Texas 2009 - 81st Regular

Texas House Bill HB932 Compare Versions

Only one version of the bill is available at this time.

Old	New	Differences
1	1	81R635 KSD-F
2	2	By: Dutton H.B. No. 932
3	3
4	4
5	5	A BILL TO BE ENTITLED
6	6	AN ACT
7	7	relating to genetic testing in the determination of parentage and
8	8	to a proceeding to vacate an order of paternity or child support.
9	9	BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
10	10	SECTION 1. Section 102.008, Family Code, is amended by
11	11	amending Subsection (b) and adding Subsection (c) to read as
12	12	follows:
13	13	(b) The petition must include:
14	14	(1) a statement that the court in which the petition is
15	15	filed has continuing, exclusive jurisdiction or that no court has
16	16	continuing jurisdiction of the suit;
17	17	(2) the name and date of birth of the child, except
18	18	that if adoption of a child is requested, the name of the child may
19	19	be omitted;
20	20	(3) the full name of the petitioner and the
21	21	petitioner's relationship to the child or the fact that no
22	22	relationship exists;
23	23	(4) the names of the parents, except in a suit in which
24	24	adoption is requested;
25	25	(5) the name of the managing conservator, if any, or
26	26	the child's custodian, if any, appointed by order of a court of
27	27	another state or country;
28	28	(6) the names of the guardians of the person and estate
29	29	of the child, if any;
30	30	(7) the names of possessory conservators or other
31	31	persons, if any, having possession of or access to the child under
32	32	an order of the court;
33	33	(8) the name of an alleged father of the child or a
34	34	statement that the identity of the father of the child is unknown;
35	35	(9) a full description and statement of value of all
36	36	property owned or possessed by the child;
37	37	(10) a statement describing what action the court is
38	38	requested to take concerning the child and the statutory grounds on
39	39	which the request is made; [and]
40	40	(11) notice to an alleged or presumed father of the
41	41	child, if any, of the right to request paternity testing; and
42	42	(12) any other information required by this title.
43	43	(c) The notice described by Subsection (b)(11) must include
44	44	the following statement printed in boldfaced type, in capital
45	45	letters, or underlined:
46	46	"YOU HAVE THE RIGHT TO REQUEST GENETIC TESTING TO DETERMINE
47	47	THE PARENTAGE OF THE CHILD NAMED IN THIS SUIT. YOUR REQUEST FOR
48	48	GENETIC TESTING MUST BE IN WRITING AND FILED WITH THE CLERK OF THE
49	49	COURT IN WHICH THIS SUIT IS FILED. ANY ALLEGED OR PRESUMED FATHER
50	50	WHO DOES NOT REQUEST GENETIC TESTING SHALL BE BARRED FROM BRINGING
51	51	AN ACTION TO VACATE A CHILD SUPPORT ORDER OR A PARENTAGE ORDER."
52	52	SECTION 2. Chapter 105, Family Code, is amended by adding
53	53	Section 105.0035 to read as follows:
54	54	Sec. 105.0035. PATERNITY TESTING. (a) In an original suit
55	55	affecting the parent-child relationship, the court shall order
56	56	genetic testing on the request of an alleged or presumed father.
57	57	(b) Except as provided by Subsection (e), a court may not
58	58	render in a suit affecting the parent-child relationship a child
59	59	support order, an order finding paternity, or an order for
60	60	possession of or access to a child unless the court finds that the
61	61	man named as the father in the suit:
62	62	(1) is, based on court-ordered genetic testing that
63	63	complies with Section 160.503, rebuttably identified as the father
64	64	of the child in accordance with Section 160.505(a);
65	65	(2) is an adoptive parent of the child;
66	66	(3) was served with notice of the suit, including the
67	67	notice required by Section 102.008(b)(11), and failed to answer the
68	68	suit;
69	69	(4) was ordered by the court to submit to genetic
70	70	testing under Chapter 160 and failed to comply with the court's
71	71	order;
72	72	(5) is the presumed father of the child and the man
73	73	does not deny paternity as an affirmative defense; or
74	74	(6) has filed an affidavit acknowledging paternity.
75	75	(c) If the court makes a finding under Subsection (b), the
76	76	court may render an order declaring the man to be the biological
77	77	father of the child. The man may not challenge the adjudication of
78	78	paternity based on a finding under Subsections (b)(1) through (5)
79	79	in a subsequent proceeding under Subchapter J, Chapter 160, unless:
80	80	(1) the court entered a default judgment against the
81	81	man; and
82	82	(2) the man was served notice of the suit by
83	83	publication.
84	84	(d) Payment of the costs of genetic testing under this
85	85	section is governed by Chapter 160.
86	86	(e) The court may render a temporary order for child support
87	87	to be paid by a presumed father pending the outcome of a genetic
88	88	test to determine paternity.
