Texas 2009 - 81st Regular

Texas House Bill HB2084 Compare Versions

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Old	New	Differences
1	1	81R9481 JMM-F
2	2	By: King of Parker, Hughes, Anderson, Isett, H.B. No. 2084
3	3	Flynn, et al.
4	4
5	5
6	6	A BILL TO BE ENTITLED
7	7	AN ACT
8	8	relating to a suit for access to a child by a grandparent.
9	9	BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
10	10	SECTION 1. Section 153.432, Family Code, is amended to read
11	11	as follows:
12	12	Sec. 153.432. SUIT FOR [POSSESSION OR] ACCESS BY
13	13	GRANDPARENT. (a) Subject to Section 153.434, a [A] biological [or
14	14	adoptive] grandparent may request [possession of or] access to a
15	15	grandchild by filing:
16	16	(1) an original suit; or
17	17	(2) a suit for modification as provided by Chapter
18	18	156.
19	19	(b) A grandparent may request [possession of or] access to a
20	20	grandchild in a suit filed for the sole purpose of requesting the
21	21	relief, without regard to whether the appointment of a managing
22	22	conservator is an issue in the suit.
23	23	(c) In a suit for access or for modification described by
24	24	Subsection (a), the person filing the suit must execute and attach
25	25	an affidavit that contains, along with supporting facts, the
26	26	allegation that denial of access to the child by the petitioner
27	27	endangers the child's physical health or significantly impairs the
28	28	child's emotional well-being and development.
29	29	(d) The court shall deny the relief sought and refuse to
30	30	schedule a hearing unless the court determines, on the basis of the
31	31	affidavit, that facts adequate to support an allegation as
32	32	described in Subsection (c) are stated in the affidavit. If the
33	33	court determines that the facts stated are adequate to support an
34	34	allegation, the court shall set a time and place for the initial
35	35	hearing as provided by Section 153.433(b).
36	36	(e) If the court finds that a suit for access or for
37	37	modification is filed frivolously or is designed to harass a party,
38	38	the court shall assess attorney's fees as costs against the
39	39	offending party.
40	40	(f) A suit for access or for modification described by
41	41	Subsection (a) may not be tried or consolidated with any other suit
42	42	for conservatorship of the child or any other proceeding involving
43	43	or arising from a claim involving the parent-child relationship.
44	44	Any order resulting from a consolidated proceeding prohibited by
45	45	this subsection is void.
46	46	SECTION 2. Section 153.433, Family Code, is amended to read
47	47	as follows:
48	48	Sec. 153.433. [POSSESSION OF OR] ACCESS TO
49	49	GRANDCHILD. (a) The court may [shall] order reasonable
50	50	[possession of or] access to a grandchild by a grandparent if:
51	51	(1) at the time the relief is requested, at least one
52	52	biological or adoptive parent of the child has not had that parent's
53	53	parental rights terminated;
54	54	(2) the grandparent requesting [possession of or]
55	55	access to the child overcomes the presumption that a parent acts in
56	56	the best interest of the parent's child by proving by clear and
57	57	convincing [a preponderance of the] evidence that denial of
58	58	[possession of or] access to the child [would] significantly
59	59	impairs [impair] the child's physical health or emotional
60	60	well-being; and
61	61	(3) the grandparent requesting [possession of or]
62	62	access to the child is a parent of a parent of the child and that
63	63	parent of the child has not had parental rights terminated and that
64	64	parent, for not less than six months before commencing the suit:
65	65	(A) has been [incarcerated in jail or prison
66	66	during the three-month period preceding the filing of the petition;
67	67	[(B) has been found by a court to be incompetent;
68	68	[(C) is] dead; or
69	69	(B) has [(D) does] not had [have] actual or
70	70	court-ordered possession of or access to the child.
