83R2226 EES-F

By: Campbell S.B. No. 1194

A BILL TO BE ENTITLED

AN ACT

relating to a suit for possession of or 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 by amending Subsections (a) and (c) and adding Subsections (d), (e), and (f) to read as follows:

(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.

(c) In a suit 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 would significantly impair the child's physical health or emotional well-being. [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 that the facts stated in the affidavit, if subsequently proven to be true, are adequate to support an allegation as described in Subsection (c). If the court determines that the facts stated, if subsequently proven to be true, 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 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 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 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) has [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 possession of or access to the child proves by clear and convincing evidence that denial of possession of or access to the child would significantly impair the child's physical health or emotional well-being.

(c) In a hearing under Subsection (b), the court may not render a temporary order.

(d) In a suit 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 would significantly impair the child's physical health or emotional well-being; [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:

(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) has [does] not had [have] actual or court-ordered possession of or access to the child;

(4) the parent's objections;

(5) the fact that the court gave special weight to the parent's objections;

(6) the manner in which the court gave special weight to the parent's objections; and

(7) the specific grounds for overriding the parent's objections.

(f) In a suit by a grandparent, the court may not impose a geographic restriction.

(g) If the grandparent requesting possession of or access to a child fails to meet all of the evidentiary burdens under this section, the court may 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 the child has been adopted or is the subject of a pending suit for adoption and[:

[(1)] each of the biological parents of the child [grandchild] has:

(1) [(A)] died;

(2) [(B)] had the person's parental rights terminated; or

(3) [(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 possession of or 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, 2013.