81R9154 JSC-F
By: Vaught H.B. No. 1611
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 a preponderance of the 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 a preponderance of the 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(a), Family Code, is amended 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].
SECTION 9. Section 153.137, Family Code, is amended to read
as follows:
Sec. 153.137. [GUIDELINES FOR THE] POSSESSION OF CHILD BY
PARENT NAMED AS JOINT MANAGING CONSERVATOR. (a) 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.
(b) The standard possession order provided by Subchapter F
constitutes a presumptive minimum amount of time for possession of
a child by a parent named as a joint managing conservator who is not
awarded the exclusive right to designate the primary residence of
the child in a suit.
SECTION 10. The heading to Subchapter F, Chapter 153,
Family Code, is amended to read as follows:
SUBCHAPTER F. EQUAL PARENTING [STANDARD POSSESSION] ORDER
SECTION 11. 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 12. Section 153.433, Family Code, is amended to
read as follows:
Sec. 153.433. POSSESSION OF OR ACCESS TO GRANDCHILD. The
court shall 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.
SECTION 13. 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 14. This Act takes effect September 1, 2009.