89	89	SECTION 3. Chapter 160, Family Code, is amended by adding
90	90	Subchapter J to read as follows:
91	91	SUBCHAPTER J. PROCEEDINGS TO VACATE COURT ORDER
92	92	Sec. 160.801. SUIT TO VACATE COURT ORDER. (a) A person
93	93	identified in a court order as the father of a child may file a
94	94	petition not later than the child's 18th birthday requesting the
95	95	court to vacate a court order that:
96	96	(1) states that the person identified in the order as
97	97	the father of the child is the father of the child identified in the
98	98	motion; or
99	99	(2) requires the person identified in the order as the
100	100	father of the child to pay child support for the child.
101	101	(b) The petition to vacate a court order must be accompanied
102	102	by:
103	103	(1) an affidavit stating:
104	104	(A) facts that show the court order was obtained
105	105	by fraud or material mistake of fact; or
106	106	(B) that the person did not receive the notice
107	107	required by Section 102.008(b)(11); and
108	108	(2) a certified copy of the court order to be vacated.
109	109	(c) The court may not grant a petition to vacate a court
110	110	order under this section if the person identified in the court order
111	111	as the father of the child:
112	112	(1) is the child's adoptive father;
113	113	(2) consented to assisted reproduction by his wife
114	114	under Subchapter H;
115	115	(3) was an intended father under a gestational
116	116	agreement confirmed by a court under Subchapter I; or
117	117	(4) filed the petition under this section after the
118	118	180th day after the date the person received the results of a
119	119	genetic test described by Section 160.802(b)(3).
120	120	Sec. 160.802. GENETIC TESTING. (a) In a proceeding under
121	121	this subchapter, if the court finds that the affidavit filed with
122	122	the petition under Section 160.801 establishes a prima facie case
123	123	that the court order was obtained by fraud or material mistake of
124	124	fact, the court shall order the child and the person identified in
125	125	the court order as the father of the child to submit to genetic
126	126	testing not later than the 30th day after the date the order
127	127	requiring genetic testing is rendered.
128	128	(b) A person establishes a prima facie case that a court
129	129	order was obtained by fraud or material mistake of fact if the
130	130	person's affidavit states that the person:
131	131	(1) was the presumed father of the child or was induced
132	132	by representations made by the child's mother to believe that the
133	133	person was the child's father;
134	134	(2) at the time the court order was rendered, did not
135	135	know that he was not the father of the child; and
136	136	(3) took a genetic test after the date the court order
137	137	sought to be vacated was rendered that establishes that the person
138	138	is not rebuttably identified as the father of the child in
139	139	accordance with Section 160.505.
140	140	(c) Genetic testing under this section is governed by
141	141	Subchapter F.
142	142	(d) If the affidavit filed with the petition does not
143	143	establish a prima facie case, the court shall, on a motion by the
144	144	respondent, dismiss the petition.
145	145	Sec. 160.803. FAILURE TO SUBMIT TO GENETIC TEST. (a) If
146	146	the person who has been awarded the exclusive right to designate the
147	147	child's primary residence fails to allow the child to be
148	148	genetically tested under Section 160.802, the court may suspend the
149	149	legal obligation of the person identified in the court order as the
150	150	father of the child to pay child support until the child is
151	151	genetically tested.
152	152	(b) If the person identified in the court order as the
153	153	father of the child fails to submit to a genetic test ordered under
154	154	Section 160.802, the court shall dismiss the person's petition to
155	155	vacate with prejudice.
156	156	Sec. 160.804. GROUNDS FOR VACATING ORDER. (a) Except as
157	157	otherwise provided by this section, the court shall vacate an order
158	158	described by Section 160.801(a) if the court finds that the court
159	159	order was obtained by fraud or material mistake of fact, or that the
160	160	person did not receive the notice required by Section
161	161	102.008(b)(11), and the person identified in the court order as the
162	162	father of the child:
163	163	(1) was the presumed father of the child or was induced
164	164	by representations made by the child's mother to believe that the
165	165	person was the child's father;
166	166	(2) at the time the order was rendered, did not know
167	167	that he was not the father of the child;
168	168	(3) based on genetic testing, is not rebuttably
169	169	identified as the father of the child in accordance with Section
170	170	160.505;
171	171	(4) is not the child's adoptive parent;
172	172	(5) is not the intended father of the child under a
173	173	gestational agreement confirmed by a court under Subchapter I; and
174	174	(6) did not consent to assisted reproduction by his
175	175	wife under Subchapter H.
176	176	(b) The court may not vacate an order under this section if
177	177	the court finds that at any time the person identified in the court
178	178	order as the father of the child knew that he was not the child's
179	179	biological parent and:
180	180	(1) consented to his name being entered as the child's
181	181	biological father on the child's birth certificate;
182	182	(2) was determined to be the child's father in a
183	183	proceeding to determine parentage; or
184	184	(3) filed an acknowledgment of paternity with the
185	185	bureau of vital statistics.
186	186	Sec. 160.805. POSSESSION ORDER; CHILD SUPPORT ARREARAGE.
