83R15669 EES-F
By: Thompson of Harris H.B. No. 1661
Substitute the following for H.B. No. 1661:
By: Raymond C.S.H.B. No. 1661
A BILL TO BE ENTITLED
AN ACT
relating to child custody evaluations and adoption evaluations
conducted and testimony provided in certain suits affecting the
parent-child relationship; providing penalties; authorizing fees.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
ARTICLE 1. CHILD CUSTODY EVALUATION
SECTION 1.01. Chapter 107, Family Code, is amended by
adding Subchapter E to read as follows:
SUBCHAPTER E. CHILD CUSTODY EVALUATION
Sec. 107.101. DEFINITIONS. In this subchapter:
(1) "Child custody evaluation" means an evaluative
process ordered by a court in a suit, except in a suit in which
adoption is requested, through which information, opinions,
recommendations, and answers to specific questions asked by the
court are:
(A) made regarding:
(i) the conservatorship of a child,
including the terms and conditions of the conservatorship;
(ii) the possession of or access to a child,
including the terms and conditions of possession or access;
(iii) recommendations for therapeutic
services; or
(iv) any other issue affecting the best
interest of a child; and
(B) provided to:
(i) the court;
(ii) the parties to the suit;
(iii) the parties' attorneys; and
(iv) any other person appointed under this
chapter by the court in the suit.
(2) "Child custody evaluator" means a person who
conducts a child custody evaluation under this subchapter. The term
includes a private child custody evaluator.
(3) "Department" means the Department of Family and
Protective Services.
(4) "Private child custody evaluator" means a person
conducting a child custody evaluation who is not conducting the
evaluation as an employee of or contractor with a domestic
relations office.
(5) "Supervision" means the regular review of and
consultation with a person. Supervision does not require the
constant physical presence of the person providing supervision.
Sec. 107.102. APPLICABILITY. (a) For purposes of this
subchapter, a child custody evaluation does not include services
provided in accordance with the Interstate Compact on the Placement
of Children adopted under Subchapter B, Chapter 162.
(b) This subchapter does not apply to a suit to which the
department is a party.
Sec. 107.103. ORDER FOR CHILD CUSTODY EVALUATION. (a) The
court may order in a suit the preparation of a child custody
evaluation concerning:
(1) a child who is at issue in the suit;
(2) a party to the suit;
(3) the home of any person requesting conservatorship
of, possession of, or access to a child who is at issue in the suit;
or
(4) any issue or question relating to the suit and
requested by the court or agreed to by the parties to the suit
before or during the evaluation process.
(b) An order for a child custody evaluation must include:
(1) the name of each person, including an entity, who
will conduct the evaluation;
(2) the purpose of the evaluation; and
(3) the specific issues or questions to be addressed
in the evaluation.
(c) Except as provided by Section 107.106, each person who
conducts a child custody evaluation must be qualified under Section
107.105.
(d) The department may not conduct a child custody
evaluation.
Sec. 107.104. REQUIREMENTS OF CHILD CUSTODY EVALUATION.
(a) A child custody evaluator shall:
(1) review relevant information obtained from
collateral sources;
(2) review relevant school records;
(3) review relevant physical and mental health records
of each party to the suit and each child who is at issue in the suit;
(4) review relevant records of the department,
including those maintained as part of the central registry
established under Section 261.002, and law enforcement agencies
relating to each child who is at issue in the suit, each party to the
suit, and each person who lives with a party to the suit;
(5) interview each adult living in a home that is the
subject of the evaluation;
(6) interview, in a developmentally appropriate
manner, each child who is at issue in the suit and who is at least
four years old;
(7) observe each child who is at issue in the suit,
regardless of the age of the child;
(8) observe each party to the suit with each child at
issue in the suit, including, as appropriate, during supervised
visitation, unless contact between a party and a child is
prohibited by court order or the person conducting the evaluation
has good cause for not making the observation and states the good
cause in writing provided to the parties to the suit before the
completion of the evaluation;
(9) assess the relationship between each child at
issue in the suit and each party seeking possession of or access to
the child; and
(10) complete any other tasks ordered by the court or
agreed to by the parties.
(b) In addition to the requirements of a child custody
evaluation in Subsection (a), a court issuing an order for an
evaluation may order the child custody evaluator to:
(1) visit the home of a party to the suit;
(2) conduct a joint interview of the parties to the
suit;
(3) observe a child who is at issue in the suit with
each adult who lives in the home that is the subject of the
evaluation;
(4) interview or observe a child who is not at issue in
the suit but who lives on a full-time or part-time basis in the home
that is the subject of the evaluation;
(5) conduct valid and reliable psychometric testing;
or
(6) review any other information that the court
determines is relevant.
Sec. 107.105. CHILD CUSTODY EVALUATOR: MINIMUM
QUALIFICATIONS. (a) In this section:
(1) "Full-time experience" means a period during which
a person works at least 30 hours per week.
(2) "Human services field of study" means a field of
study designed to prepare a person in the disciplined application
of counseling, family therapy, psychology, or social work values,
principles, and methods.
