81R9481 JMM-F
By: King of Parker, Hughes, Anderson, Isett, H.B. No. 2084
Flynn, et al.
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 that contains, along with supporting facts, the
allegation that denial of access to the child by the petitioner
endangers the child's physical health or significantly impairs the
child's emotional well-being and development.
(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 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 [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 clear and
convincing [a preponderance of the] evidence that denial of
[possession of or] access to the child [would] significantly
impairs [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 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 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 access to a child by a grandparent
that is rendered over a parent's objections must state, with
specificity:
(1) the court's findings regarding the fitness of the
parent;
(2) the parent's objections;
(3) the fact that the court gave special weight to the
parent's objections;
(4) the manner in which the court gave special weight
to the parent's objections; and
(5) 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 through
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, 2009.