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A BILL TO BE ENTITLED
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AN ACT
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relating to possession of or access to a child in a suit affecting |
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the parent-child relationship. |
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BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS: |
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SECTION 1. It is the intent of the legislature that this Act |
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remedy problems in the family law system whereby a fit parent is, |
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without just cause, rendered a second class parent. A parent who |
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has done nothing wrong can find that the parent is virtually |
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stripped of the parent's fundamental right to be a parent. This |
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fundamental parental right should only be modified by agreement of |
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the parties or a finding by a preponderance of the evidence that a |
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parent is "unfit." As long as a parent adequately cares for the |
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parent's child, the parent is presumed to be fit. This presumption |
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may only be overcome by a preponderance of the evidence |
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establishing that the parent does not provide adequate food, |
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shelter, and clothing for the child. |
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SECTION 2. Section 153.001(a), Family Code, is amended to |
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read as follows: |
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(a) The public policy of this state is to: |
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(1) assure that children will have frequent and |
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continuing contact with parents unless the parents mutually agree |
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otherwise or it has been established that one of the parents is |
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unfit to be a parent [who have shown the ability to act in the best
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interest of the child]; |
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(2) [provide a safe, stable, and nonviolent
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environment for the child; and
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[(3)] encourage parents to share equally in the rights |
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and duties of raising their child after the parents have separated |
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or dissolved their marriage; |
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(3) create an environment in which parents have an |
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incentive to work together for the benefit of their child; and |
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(4) allow and encourage parents to take responsibility |
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for their child. |
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SECTION 3. Section 153.002, Family Code, is amended to read |
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as follows: |
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Sec. 153.002. BEST INTEREST OF CHILD. (a) The best |
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interest of the child shall always be the primary consideration of |
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the court in determining the issues of conservatorship and |
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possession of and access to the child. |
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(b) The best interest of the child shall be defined: |
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(1) by mutual agreement of both parents, including |
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through a parenting plan; or |
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(2) if no agreement exists under Subdivision (1), as |
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having two equally involved parents unless one parent has been |
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established through due process in a court to be an unfit parent. |
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SECTION 4. Subchapter A, Chapter 153, Family Code, is |
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amended by adding Section 153.0021 to read as follows: |
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Sec. 153.0021. DETERMINATION OF UNFIT PARENT. If a court |
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determines that a parent is unfit, the court shall provide in its |
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order the details of the evidence received by the court to support |
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the court's decision. |
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SECTION 5. Section 153.005(a), Family Code, is amended to |
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read as follows: |
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(a) In a suit, the court may appoint a sole managing |
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conservator or may appoint joint managing conservators. The court |
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may appoint a sole managing conservator only if both parents |
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request the appointment of a sole managing conservator or the court |
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has established that one of the parents is unfit to be a parent. If |
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the parents are or will be separated, the court shall appoint at |
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least one managing conservator. |
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SECTION 6. Sections 153.007(b) and (c), Family Code, are |
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amended to read as follows: |
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(b) Unless the court has established that one of the parents |
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is unfit [If the court finds that the agreed parenting plan is in
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the child's best interest], the court shall render an order in |
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accordance with the parenting plan. |
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(c) Terms of the agreed parenting plan contained in the |
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order or incorporated by reference regarding conservatorship or |
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support of or possession of or access to a child in an order may be |
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enforced by all remedies available for enforcement of a judgment, |
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including contempt, and [but] are [not] enforceable as a contract. |
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SECTION 7. Section 153.072, Family Code, is amended to read |
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as follows: |
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Sec. 153.072. WRITTEN FINDING REQUIRED TO LIMIT PARENTAL |
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RIGHTS AND DUTIES. The court may limit the rights and duties of a |
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parent appointed as a conservator if the court makes a written |
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finding that one of the parents is unfit [the limitation is in the
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best interest of the child]. |
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SECTION 8. Section 153.134(a), Family Code, is amended to |
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read as follows: |
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(a) If a written agreed parenting plan is not filed with the |
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court, or there is no finding that a parent is unfit, the court |
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shall [may] render an order appointing the parents joint managing |
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conservators [only if the appointment is in the best interest of the
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child, considering the following factors:
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[(1)
whether the physical, psychological, or
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emotional needs and development of the child will benefit from the
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appointment of joint managing conservators;
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[(2)
the ability of the parents to give first priority
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to the welfare of the child and reach shared decisions in the
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child's best interest;
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[(3)
whether each parent can encourage and accept a
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positive relationship between the child and the other parent;
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[(4)
whether both parents participated in child
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rearing before the filing of the suit;
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[(5)
the geographical proximity of the parents'
