grandparents and third parties - texasbarclejohn ventura attorney at law 2200 north loop west #128...

GRANDPARENTS AND THIRD PARTIES

LISA L. TAYLOR Attorney at Law

806 Morgan, Suite J Harlingen, Texas 78550

(956) 412-4900 (956) 425-8616 (fax)

[email protected]

JOHN VENTURA Attorney at Law

2200 North Loop West #128 (713) 682-4200

(713) 682-4220 (fax) [email protected]

State Bar of Texas 31st ANNUAL ADVANCED FAMILY LAW COURSE

August 8-11, 2005 Dallas

CHAPTER 37

LISA L. TAYLOR, J.D., C.P.A. Lisa L. Taylor, Attorney at Law 806 Morgan, Suite J Harlingen, Texas 78550 (956) 412-4900 (956) 425-8616 (FAX) EDUCATION AND CERTIFICATION: University of Texas at Austin, Bachelor of Business Administration, 1985 Certified Public Accountant, Texas State Board of Public Accountancy South Texas College of Law, Juris Doctor, 1991, Cum Laude Board Certified, Family Law, Texas Board of Legal Specialization, 1999 (recertified 2004) Certified Mediator, Texas Women’s University (40 hour course certification), 2002 ASSOCIATIONS AND ORGANIZATIONS: Member, State Bar of Texas Member, Family Law Council, State Bar of Texas, Family Law Section, 1999-2004 Member, State Bar of Texas, Family Law Section, Legislative Committee, 2000-2004 Member, State Bar of Texas, Family Law Section, Family Law Practice Manual Committee, 1999-2002, 2003-2004 Member, State Bar of Texas, Family Law Section, Checklist Committee, 1997-2000 Member, State Bar of Texas, Family Law Section, Pro Bono Committee, 1997-2000 President Elect, Cameron County Bar Association, 2004-2005 Officer and Director, Cameron County Bar Association, 1998-2004 Texas Society of Certified Public Accountants, 1988- AWARDS AND OTHER HONORS: South Texas College of Law –

Order of Lytae Dean’s List Associate Editor of Law Review

Brasch & Taylor, L.L.P. Registered in the Martindale-Hubbell register of Preeminent Law Firms

Valley Morning Star Readers’ Choice Award 1999 “Best of the Best” Attorney Texas “Super Lawyer” 2004, Texas Monthly Magazine Texas “Super Lawyer” 2005, Texas Monthly Magazine LEGAL EXPERIENCE: Lisa L. Taylor, Attorney at Law, Harlingen, Texas 2003- Partner, Brasch & Taylor, L.L.P., Harlingen, Texas, 1995 –2003 Associate, Johnson & Davis, L.L.P., Harlingen, Texas, 1992 – 1994

CONTINUING LEGAL EDUCATION ACTIVITIES: Course Director, CLE on the High Seas II, Cameron County Bar Association, March 12-17, 2005 Course Director, CLE on the High Seas, Cameron County Bar Association, April 1-5, 2004 Speaker, CLE on the High Seas, Cameron County Bar Association, What You Need to Know about the UPA, April 2, 2004 Speaker, Advanced Family Law Course 2003, State Bar of Texas Family Law Section, What the Family Law Practitioner Should Know About the UPA (Uniform Parentage Act), August 19, 2003 Speaker, Family Law Practice Seminar, University of Houston Law Foundation, Sanctions, March 13-14, 2003 (Houston), March 20-21, 2003 (Dallas) Speaker, Cameron County Bar Association Bench and Bar Conference, Grandparents’ Rights – Post Troxel, November 8, 2002 Speaker, Advanced Family Law Course 2002, State Bar of Texas Family Law Section, Texas Grandparents: 2002 Update, August 7, 2002 Speaker, Advanced Family Law Course 2002 Boot Camp, State Bar of Texas Family Law Section, Closing Documents, August 4, 2002 Speaker, State Bar of Texas Telephone Seminar Series, Don’t Panic! How to Avoid (or at Least Survive) the Grievance and Sanctions Process, July 19, 2002 Speaker, Advanced Family Law Drafting 2001, Sanctions, December 06, 2001 Speaker, Cameron County Bar Association Bench and Bar Conference, Family Law Legislative Update, November 2, 2001 Speaker and Co-Director, State Bar of Texas Family Law Section, Pro Bono Committee, Family Law Seminar, Custody Modification, October 19, 2001 Speaker, Advanced Family Law Course 2001 Boot Camp, State Bar of Texas Family Law Section, Closing the File, August 5, 2001 Speaker, Advanced Family Law Course 2000, State Bar of Texas Family Law Section, Ad Litems in Peril?, August 23, 2000 Speaker, Advanced Family Law Course 2000 Boot Camp, State Bar of Texas Family Law Section, Child Support: Establishing, Withholding & Drafting Enforceable Decrees, August 23, 2000 Course Director, How Not to Go to Trial, Cameron County Bar Association CLE seminar, May 26, 2000 Speaker, Hidalgo County Bar Association CLE seminar, Protective Orders, November 20, 1998 Course Director, The Child’s Ad Litem and CPS Seminar, TDPRS and the Cameron County Bar Association, May 15, 1998 Speaker, The Child’s Ad Litem and CPS Seminar, Legislation Update, May 15, 1998 Speaker, State Bar of Texas Family Law Section, Pro Bono Committee, Family Law Seminar, Protective Orders and TRO’s, April 24, 1998

John Ventura

2200 North Loop West #128 713-682-4200 713-682-4220 FAX [email protected] BIOGRAPHICAL INFORMATION EDUCATION: B.A. in Journalism, University of Houston Year graduated: 1975 Law Degree, University of Houston Year graduated: 1978 PROFESSIONAL ACTIVITIES:

C Attorney at Law, Of Council to Law Offices of John Ventura, P.C.; C Member of Chapter 13 Plan Advisory Committee; C Member of Consumer Bankruptcy Committee; C Member of E-File Committee; C Member of Advertisement Review Board for the State Bar of

Texas; C Past Member of Consumer Law Council; C Member of the Bankruptcy Council for the State Bar of Texas C Past President of the Rio Grande Valley Bankruptcy Bar

Association; C Past Vice-President of the Rio Grande Valley Bankruptcy Bar

Association; and C Coordinator of the agenda and speakers for the Annual Advanced

Bankruptcy Seminar LAW RELATED PUBLICATIONS and PUBLISHED BOOKS: Author of the following books:

C The Bankruptcy Kit, The Credit Repair Kit, Fresh Start , Beating the Paycheck to Paycheck Blues, The Small Business Survival Kit, The Will Kit and Everything Your Heirs Need to Know, The Business Turnaround and Bankruptcy Kit Book published by Dearborn Financial Publishing;

C Law for Dummies, Divorce for Dummies, the Everyday August 19, 2003Law Kit for Dummies published by Hungry Minds IDG Books Worldwide and Good Advice for a Bad Economy; and

C Public Guest on CNN, CNNFN, Bloomberg Television & Radio, The Fox News Channel, National Public Radio, Business Talk Radio, and numerous local radio and television programs around the country;

Acknowledgements

The author thanks Jimmy L. Verner, Jr. for allowing the generous use of many parts of his paper entitled “Grandparents Rights in Texas” (2005), available for review at his website: www.vernerbrumley.com.

For a more in depth history and analysis of Grandparents’ and Third Party rights in Texas, the author highly recommends Mr. Verner’s paper.

The author also recommends the reading of Stewart W. Gagnon’s Third Party

Custody: Where Are We and Where Are We Going (A View From Down South and A Peak At the Nation).