(b) To be qualified to conduct a child custody evaluation, a
person must:
(1) have at least a master's degree from an accredited
college or university in a human services field of study and a
license to practice in this state as a social worker, professional
counselor, marriage and family therapist, or psychologist and:
(A) after completing the degree required under
this subdivision, have two years of full-time experience or
equivalent part-time experience under professional supervision
during which the person performed functions involving the
evaluation of physical, intellectual, social, and psychological
functioning and needs and the potential of the social and physical
environment, both present and prospective, to meet those needs; and
(B) after obtaining the license required under
this subdivision, have participated in the performance of at least
10 court-ordered child custody evaluations under the supervision of
a person qualified under this section;
(2) have graduated from medical school and be licensed
to practice medicine in this state and board certified in
psychiatry and:
(A) after completing medical school, have two
years of full-time experience or equivalent part-time experience
under professional supervision during which the person performed
functions involving the evaluation of physical, intellectual,
social, and psychological functioning and needs and the potential
of the social and physical environment, both present and
prospective, to meet those needs; and
(B) after obtaining the license and
certification required under this subdivision, have participated
in the performance of at least 10 court-ordered child custody
evaluations under the supervision of a person qualified under this
section;
(3) meet the requirements of Subdivision (1)(A) or
(2)(A) and be practicing under the direct supervision of a person
qualified under this section to complete at least 10 court-ordered
child custody evaluations under supervision; or
(4) be employed by or under contract with a domestic
relations office, provided that the person conducts child custody
evaluations relating only to families ordered to participate in
child custody evaluations conducted by that office.
(c) In addition to the other qualifications prescribed by
this section, a person must complete at least eight hours of family
violence dynamics training provided by a family violence service
provider to be qualified to conduct a child custody evaluation.
(d) In addition to the other qualifications prescribed by
this section, a person who conducts a child custody evaluation as an
employee of or contractor with a domestic relations office must
meet any qualifications required by that office.
Sec. 107.106. EXCEPTION TO QUALIFICATIONS REQUIRED TO
CONDUCT CHILD CUSTODY EVALUATION. In a county with a population of
less than 500,000, if a court finds that a qualified person,
including an entity, is not available to conduct a child custody
evaluation in a timely manner, the court may authorize a person,
including an entity, the court determines to be otherwise qualified
to conduct the evaluation if the parties to the suit agree to the
appointment in writing.
Sec. 107.107. PRIVATE CHILD CUSTODY EVALUATOR: SPECIALIZED
KNOWLEDGE. A private child custody evaluator must demonstrate to
the court that the evaluator has sufficient specialized knowledge,
education, and training to conduct a child custody evaluation. In
making that demonstration, the evaluator must demonstrate that the
evaluator has completed at least 40 hours of education and training
on the following topics:
(1) the psychological and developmental needs of a
child, specifically as those needs relate to decisions about
conservatorship of, possession of, and access to the child;
(2) family dynamics, including parent-child
relationships, blended families, and extended family
relationships;
(3) the effects of divorce, domestic violence, abuse
and neglect, substance abuse, and parental conflict on the
psychological and developmental needs of a child;
(4) interviewing and assessing adults, children, and
infants;
(5) gathering information from collateral sources;
(6) collecting and assessing data;
(7) recognizing the limits of the reliability and
validity of data;
(8) addressing issues relating to mental health,
medication use, and physical and learning disabilities;
(9) applying to all parties comparable interview,
assessment, and testing procedures that meet generally accepted
clinical, diagnostic, forensic, scientific, and professional
standards;
(10) consulting with additional experts as needed;
(11) assessing parenting capacity and constructing
effective parenting plans;
(12) ethical standards relating to a child custody
evaluator's professional license and other applicable professional
guidelines;
(13) the legal standards and processes applicable in a
suit;
(14) understanding the distinctions in the roles of
evaluator, mediator, therapist, consulting expert, testifying
expert, parenting coordinator, and parenting facilitator;
(15) writing reports and making recommendations;
(16) mandatory reporting requirements and limitations
on confidentiality;
(17) preparing for and testifying at a court
proceeding;
(18) maintaining professional neutrality and
objectivity when conducting a child custody evaluation; and
(19) the importance of assessing the health, safety,
welfare, and best interest of a child.
Sec. 107.108. CHILD CUSTODY EVALUATOR: CONFLICTS OF
INTEREST AND BIAS. (a) Before accepting appointment as a child
custody evaluator in a suit, a person must disclose to the court,
each attorney for a party to the suit, any attorney for a child who
is at issue in the suit, and any party to the suit who does not have
an attorney:
(1) any conflict of interest that the person believes
that the person has with a party to the suit or a child who is at
issue in the suit;
(2) any previous knowledge that the person has of a
party to the suit or a child who is at issue in the suit;
(3) any pecuniary relationship that the person
believes that the person has with an attorney in the suit;
(4) any relationship of confidence or trust that the
person believes that the person has with an attorney in the suit;
and
(5) any other information relating to the person's
relationship with an attorney in the suit that a reasonable,
prudent person would believe would affect the ability of the person
to act impartially in conducting a child custody evaluation.
(b) The court may not appoint a person as a child custody
evaluator in a suit if the person makes any of the disclosures in
Subsection (a) unless:
(1) the court finds that:
(A) the person has no conflict of interest with a
party to the suit or a child who is at issue in the suit;
(B) the person's previous knowledge of a party to
the suit or a child who is at issue in the suit is not relevant;
(C) the person does not have a pecuniary
relationship with an attorney in the suit; and
(D) the person does not have a relationship of
trust or confidence with an attorney in the suit; or
(2) the parties and any attorney for a child who is at
issue in the suit agree in writing to the person's appointment as
the child custody evaluator.
