81R635 KSD-F
By: Dutton H.B. No. 932
A BILL TO BE ENTITLED
AN ACT
relating to genetic testing in the determination of parentage and
to a proceeding to vacate an order of paternity or child support.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
SECTION 1. Section 102.008, Family Code, is amended by
amending Subsection (b) and adding Subsection (c) to read as
follows:
(b) The petition must include:
(1) a statement that the court in which the petition is
filed has continuing, exclusive jurisdiction or that no court has
continuing jurisdiction of the suit;
(2) the name and date of birth of the child, except
that if adoption of a child is requested, the name of the child may
be omitted;
(3) the full name of the petitioner and the
petitioner's relationship to the child or the fact that no
relationship exists;
(4) the names of the parents, except in a suit in which
adoption is requested;
(5) the name of the managing conservator, if any, or
the child's custodian, if any, appointed by order of a court of
another state or country;
(6) the names of the guardians of the person and estate
of the child, if any;
(7) the names of possessory conservators or other
persons, if any, having possession of or access to the child under
an order of the court;
(8) the name of an alleged father of the child or a
statement that the identity of the father of the child is unknown;
(9) a full description and statement of value of all
property owned or possessed by the child;
(10) a statement describing what action the court is
requested to take concerning the child and the statutory grounds on
which the request is made; [and]
(11) notice to an alleged or presumed father of the
child, if any, of the right to request paternity testing; and
(12) any other information required by this title.
(c) The notice described by Subsection (b)(11) must include
the following statement printed in boldfaced type, in capital
letters, or underlined:
"YOU HAVE THE RIGHT TO REQUEST GENETIC TESTING TO DETERMINE
THE PARENTAGE OF THE CHILD NAMED IN THIS SUIT. YOUR REQUEST FOR
GENETIC TESTING MUST BE IN WRITING AND FILED WITH THE CLERK OF THE
COURT IN WHICH THIS SUIT IS FILED. ANY ALLEGED OR PRESUMED FATHER
WHO DOES NOT REQUEST GENETIC TESTING SHALL BE BARRED FROM BRINGING
AN ACTION TO VACATE A CHILD SUPPORT ORDER OR A PARENTAGE ORDER."
SECTION 2. Chapter 105, Family Code, is amended by adding
Section 105.0035 to read as follows:
Sec. 105.0035. PATERNITY TESTING. (a) In an original suit
affecting the parent-child relationship, the court shall order
genetic testing on the request of an alleged or presumed father.
(b) Except as provided by Subsection (e), a court may not
render in a suit affecting the parent-child relationship a child
support order, an order finding paternity, or an order for
possession of or access to a child unless the court finds that the
man named as the father in the suit:
(1) is, based on court-ordered genetic testing that
complies with Section 160.503, rebuttably identified as the father
of the child in accordance with Section 160.505(a);
(2) is an adoptive parent of the child;
(3) was served with notice of the suit, including the
notice required by Section 102.008(b)(11), and failed to answer the
suit;
(4) was ordered by the court to submit to genetic
testing under Chapter 160 and failed to comply with the court's
order;
(5) is the presumed father of the child and the man
does not deny paternity as an affirmative defense; or
(6) has filed an affidavit acknowledging paternity.
(c) If the court makes a finding under Subsection (b), the
court may render an order declaring the man to be the biological
father of the child. The man may not challenge the adjudication of
paternity based on a finding under Subsections (b)(1) through (5)
in a subsequent proceeding under Subchapter J, Chapter 160, unless:
(1) the court entered a default judgment against the
man; and
(2) the man was served notice of the suit by
publication.
(d) Payment of the costs of genetic testing under this
section is governed by Chapter 160.
(e) The court may render a temporary order for child support
to be paid by a presumed father pending the outcome of a genetic
test to determine paternity.
