86R11893 JSC-F
By: Ramos H.B. No. 3841
A BILL TO BE ENTITLED
AN ACT
relating to military duty of a conservator of a child in a suit
affecting the parent-child relationship.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
SECTION 1. Section 153.701, Family Code, is amended to read
as follows:
Sec. 153.701. DEFINITIONS. In this subchapter:
(1) "Designated person" means the person ordered by
the court to temporarily exercise a conservator's rights, duties,
and periods of possession and access with regard to a child during
the conservator's military deployment or military obligation [,
military mobilization, or temporary military duty].
(2) "Long-term military obligation" means any
military obligation of a service member that prevents the service
member from exercising parental duties because of geographic
factors or other credible factors for a period of more than 90 days
but less than 18 months. The term does not include a permanent
change of station.
(3) [(2)] "Military deployment" means the temporary
transfer of a service member of the armed forces of this state or
the United States [serving in an active-duty status] to another
location in support of combat or some other military operation for a
period of more than 90 days but less than 18 months under a
uniformed service order.
(4) [(3)] "Military obligation" means any requirement
of a service member to fulfill necessary duties, including:
(A) training activities;
(B) preparations for deployment or training;
(C) administrative or supervisory requirements;
or
(D) occupational school attendance
[mobilization" means the call-up of a National Guard or Reserve
service member of the armed forces of this state or the United
States to extended active duty status. The term does not include
National Guard or Reserve annual training].
(5) "Record" means information that is inscribed on a
tangible medium or that is stored in an electronic or other medium
and is retrievable in perceivable form. The term includes a letter,
an e-mail, a text message, and social media messaging.
(6) "Short-term military obligation" means any
military obligation of a service member that prevents the service
member from exercising parental duties because of geographic
factors or other credible factors for a period of 90 days or less.
(7) "Standing intermittent" means a long-term plan for
a child's care during repeated periods of absence of a conservator
of the child because of short-term military obligations.
(8) "Uniformed service" means:
(A) active and reserve components of the army,
navy, air force, marine corps, or coast guard of the United States;
(B) the United States Merchant Marine;
(C) the commissioned corps of the United States
Public Health Service;
(D) the commissioned corps of the National
Oceanic and Atmospheric Administration of the United States; or
(E) the National Guard of a state.
[(4) "Temporary military duty" means the transfer of a
service member of the armed forces of this state or the United
States from one military base to a different location, usually
another base, for a limited time for training or to assist in the
performance of a noncombat mission.]
SECTION 2. Sections 153.702(a), (c), and (d), Family Code,
are amended to read as follows:
(a) If a conservator is ordered to military deployment[,
military mobilization,] or long-term military obligation
[temporary military duty] that involves moving a substantial
distance from the conservator's residence so as to materially
affect the conservator's ability to exercise the conservator's
rights and duties in relation to a child, either conservator may
file for an order under this subchapter without the necessity of
showing a material and substantial change of circumstances other
than the military deployment or obligation[, military
mobilization, or temporary military duty].
(c) A temporary order rendered by the court under this
subchapter may grant rights to and impose duties regarding the
child on a designated person who has a close and substantial
relationship with [regarding] the child, except that if the
designated person is a nonparent, the court may not require the
designated person to pay child support.
(d) After a conservator's military deployment or long-term
military obligation has [, military mobilization, or temporary
military duty is] concluded[,] and the conservator returns to the
conservator's usual residence, the temporary orders under this
section terminate and the rights of all affected parties are
governed by the terms of any court order applicable when the
conservator is not ordered to military deployment or long-term
military obligation [, military mobilization, or temporary
military duty].
SECTION 3. Section 153.703(a), Family Code, is amended to
read as follows:
(a) If the conservator with the exclusive right to designate
the primary residence of the child is ordered to military
deployment or long-term military obligation, [military
mobilization, or temporary military duty,] the court may render a
temporary order to appoint a designated person to exercise the
exclusive right to designate the primary residence of the child
during the military deployment or long-term military obligation [,
military mobilization, or temporary military duty] in the following
order of preference:
(1) the conservator who does not have the exclusive
right to designate the primary residence of the child;
(2) if it is shown by clear and convincing evidence
that appointing the conservator described by Subdivision (1) will
cause substantial harm to [is not in] the child's best interest, a
designated person who has a close and substantial relationship with
the child chosen by the conservator with the exclusive right to
designate the primary residence of the child; or
(3) if it is shown by clear and convincing evidence
that appointing the conservator described by Subdivision (1) or the
person chosen under Subdivision (2) is not in the child's best
interest, another person chosen by the court who has a close and
substantial relationship with the child.