71	71	(b) As a threshold issue, the court shall conduct an initial
72	72	hearing not later than the 45th day after the date of service of
73	73	process at which the court shall dismiss the suit unless the
74	74	grandparent requesting access to the child proves by clear and
75	75	convincing evidence that the child's parent does not provide
76	76	adequate care for the child and has engaged in culpable conduct that
77	77	endangers the child's physical health or significantly impairs the
78	78	child's emotional development.
79	79	(c) In a hearing under Subsection (b), the court may not
80	80	render a temporary order.
81	81	(d) In a suit for access by a grandparent, unless the
82	82	grandparent meets the evidentiary burden at the initial hearing,
83	83	the court may not order:
84	84	(1) the appointment of an amicus attorney, guardian ad
85	85	litem, or attorney ad litem; or
86	86	(2) counseling, a social study, mental examination,
87	87	physical examination, or parenting classes, except for a
88	88	grandparent who files the suit.
89	89	(e) An order granting access to a child by a grandparent
90	90	that is rendered over a parent's objections must state, with
91	91	specificity:
92	92	(1) the court's findings regarding the fitness of the
93	93	parent;
94	94	(2) the parent's objections;
95	95	(3) the fact that the court gave special weight to the
96	96	parent's objections;
97	97	(4) the manner in which the court gave special weight
98	98	to the parent's objections; and
99	99	(5) the specific grounds for overriding the parent's
100	100	objections.
101	101	(f) In a suit for access by a grandparent, the court may not:
102	102	(1) impose a geographic restriction; or
103	103	(2) award possession of a child to a grandparent.
104	104	(g) If the grandparent requesting access to a child fails to
105	105	meet all of the evidentiary burdens under this section, the court
106	106	shall award the parent all costs, fees, and expenses incurred by the
107	107	parent to defend the suit in accordance with Chapter 106.
108	108	(h) This section does not prohibit a grandparent from filing
109	109	a suit for managing conservatorship of a child under this chapter or
110	110	Chapter 102 or 156.
111	111	SECTION 3. Section 153.434, Family Code, is amended to read
112	112	as follows:
113	113	Sec. 153.434. LIMITATION ON RIGHT TO REQUEST [POSSESSION
114	114	OR] ACCESS. A biological [or adoptive] grandparent may not request
115	115	[possession of or] access to a grandchild if:
116	116	(1) a court does not already have continuing exclusive
117	117	jurisdiction of a suit involving the child;
118	118	(2) the child's parent who is the competent child of
119	119	the grandparent opposes the suit; or
120	120	(3) the child has been adopted or is the subject of a
121	121	pending suit for adoption and each of the biological parents of the
122	122	child [grandchild] has:
123	123	(A) died;
124	124	(B) had the person's parental rights terminated;
125	125	or
126	126	(C) executed an affidavit of waiver of interest
127	127	in child or an affidavit of relinquishment of parental rights under
128	128	Chapter 161 and the affidavit designates an authorized agency,
129	129	licensed child-placing agency, or another person [other than the
130	130	child's stepparent] as the managing conservator of the child[; and
131	131	[(2) the grandchild has been adopted, or is the
132	132	subject of a pending suit for adoption, by a person other than the
133	133	child's stepparent].
134	134	SECTION 4. Notwithstanding Chapter 156, Family Code, or any
135	135	other provision of the Family Code, Sections 153.432 through
136	136	153.434, Family Code, as amended by this Act, apply equally to an
137	137	original suit and a suit for modification filed by a grandparent
138	138	seeking access to a grandchild.
139	139	SECTION 5. The changes in law made by this Act apply to a
140	140	suit affecting the parent-child relationship that is pending in a
141	141	court on the effective date of this Act or is filed on or after that
142	142	date.
143	143	SECTION 6. This Act takes effect immediately if it receives
144	144	a vote of two-thirds of all the members elected to each house, as
145	145	provided by Section 39, Article III, Texas Constitution. If this
146	146	Act does not receive the vote necessary for immediate effect, this
147	147	Act takes effect September 1, 2009.