Grandparents and Third Parties Chapter 37

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TABLE OF CONTENTS

I. INTRODUCTION................................................................................................................................................... 1

II. CURRENT STATUTES ......................................................................................................................................... 1

III. TROXEL V. GRANVILLE........................................................................................................................................ 2

IV. TEXAS CASES POST TROXEL ............................................................................................................................ 3

V. NEW LEGISLATION............................................................................................................................................. 5

VI. SUMMARY OF THE LAW ................................................................................................................................... 6

APPENDIX A............................................................................................................................................................... 11

APPENDIX B ............................................................................................................................................................... 21


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GRANDPARENTS AND THIRD PARTIES I. INTRODUCTION

Grandparents and their deep affection and attachment to grandchildren have led to some emotional legal battles over the years. A grandparent’s intense concern for grandchildren is heightened when there are problems with the parents. Perhaps a parent is in jail or dies, or the grandparents perceive that the children are not being cared for properly or they are in danger. If a grandparent came into your office today you would find that the law appeared to be settled in the area of grandparents’ rights in Texas; however, changes will soon occur because of revisions to the applicable statutes that will inevitably cause more cases to address the constitutionality of the revised Texas grandparent access statutes. After September 1, 2005 expect new challenges to the issue of grandparents’ and third parties’ rights. II. CURRENT STATUTES

It is important to set out in the beginning of this paper what §§ 102.003 - .004 and 153.431 - .434 of the Texas Family Code (the standing statutes and the grandparents’ rights statutes) provide because legislation signed by the Governor on June 17, 2005 changing those statutes will go into effect on September 1, 2005. It will be useful to compare the present statutes with the revised statutes soon to be the law.

Sections 102.003(9), (11), and (13) currently provide:

§ 102.003. GENERAL STANDING TO FILE SUIT.

(a) An original suit may be filed at any time

by: …

(9) a person, other than a foster parent, who has had actual care, control, and possession of the child for at least six months ending not more than 90 days preceding the date of the filing of the petition; …

(11) a person with whom the child and the child's guardian, managing conservator, or parent have resided for at least six months ending not more than 90 days preceding the date of the filing of the petition if the child's guardian, managing conservator, or parent is deceased at the time of the filing of the petition; …

(13) a person who is a relative of the child within the third degree by consanguinity, as determined by Chapter 573, Government Code, if the child's parents are deceased at the time of the filing of the petition; or …

Section 102.004 of the Texas Family Code currently provides:

§ 102.004. STANDING FOR GRANDPARENT.

(a) In addition to the general standing to file suit provided by Section 102.003(13), a grandparent may file an original suit requesting managing conservatorship if there is satisfactory proof to the court that:

(1) the order requested is necessary

because the child's present environment presents a serious question concerning the child's physical health or welfare; or

(2) both parents, the surviving parent, or the managing conservator or custodian either filed the petition or consented to the suit.

(b) An original suit requesting possessory

conservatorship may not be filed by a grandparent or other person. However, the court may grant a grandparent or other person deemed by the court to have had substantial past contact with the child leave to intervene in a pending suit filed by a person authorized to do so under this subchapter.

(c) Access to a child by a grandparent is governed by the standards established by Chapter 153.

Sections 153.431 - .434 of the Family Code currently provide:

§ 153.431. If the parents are deceased, the grandparents may be considered for appointment as managing conservators, but consideration does not alter or diminish the discretionary power of the court.


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§ 153.432

(a) A biological or adoptive grandparent may request access to a grandchild by filing:

(1) an original suit; or (2) a suit for modification as provided

by Chapter 156 [Modification].

(b) A grandparent may request access to a grandchild in a suit filed for the sole purpose of requesting the relief, without regard to whether the appointment of a managing conservator is an issue in the suit.

§ 153.433. The court shall order reasonable

access to a grandchild by a grandparent if:

(1) at the time the relief is requested, at least one biological or adoptive parent of the child has not had that parent’s parental rights terminated; and

(2) access is in the best interest of the child, and at least one of the following facts is present: (A) the grandparent requesting access

to the child is a parent of a parent of the child and that parent of the child has been incarcerated in jail or prison during the three-month period preceding the filing of the petition or has been found by a court to be incompetent or is dead;

(B) the parents of the child are divorced or have been living apart for the three-month period preceding filing of the petition or a suit for the dissolution of the parents’ marriage is pending;

(C) the child has been abused or neglected by a parent of the child;

(D) the child has been adjudicated to be a child in need of supervision or a delinquent child under Title 3 (Texas Family Code);

(E) the grandparent requesting access to the child is the parent of a person whose parent-child relationship with the child has been terminated by court order; or

(F) the child has resided with the grandparent requesting access to the child for at least six months

within the 24-month period preceding the filing of the petition.

§ 153.434. A biological or adoptive

grandparent may not request possession of or access to a grandchild if:

(1) each of the biological parents of the

grandchild has:

(A) died; (B) had the person’s parental rights

terminated; or (C) executed an affidavit of waiver of

interest in child or an affidavit of relinquishment of parental rights under Chapter 161 [Termination of the Parent-Child Relationship] and the affidavit designates an authorized agency, licensed child-placing agency, or person other than the child’s stepparent as the managing conservator of the child; and

(2) the grandchild has been adopted, or is

the subject of a pending suit for adoption, by a person other than the child’s stepparent.

III. TROXEL V. GRANVILLE

After the enactment of the Texas Grandparent statutes set out above, the U.S. Supreme Court released its opinion in Troxel v. Granville, 530 U.S. 57; 120 S. Ct. 2054 (2000), the case that would become the yard-stick by which all grandparent and third party rights statutes would be measured. The Troxel case held a Washington grandparent access statute to be unconstitutional on the ground that it contravened the Due Process Clause of the Fourteenth Amendment to the United States Constitution. The Washington State statute provided, in pertinent part, that:

“(a)ny person may petition the court for visitation rights at any time including, but not limited to, custody proceedings. The court may order visitation rights for any any person when visitation may serve the best interest of the child whether or not there has been any change of circumstances.”

The Troxel case involved the efforts of paternal grandparents to obtain visitation with their grandchildren after their son had died. The children’s mother, Ms. Granville, did not prohibit all visitation but sought to restrict the frequency and location of visitation to terms not acceptable to the Troxels. The

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Troxels filed suit to obtain visitation with their grandchildren under the Washington statute. The Troxel trial judge granted the Troxels less visitation than they sought but more than Ms. Granville had offered. Ms. Granville appealed and, ultimately, the dispute arrived at the United States Supreme Court.

The U.S. Supreme Court’s opinion in Troxel may be summarized as follows: The Court ruled that the Washington statute, as it had been applied, violated Ms. Granville’s fundamental rights. There is a presumption that fit parents act in the best interests of their children. State statutes that infringe upon a parent’s right to control the care and custody of his or her children are subject to strict scrutiny. See In re Pensom, 126 S.W. 3d 251 (Tex. App.-- San Antonio 2003, orig. proceeding). A court may not, in visitation cases, substitute its own judgment in such a way as to infringe upon this fundamental liberty. The Washington statute is deficient per se on grounds of over breadth, and its application to the facts of Troxel indicates a deficiency in its overall structure. Nevertheless, while any particular nonparent visitation statute may not as a matter of law violate the Fourteenth Amendment, the ultimate determination of any visitation statute’s constitutionality requires a fact-intensive case-by-case analysis. Opinion No. GA-0260, Texas Attorney General, October, 2004. IV. TEXAS CASES POST TROXEL

Although Troxel has been cited by many Texas cases as authority for various legal theories, to date there are a few primary Texas cases that are cited to show the evolution of Texas law and grandparent rights since Troxel and one case that has reached the Texas Supreme Court but was undecided at the time this paper was written:

1. Lilley v. Lilley, 43 S.W. 3d 703 (Tex. App.-- Austin 2001, no pet.). This case involved facts remarkably similar to those in Troxel, in that the paternal grandfather sought scheduled visitation with his granddaughter after the girl’s father had committed suicide. Unlike the situation in Troxel, the Lilley’s had been married but had subsequently divorced. Like Tommie Granville, however, Wendy Lilley asserted that the trial court’s order granting access to her former father-in-law infringed on her fundamental right to make child-rearing decisions. The trial court awarded visitation rights to William Lilley, the parental grandfather, and the court of appeals affirmed.