(c) After being appointed as a child custody evaluator in a
suit, a person shall immediately disclose to the court, each
attorney for a party to the suit, any attorney for a child who is at
issue in the suit, and any party to the suit who does not have an
attorney any discovery of:
(1) a conflict of interest that the person believes
that the person has with a party to the suit or a child who is at
issue in the suit; and
(2) previous knowledge that the person has of a party
to the suit or a child who is at issue in the suit.
(d) A person shall resign from the person's appointment as a
child custody evaluator in a suit if the person makes any of the
disclosures in Subsection (c) unless:
(1) the court finds that:
(A) the person has no conflict of interest with a
party to the suit or a child who is at issue in the suit; and
(B) the person's previous knowledge of a party to
the suit or a child who is at issue in the suit is not relevant; or
(2) the parties and any attorney for a child who is at
issue in the suit agree in writing to the person's continued
appointment as the child custody evaluator.
(e) A person may not be appointed as a child custody
evaluator in a suit if the person has worked in a professional
capacity with a party to the suit, a child who is at issue in the
suit, or a member of the party's or child's family who is involved in
the suit. This subsection does not apply to a person who has worked
in a professional capacity with a party, a child, or a member of the
party's or child's family only as a teacher of parenting skills in a
group setting. For purposes of this subsection, "family" has the
meaning assigned by Section 71.003.
Sec. 107.109. COMMUNICATIONS AND RECORDKEEPING OF CHILD
CUSTODY EVALUATOR. (a) Notwithstanding any rule, standard of
care, or privilege applicable to the professional license held by a
child custody evaluator, a communication made by a participant in a
child custody evaluation is subject to disclosure and may be
offered in any judicial or administrative proceeding, if otherwise
admissible under the rules of evidence.
(b) A child custody evaluator shall:
(1) keep a detailed record of interviews that the
evaluator conducts, observations that the evaluator makes, and
substantive interactions that the evaluator has as part of a child
custody evaluation; and
(2) maintain the evaluator's records consistent with
applicable laws, including rules.
(c) Except for records obtained from the department in
accordance with Section 107.114, a private child custody evaluator
shall, after completion of an evaluation and preparation of a child
custody evaluation report under Section 107.110, make available in
a reasonable time the evaluator's records relating to the
evaluation on the written request of an attorney for a party, a
party who does not have an attorney, and any person appointed under
this chapter in the suit in which the evaluator conducted the
evaluation, unless a court has issued an order restricting
disclosure of the records.
(d) Except for records obtained from the department in
accordance with Section 107.114, records relating to a child
custody evaluation conducted by an employee of or contractor with a
domestic relations office shall, after completion of the evaluation
and preparation of a child custody evaluation report under Section
107.110, be made available on written request according to the
local rules and policies of the office.
(e) A person, including an entity, maintaining records
subject to disclosure under this section may charge a reasonable
fee for producing the records before copying the records.
(f) A private child custody evaluator shall retain all
records relating to a child custody evaluation conducted by the
evaluator until the later of the seventh anniversary of the date the
evaluator filed the child custody evaluation report prepared under
Section 107.110 with the court or the ending date of the period
adopted by the licensing authority that issues the professional
license held by the evaluator.
(g) A domestic relations office shall retain records
relating to a child custody evaluation conducted by a child custody
evaluator acting as an employee of or contractor with the office for
the retention period established by the office.
(h) A person who participates in a child custody evaluation
is not a patient as that term is defined by Section 611.001(1),
Health and Safety Code.
Sec. 107.110. CHILD CUSTODY EVALUATION REPORT REQUIRED.
(a) For each child custody evaluation, the child custody evaluator
who conducted the evaluation shall prepare a report containing the
evaluator's findings, opinions, recommendations, and answers to
specific questions asked by the court relating to the evaluation.
(b) A report prepared under this section must include the
name, license number, and basis for qualification of each child
custody evaluator who conducted any portion of the evaluation.
Sec. 107.111. GENERAL PROVISIONS APPLICABLE TO CONDUCT OF
CHILD CUSTODY EVALUATOR AND PREPARATION OF REPORT. (a) Unless
otherwise directed by a court or prescribed by this subchapter, a
child custody evaluator's actions in conducting a child custody
evaluation must be in conformance with the professional standard of
care applicable to the evaluator's licensure and any administrative
rules, ethical standards, or guidelines adopted by the licensing
authority that licenses the evaluator.
(b) In addition to the requirements prescribed by this
subchapter, a court may impose requirements or adopt local rules
applicable to a child custody evaluation or a child custody
evaluator.
(c) A child custody evaluator shall follow evidence-based
practice methods and make use of current best evidence in making
assessments and recommendations.
(d) A child custody evaluator shall disclose to each
attorney of record any communication regarding a substantive issue
between the evaluator and an attorney of record representing a
party in a disputed suit. This subsection does not apply to a
communication between a child custody evaluator and an amicus
attorney.
