Legislation of the 75th Legislature of Texas Affecting Family Law

by Neish Carroll, Policy Analyst/Staff Attorney, Texas Legal Services Center

All statutory references are to the Texas Family Code and the effective date for all provisions is September 1, 1997, unless otherwise stated. The following abbreviations were used: "DPRS" means the Texas Department of Protective and Regulatory Services; "TDHS" means the Texas Department of Human Services; "AG" means the Office of the Attorney General; and, "SAPCR" means suit affecting the parent-child relationship.

Welfare related legislation: HB 1091, HB 2424, HB 3281, HB 3428, SB 29, SB 426, SB 1594.

Creates a state-run non-profit corporation, Texas Healthy Kids, to provide health care coverage for children that:

(1) do not have insurance,

(2) whose insurance coverage is inadequate or

(3) whose insurance does not cover a specific condition. (If a child has other private insurance, Healthy Kids will be the payor of last resort.)

Coverage will be provided by insurers contracted with by Texas Healthy Kids. The parent, conservator, or guardian must pay the full cost of the child’s coverage, but premiums will be structured on a sliding-scale according to the person’s ability to pay. The Board of Directors of Texas Healthy Kids is required to offer an initial health benefit plan by June 2, 1998. The Board is authorized to implement the plan on a region by region basis, and may decide not to offer the plan on a statewide basis immediately.

§ 154.182 of the Family Code is amended to require that a court, in ordering medical support, must require the obligor to apply for coverage for the child through Texas Healthy Kids if other coverage is not available. This also creates a statutory presumption under subsection (b)(5) that $38 a month is a reasonable amount for medical support, although a court will be able to order an obligor to pay more or less depending on the circumstances. This bill will require the Texas Dept. Of Human Services to develop guidelines that a court may presumptively apply where an obligor must pay medical support for more than one child.

It is now a class C misdemeanor for a parent, managing conservator, or guardian to fail to appear with a child at a hearing under § 54.022 of the Family Code (misdemeanor hearing) after receiving a summons. Previously, the only enforcement measure for failure to appear was a contempt proceeding.

Restores authority of constitutional county courts to issue protective orders.

Juries may decide the issue of primary residence in a suit affecting the parent-child relationship.

Effective Sept. 1, 1997 (applies to policies issued or renewed after Jan. 1, 1998.)

Prohibits insurance companies from discriminating against persons who are victims of family violence with regards to the issuing of health or life insurance policies. Under this law, carriers cannot deny coverage or refuse to renew coverage of persons who are victims of family violence. Carriers cannot charge a different rate or limit the coverage available to persons who are victims of family violence. A violation by a carrier will constitute a deceptive trade practice under the Insurance Code, which could subject a carrier to administrative action by the State Board of Insurance as well as an action for damages by the person who was discriminated against under the Deceptive Trade Practices Act.

Requires the Bureau of Vital Statistics to establish a paternity registry for the purpose of:

(1) protecting the rights of fathers who affirmatively assume responsibility for a child they may have fathered and

(2) to expedite the adoption of children whose biological fathers are unwilling to assume responsibility.

Under this bill, a man wishing to assert parental rights with respect to a child (except a man who is presumed to be the biological father) will be required file a notice of intent to claim paternity with the registry within thirty days of the child’s birth. The registry will maintain information on all men who file a paternity claim with respect to a child whose paternity has not been adjudicated. At any time a man may revoke a notice of intent to claim paternity. A man who fails to file a notice of intent to claim paternity forfeits the right to assert an interest in the child other than by filing a paternity suit. After a notice of intent to claim paternity the registry is required to notify the mother of the child, who then has thirty days to deny the paternity claim (mother fills out a form provided by the registry, signed and notarized). If the mother denies the paternity claim the registry must notify the man of the mother’s denial and of his right to file a paternity suit. Information in the registry is admissible in an action to determine paternity or in a suit to terminate parental rights.

In a suit to terminate parental rights, an attorney ad litem must now be appointed to represent

(a) a parent served by publication,

(b) an alleged father who failed to register with the paternity registry and whose identity is unknown or whose whereabouts are unknown, or

(c) an alleged father who is registered with the registry but whom the petitioner is unable to serve personally.