The court of appeals first distinguished the Texas statute from the Washington statute held invalid in Troxel. According to the court, §153.433 of the Family Code was not, unlike the Washington statute, “breathtakingly broad.” Id. at 712. Rather, it “allows only grandparents, under particular circumstances, to petition for access to a child, provided it is in the child’s best interest.” Thus, § 153.433 is sufficiently distinguishable from the Washington statute that it cannot be said to be unconstitutional on its face. Furthermore, the court found the statute had not been unconstitutionally applied to the facts at issue. The Lilleys had themselves “sought the State’s intervention into their family’s relationships when they filed to dissolve their marriage”. Most significantly, Wendy Lilley had, unlike Tommie Granville, “taken inconsistent positions” about the grandfather’s access to her daughter. The court of appeals concluded that “the district court balanced Wendy’s varying positions and rights “as a mother” with the grandfather’s “request for visitation and the child’s interest in having a continuing relationship with deceased father’s family” and affirmed the trial court’s ruling. Tex. Att’y. Gen. Op. No. GA 0260 (2004) Greg Abbott Administration.

2. Roby v. Adams, 68 S.W. 3d 822 (Tex. App.--

El Paso 2002, pet. denied).

In the Roby case, the paternal grandparents sought visitation with their grandchildren after the death of their daughter. The son-in-law initially permitted contact but reduced it and ultimately refused contact with the grandparents. The El Paso Court of Appeals reversed the trial court’s decision to allow grandparent access in light of Troxel. The court noted that the grandparents had neither alleged that the father was an unfit parent nor introduced evidence to the effect. The court distinguished Lilley on the ground that the child’s mother had taken inconsistent positions whether the grandparents should have access to her children. Moreover, said the court, the holding in Lilley appears to place the burden of persuasion upon the parent to prove the best interest of the child. This goes against the presumption so strongly enunciated in Troxel, that a fit parent acts in the best interest of the parent’s child in order to establish the “the best interest” prong of the statute.

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“Grandparents’ Rights in Texas, Jimmy L. Verner, Jr. (2005)

3. In re: Pensom, 126 S.W. 3d 251 (Tex. App.--

San Antonio 2003, orig. proceeding).

Pensom takes a balanced and reflective approach to the question of the facial unconstitutionality of § 153.433, and its application to particular circumstances. In that case, Keith Pensom and his wife, Melanie, had been divorced and granted joint managing conservatorship of their two children. After Melanie’s death, her mother and stepfather, Maria and James Weaver, filed a petition to be appointed temporary sole managing conservators, or alternatively, to be granted reasonable access to the children. The trial court entered temporary orders granting access to Maria Weaver. Keith Pensom then filed a mandamus action, alleging first, that § 153.433 is unconstitutional on its face, and, in the alternative, that “the trial court abused its discretion in granting Maria access because it did not find him to be an unfit parent”. The court of appeals noted first that the parental interest in the care, custody, and control of their children is “a fundamental right protected by the Due Process Clause of the Fourteenth Amendment to the United States Constitution, and as a result, a “strict scrutiny” test must be applied. The court summarized the Texas Grandparent access statute as follows: The Grandparent Access Statute allows grandparents to petition for access only under circumstances where the family unit has already, to some degree, been disrupted. A grandparent may request access if the parent is incarcerated, incompetent, or dead; the parents are divorced or living apart; the child is a delinquent or has been abused by its parents; the parent-child has resided with the grandparents for a statutory required length of time… . These provisions evidence the Legislature’s recognition that cessation of contact with a grandparent may have a dramatic, and even traumatic, effect upon the child’s well-being. Under such circumstances the State has a compelling interest in providing a forum for those grandparents having a significant existing relationship with their grandchildren.

The Pensom court explained how to construe that provision in a manner consistent with Troxel. To do so, the court required that §153.433 be construed narrowly. The court then spelled out exactly how a narrow construction of the statute would read: In order to satisfy the “best interest of the child” prong of the Grandparent Access Statute, a grandparent must overcome the presumption that a fit parent acts in the best interest of his or her child. To overcome this presumption, a grandparent has the burden to prove, by a preponderance of the evidence, either that the parent is not fit, or that denial of access by the grandparent would significantly impair the child’s physical health or emotional well-being. Atty. Gen. Op. No. GA-0260 (2004) Greg Abbott Administration.

4. In re: Karen Mays-Hooper, Texas Supreme

Court, No. 04-1040 (Pending as of June 20, 2005)

This case also involved facts that tracked those in Troxel. Like Troxel, Karen Mays-Hooper (the mother), and Kelly Scott Hooper, the child’s father, were divorced on December 20, 2000. The child’s father died on March 25, 2003. On October, 14, 2003, Linda Hooper-Thornton, the child’s parental grandmother filed an Original Petition for grandparent access. The testimony at trial was that the mother was a good mother and the child was happy and well-behaved. There was no pleading or proof that the mother was unfit. Also, the mother had offered the grandmother access to the child. Evidence showed that the mother had disputes concerning the grandmother’s safety with the child and the grandmother’s religious training of the child. Despite the fact that there were no findings that the mother was unfit and over the mother’s objections, the trial court, contrary to Troxel, gave the grandmother not only access to the child but possession of the child for certain periods of time and ordered that the grandmother could take the child to church, without regard to the fact that only a parent or a court appointed non-parent conservator has the right to direct the religious training of the child. The trial court, even though no injunction was



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requested, further enjoined the mother from speaking to her own child about the child’s father’s death. The Fort Worth Court of Appeals, in an opinion written by Justices Holman, Walker, and McCoy (with Justice Walker voting to request a response and issue emergency relief), denied the Writ of Mandamus filed by the mother, without addressing the mother’s due process claims raised in accordance with Troxel and without giving any explanation or reasoning as to their decision to deny the Writ. The denial of the Mandamus was then appealed to the Texas Supreme Court. The petition of Karen Mays-Hooper, the mother and the Relator, points out that the Court of Appeals appear to be split on the interpretation of § 153.433 of the Texas Family Code in that the Corpus Christi Court of Appeals in Gonzales v. Graydon holds the section does not permit a trial court to award physical possession of a child to a grandparent and the Second Court of Appeals appears to hold the opposite. (Note: the pending legislation that goes into effect on September 1, 2005 adds the word “possession” to § 153.433 so this issue has been resolved by the legislature). Also according to the petition, the Courts of Appeal appear to be inconsistent concerning the constitutionality of § 153.433 of the Texas Family Code. The San Antonio and El Paso Court of Appeals (see Pensom and Roby) seem to hold that to save the statute from being unconstitutional on its face, the courts must apply two Troxel elements. The Texas Attorney General has issued a recent opinion agreeing with the San Antonio Court of Appeals. While the Austin and Dallas Court of Appeals (see Lilley and In the Interest of C.P.J. and S.B.J., 129 S.W. 3d 573 (Texas App.--Dallas 2003, pet. denied) appear to hold that the statute is constitutional as applied in those cases. The grandmother’s argument in the Mays-Hooper case is basically that there is no distinction between “access” and “possession” and that the additional requirements enumerated by the San Antonio and El Paso courts, of a harm analysis and/or parental unfitness finding, were not envisioned nor intended by the Troxel case.

