82R9016 JSC-F
 
  By: Brown H.B. No. 2554
 
 
 
A BILL TO BE ENTITLED
 
AN ACT
  relating to possession of or access to a child in a suit affecting
  the parent-child relationship.
         BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
         SECTION 1.  It is the intent of the legislature that this Act
  remedy problems in the family law system whereby a fit parent is,
  without just cause, rendered a second class parent. A parent who
  has done nothing wrong can find that the parent is virtually
  stripped of the parent's fundamental right to be a parent. This
  fundamental parental right should only be modified by agreement of
  the parties or a finding by clear and convincing evidence that a
  parent is "unfit."  As long as a parent adequately cares for the
  parent's child, the parent is presumed to be fit. This presumption
  may only be overcome by clear and convincing evidence establishing
  that the parent does not provide adequate food, shelter, and
  clothing for the child.
         SECTION 2.  Section 153.001(a), Family Code, is amended to
  read as follows:
         (a)  The public policy of this state is to:
               (1)  assure that children will have frequent and
  continuing contact with parents unless the parents mutually agree
  otherwise or it has been established that one of the parents is
  unfit to be a parent [who have shown the ability to act in the best
  interest of the child];
               (2)  [provide a safe, stable, and nonviolent
  environment for the child; and
               [(3)]  encourage parents to share equally in the rights
  and duties of raising their child after the parents have separated
  or dissolved their marriage;
               (3)  create an environment in which parents have an
  incentive to work together for the benefit of their child; and
               (4)  allow and encourage parents to take responsibility
  for their child.
         SECTION 3.  Section 153.002, Family Code, is amended to read
  as follows:
         Sec. 153.002.  BEST INTEREST OF CHILD. (a)  The best
  interest of the child shall always be the primary consideration of
  the court in determining the issues of conservatorship and
  possession of and access to the child.
         (b)  The best interest of the child shall be defined:
               (1)  by mutual agreement of both parents, including
  through a parenting plan; or
               (2)  if no agreement exists under Subdivision (1), as
  having two equally involved parents unless one parent has been
  established through due process in a court to be an unfit parent.
         SECTION 4.  Subchapter A, Chapter 153, Family Code, is
  amended by adding Section 153.0021 to read as follows:
         Sec. 153.0021.  DETERMINATION OF UNFIT PARENT.  If a court
  determines that a parent is unfit, the court shall provide in its
  order the details of the evidence received by the court to support
  the court's decision.
         SECTION 5.  Section 153.005(a), Family Code, is amended to
  read as follows:
         (a)  In a suit, the court may appoint a sole managing
  conservator or may appoint joint managing conservators. The court
  may appoint a sole managing conservator only if both parents
  request the appointment of a sole managing conservator or the court
  has established that one of the parents is unfit to be a parent. If
  the parents are or will be separated, the court shall appoint at
  least one managing conservator.
         SECTION 6.  Sections 153.007(b) and (c), Family Code, are
  amended to read as follows:
         (b)  Unless the court has established that one of the parents
  is unfit [If the court finds that the agreed parenting plan is in
  the child's best interest], the court shall render an order in
  accordance with the parenting plan.
         (c)  Terms of the agreed parenting plan contained in the
  order or incorporated by reference regarding conservatorship or
  support of or possession of or access to a child in an order may be
  enforced by all remedies available for enforcement of a judgment,
  including contempt, and [but] are [not] enforceable as a contract.
         SECTION 7.  Section 153.072, Family Code, is amended to read
  as follows:
         Sec. 153.072.  WRITTEN FINDING REQUIRED TO LIMIT PARENTAL
  RIGHTS AND DUTIES. The court may limit the rights and duties of a
  parent appointed as a conservator if the court makes a written
  finding that one of the parents is unfit [the limitation is in the
  best interest of the child].
         SECTION 8.  Section 153.134, Family Code, is amended by
  amending Subsection (a) and adding Subsection (c) to read as
  follows:
         (a)  If a written agreed parenting plan is not filed with the
  court, or there is no finding that a parent is unfit, the court
  shall [may] render an order appointing the parents joint managing
  conservators [only if the appointment is in the best interest of the
  child, considering the following factors:
               [(1)     whether the physical, psychological, or
  emotional needs and development of the child will benefit from the
  appointment of joint managing conservators;
               [(2)     the ability of the parents to give first priority
  to the welfare of the child and reach shared decisions in the
  child's best interest;
               [(3)     whether each parent can encourage and accept a
  positive relationship between the child and the other parent;
               [(4)     whether both parents participated in child
  rearing before the filing of the suit;
               [(5)     the geographical proximity of the parents'
  residences;
               [(6)     if the child is 12 years of age or older, the
  child's preference, if any, regarding the person to have the
  exclusive right to designate the primary residence of the child;
  and
               [(7)  any other relevant factor].
         (c)  If a court renders an order appointing the parents joint