(e) To the extent possible, a child custody evaluator shall
conduct interviews and make observations in a balanced manner so
that if the evaluator interviews and observes a child at issue in
the suit while in the care of one party to the suit, the evaluator
also interviews and observes the child while in the care of the
other parties to the suit.
(f) To the extent possible, a child custody evaluator shall
verify each statement of fact pertinent to a child custody
evaluation and shall note the sources of verification and
information in the child custody evaluation report prepared under
Section 107.110.
(g) A child custody evaluator shall state the basis for and
the sources of the evaluator's conclusions or recommendations in
the child custody evaluation report prepared under Section 107.110.
(h) A child custody evaluation must be conducted in
compliance with this subchapter, regardless of whether the
evaluation is conducted by a single child custody evaluator or
multiple evaluators working separately or together.
Sec. 107.112. INTRODUCTION AND PROVISION OF CHILD CUSTODY
EVALUATION REPORT. (a) Disclosure to the court or jury of the
contents of a child custody evaluation report prepared under
Section 107.110 is subject to the rules of evidence.
(b) Unless the court has issued an order restricting
disclosure, a private child custody evaluator shall provide to the
attorneys of the parties to a suit, any party who does not have an
attorney, and any other person appointed by the court under this
chapter in the suit a copy of the child custody evaluation report
before the earlier of:
(1) the seventh day after the date the child custody
report is completed; or
(2) the 30th day before the date of the commencement of
the trial, if applicable.
(c) A child custody evaluator who conducts a child custody
evaluation as an employee of or contractor with a domestic
relations office shall furnish to the attorneys of the parties to a
suit and any person appointed in the suit under this chapter a copy
of the child custody evaluation report in the time frame provided by
Subsection (b). The evaluator shall provide a copy of the report to
a party to the suit only as provided by the local rules and policies
of the office or by a court order.
(d) A trial in a suit in which a child custody evaluation is
conducted may not begin before the 30th day after the date the child
custody evaluator provides copies of the child custody evaluation
report as provided by this section unless the parties to the suit
agree to an earlier date.
Sec. 107.113. CHILD CUSTODY EVALUATION FEE. If the court
orders a child custody evaluation to be conducted, the court shall
award the person, including an entity, appointed as the child
custody evaluator a reasonable fee for the performance of the
evaluation that shall be imposed in the form of a money judgment and
paid directly to the evaluator. The evaluator may enforce the
judgment for the fee by any means available under law for civil
judgments.
Sec. 107.114. CHILD CUSTODY EVALUATOR ACCESS TO
INVESTIGATIVE RECORDS OF DEPARTMENT; OFFENSE. (a) A child custody
evaluator is entitled to obtain from the department a complete,
unredacted copy of any investigative record regarding abuse or
neglect that relates to any person residing in the residence
subject to the child custody evaluation.
(b) Except as provided by this section, records obtained by
a child custody evaluator from the department under this section
are confidential and not subject to disclosure under Chapter 552,
Government Code, or to disclosure in response to a subpoena or a
discovery request.
(c) A child custody evaluator may disclose information
obtained under Subsection (a) in the child custody evaluation
report prepared under Section 107.110 only to the extent the
evaluator determines that the information is relevant to the child
custody evaluation or a recommendation made under this subchapter.
(d) A person commits an offense if the person discloses
confidential information obtained from the department in violation
of this section. An offense under this subsection is a Class A
misdemeanor.
ARTICLE 2. ADOPTION EVALUATION
SECTION 2.01. Chapter 107, Family Code, is amended by
adding Subchapter F to read as follows:
SUBCHAPTER F. ADOPTION EVALUATION
Sec. 107.151. DEFINITIONS. In this subchapter:
(1) "Adoption evaluation" means a pre-placement or
post-placement evaluative process through which information and
recommendations regarding adoption of a child may be made to the
court, the parties, and the parties' attorneys.
(2) "Adoption evaluator" means a person who conducts
an adoption evaluation under this subchapter.
(3) "Department" means the Department of Family and
Protective Services.
(4) "Supervision" means the regular review of and
consultation with a person. Supervision does not require the
constant physical presence of the person providing supervision.
Sec. 107.152. APPLICABILITY. (a) For purposes of this
subchapter, an adoption evaluation does not include services
provided in accordance with the Interstate Compact on the Placement
of Children adopted under Subchapter B, Chapter 162.
(b) This subchapter does not apply to the pre-placement and
post-placement parts of an adoption evaluation conducted by a
licensed child-placing agency or the department.
(c) The pre-placement and post-placement parts of an
adoption evaluation conducted by a licensed child-placing agency or
the department are governed by rules adopted by the executive
commissioner of the Health and Human Services Commission.
(d) In a case involving a licensed child-placing agency or
the department, a licensed child-placing agency or the department
shall conduct the pre-placement and post-placement parts of the
adoption evaluation and file reports on those parts with the court
before the court renders a final order of adoption.
(e) A court may appoint the department to conduct the
pre-placement and post-placement parts of an adoption evaluation in
a suit only if the department is:
(1) a party to the suit; or
(2) the managing conservator of the child who is the
subject of the suit.
Sec. 107.153. ORDER FOR ADOPTION EVALUATION. (a) The court
shall order the performance of an adoption evaluation to evaluate
each party who requests termination of the parent-child
relationship or an adoption in a suit for:
(1) termination of the parent-child relationship in
which a person other than a parent may be appointed managing
conservator of a child; or
(2) an adoption.
