By: Aycock, et al. (Senate Sponsor - Nelson) H.B. No. 63
(In the Senate - Received from the House April 27, 2009;
May 12, 2009, read first time and referred to Committee on
Administration; May 21, 2009, reported adversely, with favorable
Committee Substitute by the following vote: Yeas 5, Nays 0;
May 21, 2009, sent to printer.)
COMMITTEE SUBSTITUTE FOR H.B. No. 63 By: Shapiro
A BILL TO BE ENTITLED
AN ACT
relating to the conservatorship or possession of, or access to, a
child by a parent who is deployed by the military.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
SECTION 1. Chapter 153, Family Code, is amended by adding
Subchapter L to read as follows:
SUBCHAPTER L. MILITARY DUTY
Sec. 153.701. DEFINITIONS. In this subchapter:
(1) "Designated person" means the person ordered by
the court to temporarily exercise a conservator's rights, duties,
and periods of possession and access with regard to a child during
the conservator's military deployment, military mobilization, or
temporary military duty.
(2) "Military deployment" means the temporary
transfer of a service member of the armed forces of this state or
the United States serving in an active-duty status to another
location in support of combat or some other military operation.
(3) "Military mobilization" means the call-up of a
National Guard or Reserve service member of the armed forces of this
state or the United States to extended active duty status. The term
does not include National Guard or Reserve annual training.
(4) "Temporary military duty" means the transfer of a
service member of the armed forces of this state or the United
States from one military base to a different location, usually
another base, for a limited time for training or to assist in the
performance of a noncombat mission.
Sec. 153.702. TEMPORARY ORDERS. (a) If a conservator is
ordered to military deployment, military mobilization, or
temporary military duty that involves moving a substantial distance
from the conservator's residence so as to materially affect the
conservator's ability to exercise the conservator's rights and
duties in relation to a child, either conservator may file for an
order under this subchapter.
(b) The court may render a temporary order in a proceeding
under this subchapter regarding:
(1) possession of or access to the child; or
(2) child support.
(c) A temporary order rendered by the court under this
subchapter may grant rights to and impose duties on a designated
person regarding the child, except the court may not require the
designated person to pay child support.
(d) After a conservator's military deployment, military
mobilization, or temporary military duty is concluded, and the
conservator returns to the conservator's usual residence, the
temporary orders under this section terminate and the rights of all
affected parties are governed by the terms of any court order
applicable when the conservator is not ordered to military
deployment, military mobilization, or temporary military duty.
Sec. 153.703. APPOINTING DESIGNATED PERSON FOR CONSERVATOR
WITH EXCLUSIVE RIGHT TO DESIGNATE PRIMARY RESIDENCE OF CHILD. (a)
If the conservator with the exclusive right to designate the
primary residence of the child is ordered to military deployment,
military mobilization, or temporary military duty, the court may
render a temporary order to appoint a designated person to exercise
the exclusive right to designate the primary residence of the child
during the military deployment, military mobilization, or
temporary military duty in the following order of preference:
(1) the conservator who does not have the exclusive
right to designate the primary residence of the child;
(2) if appointing the conservator described by
Subdivision (1) is not in the child's best interest, a designated
person chosen by the conservator with the exclusive right to
designate the primary residence of the child; or
(3) if appointing the conservator described by
Subdivision (1) or the person chosen under Subdivision (2) is not in
the child's best interest, another person chosen by the court.
(b) A designated person named in a temporary order rendered
under this section has the rights and duties of a nonparent
appointed as sole managing conservator under Section 153.371.
(c) The court may limit or expand the rights of a nonparent
named as a designated person in a temporary order rendered under
this section as appropriate to the best interest of the child.
Sec. 153.704. APPOINTING DESIGNATED PERSON TO EXERCISE
VISITATION FOR CONSERVATOR WITH EXCLUSIVE RIGHT TO DESIGNATE
PRIMARY RESIDENCE OF CHILD IN CERTAIN CIRCUMSTANCES. (a) If the
court appoints the conservator without the exclusive right to
designate the primary residence of the child under Section
153.703(a)(1), the court may award visitation with the child to a
designated person chosen by the conservator with the exclusive
right to designate the primary residence of the child.
(b) The periods of visitation shall be the same as the
visitation to which the conservator without the exclusive right to
designate the primary residence of the child was entitled under the
court order in effect immediately before the date the temporary
order is rendered.