SECTION 3. Chapter 160, Family Code, is amended by adding
Subchapter J to read as follows:
SUBCHAPTER J. PROCEEDINGS TO VACATE COURT ORDER
Sec. 160.801. SUIT TO VACATE COURT ORDER. (a) A person
identified in a court order as the father of a child may file a
petition not later than the child's 18th birthday requesting the
court to vacate a court order that:
(1) states that the person identified in the order as
the father of the child is the father of the child identified in the
motion; or
(2) requires the person identified in the order as the
father of the child to pay child support for the child.
(b) The petition to vacate a court order must be accompanied
by:
(1) an affidavit stating:
(A) facts that show the court order was obtained
by fraud or material mistake of fact; or
(B) that the person did not receive the notice
required by Section 102.008(b)(11); and
(2) a certified copy of the court order to be vacated.
(c) The court may not grant a petition to vacate a court
order under this section if the person identified in the court order
as the father of the child:
(1) is the child's adoptive father;
(2) consented to assisted reproduction by his wife
under Subchapter H;
(3) was an intended father under a gestational
agreement confirmed by a court under Subchapter I; or
(4) filed the petition under this section after the
180th day after the date the person received the results of a
genetic test described by Section 160.802(b)(3).
Sec. 160.802. GENETIC TESTING. (a) In a proceeding under
this subchapter, if the court finds that the affidavit filed with
the petition under Section 160.801 establishes a prima facie case
that the court order was obtained by fraud or material mistake of
fact, the court shall order the child and the person identified in
the court order as the father of the child to submit to genetic
testing not later than the 30th day after the date the order
requiring genetic testing is rendered.
(b) A person establishes a prima facie case that a court
order was obtained by fraud or material mistake of fact if the
person's affidavit states that the person:
(1) was the presumed father of the child or was induced
by representations made by the child's mother to believe that the
person was the child's father;
(2) at the time the court order was rendered, did not
know that he was not the father of the child; and
(3) took a genetic test after the date the court order
sought to be vacated was rendered that establishes that the person
is not rebuttably identified as the father of the child in
accordance with Section 160.505.
(c) Genetic testing under this section is governed by
Subchapter F.
(d) If the affidavit filed with the petition does not
establish a prima facie case, the court shall, on a motion by the
respondent, dismiss the petition.
Sec. 160.803. FAILURE TO SUBMIT TO GENETIC TEST. (a) If
the person who has been awarded the exclusive right to designate the
child's primary residence fails to allow the child to be
genetically tested under Section 160.802, the court may suspend the
legal obligation of the person identified in the court order as the
father of the child to pay child support until the child is
genetically tested.
(b) If the person identified in the court order as the
father of the child fails to submit to a genetic test ordered under
Section 160.802, the court shall dismiss the person's petition to
vacate with prejudice.
Sec. 160.804. GROUNDS FOR VACATING ORDER. (a) Except as
otherwise provided by this section, the court shall vacate an order
described by Section 160.801(a) if the court finds that the court
order was obtained by fraud or material mistake of fact, or that the
person did not receive the notice required by Section
102.008(b)(11), and the person identified in the court order as the
father of the child:
(1) was the presumed father of the child or was induced
by representations made by the child's mother to believe that the
person was the child's father;
(2) at the time the order was rendered, did not know
that he was not the father of the child;
(3) based on genetic testing, is not rebuttably
identified as the father of the child in accordance with Section
160.505;
(4) is not the child's adoptive parent;
(5) is not the intended father of the child under a
gestational agreement confirmed by a court under Subchapter I; and
(6) did not consent to assisted reproduction by his
wife under Subchapter H.
(b) The court may not vacate an order under this section if
the court finds that at any time the person identified in the court
order as the father of the child knew that he was not the child's
biological parent and:
(1) consented to his name being entered as the child's
biological father on the child's birth certificate;
(2) was determined to be the child's father in a
proceeding to determine parentage; or
(3) filed an acknowledgment of paternity with the
bureau of vital statistics.
Sec. 160.805. POSSESSION ORDER; CHILD SUPPORT ARREARAGE.
(a) If the court vacates a parentage or child support order in a
proceeding under this subchapter and the person identified in the
court order as the father of the child is also entitled under an
order to the possession of or access to the child who is the subject
of the vacated order, the court shall determine whether the
possession order should be terminated, modified, or continued based
on the best interest of the child.