(b) The adoption evaluation required under Subsection (a)
must include an evaluation of the circumstances and the condition
of the home and social environment of any person requesting to adopt
a child who is at issue in the suit.
(c) The court may appoint a qualified individual, a
qualified private entity, or a domestic relations office to conduct
the adoption evaluation.
(d) Except as provided by Section 107.157, a person who
conducts an adoption evaluation must be qualified under Section
107.156.
Sec. 107.154. REQUIREMENTS FOR PRE-PLACEMENT PART OF
ADOPTION EVALUATION. (a) The costs of the pre-placement part of an
adoption evaluation in a suit for adoption must be paid by the
prospective adoptive parent.
(b) Unless otherwise agreed to by the court, the
pre-placement part of an adoption evaluation must comply with the
minimum requirements for the pre-placement part of an adoption
evaluation under rules adopted by the executive commissioner of the
Health and Human Services Commission.
Sec. 107.155. REQUIREMENTS FOR POST-PLACEMENT PART OF
ADOPTION EVALUATION. (a) An adoption evaluator shall file with the
court a report containing the person's findings and conclusions
made after a child who is at issue in the suit to which the subject
of the evaluation is a party begins residence in a prospective
adoptive home.
(b) The report required under Subsection (a) must be filed
with the court before the court renders a final order of adoption.
(c) Unless otherwise agreed to by the court, the
post-placement part of an adoption evaluation must comply with the
minimum requirements for the post-placement part of an adoption
evaluation under rules adopted by the executive commissioner of the
Health and Human Services Commission.
(d) In a suit filed after a child who is at issue in the suit
begins residence in a prospective adoptive home, the report
required under this section and the adoption evaluation report
required under Section 107.161 may be combined in a single report.
Sec. 107.156. ADOPTION EVALUATOR: MINIMUM QUALIFICATIONS.
(a) In this section:
(1) "Full-time experience" means a period during which
a person works at least 30 hours per week.
(2) "Human services field of study" means a field of
study designed to prepare a person in the disciplined application
of counseling, family therapy, psychology, or social work values,
principles, and methods.
(b) To be qualified to conduct an adoption evaluation, a
person must:
(1) have a degree from an accredited college or
university in a human services field of study and a license to
practice in this state as a social worker, professional counselor,
marriage and family therapist, or psychologist and:
(A) have one year of full-time experience working
at a child-placing agency conducting child-placing activities; or
(B) be practicing under the direct supervision of
a person qualified under this section to conduct adoption
evaluations;
(2) be employed by a domestic relations office,
provided that the person conducts adoption evaluations relating
only to families ordered to participate in adoption evaluations
conducted by the office; or
(3) be qualified as a child custody evaluator under
Section 107.105.
(c) In addition to the other qualifications prescribed by
this section, a person must complete at least eight hours of family
violence dynamics training provided by a family violence service
provider to be qualified to conduct an adoption evaluation.
Sec. 107.157. EXCEPTION TO QUALIFICATIONS REQUIRED TO
CONDUCT ADOPTION EVALUATION. If a court finds that a qualified
person is not available to conduct an adoption evaluation in the
county in which the court presides, the court may authorize a person
the court determines to be otherwise qualified to conduct the
evaluation.
Sec. 107.158. ADOPTION EVALUATOR: CONFLICTS OF INTEREST AND
BIAS. (a) Before accepting appointment as an adoption evaluator in
a suit, a person must disclose to the court, each attorney for a
party to the suit, any attorney for a child who is at issue in the
suit, and any party to the suit who does not have an attorney:
(1) any conflict of interest that the person believes
that the person has with a party to the suit or a child who is at
issue in the suit;
(2) any previous knowledge that the person has of a
party to the suit or a child who is at issue in the suit;
(3) any pecuniary relationship that the person
believes that the person has with an attorney in the suit;
(4) any relationship of confidence or trust that the
person believes that the person has with an attorney in the suit;
and
(5) any other information relating to the person's
relationship with an attorney in the suit that a reasonable,
prudent person would believe would affect the ability of the person
to act impartially in conducting an adoption evaluation.
(b) The court may not appoint a person as an adoption
evaluator in a suit if the person makes any of the disclosures in
Subsection (a) unless:
(1) the court finds that:
(A) the person has no conflict of interest with a
party to the suit or a child who is at issue in the suit;
(B) the person's previous knowledge of a party to
the suit or a child who is at issue in the suit is not relevant;
(C) the person does not have a pecuniary
relationship with an attorney in the suit; and
(D) the person does not have a relationship of
trust or confidence with an attorney in the suit; or
(2) the parties and any attorney for a child who is at
issue in the suit agree in writing to the person's appointment as
the adoption evaluator.
(c) After being appointed as an adoption evaluator in a
suit, a person shall immediately disclose to the court, each
attorney for a party to the suit, any attorney for a child who is at
issue in the suit, and any party to the suit who does not have an
attorney any discovery of:
(1) a conflict of interest that the person believes
that the person has with a party to the suit or a child who is at
issue in the suit; and
(2) previous knowledge that the person has of a party
to the suit or a child who is at issue in the suit.