The rights of an alleged biological father will now be subject to termination by a court:

(a) if the father has not registered and

(b) the petitioner files a sworn affidavit describing the petitioner’s attempts to identify and locate the alleged biological father and

(c) the court determines that the petitioner exercised due diligence in attempting to identify and locate the alleged biological father (in determining whether the petitioner exercised due diligence the court must consider any evidence submitted by the attorney ad litem for the alleged biological father).

After Jan. 1, 1998, an alleged biological father’s rights may be terminated without service of citation, but if the alleged biological father is not served (or if the father is unknown or the alleged father has not signed an affidavit of relinquishment or a waiver of interest) the petitioner must, in addition to making a showing of due diligence obtain a certificate from the registry stating that after a diligent search of the registry nothing has been found concerning the father of the child in question.

A court may also order termination of the parent-child relationship if the parent has been convicted of sexual assault or incest and as a direct result the victim became pregnant and if it is in the best interest of the child to terminate the relationship.

If the relinquishment/waiver is revocable, the affidavit must state in boldface type the right of the person executing the affidavit to revoke within ten days of signing the affidavit. If a relinquishment/waiver fails to state that it is irrevocable, it is presumed revocable and the parent may revoke within ten days of signing the affidavit. A relinquishment/waiver naming DPRS or a licensed child placing agency as managing conservator is irrevocable. The person executing the affidavit must be given a copy of the affidavit at the time it is executed. This bill also sets forth formal requirements for executing a revocation (statement signed by the affiant before two witness and verified by a notary, served on the other parent, and on the court if the affiant has knowledge that a suit to terminate based on the affidavit).

Allows for a child who is at least two years old to be adopted by a former stepparent:

(a) if the rights of at least one parent have been terminated, and

(b) if the stepparent was managing conservator or had actual care, possession, and control of the child for six months (one year if the nonterminated parent does not consent to the adoption).

Previously, the general rule was that for a child to be eligible for adoption if the rights of both parents had to have been terminated, or if both parents were deceased. This bill also requires screening of prospective adoptive homes by DPRS to evaluate each party requesting the adoption, paid for by the applicant.

Effective: June 18, 1997.

Constables may provide an officer to stand-by and protect an applicant while the respondent removes him or herself either under a temporary protective order or a final protective order.

Effective June 17, 1997.

Allows for an emergency protective order specifically for children. § 262.101 of the Family Code now specifies that a petition by the State to take possession of a child can be based on neglect as well as sexual abuse or immediate danger standard. New § 262.102(c) will require a court to issue a temporary protective order for the protection of a child if the court finds that child abuse or neglect has occurred and the child requires protection from family violence from a family or household member, based on the recommendation or request of DPRS. Under § 262.201(c) a court will be further required to render a permanent protective order for the child if after a full adversarial hearing the court determines that the child requires protection from family violence from a family or household member.

Allows an individual who is related to the biological mother within the second degree of consanguinity to contest a child’s paternity but only if the biological mother of the child is deceased.

Adopts a number of provisions related to DPRS investigations of child abuse and neglect, termination of parental rights, and to the permanent placement of children in foster care (see also SB 359, DPRS reauthorization bill):

(1) Gives foster parents the right to file a SAPCR if the child has resided in the foster parent’s home for at least 18 months.

(2) Will allow for the hearsay statement of a child abuse victim to admitted into evidence if the court finds the statement to be reliable and the child testifies or is available to testify or if the court determines that the out of court statement is an appropriate substitute for the child’s testimony.

(3) Adds additional grounds for involuntary termination of the parent-child relationship: failure to comply with a court order which established grounds for by which the parent could have their child returned where the child was removed because of abuse or neglect and the parent has had at least nine months to comply with the court order; use of a controlled substance that endangers that health or safety of the child; knowingly engaging in criminal conduct that results in the parent’s imprisonment for two years or more; or causes a child to be born with an addiction to alcohol or a controlled substance, unless taken by prescription.

(4) Redefines child abuse under § 261.001 to include the use of a controlled substance in a manner that results in physical, mental, or emotional injury to the child or "causing, expressly permitting, or encouraging a child to use a controlled substance."