SECTION 4. Section 153.705(a), Family Code, is amended to
read as follows:
(a) If the conservator without the exclusive right to
designate the primary residence of the child is ordered to military
deployment or long-term military obligation, [military
mobilization, or temporary military duty,] the court may award
visitation with the child to a designated person with whom the child
has a close and substantial relationship chosen by the conservator,
unless it is shown by clear and convincing evidence that [if] the
visitation is not in the best interest of the child.
SECTION 5. Subchapter L, Chapter 153, Family Code, is
amended by adding Sections 153.706 and 153.7065 to read as follows:
Sec. 153.706. TEMPORARY ORDER UNDER AGREEMENT. (a) A court
may render a temporary order under this section that is based on a
temporary mutual agreement entered into by the conservators of a
child granting a designated person who is a nonparent of the child
temporary conservatorship or visitation with the child during a
conservator's military deployment or long-term military
obligation. The agreement must:
(1) be in writing;
(2) be signed by both conservators and any designated
person to whom temporary conservatorship or visitation is granted;
and
(3) be notarized by a notary signing agent.
(b) An agreement under Subsection (a) may be executed in
counterparts, each of which shall be considered an original and all
of which collectively constitute one agreement.
(c) If the agreement does not include a termination date or
time, the agreement terminates on the 15th day after the date the
conservator ordered to military deployment or military obligation
gives notice on record to the other conservator and the designated
person of the date of the conservator's return from military
deployment or long-term military obligation, unless the
conservators agree to terminate the agreement before that date.
Sec. 153.7065. TERMS OF TEMPORARY ORDER. (a) Any temporary
order issued by the court under this subchapter must:
(1) designate the order as temporary;
(2) identify to the extent feasible the destination,
duration, and conditions of the military deployment or long-term
military obligation;
(3) specify the allocation of conservatorship or
visitation among the conservator ordered to military deployment or
military obligation, the other parent, and the designated person;
(4) provide a process for immediately resolving any
disputes arising from the order;
(5) provide for liberal communication between the
conservator ordered to military deployment or military obligation
and the child during the conservator's deployment or obligation,
including through electronic means, unless it is shown by clear and
convincing evidence that the contact would be harmful to the child,
and specify:
(A) any role to be played by the other
conservator or designated person in facilitating the
communication; and
(B) the allocation of any communication costs;
(6) provide for liberal contact between the
conservator ordered to military deployment or military obligation
and the child during the time the conservator is on leave from
deployment or obligation or is otherwise available, unless it is
shown by clear and convincing evidence that the contact would be
harmful to the child;
(7) provide for reasonable and substantial contact
between the conservator ordered to military deployment or military
obligation and the child on the conservator's return from military
deployment or long-term military obligation until the temporary
order is terminated, regardless of whether the time of contact
exceeds the time the conservator was entitled to have possession of
or access to the child before the temporary order was rendered;
(8) provide details of the temporary agreement's
termination to the extent feasible;
(9) clearly specify that any delegation of
conservatorship of the child is not a basis on which to determine
the outcome of any future modification regarding conservatorship of
the child by either party; and
(10) specify findings of fact and conclusions of law
to show the terms of the order were determined by the court to
protect the child from substantial harm.
(b) The court may limit or expand the rights of a designated
person named in a temporary order rendered under this subchapter as
appropriate to the best interest of the child.
(c) On the motion of a conservator ordered to military
deployment or military obligation, the other conservator, or any
designated person to whom conservatorship of or visitation with a
child has been delegated, the court may modify or terminate the
grant if the modification or termination is consistent with this
subchapter and in the best interest of the child. Any modification
is temporary and terminates on the date the conservator concludes
the conservator's military deployment or long-term military
obligation unless otherwise stated in a court order.
SECTION 6. Section 153.707, Family Code, is amended to read
as follows:
Sec. 153.707. EXPEDITED HEARING. (a) If [On] a [motion by
the] conservator [who] has been ordered to military deployment,
long-term military obligation [military mobilization], or
short-term military obligation and the conservator's military
duties have a material effect on the conservator's ability to
appear in person at any hearing in a suit affecting the parent-child
relationship, on a motion of any party or on the court's own motion,
or if a hearing is necessary before the military obligations begin
to determine if the modification is necessary to protect the best
interest of the child [temporary military duty], the court shall [,
for good cause shown,] hold an expedited hearing [if the court finds
that the conservator's military duties have a material effect on
the conservator's ability to appear in person at a regularly
scheduled hearing].