(d) A person shall resign from the person's appointment as
an adoption evaluator in a suit if the person makes any of the
disclosures in Subsection (c) unless:
(1) the court finds that:
(A) the person has no conflict of interest with a
party to the suit or a child who is at issue in the suit; and
(B) the person's previous knowledge of a party to
the suit or a child who is at issue in the suit is not relevant; or
(2) the parties and any attorney for a child who is at
issue in the suit agree in writing to the person's continued
appointment as the adoption evaluator.
(e) A person may not be appointed as an adoption evaluator
in a suit if the person has worked in a professional capacity with a
party to the suit, a child who is at issue in the suit, or a member
of the party's or child's family who is involved in the suit. This
subsection does not apply to a person who has worked in a
professional capacity with a party, a child, or a member of the
party's or child's family only as a teacher of parenting skills in a
group setting. For purposes of this subsection, "family" has the
meaning assigned by Section 71.003.
Sec. 107.159. GENERAL PROVISIONS APPLICABLE TO CONDUCT OF
ADOPTION EVALUATOR AND PREPARATION OF REPORTS. (a) Unless
otherwise directed by a court or prescribed by this subchapter, an
adoption evaluator's actions in conducting an adoption evaluation
must be in conformance with the professional standard of care
applicable to the evaluator's licensure and any administrative
rules, ethical standards, or guidelines adopted by the licensing
authority that licenses the evaluator.
(b) In addition to the requirements prescribed by this
subchapter, a court may impose requirements or adopt local rules
applicable to an adoption evaluation or an adoption evaluator.
(c) An adoption evaluator shall follow evidence-based
practice methods and make use of current best evidence in making
assessments and recommendations.
(d) An adoption evaluator shall disclose to each attorney of
record any communication regarding a substantive issue between the
evaluator and an attorney of record representing a party in a
disputed suit. This subsection does not apply to a communication
between an adoption evaluator and an amicus attorney.
(e) To the extent possible, an adoption evaluator shall
verify each statement of fact pertinent to an adoption evaluation
and shall note the sources of verification and information in any
report prepared on the evaluation.
(f) An adoption evaluator shall state the basis for the
evaluator's conclusions or recommendations in any report prepared
on the evaluation.
(g) Any report prepared on an adoption evaluation must
include the name, license number, and basis for qualification of
each adoption evaluator who conducted any portion of the
evaluation.
Sec. 107.160. REPORTING CERTAIN PLACEMENTS FOR ADOPTION.
An adoption evaluator shall report to the department any adoptive
placement that appears to have been made by someone other than a
licensed child-placing agency or a child's parent or managing
conservator.
Sec. 107.161. ADOPTION EVALUATION REPORT REQUIRED. An
adoption evaluator shall file with the court a report containing
the evaluator's findings and conclusions relating to the
evaluation. The report must be filed before the court renders a
final order for termination of the parent-child relationship. The
report shall be made a part of the record of the suit.
Sec. 107.162. PROSPECTIVE ADOPTIVE PARENTS ENTITLED TO
RECEIVE COPY OF ADOPTION EVALUATION REPORT. In a suit for adoption,
a copy of the report prepared under Section 107.161 must be made
available to the prospective adoptive parents before the court
renders a final order of adoption.
Sec. 107.163. INTRODUCTION AND PROVISION OF ADOPTION
EVALUATION REPORT AND TESTIMONY RELATING TO ADOPTION EVALUATION.
(a) Disclosure to the jury of the contents of an adoption
evaluation report prepared under Section 107.161 is subject to the
rules of evidence.
(b) The court may compel the attendance of witnesses
necessary for the proper disposition of a suit, including a
representative of an agency that conducts an adoption evaluation,
who may be compelled to testify.
Sec. 107.164. ADOPTION EVALUATION FEE. If the court orders
an adoption evaluation to be conducted, the court shall award the
adoption evaluator a reasonable fee for the performance of the
evaluation that shall be imposed in the form of a money judgment and
paid directly to the evaluator. The evaluator may enforce the
judgment for the fee by any means available under law for civil
judgments.
Sec. 107.165. ADOPTION EVALUATOR ACCESS TO INVESTIGATIVE
RECORDS OF DEPARTMENT; OFFENSE. (a) An adoption evaluator is
entitled to obtain from the department a complete, unredacted copy
of any investigative record regarding abuse or neglect that relates
to any person residing in the residence subject to the adoption
evaluation.
(b) Except as provided by this section, records obtained by
an adoption evaluator from the department under this section are
confidential and not subject to disclosure under Chapter 552,
Government Code, or to disclosure in response to a subpoena or a
discovery request.
(c) An adoption evaluator may disclose information obtained
under Subsection (a) in the adoption evaluation report prepared
under Section 107.161 only to the extent the evaluator determines
that the information is relevant to the adoption evaluation or a
recommendation made under this subchapter.
(d) A person commits an offense if the person discloses
confidential information obtained from the department in violation
of this section. An offense under this subsection is a Class A
misdemeanor.
