |
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the action and each opposing party's reasonable attorney's fees. |
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SECTION 4. Section 233.028, Family Code, is amended by |
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adding Subsection (a-1) and amending Subsection (b) to read as |
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follows: |
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(a-1) The notice described in Subsection (a) and sent to a |
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man alleged to be the father of a child must include the following |
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statement printed on the notice in boldfaced type, in capital |
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letters, or underlined: |
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"YOU HAVE THE RIGHT TO REQUEST GENETIC TESTING TO DETERMINE |
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THE PARENTAGE OF A CHILD WHOSE PARENTAGE HAS NOT BEEN ESTABLISHED. |
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THE TITLE IV-D AGENCY WILL PAY FOR THE COSTS OF THE GENETIC TESTING, |
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BUT IF THE RESULTS OF THE TESTING IDENTIFY YOU AS THE BIOLOGICAL |
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FATHER OF THE CHILD, YOU MAY BE REQUIRED TO REIMBURSE THE AGENCY FOR |
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THOSE COSTS." |
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(b) If all parties agree to the child's parentage, the |
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agency may file an agreed child support review order as provided by |
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this chapter. The agreed order must include a statement signed by |
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the parties entitled to genetic testing in the case that the parties |
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have waived their rights to request genetic testing. |
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SECTION 5. (a) Section 233.028, Family Code, as amended by |
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this Act, applies only to an administrative proceeding under |
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Chapter 233, Family Code, for the determination of parentage |
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commenced on or after the effective date of this Act. |
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(b) If before implementing any provision of this Act the |
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Title IV-D agency determines that a waiver or authorization from a |
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federal agency is necessary for implementation of the change in law |
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made by this Act, the agency shall request the waiver or |
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authorization and may delay implementing that provision until the |
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waiver or authorization is granted. |
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(c) Except as provided by Subsection (d) of this section, |
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Section 105.0035, Family Code, as added by this Act, and the change |
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in law made by this Act to Section 102.008, Family Code, apply only |
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to a suit affecting the parent-child relationship filed on or after |
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the effective date of this Act. A suit affecting the parent-child |
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relationship filed before the effective date of this Act is |
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governed by the law in effect on the date the suit was filed, and the |
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former law is continued in effect for that purpose. |
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(d) In a proceeding under Subchapter J, Chapter 160, Family |
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Code, as added by this Act, to vacate an order rendered in a suit |
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affecting the parent-child relationship filed before the effective |
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date of this Act, the court may not vacate the order on the ground |
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that the alleged or presumed father did not receive the notice |
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required by Section 102.008(b)(11), Family Code, as added by this |
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Act. |
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SECTION 6. This Act takes effect September 1, 2009. |