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residences;
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[(6)
if the child is 12 years of age or older, the
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child's preference, if any, regarding the person to have the
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exclusive right to designate the primary residence of the child;
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and
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[(7) any other relevant factor]. |
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SECTION 9. Section 153.137, Family Code, is amended to read |
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as follows: |
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Sec. 153.137. [GUIDELINES FOR THE] POSSESSION OF CHILD BY |
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PARENT NAMED AS JOINT MANAGING CONSERVATOR. (a) If a court renders |
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an order appointing the parents joint managing conservators in a |
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proceeding in which a written agreed parenting plan for joint |
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managing conservatorship is not filed with the court, the court |
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shall render an order under Subchapter F that provides for equal |
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physical parenting. |
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(b) The standard possession order provided by Subchapter F |
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constitutes a presumptive minimum amount of time for possession of |
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a child by a parent named as a joint managing conservator who is not |
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awarded the exclusive right to designate the primary residence of |
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the child in a suit. |
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SECTION 10. The heading to Subchapter F, Chapter 153, |
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Family Code, is amended to read as follows: |
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SUBCHAPTER F. EQUAL PARENTING [STANDARD POSSESSION] ORDER |
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SECTION 11. Subchapter F, Chapter 153, Family Code, is |
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amended by adding Sections 153.351 and 153.352 to read as follows: |
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Sec. 153.351. REQUIREMENT TO ENTER EQUAL PARENTING ORDER. |
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Unless the parties submit a valid agreed parenting plan or the court |
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finds that one parent is unfit, the court shall render an order |
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providing for periods of possession of and access to a child in |
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accordance with this subchapter. |
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Sec. 153.352. PERIODS OF POSSESSION UNDER EQUAL PARENTING |
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ORDER. (a) Subject to Subsection (b), the court shall render an |
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order under this subchapter that provides that: |
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(1) each parent shall have possession of the child for |
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one week at a time, alternating weeks of possession with the other |
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parent, with no modification in the order based on holidays that |
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occur during each week, but subject to modification based on |
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agreement by each parent; |
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(2) each parent shall have possession of the child for |
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two weeks at a time, alternating two-week periods of possession |
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with the other parent, with one weeknight of possession exercised |
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during each week of the period by the parent not otherwise in |
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possession during that period, and subject to modification based on |
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agreement by each parent; or |
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(3) each parent shall have possession of the child for |
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four weeks at a time, alternating four-week periods of possession |
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with the other parent, with one weeknight of possession exercised |
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during each week of the period by the parent not otherwise in |
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possession during that period, and subject to modification based on |
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agreement by each parent. |
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(b) A court shall provide parents with the opportunity to |
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select by mutual agreement any possession schedule the parents |
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choose. If the parents do not agree, the court may order any |
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arrangement described by Subsection (a). |
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(c) For purposes of Subsection (a), the beginning of a |
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period of possession shall be the end of school on Friday and the |
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end of the period shall be the appropriate subsequent Friday at the |
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end of school. If school is not in session on a Friday, the period |
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of possession shall begin and end at 5 p.m. |
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(d) A child's residence shall be presumed to be in the |
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school district in which the child resided when the child's parents |
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separated unless otherwise mutually agreed to in writing by the |
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parents. |
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(e) If a parent moves more than 100 miles from the school the |
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child attends, that parent shall arrange and pay for all travel to |
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and from the school unless the parents agree otherwise. The parent |
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that moved shall be obligated to adequately arrange for the child to |
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attend the same school. |
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SECTION 12. Section 153.433, Family Code, is amended to |
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read as follows: |
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Sec. 153.433. POSSESSION OF OR ACCESS TO GRANDCHILD. The |
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court shall order reasonable possession of or access to a |
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grandchild by a grandparent if: |
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(1) at the time the relief is requested, at least one |
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biological or adoptive parent of the child has not had that parent's |
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parental rights terminated; |
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(2) the grandparent requesting possession of or access |
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to the child overcomes the presumption that a parent acts in the |
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best interest of the parent's child by proving by a preponderance of |
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the evidence that both parents are unfit to be parents [denial of
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possession of or access to the child would significantly impair the
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child's physical health or emotional well-being]; and |
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(3) the grandparent requesting possession of or access |
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to the child is a parent of a parent of the child and that parent of |
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the child: |
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(A) has been incarcerated in jail or prison |
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during the three-month period preceding the filing of the petition; |
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(B) has been found by a court to be incompetent; |
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(C) is dead; or |
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(D) does not have actual or court-ordered |
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possession of or access to the child. |
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SECTION 13. The changes in law made by this Act to Chapter |
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153, Family Code, apply only to a suit affecting the parent-child |
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relationship pending before a court on or filed on or after the |
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effective date of this Act. |
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SECTION 14. This Act takes effect September 1, 2009. |