(5) Amends § 261.302 to require that an interview with a child be videotaped and audiotaped unless there is good cause to do otherwise.

(6) Amends § 261.305 to authorize that an investigation include the child’s medical history.

(7) Allows for emergency removal of a child by DPRS or law enforcement where there is a corroborated allegation that the person who has possession of the child is currently using a controlled substance and the use constitutes an immediate danger to the child.

Authorizes the Attorney General to pursue negotiations and enter into reciprocal agreements with foreign countries regarding the enforcement of child support orders and custody orders.

Will require that court-ordered family counseling be conducted by a licensed mental health professional.

Requires courts to order make-up periods of possession or access to compensate parents who are denied period(s) of court-ordered possession or access and the make-up period must be equivalent in type and length to the period missed.

Provides for mandatory withholding of delinquent child support payments from lottery winnings of $600 or more that are paid in periodic installments. To obtain mandatory withholding, the obligee may provide the Texas Lottery Commission with a copy of the withholding order or the child support lien. This bill also requires the Lottery Commission to adopt rules to identify lottery winners who owe delinquent child support and to withhold support payments from winnings.

Lowers the age for which a court must interview a child regarding the child’s wishes on the issue of conservatorship from age 12 to age 10.

Requires attorneys ad-litem who are appointed to represent a child in a suit affecting the parent-child relationship to take specific actions in representing the child which in the past were optional: investigate the facts of the case, review relevant records of the child, examine witnesses in the case, and interview all parties to the case.

Permits a court to impose sanctions (attorney’s fees, expert fees, court costs) on a party found to have made a false allegation of child abuse or neglect. Will also impose a civil penalty of up to $500 on a party to suit affecting the parent-child relationship who makes allegation of child abuse against another party to the suit.

Changes the standard possession order to allow for noncustodial parents to have possession on Wednesday from the time school ends on Wednesday until school begins on Thursday, instead of from 6 p.m. to 8 p.m. on Wednesdays.

Implements a number of initiatives to increase child support enforcement collections. The basis for these changes was a report issued by the Comptroller’s Office as part of its performance review of Texas agencies; in this instance the efforts of the Child Support Enforcement Division of the AG. Several efforts were made during the 75^th Legislature to either take away the AG’s duties as the Title IV-D agency, and this law will make the Child Support Enforcement Division subject to the Texas Sunset Act, which means that the Child Support Division will undergo "sunset review" during the next Legislative session.

Provides that a child support lien arises as a matter of law for all amounts of overdue support, regardless of whether the amount of arrearages have been judicially determined, as long as the lien is recorded and the obligor is given notice. A lien also arises when the court of continuing jurisdiction or the Title IV-D agency determines an amount in arrears. Foreclosure is not required to execute a judgement or administrative determination of overdue support after notice and opportunity for a hearing. The lien notice or abstract of judgment may now be filed in the county of the court of continuing jurisdiction, with any individual or organization believed to be in possession of real or personal property of the obligor, or with any governmental entity that issues or records proof of ownership. Also extends the duration of a child support lien so that a lien is effective until all current support and arrearages, including interest, has been paid or the lien is released, and a lien will now extend to arrearages that accrue after the initial determination of arrearages. Would extend the penalties for noncompliance with a lien or foreclosure action to any person who knowingly disposes of property that s subject to a lien. Amends Ch. 157, subch. G.

Establishes a pilot program in two counties with a population of more than one million to improve the efficiency of court processing of family welfare cases within the integrated system for child support and medical support enforcement. The pilot programs will incorporate electronic case filing and automatic reporting of orders and statistical information to the new, federally mandated state case registry.

Requires the AG to develop a program to publicly identify certain delinquent obligors. The program will include the public displaying of photographs and profiles of obligors in public and private places, and will include the use of the news media and the Internet. The program will also offer rewards for individuals that provide information that leads to the collection of delinquent child support.

Requires DPRS to investigate a report of child abuse or neglect without regard to whether there is a suit affecting the parent-child relationship pending.

Requires TDHS, the Texas Workforce Commission, and the AG to adopt procedures for waiving requirements for financial assistance (AFDC) and related services, including time limits, child support enforcement, paternity establishment, work activity, and residency for persons who are victims of family violence. Waivers will be on a case-by-case basis and can be for no longer than one year.