(c) The temporary order for visitation must provide that:
(1) the designated person under this section has the
right to possession of the child for the periods and in the manner
in which the conservator without the exclusive right to designate
the primary residence of the child is entitled under the court order
in effect immediately before the date the temporary order is
rendered;
(2) the child's other conservator and the designated
person under this section are subject to the requirements of
Section 153.316, with the designated person considered for purposes
of that section to be the possessory conservator;
(3) the designated person under this section has the
rights and duties of a nonparent possessory conservator under
Section 153.376(a) during the period that the person has possession
of the child; and
(4) the designated person under this section is
subject to any provision in a court order restricting or
prohibiting access to the child by any specified individual.
(d) The court may limit or expand the rights of a nonparent
designated person named in a temporary order rendered under this
section as appropriate to the best interest of the child.
Sec. 153.705. APPOINTING DESIGNATED PERSON TO EXERCISE
VISITATION FOR CONSERVATOR WITHOUT EXCLUSIVE RIGHT TO DESIGNATE
PRIMARY RESIDENCE OF CHILD. (a) If the conservator without the
exclusive right to designate the primary residence of the child is
ordered to military deployment, military mobilization, or
temporary military duty, the court may award visitation with the
child to a designated person chosen by the conservator, if the
visitation is in the best interest of the child.
(b) The temporary order for visitation must provide that:
(1) the designated person under this section has the
right to possession of the child for the periods and in the manner
in which the conservator described by Subsection (a) would be
entitled if not ordered to military deployment, military
mobilization, or temporary military duty;
(2) the child's other conservator and the designated
person under this section are subject to the requirements of
Section 153.316, with the designated person considered for purposes
of that section to be the possessory conservator;
(3) the designated person under this section has the
rights and duties of a nonparent possessory conservator under
Section 153.376(a) during the period that the designated person has
possession of the child; and
(4) the designated person under this section is
subject to any provision in a court order restricting or
prohibiting access to the child by any specified individual.
(c) The court may limit or expand the rights of a nonparent
designated person named in a temporary order rendered under this
section as appropriate to the best interest of the child.
Sec. 153.706. TEMPORARY ORDER FOR CHILD SUPPORT. A
temporary order rendered under this subchapter may result in a
change of circumstances sufficient to justify a temporary order
modifying the child support obligations of a party.
Sec. 153.707. EXPEDITED HEARING. (a) On a motion by the
conservator who has been ordered to military deployment, military
mobilization, or temporary military duty, the court shall, for good
cause shown, hold an expedited hearing if the court finds that the
conservator's military duties have a material effect on the
conservator's ability to appear in person at a regularly scheduled
hearing.
(b) A hearing under this section shall, if possible, take
precedence over other suits affecting the parent-child
relationship not involving a conservator who has been ordered to
military deployment, military mobilization, or temporary military
duty.
(c) On a motion by any party, the court shall, after
reasonable advance notice and for good cause shown, allow a party to
present testimony and evidence by electronic means, including by
teleconference or through the Internet.
Sec. 153.708. ENFORCEMENT. Temporary orders rendered under
this subchapter may be enforced by or against the designated person
to the same extent that an order would be enforceable against the
conservator who has been ordered to military deployment, military
mobilization, or temporary military duty.
Sec. 153.709. ADDITIONAL PERIODS OF POSSESSION OR ACCESS.
(a) Not later than the 90th day after the date a conservator
without the exclusive right to designate the primary residence of
the child who is a member of the armed services concludes the
conservator's military deployment, military mobilization, or
temporary military duty, the conservator may petition the court to:
(1) compute the periods of possession of or access to
the child to which the conservator would have otherwise been
entitled during the conservator's deployment; and
(2) award the conservator additional periods of
possession of or access to the child to compensate for the periods
described by Subdivision (1).
(b) If the conservator described by Subsection (a)
petitions the court under Subsection (a), the court:
(1) shall compute the periods of possession or access
to the child described by Subsection (a)(1); and
(2) may award to the conservator additional periods of
possession of or access to the child for a length of time and under
terms the court considers reasonable, if the court determines that:
(A) the conservator was on military deployment,
military mobilization, or temporary military duty in a location
where access to the child was not reasonably possible; and
(B) the award of additional periods of possession
of or access to the child is in the best interest of the child.