It will be interesting to see how the Texas Supreme Court Rules in light of the new bills that appear to change the statute to follow somewhat the Pensom and Roby cases.

V. NEW LEGISLATION 1. H.B. No. 260

The first of the two bills enacted by the 79th Legislature in its regular session is H.B. No. 260. For the most part, this bill simply conforms the language of the statues affecting grandparents’ access to other sections of the Texas Family Code. H.B. No. 260 augments “access” wherever it appears in §§ 102.004 and 153.432 - .434 with the phrase “possession of or” so that the grandparent provisions are consistent with the rest of the Family Code that refers to “possession of or access to” a child. In addition, in Texas Family Code § 102.004(a)(1), HB No. 260 replaces the existing phrase “the child’s present environment presents a serious question concerning the child’s physical health and welfare” with “the child’s present circumstances would significantly impair the child’s physical health or emotional development.”

In one respect H.B. No. 260 would address the standing statute for grandparents, Tex. Fam. Code section 102.004. H.B. No. 260 would amend section 102.004(b) by adding the underlined language:

(b) An original suit requesting possessory

conservatorship may not be filed by a grandparent or other person. However, the court may grant a grandparent or other person deemed by the court to have had substantial past contact with the child leave to intervene in a pending suit filed by a person authorized to do so under this subchapter if there is satisfactory proof to the court that appointment of a parent as a sole managing conservator or both parents as joint managing conservators would significantly impair the child’s physical health or emotional development. H.B. No. 260, section 1.

2. H.B. No. 261

The other bill affecting grandparent access is H.B. 261. This bill, entitled “AN ACT relating to possession of or access to a grandchild and designation of other relatives as managing conservators” also includes the “possession of or” language of H.B. No. 260. What is also interesting is that H.B. 261 expands § 153.432 of the Texas Family Code to include Aunts and Uncles. The section says under the bill:

“Appointment of Grandparents, Aunt or Uncle as Managing Conservator. If both of the parents of a child are deceased, the court




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may consider appointment of a parent, sister, or brother of a deceased parent as a managing conservator of the child, but that consideration does not alter or diminish discretionary power of the court.”

The heart of the bill would add a new subsection (2) to Tex. Fam. Code section 153.433 and would somewhat address issues raised by Troxel as follows:

“The grandparent requesting possession of or access to the child overcomes the presumption that a parent acts in the best interest of the parent’s child by proving by a preponderance of the evidence that denial of possession of or access to the child would significantly impair the child’s physical health or emotional well-being.”

However, this language could be problematic. To the extent that grandparents’ rights rests solely on the “best interest” of the child, the amendment to the Texas Grandparents rights statute may prove unconstitutional under Troxel. If Troxel clearly states anything, it is that to obtain visitation with a grandchild over the objection of a parent, a grandparent must plead and prove that the parent is unfit. This amendment to the statute would seem to indicate that forced grandparent access would be permitted without finding that a parent is unfit. Jimmy L. Verner, “Grandparents Rights In Texas,” 2005. VI. SUMMARY OF THE LAW

Taking into account the Texas grandparents’ rights statute, Troxel, Texas caselaw and enacted legislative changes that go into effect September 1, 2005, Texas law as it affects grandparents’ rights can be summarized as follows:

Managing Conservatorship

A grandparent may be appointed managing conservator of a grandchild against the will of the child’s parent(s) by original suit or by intervention upon proof of the following: Standing

• The grandparent has had actual care, control, and possession of the child for at least six months ending not more than 90 days preceding the date of the filing of the petition. Tex. Fam. Code § 102.003(9). OR

• The child and the child's guardian, managing conservator, or parent have resided with the grandparent for at least six months ending not more than 90 days preceding the date of

the filing of the petition if the child's guardian, managing conservator, or parent is deceased at the time of the filing of the petition. Tex. Fam. Code § 102.003(11). OR

• The grandchild’s present circumstances would significantly impair the child’s physical health or emotional development. H.B. No. 260.

Substance

• Appointment of the parent(s) as managing conservator would not be in the best interest of the child because the appointment would significantly impair the child’s physical health or emotional development. Tex. Fam. Code §151.131(a). AND

• The parent is an unfit parent. Troxel, 530 U.S. at 67-68.

Possessory Conservatorship

By Original Suit

A grandparent may be appointed possessory conservator of a grandchild against the will of the child’s parent(s) by original suit upon proof of the following: Standing


• The child and the child's guardian, managing conservator, or parent have resided with the grandparent for at least six months ending not more than 90 days preceding the date of the filing of the petition if the child's guardian, managing conservator, or parent is deceased at the time of the filing of the petition. Tex. Fam. Code § 102.003(11).

Substance

• Appointment of the parent as possessory conservator is not in the best interest of the child, and parental possession or access would endanger the physical or emotional welfare of the child. Tex. Fam. Code § 151.191. AND







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By Intervention

A grandparent may be appointed possessory conservator of a grandchild against the will of the child’s parent(s) by intervention by proof of the following:

Standing


• The child and the child's guardian, managing conservator, or parent have resided with the grandparent for at least six months ending not more than 90 days preceding the date of the filing of the petition if the child's guardian, managing conservator, or parent is deceased at the time of the filing of the petition. Tex. Fam. Code § 102.003(11). OR

• The grandparent is deemed by the court to have had substantial past contact with the child. Tex. Fam. Code § 102.004(b). AND

• The grandparent must show satisfactory proof to the court that appointment of a parent as a sole managing conservator or both parents as joint managing conservators would significantly impair the child’s physical health or emotional development. H.B. 260

Substance

• Appointment of the parent as possessory conservator is not in the best interest of the child, and parental possession or access would endanger the physical or emotional welfare of the child. Tex. Fam. Code § 151.191. AND


Grandparent Access

A grandparent shall be granted access to a

grandchild against the will of the child’s parent(s) by original suit or by intervention upon proof of the following:

Standing

• The grandparent is, in fact, a grandparent. Tex. Fam. Code § 153.432.

Substance

• At the time the relief is requested, at least one biological or adoptive parent of the child has not had that parent's parental rights terminated. Tex. Fam. Code § 153.433(1). AND

• Access is in the best interest of the child. Tex. Fam. Code § 153.433(2). AND

• The grandparent requesting possession of or access to the child is a parent of a parent of the child and that parent of the child has been incarcerated in jail or prison during the three month period preceding the filing of the petition or has been found by a court to be incompetent or is dead or does not have actual or court-ordered possession of or access to the child. AND

• One of these two alternatives, depending upon whether Pensom, supra, and H.B. No. 261 accurately encompass Troxel’s holding:

• The parent is an unfit parent. Troxel,

530 U.S. at 67-68. OR • Denial of access by the grandparent to

the grandchild would significantly impair the child’s physical health or emotional well-being. H.B. No. 261.

“It is respectfully submitted that the second alternative misstates Troxel and therefore is open to constitutional attack because it would permit a court to order grandparent access over the parents’ objections when the court finds that although the child’s parents are fit, denial of access by the grandparent to the grandchild would significantly impair the child’s physical health or emotional well-being. Such a holding would amount to nothing more than the substitution of the trial court’s judgment for that of the parents as to whether the grandparents should be permitted to visit their grandchildren, which is the very result condemned by Troxel.” Jimmy L. Verner, “Grandparents Rights In Texas,” 2005.





