Texas 2011 - 82nd Regular

Texas House Bill HB2557 Compare Versions

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1	1	82R23328 EES-F
2	2	By: Brown, Burkett, Phillips, Madden, et al. H.B. No. 2557
3	3	Substitute the following for H.B. No. 2557:
4	4	By: Jackson C.S.H.B. No. 2557
5	5
6	6
7	7	A BILL TO BE ENTITLED
8	8	AN ACT
9	9	relating to a suit for possession of or access to a child by a
10	10	grandparent.
11	11	BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
12	12	SECTION 1. Section 153.432, Family Code, is amended by
13	13	amending Subsections (a) and (c) and adding Subsections (d), (e),
14	14	and (f) to read as follows:
15	15	(a) Subject to Section 153.434, a [A] biological or adoptive
16	16	grandparent may request possession of or access to a grandchild by
17	17	filing:
18	18	(1) an original suit; or
19	19	(2) a suit for modification as provided by Chapter
20	20	156.
21	21	(c) In a suit described by Subsection (a), the person filing
22	22	the suit must execute and attach an affidavit on knowledge or belief
23	23	that contains, along with supporting facts, the allegation that
24	24	denial of possession of or access to the child by the petitioner
25	25	would significantly impair the child's physical health or emotional
26	26	well-being. [The court shall deny the relief sought and dismiss the
27	27	suit unless the court determines that the facts stated in the
28	28	affidavit, if true, would be sufficient to support the relief
29	29	authorized under Section 153.433.]
30	30	(d) The court shall deny the relief sought and refuse to
31	31	schedule a hearing unless the court determines that the facts
32	32	stated in the affidavit, if subsequently proven to be true, are
33	33	adequate to support an allegation as described in Subsection (c).
34	34	If the court determines that the facts stated, if subsequently
35	35	proven to be true, are adequate to support an allegation, the court
36	36	shall set a time and place for the initial hearing as provided by
37	37	Section 153.433(b).
38	38	(e) If the court finds that a suit described by Subsection
39	39	(a) is filed frivolously or is designed to harass a party, the court
40	40	shall assess attorney's fees as costs against the offending party.
41	41	(f) A suit described by Subsection (a) may not be tried or
42	42	consolidated with any other suit for conservatorship of the child
43	43	or any other proceeding involving or arising from a claim involving
44	44	the parent-child relationship. Any order resulting from a
45	45	consolidated proceeding prohibited by 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 GRANDCHILD. (a)
49	49	The court may order reasonable possession of or access to a
50	50	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 access
55	55	to the child overcomes the presumption that a parent acts in the
56	56	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 impair the
59	59	child's physical health or emotional well-being; and
60	60	(3) the grandparent requesting possession of or access
61	61	to the child is a parent of a parent of the child and that parent of
62	62	the child:
63	63	(A) has been incarcerated in jail or prison
64	64	during the three-month period preceding the filing of the petition;
65	65	(B) has been found by a court to be incompetent;
66	66	(C) is dead; or
67	67	(D) has [does] not had [have] actual or
68	68	court-ordered possession of or access to the child.
69	69	(b) As a threshold issue, the court shall conduct an initial
70	70	hearing not later than the 45th day after the date of service of
71	71	process at which the court shall dismiss the suit unless the
72	72	grandparent requesting possession of or access to the child proves
73	73	by clear and convincing evidence that denial of possession of or
74	74	access to the child would significantly impair the child's physical
75	75	health or emotional well-being.
76	76	(c) In a hearing under Subsection (b), the court may not
77	77	render a temporary order.
78	78	(d) In a suit by a grandparent, unless the grandparent meets
79	79	the evidentiary burden at the initial hearing, the court may not
80	80	order:
81	81	(1) the appointment of an amicus attorney, guardian ad
82	82	litem, or attorney ad litem; or
83	83	(2) counseling, a social study, mental examination,
84	84	physical examination, or parenting classes, except for a
85	85	grandparent who files the suit.
86	86	(e) An order granting possession of or access to a child by a
87	87	grandparent that is rendered over a parent's objections must state,
88	88	with specificity [that]:
89	89	(1) that at the time the relief was requested, at least
90	90	one biological or adoptive parent of the child had not had that
91	91	parent's parental rights terminated;
92	92	(2) that the grandparent requesting possession of or
93	93	access to the child has overcome the presumption that a parent acts
94	94	in the best interest of the parent's child by proving by clear and
95	95	convincing [a preponderance of the] evidence that the denial of
96	96	possession of or access to the child would significantly impair the
97	97	child's physical health or emotional well-being; [and]
98	98	(3) that the grandparent requesting possession of or
99	99	access to the child is a parent of a parent of the child and that
100	100	parent of the child:
101	101	(A) has been incarcerated in jail or prison
102	102	during the three-month period preceding the filing of the petition;
103	103	(B) has been found by a court to be incompetent;
104	104	(C) is dead; or
105	105	(D) has [does] not had [have] actual or
106	106	court-ordered possession of or access to the child;
107	107	(4) the parent's objections;
108	108	(5) the fact that the court gave special weight to the
109	109	parent's objections;
110	110	(6) the manner in which the court gave special weight
111	111	to the parent's objections; and
112	112	(7) the specific grounds for overriding the parent's
113	113	objections.
114	114	(f) In a suit by a grandparent, the court may not impose a
115	115	geographic restriction.
116	116	(g) If the grandparent requesting possession of or access to
117	117	a child fails to meet all of the evidentiary burdens under this
118	118	section, the court may award the parent all costs, fees, and
119	119	expenses incurred by the parent to defend the suit in accordance
120	120	with Chapter 106.
121	121	(h) This section does not prohibit a grandparent from filing
122	122	a suit for managing conservatorship of a child under this chapter or
123	123	Chapter 102 or 156.
124	124	SECTION 3. Section 153.434, Family Code, is amended to read
125	125	as follows:
126	126	Sec. 153.434. LIMITATION ON RIGHT TO REQUEST POSSESSION OR
127	127	ACCESS. A biological or adoptive grandparent may not request
128	128	possession of or access to a grandchild if the child has been
129	129	adopted or is the subject of a pending suit for adoption and[:
130	130	[(1)] each of the biological parents of the child
131	131	[grandchild] has:
132	132	(1) [(A)] died;
133	133	(2) [(B)] had the person's parental rights terminated;
134	134	or
135	135	(3) [(C)] executed an affidavit of waiver of interest
136	136	in child or an affidavit of relinquishment of parental rights under
137	137	Chapter 161 and the affidavit designates an authorized agency,
138	138	licensed child-placing agency, or another person [other than the
139	139	child's stepparent] as the managing conservator of the child[; and
140	140	[(2) the grandchild has been adopted, or is the
141	141	subject of a pending suit for adoption, by a person other than the
142	142	child's stepparent].
143	143	SECTION 4. Notwithstanding Chapter 156, Family Code, or any
144	144	other provision of the Family Code, Sections 153.432, 153.433, and
145	145	153.434, Family Code, as amended by this Act, apply equally to an
146	146	original suit and a suit for modification filed by a grandparent
147	147	seeking possession of or access to a grandchild.
148	148	SECTION 5. The changes in law made by this Act apply to a
149	149	suit affecting the parent-child relationship that is pending in a
150	150	court on the effective date of this Act or is filed on or after that
151	151	date.
152	152	SECTION 6. This Act takes effect immediately if it receives
153	153	a vote of two-thirds of all the members elected to each house, as
154	154	provided by Section 39, Article III, Texas Constitution. If this
155	155	Act does not receive the vote necessary for immediate effect, this
156	156	Act takes effect September 1, 2011.