84R2154 JSC-F

By: Rodríguez S.B. No. 1014

A BILL TO BE ENTITLED

AN ACT

relating to the possession of and access to a child in a suit affecting the parent-child relationship in which there is evidence of family violence, child abuse or neglect, or the sexual assault of one parent by the other parent.

BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:

SECTION 1. Section 153.004, Family Code, is amended to read as follows:

Sec. 153.004. PATTERN [HISTORY] OF FAMILY [DOMESTIC] VIOLENCE OR CHILD [SEXUAL] ABUSE OR NEGLECT. (a) In this section:

(1) "Child abuse or neglect" has the meaning assigned to the terms "abuse" and "neglect" by Section 261.001.

(2) "Family violence" has the meaning assigned by Section 71.004.

(a-1) In determining whether to appoint a party as the [a] sole managing conservator or a joint managing conservator of a child, the court shall consider evidence that in the [of the intentional use of abusive physical force, or evidence of sexual abuse, by a party directed against the party's spouse, a parent of the child, or any person younger than 18 years of age committed within a] two-year period preceding the filing of the suit or during the pendency of the suit the party:

(1) engaged in family violence or child abuse or neglect; or

(2) was subject to a protective order entered under Chapter 85 in which the protected person was not the child, the other party, or a member of the party's family or household.

(b) Except as provided by Subsection (b-1), the [The] court may not appoint a party as the sole managing conservator or a joint managing conservator of a child [conservators] if credible evidence is presented to the court that in the two-year period preceding the date of the filing of the suit or during the pendency of the suit the party:

(1) engaged in a [history or] pattern of family violence [past] or [present] child abuse or neglect; [,] or

(2) was subject to a protective order entered under Chapter 85 in which the protected person was the child, the other party, or a member of the party's family or household [physical or sexual abuse by one parent directed against the other parent, a spouse, or a child, including a sexual assault in violation of Section 22.011 or 22.021, Penal Code, that results in the other parent becoming pregnant with the child. A history of sexual abuse includes a sexual assault that results in the other parent becoming pregnant with the child, regardless of the prior relationship of the parents. It is a rebuttable presumption that the appointment of a parent as the sole managing conservator of a child or as the conservator who has the exclusive right to determine the primary residence of a child is not in the best interest of the child if credible evidence is presented of a history or pattern of past or present child neglect, or physical or sexual abuse by that parent directed against the other parent, a spouse, or a child].

(b-1) If the court finds that both parties have engaged in conduct described by Subsection (b)(1) or were subject to a protective order described by Subsection (b)(2) in the two-year period preceding the date of the filing of the suit or during the pendency of the suit, the court may appoint a party as sole managing conservator or both parties as joint managing conservators if the court finds that the appointment:

(1) does not endanger the child's physical health or emotional welfare; and

(2) is in the best interest of the child.

(b-2) If the court appoints a party as sole managing conservator or both parties as joint managing conservators under Subsection (b-1), the court may render any appropriate order designed to protect the safety and well-being of the child, another party, or any other person in the family or household of a party. An order under this subsection may include a requirement that:

(1) the exchange of possession of the child occur in a protective setting;

(2) the conservator abstain from consuming alcohol or a controlled substance, as defined by Chapter 481, Health and Safety Code, beginning 12 hours before and during the period of possession of or access to the child; or

(3) the conservator attend and complete a battering intervention and prevention program as provided by Article 42.141, Code of Criminal Procedure, or, if such a program is not available, complete a course of treatment under Section 153.010.

(c) In [The court shall consider the commission of family violence or sexual abuse in] determining whether to deny, restrict, or limit the possession of or access to a child, the court shall consider evidence of whether the party engaged in conduct described by Subsection (a-1)(1) or whether a protective order described by Subsection (a-1)(2) was entered against the party in the two-year period preceding the date of the filing of the suit or during the pendency of the suit [by a parent who is appointed as a possessory conservator].

(d) Except as provided by Subsection (d-1), the [The] court may not allow a parent to have access to a child if credible [for whom it is shown by a preponderance of the] evidence is presented to the court that the party engaged in conduct described by Subsection (b)(1) or a protective order described by Subsection (b)(2) was entered against the party in the two-year period [that:

[(1) there is a history or pattern of committing family violence during the two years] preceding the date of the filing of the suit or during the pendency of the suit[; or

[(2) the parent engaged in conduct that constitutes an offense under Section 21.02, 22.011, 22.021, or 25.02, Penal Code, and that as a direct result of the conduct, the victim of the conduct became pregnant with the parent's child].