9

Bibliography

Articles that comprise the main source of information on grandparents’ and third parties’ rights in Texas:

1. Astrid Boos-Hersberger, Stepparents’ Custody Rights when the Stepfamily Breaks Up, American Journal of Family Law, Vol. 12, No. 1: 247-274 (Spring 1998).

2. Brian L. Webb & Miriam L. Ackels, Grandparents, Where They Stand Now: Troxel, An Analysis of the U.S. Supreme Court Ruling, STATE BAR OF TEXAS MARRIAGE DISSOLUTION, Ch. 10 (May 3-4, 2001).

3. David L. Chambers & Nancy D. Polikoff, Family Law and Gay and Lesbian Family Issues in the Twentieth Century, Family Law Quarterly, Vol.33 No.3: 523-543).

4. Curtis M. Loveless & Darcy E. Loveless, Rights and Duties of Parents, Grandparents, and Non-Parents, 2002 STATE BAR OF TEXAS ADVANCED FAMILY LAW COURSE, Ch. 24 (August 5-8, 2002).

5. Jennifer Tull, Representing Gay and Lesbian Parents in Suits Affecting the Parent-Child Relationship, 25TH ANNUAL STATE BAR OF TEXAS ADVANCED FAMILY LAW COURSE (August, 1999).

6. John J. Sampson, TDHS v. EB, The Coup De Grâce for Special Issues, St. Mary’s Law Journal, Vol.23: 221-268 (1991).

7. Katherine A. Kinser & Julie P. Crawford, Common Law Marriage and Rights of Putative Spouses, STATE BAR OF TEXAS ADVANCED FAMILY LAW COURSE 2001, Ch. 29 (August 6-9, 2001).

8. Linda S. Good, Who’s Left Standing: Third Party Custody After Troxel, Aubin, and Lilley, 25TH ANNUAL STATE BAR OF TEXAS MARRIAGE DISSOLUTION INSTITUTE, Ch. 2 (May 9-10, 2002).

9. Lisa L. Taylor, Donald L.Sweatt, P.C., Barbara K. Runge, & J. Anthony Michael III, Texas Grandparents: 2002 Update A Survey of Grandparent Visitation Cases Post-Troxel, STATE BAR OF TEXAS ADVANCED FAMILY LAW, Ch. 46 (August 5-8, 2002).

10. Norma Levine Trusch & Alicia Garcia Klosowsky, Non-Parent Custodial Issues, 25TH ANNUAL STATE BAR OF TEXAS ADVANCED FAMILY LAW COURSE (August 17-20, 1998).

11. Wendy S. Burgower & Charlotte D. Rainwater, So You’ve Paid A Jury Fee- Now What Are You Going To Ask Them? Binding And Non-Binding Jury Issues In Family Law, STATE BAR OF TEXAS ADVANCED FAMILY LAW COURSE 2001, Ch. 62 (August 6-9, 2001).

12. Stewart W. Gagnon, Representing Extended Family and Non-Family Members (Parental Presumptions, Post-Troxel Grandparents), STATE BAR OF TEXAS ADVANCED FAMILY LAW COURSE 2003, Ch. 31 (August 18-21, 2003).

13. Brian L. Webb, Miriam L. Ackels, and Ashlie L. Thomas, Jurisdiction, Venue, Transfers and Standing, STATE BAR OF TEXAS ADVANCED FAMILY LAW COURSE 2003, CH. 27 (August 18-21, 2003).

14. Linda S. Good, Standing After Troxel: Grandparents, Stepparents and Other Interlopers, STATE BAR OF TEXAS ADVANCED FAMILY LAW COURSE 2004, Ch. 23 (August 9-12, 2004).

15. Opinion No. GA-0260 provided to the Honorable Jeff Wentworth, Chair of the Senate Jurisprudence Committee, Texas State Senate, Constitutionality of the Texas grandparent access statute, section 153.433, Family Code, in light of the Untied States Supreme Court’s decision in Troxel v Granville, 530 U.S. 57 (2000)”, October, 2004.

16. Stewart W. Gagnon, Third Party Custody: Where Are We and Where Are We Going (A View From Down South and A Peak At the Nation), AMERICAN ACADEMY OF MATRIMONIAL LAWYERS 2003 ANNUAL MEETING (November 5-8, 2003).

17. Jimmy L. Verner, Jr., Grandparents’ Rights in Texas, www.vernerbrumley.com, 2005.



10

Cases:

1. Troxel v. Granville, 530 U.S. 57; 120 S.Ct. 2054

2. Lilley v Lilley, 43 S.W. 3d 703 (Tex. App.-- Austin 2001, no pet.)

3. Roby v Adams, 68 S.W. 3d 822 (Tex. App.-- El Paso 2002, pet. denied)

4. In re Pensom, 126 S.W. 3d 251 (Tex. App. --San Antonio 2003, orig. proceeding)

5. In the Interest of C.P.J. and S.B.J., 129 S.W. 3d 573 (Texas App.--Dallas 2003, pet. denied)

6. In re: Karen Mays-Hooper, Texas Supreme Court, No. 04-1040 (Pending as of June 20, 2005)








11

APPENDIX A H.B. No. 260

AN ACT relating to suits affecting the parent-child relationship, protective orders, and collaborative law. BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS: SECTION 1. Section 6.603, Family Code, is amended by adding Subsection (h) to read as follows: (h) The provisions for confidentiality of alternative dispute resolution procedures as provided in Chapter 154, Civil Practice and Remedies Code, apply equally to collaborative law procedures under this section. SECTION 2. Chapter 81, Family Code, is amended by adding Section 81.009 to read as follows: Sec. 81.009. APPEAL. (a) Except as provided by Subsections (b) and (c), a protective order rendered under this subtitle may be appealed. (b) A protective order rendered against a party in a suit for dissolution of a marriage may not be appealed until the time the final decree of dissolution of the marriage becomes a final, appealable order. (c) A protective order rendered against a party in a suit affecting the parent-child relationship may not be appealed until the time an order providing for support of the child or possession of or access to the child becomes a final, appealable order. SECTION 3. Section 102.004, Family Code, is amended to read as follows: Sec. 102.004. STANDING FOR GRANDPARENT OR OTHER PERSON. (a) In addition to the general standing to file suit provided by Section 102.003[(13)], a grandparent may file an original suit requesting managing conservatorship if there is satisfactory proof to the court that: (1) the order requested is necessary because the child's present circumstances would significantly impair [environment presents a serious question concerning] the child's physical health or emotional development [welfare]; or (2) both parents, the surviving parent, or the managing conservator or custodian either filed the petition or consented to the suit. (b) An original suit requesting possessory conservatorship may not be filed by a grandparent or other person. However, the court may grant a grandparent or other person deemed by the court to have had substantial past contact with the child leave to intervene in a pending suit filed by a person authorized to do so under this subchapter if there is satisfactory proof to the court that appointment of a parent as a sole managing conservator or both parents as joint managing conservators would significantly impair the child's physical health or emotional development. (c) Possession of or access [Access] to a child by a grandparent is governed by the standards established by Chapter 153. SECTION 4. Section 102.009(a), Family Code, is amended to read as follows: (a) Except as provided by Subsection (b), the following are entitled to service of citation on the filing of a petition in an original suit: (1) a managing conservator; (2) a possessory conservator;