187	187	(a) If the court vacates a parentage or child support order in a
188	188	proceeding under this subchapter and the person identified in the
189	189	court order as the father of the child is also entitled under an
190	190	order to the possession of or access to the child who is the subject
191	191	of the vacated order, the court shall determine whether the
192	192	possession order should be terminated, modified, or continued based
193	193	on the best interest of the child.
194	194	(b) If the court modifies or continues the possession order
195	195	under Subsection (a), the person identified in the court order as
196	196	the father of the child shall have the rights and duties provided by
197	197	Section 153.074 during the period he has possession of the child.
198	198	(c) If the court vacates a child support order under this
199	199	subchapter and an arrearage exists under that child support order,
200	200	the court may reduce the amount of the arrearage to zero. If the
201	201	court eliminates an arrearage under this subsection, the court
202	202	shall issue an order stating that the child support obligation,
203	203	including any arrearage, is terminated.
204	204	(d) The elimination of an arrearage under a child support
205	205	order that is vacated as provided by this subchapter is for purposes
206	206	of correcting an act induced by fraud or material mistake of fact
207	207	and is not a retroactive modification.
208	208	(e) If the court vacates a parentage order in a proceeding
209	209	under this subchapter, the court may order:
210	210	(1) the child or any party to participate in
211	211	counseling with a licensed mental health professional who:
212	212	(A) has a background in family therapy; and
213	213	(B) holds a professional license that requires
214	214	the person to possess at least a master's degree; and
215	215	(2) any party to pay the cost of counseling.
216	216	(f) If a person possessing the qualifications of Subsection
217	217	(e)(1) is not available in the county in which the court presides,
218	218	the court may appoint a person the court believes is qualified to
219	219	conduct the counseling under Subsection (e).
220	220	Sec. 160.806. ATTORNEY'S FEES AND COURT COSTS. If the court
221	221	vacates a parentage order or a child support order in a proceeding
222	222	under this subchapter, the court may award reasonable attorney's
223	223	fees to the petitioner. If the court does not grant the petition to
224	224	vacate a parentage order or a child support order under this
225	225	subchapter, the court shall order the petitioner to pay the costs of
226	226	the action and each opposing party's reasonable attorney's fees.
227	227	SECTION 4. Section 233.028, Family Code, is amended by
228	228	adding Subsection (a-1) and amending Subsection (b) to read as
229	229	follows:
230	230	(a-1) The notice described in Subsection (a) and sent to a
231	231	man alleged to be the father of a child must include the following
232	232	statement printed on the notice in boldfaced type, in capital
233	233	letters, or underlined:
234	234	"YOU HAVE THE RIGHT TO REQUEST GENETIC TESTING TO DETERMINE
235	235	THE PARENTAGE OF A CHILD WHOSE PARENTAGE HAS NOT BEEN ESTABLISHED.
236	236	THE TITLE IV-D AGENCY WILL PAY FOR THE COSTS OF THE GENETIC TESTING,
237	237	BUT IF THE RESULTS OF THE TESTING IDENTIFY YOU AS THE BIOLOGICAL
238	238	FATHER OF THE CHILD, YOU MAY BE REQUIRED TO REIMBURSE THE AGENCY FOR
239	239	THOSE COSTS."
240	240	(b) If all parties agree to the child's parentage, the
241	241	agency may file an agreed child support review order as provided by
242	242	this chapter. The agreed order must include a statement signed by
243	243	the parties entitled to genetic testing in the case that the parties
244	244	have waived their rights to request genetic testing.
245	245	SECTION 5. (a) Section 233.028, Family Code, as amended by
246	246	this Act, applies only to an administrative proceeding under
247	247	Chapter 233, Family Code, for the determination of parentage
248	248	commenced on or after the effective date of this Act.
249	249	(b) If before implementing any provision of this Act the
250	250	Title IV-D agency determines that a waiver or authorization from a
251	251	federal agency is necessary for implementation of the change in law
252	252	made by this Act, the agency shall request the waiver or
253	253	authorization and may delay implementing that provision until the
254	254	waiver or authorization is granted.
255	255	(c) Except as provided by Subsection (d) of this section,
256	256	Section 105.0035, Family Code, as added by this Act, and the change
257	257	in law made by this Act to Section 102.008, Family Code, apply only
258	258	to a suit affecting the parent-child relationship filed on or after
259	259	the effective date of this Act. A suit affecting the parent-child
260	260	relationship filed before the effective date of this Act is
261	261	governed by the law in effect on the date the suit was filed, and the
262	262	former law is continued in effect for that purpose.
263	263	(d) In a proceeding under Subchapter J, Chapter 160, Family
264	264	Code, as added by this Act, to vacate an order rendered in a suit
265	265	affecting the parent-child relationship filed before the effective
266	266	date of this Act, the court may not vacate the order on the ground
267	267	that the alleged or presumed father did not receive the notice
268	268	required by Section 102.008(b)(11), Family Code, as added by this
269	269	Act.
270	270	SECTION 6. This Act takes effect September 1, 2009.