  managing conservators in a proceeding in which a written agreed
  parenting plan for joint managing conservatorship is not filed with
  the court, the court shall render an order under Subchapter F that
  provides for equal physical parenting.
         SECTION 9.  The heading to Subchapter F, Chapter 153, Family
  Code, is amended to read as follows:
  SUBCHAPTER F.  EQUAL PARENTING [STANDARD POSSESSION] ORDER
         SECTION 10.  Subchapter F, Chapter 153, Family Code, is
  amended by adding Sections 153.351 and 153.352 to read as follows:
         Sec. 153.351.  REQUIREMENT TO ENTER EQUAL PARENTING ORDER.
  Unless the parties submit a valid agreed parenting plan or the court
  finds that one parent is unfit, the court shall render an order
  providing for periods of possession of and access to a child in
  accordance with this subchapter.
         Sec. 153.352.  PERIODS OF POSSESSION UNDER EQUAL PARENTING
  ORDER. (a) Subject to Subsection (b), the court shall render an
  order under this subchapter that provides that:
               (1)  each parent shall have possession of the child for
  one week at a time, alternating weeks of possession with the other
  parent, with no modification in the order based on holidays that
  occur during each week, but subject to modification based on
  agreement by each parent;
               (2)  each parent shall have possession of the child for
  two weeks at a time, alternating two-week periods of possession
  with the other parent, with one weeknight of possession exercised
  during each week of the period by the parent not otherwise in
  possession during that period, and subject to modification based on
  agreement by each parent; or
               (3)  each parent shall have possession of the child for
  four weeks at a time, alternating four-week periods of possession
  with the other parent, with one weeknight of possession exercised
  during each week of the period by the parent not otherwise in
  possession during that period, and subject to modification based on
  agreement by each parent.
         (b)  A court shall provide parents with the opportunity to
  select by mutual agreement any possession schedule the parents
  choose.  If the parents do not agree, the court may order any
  arrangement described by Subsection (a).
         (c)  For purposes of Subsection (a), the beginning of a
  period of possession shall be the end of school on Friday and the
  end of the period shall be the appropriate subsequent Friday at the
  end of school.  If school is not in session on a Friday, the period
  of possession shall begin and end at 5 p.m.
         (d)  A child's residence shall be presumed to be in the
  school district in which the child resided when the child's parents
  separated unless otherwise mutually agreed to in writing by the
  parents.
         (e)  If a parent moves more than 100 miles from the school the
  child attends, that parent shall arrange and pay for all travel to
  and from the school unless the parents agree otherwise. The parent
  that moved shall be obligated to adequately arrange for the child to
  attend the same school.
         SECTION 11.  Section 153.433, Family Code, is amended to
  read as follows:
         Sec. 153.433.  POSSESSION OF OR ACCESS TO GRANDCHILD. (a)
  The court may order reasonable possession of or access to a
  grandchild by a grandparent if:
               (1)  at the time the relief is requested, at least one
  biological or adoptive parent of the child has not had that parent's
  parental rights terminated;
               (2)  the grandparent requesting possession of or access
  to the child overcomes the presumption that a parent acts in the
  best interest of the parent's child by proving by a preponderance of
  the evidence that both parents are unfit to be parents [denial of
  possession of or access to the child would significantly impair the
  child's physical health or emotional well-being]; and
               (3)  the grandparent requesting possession of or access
  to the child is a parent of a parent of the child and that parent of
  the child:
                     (A)  has been incarcerated in jail or prison
  during the three-month period preceding the filing of the petition;
                     (B)  has been found by a court to be incompetent;
                     (C)  is dead; or
                     (D)  does not have actual or court-ordered
  possession of or access to the child.
         (b)  An order granting possession of or access to a child by a
  grandparent that is rendered over a parent's objections must state,
  with specificity that:
               (1)  at the time the relief was requested, at least one
  biological or adoptive parent of the child had not had that parent's
  parental rights terminated;
               (2)  the grandparent requesting possession of or access
  to the child has overcome the presumption that a parent acts in the
  best interest of the parent's child by proving by a preponderance of
  the evidence that both parents are unfit to be parents [the denial
  of possession of or access to the child would significantly impair
  the child's physical health or emotional well-being]; and
               (3)  the grandparent requesting possession of or access
  to the child is a parent of a parent of the child and that parent of
  the child:
                     (A)  has been incarcerated in jail or prison
  during the three-month period preceding the filing of the petition;
                     (B)  has been found by a court to be incompetent;
                     (C)  is dead; or
                     (D)  does not have actual or court-ordered
  possession of or access to the child.
         SECTION 12.  The changes in law made by this Act to Chapter
  153, Family Code, apply only to a suit affecting the parent-child
  relationship pending before a court on or filed on or after the
  effective date of this Act.
         SECTION 13.  This Act takes effect September 1, 2011.