12

(3) a person having possession of or access to the child under an order; (4) a person required by law or by order to provide for the support of the child; (5) a guardian of the person of the child; (6) a guardian of the estate of the child; (7) each parent as to whom the parent-child relationship has not been terminated or process has not been waived under Chapter 161; (8) an alleged father, unless there is attached to the petition an affidavit of waiver of interest in a child executed by the alleged father as provided by Chapter 161 or unless the petitioner has complied with the provisions of Section 161.002(b)(2) or (b)(3); (9) a man who has filed a notice of intent to claim paternity as provided by Chapter 160; (10) the Department of Family and Protective [and Regulatory] Services, if the petition requests that the department be appointed as managing conservator of the child; [and] (11) the Title IV-D agency, if the petition requests the termination of the parent-child relationship and support rights have been assigned to the Title IV-D agency under Chapter 231; (12) a prospective adoptive parent to whom standing has been conferred under Section 102.0035; and (13) a person designated as the managing conservator in a revoked or unrevoked affidavit of relinquishment under Chapter 161 or to whom consent to adoption has been given in writing under Chapter 162. SECTION 5. Section 105.008(a), Family Code, is amended to read as follows: (a) The clerk of the court shall provide the state case registry with a record of a court order for child support [as required by procedures adopted under Section 234.003]. The record of an order shall include information provided by the parties on a form developed by the Title IV-D agency. The form shall be completed by the petitioner and submitted to the clerk at the time the order is filed for record. SECTION 6. Section 105.009, Family Code, is amended by adding Subsection (m) to read as follows: (m) A course under this section must be available in both English and Spanish. SECTION 7. Section 153.0071, Family Code, is amended by adding Subsection (e-1) to read as follows: (e-1) Notwithstanding Subsections (d) and (e), a court may decline to enter a judgment on a mediated settlement agreement if the court finds that: (1) a party to the agreement was a victim of family violence, and that circumstance impaired the party's ability to make decisions; and (2) the agreement is not in the child's best interest. SECTION 8. Section 153.0072, Family Code, is amended by adding Subsection (h) to read as follows: (h) The provisions for confidentiality of alternative dispute resolution procedures as provided in Chapter 154, Civil Practice and Remedies Code, apply equally to collaborative law procedures under this section. SECTION 9. Section 153.009, Family Code, is amended to read as follows: Sec. 153.009. INTERVIEW OF CHILD IN CHAMBERS. (a) In a nonjury trial or at a hearing, on the application of a party, the amicus attorney, or the attorney ad litem for the child, the court shall [may] interview [the child] in chambers a child 12 years of age or older and may interview in chambers a child under 12 years of


13

age to determine the child's wishes as to conservatorship or as to the person who shall have the exclusive right to determine the child's primary residence. The court may also interview a child in chambers on the court's own motion for a purpose specified by this subsection. (b) In a nonjury trial or at a hearing, on the application of a party, the amicus attorney, or the attorney ad litem for the child or on the court's own motion, the court may interview the child in chambers to determine the child's wishes as to possession, access, or any other issue in the suit affecting the parent-child relationship [When the issue of managing conservatorship is contested, on the application of a party, the court shall interview a child 12 years of age or older and may interview a child under 12 years of age]. (c) Interviewing a child does not diminish the discretion of the court in determining the best interests of the child. (d) In a jury trial, the court may not interview the child in chambers regarding an issue on which a party is entitled to a jury verdict. (e) In any trial or hearing, the [(c) The] court may permit the attorney for a party, the amicus attorney, the guardian ad litem for the child, or the attorney ad litem for the child to be present at the interview. (f) [(d)] On the motion of a party, the amicus attorney, or the attorney ad litem for the child, or on the court's own motion, the court shall cause a record of the interview to be made when the child is 12 years of age or older. A record of the interview shall be part of the record in the case. SECTION 10. Section 153.132, Family Code, is amended to read as follows: Sec. 153.132. RIGHTS AND DUTIES OF PARENT APPOINTED SOLE MANAGING CONSERVATOR. Unless limited by court order, a parent appointed as sole managing conservator of a child has the rights and duties provided by Subchapter B and the following exclusive rights: (1) the right to designate the primary residence of the child; (2) the right to consent to medical, dental, and surgical treatment involving invasive procedures; (3) the right [, and] to consent to psychiatric and psychological treatment; (4) [(3)] the right to receive and give receipt for periodic payments for the support of the child and to hold or disburse these funds for the benefit of the child; (5) [(4)] the right to represent the child in legal action and to make other decisions of substantial legal significance concerning the child; (6) [(5)] the right to consent to marriage and to enlistment in the armed forces of the United States; (7) [(6)] the right to make decisions concerning the child's education; (8) [(7)] the right to the services and earnings of the child; and (9) [(8)] except when a guardian of the child's estate or a guardian or attorney ad litem has been appointed for the child, the right to act as an agent of the child in relation to the child's estate if the child's action is required by a state, the United States, or a foreign government. SECTION 11. Section 153.134(a), Family Code, is amended to read as follows: (a) If a written agreement of the parents is not filed with the court, the court may render an order appointing the parents joint managing conservators only if the appointment is in the best interest of the child, considering the following factors:


14

(1) whether the physical, psychological, or emotional needs and development of the child will benefit from the appointment of joint managing conservators; (2) the ability of the parents to give first priority to the welfare of the child and reach shared decisions in the child's best interest; (3) whether each parent can encourage and accept a positive relationship between the child and the other parent; (4) whether both parents participated in child rearing before the filing of the suit; (5) the geographical proximity of the parents' residences; (6) if the child is 12 years of age or older, the child's preference, if any, regarding the person to have the exclusive right to designate the primary residence of the child [appointment of joint managing conservators]; and (7) any other relevant factor. SECTION 12. Section 153.312(b), Family Code, is amended to read as follows: (b) The following provisions govern possession of the child for vacations and certain specific holidays and supersede conflicting weekend or Thursday [Wednesday] periods of possession. The possessory conservator and the managing conservator shall have rights of possession of the child as follows: (1) the possessory conservator shall have possession in even-numbered years, beginning at 6 p.m. on the day the child is dismissed from school for the school's spring vacation and ending at 6 p.m. on the day before school resumes after that vacation, and the managing conservator shall have possession for the same period in odd-numbered years; (2) if a possessory conservator: (A) gives the managing conservator written notice by April 1 of each year specifying an extended period or periods of summer possession, the possessory conservator shall have possession of the child for 30 days beginning not earlier than the day after the child's school is dismissed for the summer vacation and ending not later than seven days before school resumes at the end of the summer vacation, to be exercised in not more than two separate periods of at least seven consecutive days each; or (B) does not give the managing conservator written notice by April 1 of each year specifying an extended period or periods of summer possession, the possessory conservator shall have possession of the child for 30 consecutive days beginning at 6 p.m. on July 1 and ending at 6 p.m. on July 31; (3) if the managing conservator gives the possessory conservator written notice by April 15 of each year, the managing conservator shall have possession of the child on any one weekend beginning Friday at 6 p.m. and ending at 6 p.m. on the following Sunday during one period of possession by the possessory conservator under Subdivision (2), provided that the managing conservator picks up the child from the possessory conservator and returns the child to that same place; and (4) if the managing conservator gives the possessory conservator written notice by April 15 of each year or gives the possessory conservator 14 days' written notice on or after April 16 of each year, the managing conservator may designate one weekend beginning not earlier than the day after the child's school is dismissed for the summer vacation and ending not later than seven days before school resumes at the end of the summer vacation, during which an otherwise scheduled weekend period of possession by the possessory conservator will not take place, provided that the weekend designated does not interfere with the possessory conservator's period or periods of extended summer possession or