Requires that the AG be served on the filing of a petition to terminate the parent-child relationship if the AG has filed a notice of assignment of the child’s support rights (parent receiving public assistance).

Requires a statewide database to be established and maintained by the AG of all child support orders that are issued or modified. Courts will have to provide the registry with copies of support orders and copies of modifications. Parties to a support order will have to report any changes in personal information (address, employment) to the court that issued the order and the state registry (currently only required to report changes to other parties to the support order). Authorizes a court to order that personal information not be disclosed to another party if the court finds that the disclosure is likely to cause a child or conservator to suffer harassment, abuse, or serious harm or injury.

The registry will maintain full records in all Title IV-D cases and abstracts of support orders in all other cases. Information in the registry will be shared with a national case registry as well as with other states. PRWORA also requires that all collection and disbursement activities for Title IV-D cases and all other cases subject to income withholding be centralized within the AG’s Office. Once the disbursement unit is fully operational in October of 1999, employers will be able to remit withholdings for child support to the disbursement unit instead of to local court registries. To the greatest extent possible collection and disbursement must be done on an automated basis (i.e. computerized).

The final piece of the automated information network envisioned under PRWORA is the new hire directory. Employers both public and private doing business within a state must report each new hired or rehired employee. In Texas, the new hire directory will be a cooperative project between the Texas Workforce Commission and the AG. With all the states collecting and sharing this information by automated means, the goal is to achieve the maximum degree of child support enforcement possible.

Will allow the AG to issue administrative withholding orders directly without any other judicial or administrative order. Income withholding will be mandatory in all IV-D cases, and an administrative writ may not be stayed or suspended. Eliminates the good cause exception. Notice to the obligor will occur only after the withholding order has been issued and is in effect. An administrative withholding order can be contested but the obligor must go through the administrative review process, after which judicial review may be had if any issues are unresolved, but withholding may not be interrupted until there is a court order requiring the withdrawal of the withholding order or until all current support, including medical support, and all arrearages have been paid. A child support review order issued by the AG and confirmed by a court will constitute an order of the court and can be enforced by any means including contempt. Under the new law either the obligor of obligee can get an automatic review of the support order once every three years. If it has been three years since a support order has been rendered or modified and the support order differs from current guidelines by either 20% or $100 the AG shall file modify the support order. Will require an employer to comply with a withholding order whether or not the obligor resides or works outside of Texas (i.e., as long as the employer is located within Texas the withholding order is binding on the employer).

PRWORA requires that the Title IV-D agency be able to take certain administrative actions without additional judicial or administrative action. Specifically, the AG will be empowered to issue administrative subpoenas in Title IV-D cases (although enforcement by contempt would lie with the courts) and to pursue license suspension under ch. 232 against a parent or alleged/presumed father who fails to comply with a subpoena. Also, the AG will authorized to order paternity testing. An alleged father will be given the opportunity to sign an acknowledgment of paternity or to request testing; otherwise, the AG will order testing. PRWORA further requires that the Title IV-D have greater access to information needed for child support enforcement. Already, the state agencies which administer public benefits programs are required to electronically share information with the AG. Now, other state and local agencies, as well as private organizations will have to provide the AG the same sort of access to information. Employers for example will be required to disclose information regarding employment, compensation, and benefits. The law also requires that financial institutions doing business within the state provide the agency on a quarterly basis information on obligors who have an account with the institution and whom the agency identifies as being delinquent in support payments.

Sets forth guidelines for termination of the parent-child relationship and for adoption. Note: SB 181 and SB 359 passed subsequent to SB 34 contain many of the exact same provisions and will not be referenced except to the extent they differ with SB 34.

Authorizes the DPRS to assume the care, custody, and control of a child who is abandoned and whom DPRS is unable to identify through reasonable means and requires DPRS to immediately file suit to terminate the parent-child relationship.

Will require courts to order the removal of an alleged child abuser if the court finds that the presence of the alleged abuser constitutes a continuing danger to the heath and safety of the child or if the child has been a victim of sexual abuse and there is a substantial risk of future sexual abuse. DPRS was authorized to seek the removal of an alleged abuser in these situations but seldom exercised this option.

