Texas 2013 - 83rd Regular

Texas House Bill HB2547 Compare Versions

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1	1	83R2226 EES-F
2	2	By: Burkett, Phillips, Perry, et al. H.B. No. 2547
3	3
4	4
5	5	A BILL TO BE ENTITLED
6	6	AN ACT
7	7	relating to a suit for possession of or access to a child by a
8	8	grandparent.
9	9	BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
10	10	SECTION 1. Section 153.432, Family Code, is amended by
11	11	amending Subsections (a) and (c) and adding Subsections (d), (e),
12	12	and (f) to read as follows:
13	13	(a) Subject to Section 153.434, a [A] biological or adoptive
14	14	grandparent may request possession of or access to a grandchild by
15	15	filing:
16	16	(1) an original suit; or
17	17	(2) a suit for modification as provided by Chapter
18	18	156.
19	19	(c) In a suit described by Subsection (a), the person filing
20	20	the suit must execute and attach an affidavit on knowledge or belief
21	21	that contains, along with supporting facts, the allegation that
22	22	denial of possession of or access to the child by the petitioner
23	23	would significantly impair the child's physical health or emotional
24	24	well-being. [The court shall deny the relief sought and dismiss the
25	25	suit unless the court determines that the facts stated in the
26	26	affidavit, if true, would be sufficient to support the relief
27	27	authorized under Section 153.433.]
28	28	(d) The court shall deny the relief sought and refuse to
29	29	schedule a hearing unless the court determines that the facts
30	30	stated in the affidavit, if subsequently proven to be true, are
31	31	adequate to support an allegation as described in Subsection (c).
32	32	If the court determines that the facts stated, if subsequently
33	33	proven to be true, are adequate to support an allegation, the court
34	34	shall set a time and place for the initial hearing as provided by
35	35	Section 153.433(b).
36	36	(e) If the court finds that a suit described by Subsection
37	37	(a) is filed frivolously or is designed to harass a party, the court
38	38	shall assess attorney's fees as costs against the offending party.
39	39	(f) A suit described by Subsection (a) may not be tried or
40	40	consolidated with any other suit for conservatorship of the child
41	41	or any other proceeding involving or arising from a claim involving
42	42	the parent-child relationship. Any order resulting from a
43	43	consolidated proceeding prohibited by this subsection is void.
44	44	SECTION 2. Section 153.433, Family Code, is amended to read
45	45	as follows:
46	46	Sec. 153.433. POSSESSION OF OR ACCESS TO GRANDCHILD. (a)
47	47	The court may order reasonable possession of or access to a
48	48	grandchild by a grandparent if:
49	49	(1) at the time the relief is requested, at least one
50	50	biological or adoptive parent of the child has not had that parent's
51	51	parental rights terminated;
52	52	(2) the grandparent requesting possession of or access
53	53	to the child overcomes the presumption that a parent acts in the
54	54	best interest of the parent's child by proving by clear and
55	55	convincing [a preponderance of the] evidence that denial of
56	56	possession of or access to the child would significantly impair the
57	57	child's physical health or emotional well-being; and
58	58	(3) the grandparent requesting possession of or access
59	59	to the child is a parent of a parent of the child and that parent of
60	60	the child:
61	61	(A) has been incarcerated in jail or prison
62	62	during the three-month period preceding the filing of the petition;
63	63	(B) has been found by a court to be incompetent;
64	64	(C) is dead; or
65	65	(D) has [does] not had [have] actual or
66	66	court-ordered possession of or access to the child.
67	67	(b) As a threshold issue, the court shall conduct an initial
68	68	hearing not later than the 45th day after the date of service of
69	69	process at which the court shall dismiss the suit unless the
70	70	grandparent requesting possession of or access to the child proves
71	71	by clear and convincing evidence that denial of possession of or
72	72	access to the child would significantly impair the child's physical
73	73	health or emotional well-being.
74	74	(c) In a hearing under Subsection (b), the court may not
75	75	render a temporary order.