15

with Father's Day if the possessory conservator is the father of the child. SECTION 13. Subchapter F, Chapter 153, Family Code, is amended by adding Section 153.3161 to read as follows: Sec. 153.3161. LIMITED POSSESSION DURING MILITARY DEPLOYMENT. (a) In addition to the general terms and conditions of possession required by Section 153.316, if a possessory conservator or a joint managing conservator of the child without the exclusive right to designate the primary residence of the child is currently a member of the armed forces of the state or the United States or is reasonably expected to join those forces, the court shall: (1) permit that conservator to designate a person who may exercise limited possession of the child during any period that the conservator is deployed outside of the United States; and (2) if the conservator elects to designate a person under Subdivision (1), provide in the order for limited possession of the child by the designated person under those circumstances, subject to the court's determination that the limited possession is in the best interest of the child. (b) If the court determines that the limited possession is in the best interest of the child, the court shall provide in the order that during periods of deployment: (1) the designated person has the right to possession of the child on the first weekend of each month beginning at 6 p.m. on Friday and ending at 6 p.m. on Sunday; (2) the other parent shall surrender the child to the designated person at the beginning of each period of possession at the other parent's residence; (3) the designated person shall return the child to the other parent's residence at the end of each period of possession; (4) the child's other parent and the designated person are subject to the requirements of Sections 153.316(5)-(9); (5) the designated person has the rights and duties of a nonparent possessory conservator under Section 153.376(a) during the period that the person has possession of the child; and (6) the designated person is subject to any provision in a court order restricting or prohibiting access to the child by any specified individual. (c) After the deployment is concluded, and the deployed parent returns to that parent's usual residence, the designated person's right to limited possession under this section terminates and the rights of all affected parties are governed by the terms of any court order applicable when a parent is not deployed. SECTION 14. Sections 155.201(a) and (b), Family Code, are amended to read as follows: (a) On the filing of a motion showing that a suit for dissolution of the marriage of the child's parents has been filed in another court and requesting a transfer to that court, the court having continuing, exclusive jurisdiction of a suit affecting the parent-child relationship shall, within the time required by Section 155.204, transfer the proceedings to the court in which the dissolution of the marriage is pending. The motion must comply with the requirements of Section 155.204(a). (b) If a suit to modify or a motion to enforce an order is filed in the court having continuing, exclusive jurisdiction of a suit, on the timely motion of a party the court shall, within the time required by Section 155.204, transfer the proceeding to another county in this state if the child has resided in the other county for six months or longer. SECTION 15. Section 155.204, Family Code, is amended to read as follows: Sec. 155.204. PROCEDURE FOR TRANSFER. (a) A motion to


16

transfer under Section 155.201(a) may be filed at any time. The motion must contain a certification that all other parties, including the attorney general, if applicable, have been informed of the filing of the motion. (b) Except as provided by Subsection (a) or Section 262.203, a motion to transfer by a petitioner or movant is timely if it is made at the time the initial pleadings are filed. A motion to transfer by another party is timely if it is made on or before the first Monday after the 20th day after the date of service of citation or notice of the suit or before the commencement of the hearing, whichever is sooner. (c) If a timely motion to transfer has been filed and no controverting affidavit is filed within the period allowed for its filing, the proceeding shall, not later than the 21st day after the final date of the period allowed for the filing of a controverting affidavit, be transferred [promptly] without a hearing to the proper court. (d) [(b)] On or before the first Monday after the 20th day after the date of notice of a motion to transfer is served, a party desiring to contest the motion must file a controverting affidavit denying that grounds for the transfer exist. (e) [(c)] If a controverting affidavit contesting the motion to transfer is filed, each party is entitled to notice not less than 10 days before the date of the hearing on the motion to transfer. (f) [(d)] Only evidence pertaining to the transfer may be taken at the hearing. (g) If the court finds after the hearing on the motion to transfer that grounds for the transfer exist, the proceeding shall be transferred to the proper court not later than the 21st day after the date the hearing is concluded. (h) [(e)] An order transferring or refusing to transfer the proceeding is not subject to interlocutory appeal. (i) [(f)] If a transfer order has been signed [rendered] by a court exercising jurisdiction under Chapter 262, a party may file the transfer order with the clerk of the court of continuing, exclusive jurisdiction. On receipt and without a hearing, the clerk of the court of continuing, exclusive jurisdiction shall transfer the files as provided by this subchapter. SECTION 16. Sections 155.207(a), (b), and (c), Family Code, are amended to read as follows: (a) On the signing [rendition] of an order of transfer, the clerk of the court transferring a proceeding shall send to the proper court in the county to which transfer is being made: (1) the pleadings in the [complete files in all matters affecting the child in any] pending proceeding and any other document specifically requested by a party; (2) certified copies of all entries in the minutes; and (3) [a certified copy of any order of dissolution of marriage rendered in a suit joined with the suit affecting the parent-child relationship; and [(4)] a certified copy of each final order [rendered]. (b) The clerk of the transferring court shall keep a copy of the transferred pleadings and other requested documents [files]. If the transferring court retains jurisdiction of another child who was the subject of the suit, the clerk shall send a copy of the pleadings and other requested documents [complete files] to the court to which the transfer is made and shall keep the original pleadings and other requested documents [files]. (c) On receipt of the pleadings [files], documents, and orders from the transferring court, the clerk of the transferee court shall docket the suit and shall notify all parties, the clerk


17

of the transferring court, and, if appropriate, the transferring court's local registry that the suit has been docketed. SECTION 17. Section 156.006(b), Family Code, is amended to read as follows: (b) While a suit for modification is pending, the court may not render a temporary order that has the effect of changing the designation of the person who has the exclusive right to designate the primary residence of the child under the final order unless: (1) the order is necessary because the child's present circumstances would significantly impair [living environment may endanger] the child's physical health or [significantly impair the child's] emotional development; (2) the person designated in the final order has voluntarily relinquished the primary care and possession of the child for more than six months and the temporary order is in the best interest of the child; or (3) the child is 12 years of age or older and has filed with the court in writing the name of the person who is the child's preference to have the exclusive right to designate the primary residence of the child and the temporary order designating that person is in the best interest of the child. SECTION 18. Subchapter B, Chapter 156, Family Code, is amended by adding Section 156.105 to read as follows: Sec. 156.105. MODIFICATION OF ORDER BASED ON MILITARY DEPLOYMENT. (a) The military deployment outside this country of a person who is a possessory conservator or a joint managing conservator without the exclusive right to designate the primary residence of the child is 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. (b) If the court determines that modification is in the best interest of the child, the court may modify the order or decree to provide in a manner consistent with Section 153.3161 for limited possession of the child during the period of the deployment by a person designated by the deployed conservator. SECTION 19. Section 156.401, Family Code, is amended by amending Subsections (a) and (d) and adding Subsection (a-1) to read as follows: (a) Except as provided by Subsection (a-1) or (b), the court may modify an order that provides for the support of a child if: (1) the circumstances of the child or a person affected by the order have materially and substantially changed since the earlier of: (A) the date of the order's rendition; or (B) the date of the signing of a mediated or collaborative law settlement agreement on which the order is based; or (2) it has been three years since the order was rendered or last modified and the monthly amount of the child support award under the order differs by either 20 percent or $100 from the amount that would be awarded in accordance with the child support guidelines. (a-1) If the parties agree to an order under which the amount of child support differs from the amount that would be awarded in accordance with the child support guidelines, the court may modify the order only if the circumstances of the child or a person affected by the order have materially and substantially changed since the date of the order's rendition. (d) Release of a child support obligor from incarceration is a material and substantial change in circumstances for purposes of this section [Subsection (a)(1)] if the obligor's child support obligation was abated, reduced, or suspended during the period of