ARTICLE 3. TESTIMONY IN SUITS AFFECTING THE PARENT-CHILD
RELATIONSHIP
SECTION 3.01. Chapter 104, Family Code, is amended by
adding Section 104.008 to read as follows:
Sec. 104.008. CERTAIN TESTIMONY PROHIBITED. (a) A person
may not offer an expert opinion relating to the conservatorship of
or possession of or access to a child at issue in a suit unless the
person:
(1) is appointed as the child's guardian ad litem or
attorney ad litem or is appointed as an amicus attorney under
Subchapter A, Chapter 107; or
(2) has conducted a child custody evaluation relating
to the child under Subchapter E, Chapter 107.
(b) In a disputed suit, a mental health professional may not
make a recommendation regarding the conservatorship of or
possession of or access to a child at issue in the suit unless the
mental health professional:
(1) is appointed as the child's guardian ad litem or
attorney ad litem or is appointed as an amicus attorney under
Subchapter A, Chapter 107; or
(2) has conducted a child custody evaluation relating
to the child under Subchapter E, Chapter 107, and has evaluated all
of the parties to the suit.
(c) In a disputed suit, a mental health professional may
provide other relevant information and opinions, other than those
prohibited by Subsection (b), relating to any party that the mental
health professional has evaluated.
(d) This section does not apply to a suit in which the
Department of Family and Protective Services is a party.
ARTICLE 4. CONFORMING AMENDMENTS RELATING TO CHILD CUSTODY
EVALUATIONS AND ADOPTION EVALUATIONS
SECTION 4.01. The heading to Chapter 107, Family Code, is
amended to read as follows:
CHAPTER 107. SPECIAL APPOINTMENTS, CHILD CUSTODY EVALUATIONS, AND
ADOPTION EVALUATIONS [AND SOCIAL STUDIES]
SECTION 4.02. Section 153.605(d), Family Code, is amended
to read as follows:
(d) An individual appointed as a parenting coordinator may
not serve in any nonconfidential capacity in the same case,
including serving as an amicus attorney, guardian ad litem, child
custody [or social study] evaluator, or adoption evaluator under
Chapter 107, as a friend of the court under Chapter 202, or as a
parenting facilitator under this subchapter.
SECTION 4.03. Section 162.0025, Family Code, is amended to
read as follows:
Sec. 162.0025. ADOPTION SOUGHT BY MILITARY SERVICE MEMBER.
In a suit for adoption, the fact that a petitioner is a member of the
armed forces of the United States, a member of the Texas National
Guard or the National Guard of another state, or a member of a
reserve component of the armed forces of the United States may not
be considered by the court, or any person performing an adoption
evaluation [a social study] or home screening, as a negative factor
in determining whether the adoption is in the best interest of the
child or whether the petitioner would be a suitable parent.
SECTION 4.04. Section 162.003, Family Code, is amended to
read as follows:
Sec. 162.003. ADOPTION EVALUATION [PRE-ADOPTIVE AND
POST-PLACEMENT SOCIAL STUDIES]. In a suit for adoption, an
adoption evaluation [pre-adoptive and post-placement social
studies] must be conducted as provided in Chapter 107.
SECTION 4.05. Section 162.0045, Family Code, is amended to
read as follows:
Sec. 162.0045. PREFERENTIAL SETTING. The court shall grant
a motion for a preferential setting for a final hearing on an
adoption and shall give precedence to that hearing over all other
civil cases not given preference by other law if the adoption
evaluation [social study] has been filed and the criminal history
for the person seeking to adopt the child has been obtained.
SECTION 4.06. Section 203.004(a), Family Code, is amended
to read as follows:
(a) A domestic relations office may:
(1) collect and disburse child support payments that
are ordered by a court to be paid through a domestic relations
registry;
(2) maintain records of payments and disbursements
made under Subdivision (1);
(3) file a suit, including a suit to:
(A) establish paternity;
(B) enforce a court order for child support or
for possession of and access to a child; and
(C) modify or clarify an existing child support
order;
(4) provide an informal forum in which alternative
dispute resolution is used to resolve disputes under this code;
(5) prepare a court-ordered child custody evaluation
or adoption evaluation [social study] under Chapter 107;
(6) represent a child as an amicus attorney, an
attorney ad litem, or a guardian ad litem in a suit in which:
(A) termination of the parent-child relationship
is sought; or
(B) conservatorship of or access to a child is
contested;
(7) serve as a friend of the court;
(8) provide predivorce counseling ordered by a court;
(9) provide community supervision services under
Chapter 157;
(10) provide information to assist a party in
understanding, complying with, or enforcing the party's duties and
obligations under Subdivision (3);
(11) provide, directly or through a contract,
visitation services, including supervision of court-ordered
visitation, visitation exchange, or other similar services;
(12) issue an administrative writ of withholding under
Subchapter F, Chapter 158; and
(13) provide parenting coordinator services under
Chapter 153.