(b) A hearing under this section shall, if possible, take
precedence over other suits affecting the parent-child
relationship not involving a conservator who has been ordered to
military deployment or military obligation [, military
mobilization, or temporary military duty].
(c) On a motion by any party, the court shall, after
reasonable advance notice and for good cause shown, including
military obligation, permanent duty station assignment, or
financial hardship because of military obligation, allow a party to
present testimony of the party or witnesses and evidence by
electronic means, including by teleconference or through the
Internet. If the other party objects to that accommodation, the
other party has the burden of proof to show by clear and convincing
evidence that an in-person appearance is necessary.
SECTION 7. Section 153.708, Family Code, is amended to read
as follows:
Sec. 153.708. ENFORCEMENT. Temporary orders rendered under
this subchapter may be enforced by or against the designated person
to the same extent that an order would be enforced by or enforceable
against the conservator who has been ordered to military deployment
or military obligation [, military mobilization, or temporary
military duty].
SECTION 8. Section 153.709, Family Code, is amended to read
as follows:
Sec. 153.709. ADDITIONAL PERIODS OF POSSESSION OR ACCESS.
(a) Not later than the 90th day after the date a conservator
without the exclusive right to designate the primary residence of
the child who is a member of the armed services concludes the
conservator's military deployment or long-term military
obligation, [military mobilization, or temporary military duty,]
the conservator may petition the court to:
(1) compute the periods of possession of or access to
the child to which the conservator would have otherwise been
entitled during the conservator's deployment or long-term military
obligation; and
(2) award the conservator additional periods of
possession of or access to the child to compensate for the periods
described by Subdivision (1).
(b) If the conservator described by Subsection (a)
petitions the court under Subsection (a), the court:
(1) shall compute the periods of possession or access
to the child described by Subsection (a)(1); and
(2) may award to the conservator additional periods of
possession of or access to the child for a length of time and under
terms the court considers reasonable, if the court determines that:
(A) the conservator was on military deployment or
long-term military obligation, [military mobilization, or
temporary military duty] in a location where the access to the child
to which the conservator was entitled before the conservator's
deployment or mobilization was not reasonably possible; and
(B) the award of additional periods of possession
of or access to the child is not harmful to [in] the best interest of
the child.
(c) In making the determination under Subsection (b)(2),
the court:
(1) shall consider:
(A) the periods of possession of or access to the
child to which the conservator would otherwise have been entitled
during the conservator's military deployment or long-term military
obligation, [military mobilization, or temporary military duty,]
as computed under Subsection (b)(1);
(B) whether the court named a designated person
under Section 153.705 to exercise limited possession of the child
during the conservator's deployment or long-term military
obligation; and
(C) any other factor the court considers
appropriate; and
(2) is not required to award additional periods of
possession of or access to the child that equals the possession or
access to which the conservator would have been entitled during the
conservator's military deployment or long-term military
obligation, [military mobilization, or temporary military duty,]
as computed under Subsection (b)(1).
(d) After the conservator described by Subsection (a) has
exercised all additional periods of possession or access awarded
under this section, the rights of all affected parties are governed
by the terms of the court order applicable when the conservator is
not ordered to military deployment or long-term military
obligation[, military mobilization, or temporary military duty].
SECTION 9. Subchapter L, Chapter 153, Family Code, is
amended by adding Sections 153.710, 153.711, 153.712, 153.713,
153.714, 153.715, and 153.716 to read as follows:
Sec. 153.710. PROHIBITION AGAINST DISCRIMINATION BASED ON
MILITARY DUTY. In determining issues of conservatorship or
possession of or access to a child, the court:
(1) may not consider a conservator's past or possible
future military deployment or military obligation as a determining
factor in determining the best interest of the child; and
(2) may consider any substantial harm caused by the
conservator's past or possible future military deployment or
military obligation shown by clear and convincing evidence directly
related to the conservatorship or possession of the child during
those periods of deployment or obligation.