18

the obligor's incarceration. SECTION 20. Sections 156.410(a) and (c), Family Code, are amended to read as follows: (a) For purposes of Section 156.401 [156.401(a)(1)], the fact that an obligor has been called into active military service in any branch of the United States armed forces is a material and substantial change in circumstances if that active military service: (1) is for at least 30 consecutive days; and (2) results in a decrease in the obligor's net resources during the period of service. (c) Return of the obligor from the active military service described by Subsection (a) is a material and substantial change in circumstances for purposes of Section 156.401 [156.401(a)(1)] for which an obligee may file a motion for modification of a child support order if the court previously modified the order on the grounds described by Subsection (a). SECTION 21. Section 157.005(b), Family Code, is amended to read as follows: (b) The court retains jurisdiction to confirm the total amount of child support arrearages and render judgment for past-due child support if a motion for enforcement requesting a money judgment is filed not later than the 10th anniversary after the date: (1) the child becomes an adult; or (2) on which the child support obligation terminates under the child support order or by operation of law [until the date all current child support and medical support and child support arrearages, including interest and any applicable fees and costs, have been paid]. SECTION 22. Section 160.760, Family Code, is amended by adding Subsection (d) to read as follows: (d) If the intended parents fail to file the notice required by Subsection (a), the gestational mother or an appropriate state agency may file the notice required by that subsection. On a showing that an order validating the gestational agreement was rendered in accordance with Section 160.756, the court shall order that the intended parents are the child's parents and are financially responsible for the child. SECTION 23. Section 162.017(d), Family Code, is amended to read as follows: (d) Nothing in this chapter precludes or affects the rights of a biological or adoptive maternal or paternal grandparent to reasonable possession of or access to a grandchild, as provided in Chapter 153. SECTION 24. Section 81.009, Family Code, as added by this Act, applies only to a protective order rendered on or after the effective date of this Act. A protective 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. SECTION 25. The changes in law made by this Act to Sections 102.004 and 102.009, Family Code, apply only to an original suit affecting the parent-child relationship filed on or after the effective date of this Act. An original suit affecting the parent-child relationship filed before the effective date of this Act is governed by the law in effect on the date that the suit was filed, and the former law is continued in effect for that purpose. SECTION 26. The changes in law made by this Act to Sections 153.0071 and 153.009, Family Code, apply only to a suit affecting the parent-child relationship pending before a trial court on or filed on or after the effective date of this Act. SECTION 27. The change in law made by this Act to Section


19

153.134, Family Code, applies only to an original suit affecting the parent-child relationship or a suit for modification filed on or after the effective date of this Act. An original suit affecting the parent-child relationship or a suit for modification filed before the effective date of this Act is governed by the law in effect on the date that the suit was filed, and the former law is continued in effect for that purpose. SECTION 28. The changes in law made by this Act to Sections 155.201, 155.204, and 155.207, Family Code, apply only to a motion to transfer a suit affecting the parent-child relationship filed on or after the effective date of this Act. A motion to transfer a suit affecting the parent-child relationship filed before the effective date of this Act is governed by the law in effect on the date that the motion was filed, and the former law is continued in effect for that purpose. SECTION 29. Section 153.3161, Family Code, as added by this Act, applies only to a suit affecting the parent-child relationship pending in a trial court on or filed on or after the effective date of this Act. SECTION 30. The change in law made by this Act to Section 156.006, Family Code, applies only to a suit for modification filed on or after the effective date of this Act. A suit for modification filed before the effective date of this Act is governed by the law in effect on the date that the suit was filed, and the former law is continued in effect for that purpose. SECTION 31. Section 156.105, Family Code, as added by this Act, applies only to an action to modify an order in a suit affecting the parent-child relationship pending in a trial court on or filed on or after the effective date of this Act. SECTION 32. The change in law made by this Act to Section 156.401, Family Code, 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 33. The change in law made by this Act to Section 157.005, Family Code, relating to the enforcement of a child support order rendered before the effective date of this Act applies only to a proceeding for enforcement that is commenced on or after the effective date of this Act. A proceeding for enforcement that is commenced before the effective date of this Act is governed by the law in effect on the date the proceeding was commenced, and the former law is continued in effect for that purpose. SECTION 34. This Act takes effect immediately if it receives a vote of two-thirds of all the members elected to each house, as provided by Section 39, Article III, Texas Constitution. If this Act does not receive the vote necessary for immediate effect, this Act takes effect September 1, 2005.


21

APPENDIX B

H.B. No. 261

AN ACT relating to possession of or access to a grandchild and designation of other relatives as managing conservators. BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS: SECTION 1. The heading to Subchapter H, Chapter 153, Family Code, is amended to read as follows:

SUBCHAPTER H. RIGHTS OF GRANDPARENT, AUNT, OR UNCLE

SECTION 2. Section 153.431, Family Code, is amended to read as follows: Sec. 153.431. [GRANDPARENTAL] APPOINTMENT OF GRANDPARENT, AUNT, OR UNCLE AS MANAGING CONSERVATOR [CONSERVATORS]. If both of the parents of a child are deceased, the court may consider appointment of a parent, sister, or brother of a deceased parent [grandparents may be considered for appointment] as a managing conservator of the child [conservators], but that consideration does not alter or diminish the discretionary power of the court. SECTION 3. Section 153.432, Family Code, is amended to read as follows: Sec. 153.432. SUIT FOR POSSESSION OR ACCESS BY GRANDPARENT. (a) A biological or adoptive grandparent may request possession of or access to a grandchild by filing: (1) an original suit; or (2) a suit for modification as provided by Chapter 156. (b) A grandparent may request possession of or access to a grandchild in a suit filed for the sole purpose of requesting the relief, without regard to whether the appointment of a managing conservator is an issue in the suit. SECTION 4. Section 153.433, Family Code, is amended to read as follows: Sec. 153.433. POSSESSION OF OR [AND] ACCESS TO GRANDCHILD. The court shall order reasonable possession of or access to a grandchild by a grandparent if: (1) at the time the relief is requested, at least one biological or adoptive parent of the child has not had that parent's parental rights terminated; [and] (2) the grandparent requesting possession of or access to the child overcomes the presumption that a parent acts in the best interest of the parent's child by proving by a preponderance of the evidence that denial of possession of or access to the child would significantly impair the child's physical health or emotional well-being; [access is in the best interest of the child,] and (3) [at least one of the following facts is present: [(A)] the grandparent requesting possession of or access to the child is a parent of a parent of the child and that parent of the child: (A) has been incarcerated in jail or prison during the three-month period preceding the filing of the petition; (B) [or] has been found by a court to be incompetent; (C) [or] is dead; or (D) does not have actual or court-ordered possession of or access to the child [(B) the parents of the child are divorced or have been living apart for the three-month period preceding the


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filing of the petition or a suit for the dissolution of the parents' marriage is pending; [(C) the child has been abused or neglected by a parent of the child; [(D) the child has been adjudicated to be a child in need of supervision or a delinquent child under Title 3; [(E) the grandparent requesting access to the child is the parent of a person whose parent-child relationship with the child has been terminated by court order; or [(F) the child has resided with the grandparent requesting access to the child for at least six months within the 24-month period preceding the filing of the petition]. SECTION 5. The heading to Section 153.434, Family Code, is amended to read as follows: Sec. 153.434. LIMITATION ON RIGHT TO REQUEST POSSESSION OR ACCESS. SECTION 6. The change in law made by this Act to Section 153.431, Family Code, applies to a suit affecting the parent-child relationship that is pending in a trial court on the effective date of this Act or that is filed on or after the effective date of this Act. SECTION 7. The changes in law made by this Act to Sections 153.432 and 153.433, Family Code, apply to a suit under Section 153.432, Family Code, that is pending in a trial court on the effective date of this Act or that is filed on or after the effective date of this Act. SECTION 8. This Act takes effect September 1, 2005.