SECTION 4.07. Section 203.005(a), Family Code, is amended
to read as follows:
(a) The administering entity may authorize a domestic
relations office to assess and collect:
(1) an initial operations fee not to exceed $15 to be
paid to the domestic relations office on each filing of an original
suit, motion for modification, or motion for enforcement;
(2) in a county that has a child support enforcement
cooperative agreement with the Title IV-D agency, an initial child
support service fee not to exceed $36 to be paid to the domestic
relations office on the filing of an original suit;
(3) a reasonable application fee to be paid by an
applicant requesting services from the office;
(4) a reasonable attorney's fee and court costs
incurred or ordered by the court;
(5) a monthly service fee not to exceed $3 to be paid
annually in advance by a managing conservator and possessory
conservator for whom the domestic relations office provides child
support services;
(6) community supervision fees as provided by Chapter
157 if community supervision officers are employed by the domestic
relations office;
(7) a reasonable fee for preparation of a
court-ordered child custody evaluation or adoption evaluation
[social study];
(8) in a county that provides visitation services
under Sections 153.014 and 203.004 a reasonable fee to be paid to
the domestic relations office at the time the visitation services
are provided;
(9) a fee to reimburse the domestic relations office
for a fee required to be paid under Section 158.503(d) for filing an
administrative writ of withholding;
(10) a reasonable fee for parenting coordinator
services; and
(11) a reasonable fee for alternative dispute
resolution services.
SECTION 4.08. Section 411.1285(c), Government Code, is
amended to read as follows:
(c) Criminal history record information requested under
this section, including information included in a report of a child
custody evaluation or adoption evaluation [social study] filed
under Chapter 107 [Section 107.054], Family Code, may not be
released or disclosed by a domestic relations office to a person
other than the court ordering the child custody evaluation or
adoption evaluation [social study] except on court order or with
the consent of the person who is the subject of the criminal history
record information.
SECTION 4.09. Section 152.06331(f), Human Resources Code,
is amended to read as follows:
(f) Fees for the preparation of a court-ordered child
custody evaluation or adoption evaluation [social study] or any
other services provided by the domestic relations office, other
than services related to the collection of child support, must be
reasonable and imposed on a sliding scale according to the
financial resources of the parties using the services.
ARTICLE 5. REPEALER
SECTION 5.01. Subchapter D, Chapter 107, Family Code, is
repealed.
ARTICLE 6. TRANSITION AND EFFECTIVE DATE
SECTION 6.01. (a) Not later than September 1, 2014, the
Texas State Board of Examiners of Psychologists, the Texas State
Board of Examiners of Professional Counselors, the Texas State
Board of Social Worker Examiners, the Texas State Board of
Examiners of Marriage and Family Therapists, and the Texas Medical
Board shall adopt any rules necessary for license holders to comply
with the requirements of Subchapters E and F, Chapter 107, Family
Code, as added by this Act, and specifying that a person licensed by
any of the boards is subject to the rules of the board that licensed
the person when appointed by a court to conduct a child custody
evaluation or adoption evaluation under Subchapter E or F, Chapter
107, Family Code, as added by this Act. The rules adopted under this
subsection must:
(1) specify that any complaints relating to the
outcome of a child custody evaluation or adoption evaluation
conducted by a person licensed by any of the boards must be reported
to the court that ordered the evaluation instead of to the board
that licensed the person; and
(2) require that license holders receive notice that
the disclosure of confidential information in violation of Section
107.114 or 107.165, Family Code, as added by this Act, is grounds
for disciplinary action.
(b) As soon as possible after the effective date of this
Act, the Texas State Board of Examiners of Psychologists, the Texas
State Board of Examiners of Professional Counselors, and the Texas
State Board of Examiners of Marriage and Family Therapists shall
adopt rules prohibiting a psychological associate, a licensed
specialist in school psychology, a provisionally licensed
psychologist, a licensed professional counselor intern, and a
licensed marriage and family therapist associate from conducting a
child custody evaluation under Subchapter E, Chapter 107, Family
Code, as added by this Act, unless the person is otherwise qualified
to conduct the evaluation.
(c) As soon as possible after the effective date of this
Act, the executive commissioner of the Health and Human Services
Commission shall adopt rules prohibiting a licensed chemical
dependency counselor from conducting a child custody evaluation as
a child custody evaluator under Subchapter E, Chapter 107, Family
Code, as added by this Act, unless the person is otherwise qualified
to conduct the evaluation or is appointed by a court to conduct the
evaluation under Section 107.106, Family Code, as added by this
Act.
(d) Not later than September 1, 2014, the executive
commissioner of the Health and Human Services Commission shall
adopt any rules necessary to implement Subchapter F, Chapter 107,
Family Code, as added by this Act. Subchapter F, Chapter 107,
Family Code, as added by this Act, applies to an adoption evaluation
ordered by a court on or after September 1, 2014, or the date the
executive commissioner adopts rules under this subsection,
whichever occurs first. An adoption evaluation, pre-adoptive
social study, or post-placement adoptive social study ordered by a
court before that date is governed by the law in effect immediately
before the effective date of this Act, and the former law is
continued in effect for that purpose.
SECTION 6.02. Notwithstanding any other law, a person shall
be qualified to conduct a child custody evaluation under Section
107.105(b)(1) or (2), Family Code, as added by this Act, or an
adoption evaluation under Section 107.156(b)(3), Family Code, as
added by this Act, without satisfying the supervision requirements
of Section 107.105(b)(1)(B) or (2)(B) if, on or before the
effective date of this Act, the person completes at least 10 social
studies or other child custody evaluations ordered by a court in
suits affecting the parent-child relationship.
SECTION 6.03. The changes in law made by this Act apply to a
suit affecting the parent-child relationship that is pending in a
court on the effective date of this Act or that is filed on or after
that date.
SECTION 6.04. This Act takes effect September 1, 2013.