82R7157 EES-F
 
  By: Brown H.B. No. 2557
 
 
 
A BILL TO BE ENTITLED
 
AN ACT
  relating to a suit for access to a child by a grandparent.
         BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
         SECTION 1.  Section 153.432, Family Code, is amended to read
  as follows:
         Sec. 153.432.  SUIT FOR [POSSESSION OR] ACCESS BY
  GRANDPARENT.  (a)  Subject to Section 153.434, a [A] biological [or
  adoptive] grandparent may request [possession of or] access to a
  grandchild by filing:
               (1)  an original suit; or
               (2)  a suit for modification as provided by Chapter
  156.
         (b)  A grandparent may request [possession of or] access to a
  grandchild in a suit filed for the sole purpose of requesting the
  relief, without regard to whether the appointment of a managing
  conservator is an issue in the suit.
         (c)  In a suit for access or for modification described by
  Subsection (a), the person filing the suit must execute and attach
  an affidavit on knowledge or belief that contains, along with
  supporting facts, the allegation that denial of [possession of or]
  access to the child by the petitioner endangers [would
  significantly impair] the child's physical health or significantly
  impairs the child's emotional well-being and development.  [The
  court shall deny the relief sought and dismiss the suit unless the
  court determines that the facts stated in the affidavit, if true,
  would be sufficient to support the relief authorized under Section
  153.433.]
         (d)  The court shall deny the relief sought and refuse to
  schedule a hearing unless the court determines, on the basis of the
  affidavit, that facts adequate to support an allegation as
  described in Subsection (c) are stated in the affidavit. If the
  court determines that the facts stated are adequate to support an
  allegation, the court shall set a time and place for the initial
  hearing as provided by Section 153.433(b).
         (e)  If the court finds that a suit for access or for
  modification described by Subsection (a) is filed frivolously or is
  designed to harass a party, the court shall assess attorney's fees
  as costs against the offending party.
         (f)  A suit for access or for modification described by
  Subsection (a) may not be tried or consolidated with any other suit
  for conservatorship of the child or any other proceeding involving
  or arising from a claim involving the parent-child relationship.
  Any order resulting from a consolidated proceeding prohibited by
  this subsection is void.
         SECTION 2.  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 clear and
  convincing [a preponderance of the] evidence that denial of
  [possession of or] access to the child endangers [would
  significantly impair] the child's physical health or significantly
  impairs the child's emotional well-being and development; 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 has not had parental rights terminated, and that
  parent, for not less than six months before commencing the suit:
                     (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
                     (B)  has [(D)  does] not had [have] actual or
  court-ordered possession of or access to the child.
         (b)  As a threshold issue, the court shall conduct an initial
  hearing not later than the 45th day after the date of service of
  process at which the court shall dismiss the suit unless the
  grandparent requesting access to the child proves by clear and
  convincing evidence that the child's parent does not provide
  adequate care for the child and has engaged in culpable conduct that
  endangers the child's physical health or significantly impairs the
  child's emotional well-being and development.
         (c)  In a hearing under Subsection (b), the court may not
  render a temporary order.
         (d)  In a suit for access by a grandparent, unless the
  grandparent meets the evidentiary burden at the initial hearing,
  the court may not order:
               (1)  the appointment of an amicus attorney, guardian ad
  litem, or attorney ad litem; or
               (2)  counseling, a social study, mental examination,
  physical examination, or parenting classes, except for a
  grandparent who files the suit.
         (e)  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)  that 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)  that 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 clear and
  convincing [a preponderance of the] evidence that the denial of
  [possession of or] access to the child endangers [would
  significantly impair] the child's physical health or significantly
  impairs the child's emotional well-being and development; [and]
               (3)  that 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 has not had parental rights terminated, and that
  parent, for not less than six months before commencing the suit:
                     (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
                     (B)  has [(D)  does] not had [have] actual or
  court-ordered possession of or access to the child;
               (4)  the court's findings regarding the fitness of the
  parent;
               (5)  the parent's objections;
               (6)  the fact that the court gave special weight to the
  parent's objections;
               (7)  the manner in which the court gave special weight
  to the parent's objections; and
               (8)  the specific grounds for overriding the parent's
  objections.
         (f)  In a suit for access by a grandparent, the court may not:
               (1)  impose a geographic restriction; or
               (2)  award possession of a child to a grandparent.
         (g)  If the grandparent requesting access to a child fails to
  meet all of the evidentiary burdens under this section, the court
  shall award the parent all costs, fees, and expenses incurred by the
  parent to defend the suit in accordance with Chapter 106.
         (h)  This section does not prohibit a grandparent from filing
  a suit for managing conservatorship of a child under this chapter or
  Chapter 102 or 156.
         SECTION 3.  Section 153.434, Family Code, is amended to read
  as follows:
         Sec. 153.434.  LIMITATION ON RIGHT TO REQUEST [POSSESSION
  OR] ACCESS.  A biological [or adoptive] grandparent may not request
  [possession of or] access to a grandchild if:
               (1)  a court does not already have continuing exclusive
  jurisdiction of a suit involving the child;
               (2)  the child's parent who is the competent child of
  the grandparent opposes the suit; or
               (3)  the child has been adopted or is the subject of a
  pending suit for adoption and each of the biological parents of the
  child [grandchild] has:
                     (A)  died;
                     (B)  had the person's parental rights terminated;
  or
                     (C)  executed an affidavit of waiver of interest
  in child or an affidavit of relinquishment of parental rights under
  Chapter 161 and the affidavit designates an authorized agency,
  licensed child-placing agency, or another person [other than the
  child's stepparent] as the managing conservator of the child[; and
               [(2)     the grandchild has been adopted, or is the
  subject of a pending suit for adoption, by a person other than the
  child's stepparent].
         SECTION 4.  Notwithstanding Chapter 156, Family Code, or any
  other provision of the Family Code, Sections 153.432, 153.433, and
  153.434, Family Code, as amended by this Act, apply equally to an
  original suit and a suit for modification filed by a grandparent
  seeking access to a grandchild.
         SECTION 5.  The changes in law made by this Act apply to a
  suit affecting the parent-child relationship that is pending in a
  court on the effective date of this Act or is filed on or after that
  date.
         SECTION 6.  This Act takes effect immediately if it receives
  a vote of two-thirds of all the members elected to each house, as
  provided by Section 39, Article III, Texas Constitution. If this
  Act does not receive the vote necessary for immediate effect, this
  Act takes effect September 1, 2011.