Sec. 153.711. REQUIRED NOTIFICATION BY CONSERVATOR ORDERED
TO MILITARY DUTY. (a) Subject to Subsection (b), a conservator who
is ordered to military deployment, long-term military obligation,
or short-term military obligation lasting more than 48 hours shall
notify the other conservator not later than the seventh day after
the date the conservator receives notice of the deployment or
obligation unless reasonably prevented from doing so by the
circumstances of the conservator's deployment or obligation. If
the circumstances of the conservator's deployment or obligation
prevent the conservator from giving notification within that
period, the conservator shall give the notification as soon as
reasonably possible.
(b) If a court order currently in effect prohibits
disclosure of the address or contact information of the conservator
to whom notification must be given under Subsection (a),
notification may be made to the court with continuing jurisdiction
over the child. If the address of the conservator to whom
notification must be given under Subsection (a) is available to the
court, the court shall mail the notification to that conservator.
The court shall keep confidential the address or contact
information of the conservator receiving notification.
(c) In a proceeding regarding possession of or access to a
child, a court may consider the reasonableness of a conservator's
efforts to comply with this section.
Sec. 153.712. JURISDICTION. (a) If a court has issued a
temporary order regarding conservatorship or possession of a child
during a conservator's military deployment or long-term military
obligation, the residence of the conservator ordered to deployment
or obligation is not changed by reason of the deployment or
obligation for purposes of Chapter 152 during the deployment or
obligation.
(b) If a court has issued a permanent order regarding
conservatorship or possession of a child before notice of a
conservator's military deployment or long-term military obligation
and the conservators modify that order temporarily by mutual
agreement, the residence of the conservator ordered to deployment
or obligation is not changed by reason of the deployment or
obligation for purposes of Chapter 152.
(c) If a court in another state has issued a permanent order
regarding conservatorship or possession of a child or a temporary
order regarding conservatorship or possession of the child as the
result of a conservator's impending or current military deployment
or long-term military obligation, the residence of the conservator
ordered to deployment or obligation is not changed by reason of the
deployment or obligation for purposes of Chapter 152.
(d) If no state has issued any type of order regarding
conservatorship or possession of the child, this state may not
assume jurisdiction if the child's residence was not located in
this state before the start of the conservator's military
deployment or long-term military obligation and:
(1) the conservator is on military deployment or
fulfilling a long-term military obligation; or
(2) the conservator has directly returned from
military deployment or long-term military obligation to the same
residence the conservator resided in before military deployment or
long-term military obligation within the last 60 days.
(e) This section does not prevent a court from exercising
temporary emergency jurisdiction under Chapter 152.
Sec. 153.713. PERMANENT ORDERS. (a) On a motion of a
conservator who is ordered to short-term military obligation on a
regular basis, if it is in the best interest of the child, a court
may grant standing intermittent conservatorship and possession of
the child to a designated person who is an adult family member of
the child or an adult with whom the child has a close and
substantial relationship.
(b) A grant of conservatorship or possession of a child to a
designated person under this section may include:
(1) the designated person receiving the amount of time
or in a capacity that the conservator ordered to short-term
military obligation would be entitled but for the conservator's
obligation; or
(2) the designated person receiving a specified
portion of the amount of time or in a capacity that the conservator
ordered to short-term military obligation would be entitled but for
the conservator's obligation.
(c) If a court grants conservatorship or possession of a
child to a designated person under this section, the court shall
specify the standing intermittent conservatorship rights, duties,
and periods of possession during periods of short-term military
obligation.
(d) A permanent possession order rendered under this
section must include:
(1) provisions pertaining to conservatorship and
possession of the child during short-term military obligation; and
(2) the findings of fact and conclusions of law
described by Section 153.714.
(e) Except as otherwise provided and consistent with the
Servicemembers Civil Relief Act (50 U.S.C. Section 3901 et seq.),
on motion of a conservator ordered to military deployment or
military obligation, the other conservator, or any designated
person to whom standing intermittent conservatorship or possession
has been granted, the court may modify or terminate the grant if the
court finds that the modification or termination is in the best
interest of the child.
Sec. 153.714. FINDINGS OF FACTS AND CONCLUSIONS OF LAW. A
court shall include in any temporary or permanent order rendered by
the court under this subchapter specific findings of fact and
conclusions of law to show that the conservator's rights, duties,
and periods of possession were determined by the court to best
protect the child from substantial harm.
Sec. 153.715. SPECIAL BEST INTEREST STANDARDS. (a) It is a
rebuttable presumption that the following are in the child's best
interest:
(1) maintaining a relationship with the family of a
conservator ordered to military deployment or military obligation
by way of electronic communications or face-to-face contact; and
(2) having frequent, routine, and consistent contact
with a conservator ordered to military deployment or military
obligation and the conservator's family by any means available to
the child, the conservator, and family members, including
electronic means and in-person contact.