Requires that a court render a final order within one year after DPRS is appointed temporary conservator or the case is automatically dismissed. This deadline may be extended by six months, but if there is no final order at that time the child will presumably be returned to his or her parents. For cases in which a temporary order was issued before Jan. 1, 1998, the court will set a deadline for deciding permanent custody at the next review hearing, but the deadline cannot be more than two years after the first review hearing.

Requires DPRS to prepare a permanency plan for each child for whom it is granted temporary custody and requires a status hearing within 60 days of DPRS’s appointment as temporary conservator to review the child’s status and the permanency plan. Requires the court to conduct a permanency hearing within 180 days of appointing DPRS temporary conservator.

Sets forth specific things that a court must do in a review hearing: assess the child’s placement, needs and services; evaluate the parties’ compliance with temporary orders; evaluate efforts to locate and serve necessary parties and efforts to identify relatives who could care for the child. Authorizes the court to remove the child from temporary foster are and place the child with a parent or nonparent who can give the child a safe environment if it is in the child’s best interests.

Limits the cases where DPRS can be appointed permanent conservator without terminating parental rights. DPRS is to be named permanent conservator only if naming the parent or a relative would not be in the child’s best interest. Other factors to consider: special medical or behavioral needs that make adoption unlikely, and needs and desires of the child.

Will require DPRS to maintain certain information in its records on every child in DPRS’s custody, including information on each child placed for adoption and on each child in foster care. Will require DPRS to issue a report on the status of children in foster care once every twelve months to the DPRS Board, analyzing the length of time children spend in foster care and barriers to placing children for adoption or returning them home.

Requires DPRS to begin the search for adoptive parents at the time its permanency plan becomes the termination of the parent-child relationship and to report to the court in which DPRS petitioned for termination on the child’s adoptibility and the search for adoptive parents.

Require DPRS to adopt policies to improve its services to children and families by increasing accountability and insuring statewide consistency of services, including the adoption of specific goals and performance measures. Mandates that DPRS adopt policies that provide for conducting a home study within four months after an applicant is approved for an adoption and documenting the results of the study within 30 days of its completion.

The time limit during which an adoption or termination order may be challenged is extended from two years to six months. In termination orders based on an unrevoked affidavit of relinquishment or waiver of interest, the order can only be challenged on the basis of fraud, duress, or coercion in the execution of the affidavit.

Redefines the offense of stalking under § 42.071 of the Penal Code, eliminating the harassment element which the Texas Court of Criminal Appeals struck down as unconstitutional in Long v. State, No. 803-95 (Tex. Crim. App., Sept. 11, 1996). New definition of stalking specifies that an action which may constitute stalking must be part of a pattern or course of conduct. Also defines stalking to include the act of following another person. Includes conduct directed at a family member or household member of the person being stalked, or action directed against property of the person.

Applies only to insurance policies that are issued, delivered, or renewed on or after Jan. 1, 1998.

Allows the possessory conservator to seek reimbursement for unpaid medical bills directly from the managing conservator’s insurance rather than having to request the managing conservator submit the reimbursement.

Allows courts in family law cases to award costs in the manner which the court determines to be best, rather than awarding costs to the "prevailing party" as is currently required (the problem being that there is seldom a clear "prevailing party" in family cases as there are in other civil cases). Applies to all pending cases regardless of when the suit was commenced.

Requires that a guardian ad litem be appointed to represent a child in all cases in which DPRS is seeking to be appointed managing conservator or is seeking termination of parental rights.

Enacts recommendations regarding DPRS made by the Sunset Advisory Commission:

(1) Requires DPRS to develop and implement a uniform complaint process statewide.

(2) Requires that DPRS separate its investigative functions from its delivery of services to the greatest extent possible.

(3) Will require that all DPRS contested cases be handled by the State Office of Administrative Hearings.

(4) Will allow DPRS to prioritize investigations according to the degree of severity and immediacy of the alleged harm.

(5) Authorizes courts to terminate the parent-child relationship in cases where the child has been constructively abandoned for at least six months or where the parent has failed to comply with a court ordered service plan.