76	76	(d) In a suit by a grandparent, unless the grandparent meets
77	77	the evidentiary burden at the initial hearing, the court may not
78	78	order:
79	79	(1) the appointment of an amicus attorney, guardian ad
80	80	litem, or attorney ad litem; or
81	81	(2) counseling, a social study, mental examination,
82	82	physical examination, or parenting classes, except for a
83	83	grandparent who files the suit.
84	84	(e) An order granting possession of or access to a child by a
85	85	grandparent that is rendered over a parent's objections must state,
86	86	with specificity [that]:
87	87	(1) that at the time the relief was requested, at least
88	88	one biological or adoptive parent of the child had not had that
89	89	parent's parental rights terminated;
90	90	(2) that the grandparent requesting possession of or
91	91	access to the child has overcome the presumption that a parent acts
92	92	in the best interest of the parent's child by proving by clear and
93	93	convincing [a preponderance of the] evidence that the denial of
94	94	possession of or access to the child would significantly impair the
95	95	child's physical health or emotional well-being; [and]
96	96	(3) that the grandparent requesting possession of or
97	97	access to the child is a parent of a parent of the child and that
98	98	parent of the child:
99	99	(A) has been incarcerated in jail or prison
100	100	during the three-month period preceding the filing of the petition;
101	101	(B) has been found by a court to be incompetent;
102	102	(C) is dead; or
103	103	(D) has [does] not had [have] actual or
104	104	court-ordered possession of or access to the child;
105	105	(4) the parent's objections;
106	106	(5) the fact that the court gave special weight to the
107	107	parent's objections;
108	108	(6) the manner in which the court gave special weight
109	109	to the parent's objections; and
110	110	(7) the specific grounds for overriding the parent's
111	111	objections.
112	112	(f) In a suit by a grandparent, the court may not impose a
113	113	geographic restriction.
114	114	(g) If the grandparent requesting possession of or access to
115	115	a child fails to meet all of the evidentiary burdens under this
116	116	section, the court may award the parent all costs, fees, and
117	117	expenses incurred by the parent to defend the suit in accordance
118	118	with Chapter 106.
119	119	(h) This section does not prohibit a grandparent from filing
120	120	a suit for managing conservatorship of a child under this chapter or
121	121	Chapter 102 or 156.
122	122	SECTION 3. Section 153.434, Family Code, is amended to read
123	123	as follows:
124	124	Sec. 153.434. LIMITATION ON RIGHT TO REQUEST POSSESSION OR
125	125	ACCESS. A biological or adoptive grandparent may not request
126	126	possession of or access to a grandchild if the child has been
127	127	adopted or is the subject of a pending suit for adoption and[:
128	128	[(1)] each of the biological parents of the child
129	129	[grandchild] has:
130	130	(1) [(A)] died;
131	131	(2) [(B)] had the person's parental rights terminated;
132	132	or
133	133	(3) [(C)] executed an affidavit of waiver of interest
134	134	in child or an affidavit of relinquishment of parental rights under
135	135	Chapter 161 and the affidavit designates an authorized agency,
136	136	licensed child-placing agency, or another person [other than the
137	137	child's stepparent] as the managing conservator of the child[; and
138	138	[(2) the grandchild has been adopted, or is the
139	139	subject of a pending suit for adoption, by a person other than the
140	140	child's stepparent].
141	141	SECTION 4. Notwithstanding Chapter 156, Family Code, or any
142	142	other provision of the Family Code, Sections 153.432, 153.433, and
143	143	153.434, Family Code, as amended by this Act, apply equally to an
144	144	original suit and a suit for modification filed by a grandparent
145	145	seeking possession of or access to a grandchild.
146	146	SECTION 5. The changes in law made by this Act apply to a
147	147	suit affecting the parent-child relationship that is pending in a
148	148	court on the effective date of this Act or is filed on or after that
149	149	date.
150	150	SECTION 6. This Act takes effect immediately if it receives
151	151	a vote of two-thirds of all the members elected to each house, as
152	152	provided by Section 39, Article III, Texas Constitution. If this
153	153	Act does not receive the vote necessary for immediate effect, this
154	154	Act takes effect September 1, 2013.