(b) If the court modifies or continues the possession order
under Subsection (a), the person identified in the court order as
the father of the child shall have the rights and duties provided by
Section 153.074 during the period he has possession of the child.
(c) If the court vacates a child support order under this
subchapter and an arrearage exists under that child support order,
the court may reduce the amount of the arrearage to zero. If the
court eliminates an arrearage under this subsection, the court
shall issue an order stating that the child support obligation,
including any arrearage, is terminated.
(d) The elimination of an arrearage under a child support
order that is vacated as provided by this subchapter is for purposes
of correcting an act induced by fraud or material mistake of fact
and is not a retroactive modification.
(e) If the court vacates a parentage order in a proceeding
under this subchapter, the court may order:
(1) the child or any party to participate in
counseling with a licensed mental health professional who:
(A) has a background in family therapy; and
(B) holds a professional license that requires
the person to possess at least a master's degree; and
(2) any party to pay the cost of counseling.
(f) If a person possessing the qualifications of Subsection
(e)(1) is not available in the county in which the court presides,
the court may appoint a person the court believes is qualified to
conduct the counseling under Subsection (e).
Sec. 160.806. ATTORNEY'S FEES AND COURT COSTS. If the court
vacates a parentage order or a child support order in a proceeding
under this subchapter, the court may award reasonable attorney's
fees to the petitioner. If the court does not grant the petition to
vacate a parentage order or a child support order under this
subchapter, the court shall order the petitioner to pay the costs of
the action and each opposing party's reasonable attorney's fees.
SECTION 4. Section 233.028, Family Code, is amended by
adding Subsection (a-1) and amending Subsection (b) to read as
follows:
(a-1) The notice described in Subsection (a) and sent to a
man alleged to be the father of a child must include the following
statement printed on the notice in boldfaced type, in capital
letters, or underlined:
"YOU HAVE THE RIGHT TO REQUEST GENETIC TESTING TO DETERMINE
THE PARENTAGE OF A CHILD WHOSE PARENTAGE HAS NOT BEEN ESTABLISHED.
THE TITLE IV-D AGENCY WILL PAY FOR THE COSTS OF THE GENETIC TESTING,
BUT IF THE RESULTS OF THE TESTING IDENTIFY YOU AS THE BIOLOGICAL
FATHER OF THE CHILD, YOU MAY BE REQUIRED TO REIMBURSE THE AGENCY FOR
THOSE COSTS."
(b) If all parties agree to the child's parentage, the
agency may file an agreed child support review order as provided by
this chapter. The agreed order must include a statement signed by
the parties entitled to genetic testing in the case that the parties
have waived their rights to request genetic testing.
SECTION 5. (a) Section 233.028, Family Code, as amended by
this Act, applies only to an administrative proceeding under
Chapter 233, Family Code, for the determination of parentage
commenced on or after the effective date of this Act.
(b) If before implementing any provision of this Act the
Title IV-D agency determines that a waiver or authorization from a
federal agency is necessary for implementation of the change in law
made by this Act, the agency shall request the waiver or
authorization and may delay implementing that provision until the
waiver or authorization is granted.
(c) Except as provided by Subsection (d) of this section,
Section 105.0035, Family Code, as added by this Act, and the change
in law made by this Act to Section 102.008, Family Code, apply only
to a suit affecting the parent-child relationship filed on or after
the effective date of this Act. A suit affecting the parent-child
relationship filed before the effective date of this Act is
governed by the law in effect on the date the suit was filed, and the
former law is continued in effect for that purpose.
(d) In a proceeding under Subchapter J, Chapter 160, Family
Code, as added by this Act, to vacate an order rendered in a suit
affecting the parent-child relationship filed before the effective
date of this Act, the court may not vacate the order on the ground
that the alleged or presumed father did not receive the notice
required by Section 102.008(b)(11), Family Code, as added by this
Act.
SECTION 6. This Act takes effect September 1, 2009.