(b) The presumption under Subsection (a) may be overcome if
the objecting party shows by clear and convincing evidence that
maintaining the relationships or providing for contact as described
by that subsection would cause substantial harm to the child.
Sec. 153.716. LIMITED SCOPE MODIFICATIONS. A change in
marital status of a conservator ordered to military deployment or
military obligation or the death or illness of a designated person
with a grant of conservatorship or possession of a child is
considered a change in circumstance sufficient to justify a
modification of an order providing for conservatorship or
possession only in relation to the periods of military deployment
or military obligation.
SECTION 10. Section 156.006(c), Family Code, is amended to
read as follows:
(c) Subsection (b)(2) does not apply to a conservator who
has the exclusive right to designate the primary residence of the
child and who has temporarily relinquished the primary care and
possession of the child to another person during the conservator's
military deployment or[,] military obligation [mobilization, or
temporary military duty], as those terms are defined by Section
153.701.
SECTION 11. Section 156.101(b), Family Code, is amended to
read as follows:
(b) Subsection (a)(3) does not apply to a conservator who
has the exclusive right to designate the primary residence of the
child and who has temporarily relinquished the primary care and
possession of the child to another person during the conservator's
military deployment or[,] military obligation [mobilization, or
temporary military duty], as those terms are defined by Section
153.701.
SECTION 12. Section 156.102(d), Family Code, is amended to
read as follows:
(d) Subsection (b)(3) does not apply to a person who has the
exclusive right to designate the primary residence of the child and
who has temporarily relinquished the primary care and possession of
the child to another person during the conservator's military
deployment or[,] military obligation [mobilization, or temporary
military duty], as those terms are defined by Section 153.701.
SECTION 13. Section 156.105, Family Code, is amended to
read as follows:
Sec. 156.105. MODIFICATION OF ORDER BASED ON MILITARY DUTY.
The military duty of a conservator who is ordered to military
deployment or[,] military obligation [mobilization, or temporary
military duty], as those terms are defined by Section 153.701, does
not by itself constitute a material and substantial change of
circumstances sufficient to justify a modification of an existing
court order or portion of a decree that sets the terms and
conditions for the possession of or access to a child except that
the court may render a temporary order under Subchapter L, Chapter
153.
SECTION 14. The following provisions of the Family Code are
repealed:
(1) Sections 153.704(c) and (d); and
(2) Sections 153.705(b) and (c).
SECTION 15. (a) Sections 153.702, 153.703, 153.704, and
153.705, Family Code, as amended by this Act, and Section 153.7065,
Family Code, as added by this Act, apply only to an application for
a temporary order filed on or after the effective date of this Act.
An application for a temporary order filed before the effective
date of this Act is governed by the law in effect on the date the
application is filed, and the former law is continued in effect for
that purpose.
(b) Section 153.706, Family Code, as added by this Act,
applies only to a temporary order based on an agreement filed with
the court on or after the effective date of this Act.
(c) Section 153.707, Family Code, as amended by this Act,
applies only to a motion made on or after the effective date of this
Act.
(d) Section 153.709, Family Code, as amended by this Act,
applies to a petition by a conservator submitted to the court on or
after the effective date of this Act. A petition submitted to the
court before the effective date of this Act is governed by the law
in effect on the date the petition was submitted, and the former law
is continued in effect for that purpose.
(e) Section 153.710, Family Code, as added by this Act,
applies only to an order granting conservatorship of or possession
of or access to a child rendered on or after the effective date of
this Act.
(f) Section 153.711, Family Code, as added by this Act,
applies only to a conservator who receives notice of the
conservator's pending military deployment, long-term military
obligation, or short-term military obligation on or after the
effective date of this Act.
(g) Sections 153.712, 153.714, and 153.715, Family Code, as
added by this Act, apply only to a temporary or permanent order
rendered on or after the effective date of this Act. An order
rendered before the effective date of this Act is governed by the
law in effect on the date the order was rendered, and the former law
is continued in effect for that purpose.
(h) Section 153.713, Family Code, as added by this Act,
applies only to an order for which a motion is filed on or after the
effective date of this Act.
(i) Section 153.716, Family Code, as added by this Act,
applies only to a suit for modification pending before a trial court
on or filed on or after the effective date of this Act.
SECTION 16. This Act takes effect September 1, 2019.