(6) Authorizes a presiding judge to appoint a master to handle child protection cases if necessary to process cases in a reasonable amount of time.

(7) Requires DPRS to adopt a flexible response system for allegations of abuse which allows for a full-blown investigation in more serious cases or an informal assessment and family services in less serious cases.

(8) Authorizes DPRS to contract out its investigative duties with respect to child abuse and neglect to the local sheriff’s department in counties with a population of less than 25,000.

(9) Requires DPRS to interview and/or examine a child who has allegedly been abused. Must notify parents within 24 hours unless it would endanger the child or the person who made the report or unless it would interfere with an ongoing criminal investigation.

Adopts amendments to the Uniform Interstate Family Support Act. As amended, UIFSA provides among other things that:

(1) The tribunal which issues a support order has continuing, exclusive jurisdiction over the support order unless all parties to the order consent in writing for a tribunal of another to assume jurisdiction and modify the order.

(2) If there is only one outstanding support order, it controls. Sets forth rules for a tribunal to apply to determine which order controls where are two or more orders with regard to the same obligor and child.

(3) Authorizes a Texas tribunal to issue documents and make findings required by the law of a responding state if that state has not enacted UIFSA.

(4) Requires employers to comply with an income-withholding order from another state and to comply with the law of the state of the obligor’s principal place of employment where there are multiple withholding orders. Allows for a Texas tribunal to subject an employer who violates a withholding order of another state to the same penalties that may be imposed for noncompliance with a Texas order.

(5) Allows for an obligor to contest an out-of-state withholding order in same manner as the obligor would contest a Texas order.

(6) Clarifies that if the state which issued the withholding order no longer has continuing, exclusive jurisdiction, and if the obligor and obligee live in the same state, then a tribunal of that state has authority to modify the order and assume jurisdiction.

Clarifies that if the parties to a possession order lived in the same county when the original order was issued and the managing conservator moves away, the managing conservator is required to pick up the child at the end of a period of possession.

Grants magistrates additional authority when issuing an emergency protective order. Magistrates will be authorized to prohibit an arrested party from assaulting , communicating with, threatening, or going near a person protected under the order. Provides that the person protected under the order need not be present when the order is issued. This law lessens the penalty for violating an emergency protective order to a fine of not more than $4,000 and/or jail time of up to one year. Will require that adult victims of family violence be notified in writing of their right to request an emergency protective order without having to be present when the order is issued.

Recodifies Title IV of the Family Code relating to protective orders and family violence.

Clarifies that if the parties to a divorce or a SAPCR can resolve their differences without alternative dispute resolution (ADR), then ADR is not required.

Exempts payments for alimony, support or maintenance from seizure.

Authorizes Texas counties to contract with private entities for the collection of child support payments.

Provisions regarding protective orders apply only to an application for a protective order made on or after Sept. 1, 1997.

(1) Prohibits a victim or the victim’s attorney from being charged a fee for a protective order. Requires the party found to have committed family violence to pay the fee for the order, unless the party is indigent or the party can show good cause why they should not have to pay the fee.

(2) Amends § 81.005 to allow the court to assess attorney’s fees against the person whom an agreed protective ordered is rendered against.

(3) Amends § 85.022 to authorize a court to require in a protective order that the person found to have committed family violence complete a battering intervention and prevention program as provided for under art. 42.141 of the Code o Criminal Procedure.

(4) A court may not dismiss an application for a protective order when a divorce or SAPCR is filed. If a divorce or SAPCR is pending an application for protective order must be filed in the same court, or it there has been a final order the application for protective order should be filed in that court.

(5) Amends § 153.131 to provide that the presumption for joint managing conservatorship does not apply where there is a finding of family violence.

Requires that court ordered counseling under § 6.505 in a divorce or SAPCR include counseling on issues that affect children if the parties to the suit have a child that is under age 18.

Makes several changes with regard to child support collection and enforcement. Will allow for community supervision to be conditioned on the respondent paying child support as well as any arrearages. Provides that interest on past due child support begins to accrue on the date when the judge signs the order for judgment. Gives the AG’s office two working days to distribute a child support payment from the date payment was received. Issuing a bad check for a child support payment is a Class B misdemeanor.

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