(d-1) The [Notwithstanding Subsection (d), the] court may allow a party who engaged in conduct described by Subsection (b)(1) or was subject to a protective order described by Subsection (b)(2) [parent] to have access to a child if the court:

(1) finds that awarding the party periods of possession of or [parent] access to the child does [would] not endanger the child's physical health or emotional welfare and is [would be] in the best interest of the child; and

(2) renders a possession order that is designed to protect the safety and well-being of the child, another party, or [and] any other person in the family or household of a party [who has been a victim of family violence committed by the parent] and that may include a requirement that:

(A) the periods of access be continuously supervised by an entity or person chosen by the court;

(B) the exchange of possession of the child occur in a protective setting;

(C) the party [parent] abstain from consuming [the consumption of] alcohol or a controlled substance, as defined by Chapter 481, Health and Safety Code, beginning [within] 12 hours before and [prior to or] during the period of possession of or access to the child; or

(D) the party [parent] attend and complete a battering intervention and prevention program as provided by Article 42.141, Code of Criminal Procedure, or, if such a program is not available, complete a course of treatment under Section 153.010.

(e) It is a rebuttable presumption that it is not in the best interest of a child for a party [parent] to have unsupervised possession of or access to [visitation with] the child if credible evidence is presented that the party engaged in conduct described by Subsection (b)(1) or was subject to a protective order described by Subsection (b)(2) [of a history or pattern of past or present child neglect or physical or sexual abuse by that parent directed against the other parent, a spouse, or a child].

(f) The rendering by the court of an order awarding a party conservatorship of or possession of or access to a child does not prevent the court from ordering a party to perform other parental duties, including paying child support [In determining under this section whether there is credible evidence of a history or pattern of past or present child neglect or physical or sexual abuse by a parent directed against the other parent, a spouse, or a child, the court shall consider whether a protective order was rendered under Chapter 85, Title 4, against the parent during the two-year period preceding the filing of the suit or during the pendency of the suit].

SECTION 2. Subchapter A, Chapter 153, Family Code, is amended by adding Section 153.0041 to read as follows:

Sec. 153.0041. SEXUAL ABUSE OR ASSAULT RESULTING IN PREGNANCY. (a) The court may not appoint a parent as the sole managing conservator, a joint managing conservator, or a possessory conservator or allow a parent to have possession of or access to a child if the court finds that a parent has engaged in conduct that constitutes an offense under Section 21.02, 22.011, or 22.021, Penal Code, and the victim of the conduct became pregnant with the child of that parent, unless the court finds that the denial of the appointment of conservatorship or possession of or access to the child is not in the best interest of the child.

(b) In appointing a parent who has engaged in conduct that constitutes an offense under Section 21.02, 22.011, or 22.021, Penal Code, as a conservator of a child or allowing that parent possession of or access to the child, the court may render any appropriate order designed to protect the safety and well-being of the child and the parent who was the victim of the conduct constituting the offense.

(c) The rendering by the court of an order awarding a parent conservatorship of or possession of or access to the child does not prevent the court from ordering the parent who engaged in conduct that constitutes an offense under Section 21.02, 22.011, or 22.021, Penal Code, to perform other parental duties, including paying child support.

(d) This section does not apply to the conservatorship of a child or possession of or access to a child if the parent that engaged in the conduct that constitutes an offense under Section 21.02, 22.011, or 22.021, Penal Code, was the spouse of the victim or had a dating relationship with the victim, as that term is defined by Section 71.0021(b), before the child was born and that relationship continued following the birth of the child.

SECTION 3. Section 153.131(a), Family Code, is amended to read as follows:

(a) Subject to the prohibitions [prohibition] in Sections [Section] 153.004 and 153.0041, unless the court finds that appointment of the parent or parents would not be in the best interest of the child because the appointment would significantly impair the child's physical health or emotional development, a parent shall be appointed sole managing conservator or both parents shall be appointed as joint managing conservators of the child.

SECTION 4. The change in law made by this Act applies to a suit affecting the parent-child relationship that is pending in a trial court on or filed on or after the effective date of this Act.

SECTION 5. This Act takes effect September 1, 2015.