(c) In making the determination under Subsection (b)(2),
the court:
(1) shall consider:
(A) the periods of possession of or access to the
child to which the conservator would otherwise have been entitled
during the conservator's military deployment, military
mobilization, or temporary military duty, as computed under
Subsection (b)(1);
(B) whether the court named a designated person
under Section 153.705 to exercise limited possession of the child
during the conservator's deployment; and
(C) any other factor the court considers
appropriate; and
(2) is not required to award additional periods of
possession of or access to the child that equals the possession or
access to which the conservator would have been entitled during the
conservator's military deployment, military mobilization, or
temporary military duty, as computed under Subsection (b)(1).
(d) After the conservator described by Subsection (a) has
exercised all additional periods of possession or access awarded
under this section, the rights of all affected parties are governed
by the terms of the court order applicable when the conservator is
not ordered to military deployment, military mobilization, or
temporary military duty.
SECTION 2. Section 156.006, Family Code, is amended by
adding Subsection (c) to read as follows:
(c) Subsection (b)(2) does not apply to a conservator who
has the exclusive right to designate the primary residence of the
child and who has temporarily relinquished the primary care and
possession of the child to another person during the conservator's
military deployment, military mobilization, or temporary military
duty, as those terms are defined by Section 153.701.
SECTION 3. Section 156.101, Family Code, is amended to read
as follows:
Sec. 156.101. GROUNDS FOR MODIFICATION OF ORDER
ESTABLISHING CONSERVATORSHIP OR POSSESSION AND ACCESS. (a) The
court may modify an order that provides for the appointment of a
conservator of a child, that provides the terms and conditions of
conservatorship, or that provides for the possession of or access
to a child if modification would be in the best interest of the
child and:
(1) the circumstances of the child, a conservator, or
other party affected by the order have materially and substantially
changed since the earlier of:
(A) the date of the rendition of the order; or
(B) the date of the signing of a mediated or
collaborative law settlement agreement on which the order is based;
(2) the child is at least 12 years of age and has filed
with the court, in writing, the name of the person who is the
child's preference to have the exclusive right to designate the
primary residence of the child; or
(3) the conservator who has the exclusive right to
designate the primary residence of the child has voluntarily
relinquished the primary care and possession of the child to
another person for at least six months.
(b) Subsection (a)(3) does not apply to a conservator who
has the exclusive right to designate the primary residence of the
child and who has temporarily relinquished the primary care and
possession of the child to another person during the conservator's
military deployment, military mobilization, or temporary military
duty, as those terms are defined by Section 153.701.
SECTION 4. Section 156.102, Family Code, is amended by
adding Subsection (d) to read as follows:
(d) Subsection (b)(3) does not apply to a person who has the
exclusive right to designate the primary residence of the child and
who has temporarily relinquished the primary care and possession of
the child to another person during the conservator's military
deployment, military mobilization, or temporary military duty, as
those terms are defined by Section 153.701.
SECTION 5. Section 156.105, Family Code, is amended to read
as follows:
Sec. 156.105. MODIFICATION OF ORDER BASED ON MILITARY DUTY
[DEPLOYMENT]. [(a) In this section, "military deployment" means
military duty ordered for a period of more than six months during
which the person ordered to duty:
[(1) is not provided the option of being accompanied
by the person's child; and
[(2) is serving in a location where access to the
person's child is not reasonably possible.
[(b)] The military duty of a conservator who is ordered to
military deployment, military mobilization, or temporary military
duty, as those terms are defined by Section 153.701, does not by
itself constitute [of a person who is a possessory conservator or a
joint managing conservator without the exclusive right to designate
the primary residence of the child is] a material and substantial
change of circumstances sufficient to justify a modification of an
existing court order or portion of a decree that sets the terms and
conditions for the possession of or access to a child except that
the court may render a temporary order under Subchapter L, Chapter
153.
[(c) If the court determines that modification is in the
best interest of the child, the court may modify the order or decree
to provide in a manner consistent with Section 153.3161 for
possession of the child during the period of the military
deployment by a person designated by the deployed conservator.]
SECTION 6. Sections 153.3161 and 156.410, Family Code, are
repealed.
SECTION 7. Sections 156.006, 156.101, 156.102, and 156.105,
Family Code, as amended by this Act, apply only to a suit affecting
the parent-child relationship pending in a trial court on or filed
on or after the effective date of this Act.
SECTION 8. This Act takes effect September 1, 2009.
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