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A BILL TO BE ENTITLED
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AN ACT
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relating to a suit for access to a child by a grandparent. |
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BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS: |
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SECTION 1. Section 153.432, Family Code, is amended to read |
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as follows: |
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Sec. 153.432. SUIT FOR [POSSESSION OR] ACCESS BY |
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GRANDPARENT. (a) Subject to Section 153.434, a [A] biological [or
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adoptive] grandparent may request [possession of or] access to a |
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grandchild by filing: |
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(1) an original suit; or |
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(2) a suit for modification as provided by Chapter |
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156. |
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(b) A grandparent may request [possession of or] access to a |
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grandchild in a suit filed for the sole purpose of requesting the |
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relief, without regard to whether the appointment of a managing |
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conservator is an issue in the suit. |
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(c) In a suit for access or for modification described by |
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Subsection (a), the person filing the suit must execute and attach |
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an affidavit that contains, along with supporting facts, the |
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allegation that denial of access to the child by the petitioner |
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endangers the child's physical health or significantly impairs the |
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child's emotional well-being and development. |
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(d) The court shall deny the relief sought and refuse to |
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schedule a hearing unless the court determines, on the basis of the |
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affidavit, that facts adequate to support an allegation as |
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described in Subsection (c) are stated in the affidavit. If the |
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court determines that the facts stated are adequate to support an |
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allegation, the court shall set a time and place for the initial |
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hearing as provided by Section 153.433(b). |
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(e) If the court finds that a suit for access or for |
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modification is filed frivolously or is designed to harass a party, |
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the court shall assess attorney's fees as costs against the |
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offending party. |
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(f) A suit for access or for modification described by |
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Subsection (a) may not be tried or consolidated with any other suit |
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for conservatorship of the child or any other proceeding involving |
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or arising from a claim involving the parent-child relationship. |
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Any order resulting from a consolidated proceeding prohibited by |
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this subsection is void. |
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SECTION 2. Section 153.433, Family Code, is amended to read |
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as follows: |
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Sec. 153.433. [POSSESSION OF OR] ACCESS TO |
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GRANDCHILD. (a) The court may [shall] order reasonable |
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[possession of or] access to a grandchild by a grandparent if: |
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(1) at the time the relief is requested, at least one |
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biological or adoptive parent of the child has not had that parent's |
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parental rights terminated; |
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(2) the grandparent requesting [possession of or] |
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access to the child overcomes the presumption that a parent acts in |
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the best interest of the parent's child by proving by clear and |
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convincing [a preponderance of the] evidence that denial of |
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[possession of or] access to the child [would] significantly |
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impairs [impair] the child's physical health or emotional |
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well-being; and |
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(3) the grandparent requesting [possession of or] |
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access to the child is a parent of a parent of the child and that |
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parent of the child has not had parental rights terminated and that |
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parent, for not less than six months before commencing the suit: |
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(A) has been [incarcerated in jail or prison
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during the three-month period preceding the filing of the petition;
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[(B) has been found by a court to be incompetent;
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[(C) is] dead; or |
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(B) has [(D) does] not had [have] actual or |
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court-ordered possession of or access to the child. |
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(b) As a threshold issue, the court shall conduct an initial |
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hearing not later than the 45th day after the date of service of |
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process at which the court shall dismiss the suit unless the |
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grandparent requesting access to the child proves by clear and |
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convincing evidence that the child's parent does not provide |
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adequate care for the child and has engaged in culpable conduct that |
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endangers the child's physical health or significantly impairs the |
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child's emotional development. |
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(c) In a hearing under Subsection (b), the court may not |
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render a temporary order. |
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(d) In a suit for access by a grandparent, unless the |
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grandparent meets the evidentiary burden at the initial hearing, |
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the court may not order: |
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(1) the appointment of an amicus attorney, guardian ad |
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litem, or attorney ad litem; or |
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(2) counseling, a social study, mental examination, |
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physical examination, or parenting classes, except for a |
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grandparent who files the suit. |
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(e) An order granting access to a child by a grandparent |
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that is rendered over a parent's objections must state, with |
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specificity: |
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(1) the court's findings regarding the fitness of the |
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parent; |
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(2) the parent's objections; |
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(3) the fact that the court gave special weight to the |
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parent's objections; |
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(4) the manner in which the court gave special weight |
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to the parent's objections; and |
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(5) the specific grounds for overriding the parent's |
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objections. |
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(f) In a suit for access by a grandparent, the court may not: |
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(1) impose a geographic restriction; or |
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(2) award possession of a child to a grandparent. |
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(g) If the grandparent requesting access to a child fails to |
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meet all of the evidentiary burdens under this section, the court |
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shall award the parent all costs, fees, and expenses incurred by the |
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parent to defend the suit in accordance with Chapter 106. |
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(h) This section does not prohibit a grandparent from filing |
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a suit for managing conservatorship of a child under this chapter or |
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Chapter 102 or 156. |
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SECTION 3. Section 153.434, Family Code, is amended to read |
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as follows: |
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Sec. 153.434. LIMITATION ON RIGHT TO REQUEST [POSSESSION
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OR] ACCESS. A biological [or adoptive] grandparent may not request |
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[possession of or] access to a grandchild if: |
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(1) a court does not already have continuing exclusive |
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jurisdiction of a suit involving the child; |
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(2) the child's parent who is the competent child of |
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the grandparent opposes the suit; or |
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(3) the child has been adopted or is the subject of a |
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pending suit for adoption and each of the biological parents of the |
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child [grandchild] has: |
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(A) died; |
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(B) had the person's parental rights terminated; |
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or |
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(C) executed an affidavit of waiver of interest |
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in child or an affidavit of relinquishment of parental rights under |
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Chapter 161 and the affidavit designates an authorized agency, |
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licensed child-placing agency, or another person [other than the
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child's stepparent] as the managing conservator of the child[; and
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[(2)
the grandchild has been adopted, or is the
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subject of a pending suit for adoption, by a person other than the
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child's stepparent]. |
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SECTION 4. Notwithstanding Chapter 156, Family Code, or any |
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other provision of the Family Code, Sections 153.432 through |
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153.434, Family Code, as amended by this Act, apply equally to an |
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original suit and a suit for modification filed by a grandparent |
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seeking access to a grandchild. |
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SECTION 5. The changes in law made by this Act apply to a |
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suit affecting the parent-child relationship that is pending in a |
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court on the effective date of this Act or is filed on or after that |
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date. |
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SECTION 6. This Act takes effect immediately if it receives |
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a vote of two-thirds of all the members elected to each house, as |
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provided by Section 39, Article III, Texas Constitution. If this |
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Act does not receive the vote necessary for immediate effect, this |
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Act takes effect September 1, 2009. |