I. INTRODUCTION

The following is a summary of the significant legislation, that has passed this Legislative session that affects Family Law, including termina-tions, adoptions and protective orders. These changes include amend-ments to the Family Code, the Penal Code, the Probate Code, the Civil Practices & Remedies Code, the Government Code and the Health & Safety Code. This summary does not include amendments to Title 4 (Juvenile), but does include protective order amendments.

While there were more than 325 bills filed attempting to amend the Family Code, only those changes that passed are sum-marized in this article. This year there were more than 60 bills passed that amended more than 500 sections of the Family Code.

This article is organized by Family Code title, and then by sections, then by other Codes, and finally by Senate bill (SB) or House bill (HB) number to make tracking easier. Several bills amended more than one code section.

A special recognition needs to be given to Howard Baldwin, Jr. with the Attorney General's Child Support Office, Charles Childress with the Department of Protective and Regulatory Services, Harry Tindall of Houston, Ken Fuller of Dallas, and Professor Jack Sampson of the University of Texas who have again helped track this legislation and analyze its effect. Their work in this area has been of great service to the bar and our clients.

II. TITLE I - FAMILY CODE

A. HB 2442

Amends §2.002 to require the distribution to each applicant for a marriage license a premarital education handbook (to be prepared by the Attorney General with the help of a 9 member commission). It also adds a §2.013 and §2.014 that encourages parties about to marry to attend a premarital education course during the year before the marriage. It creates a Family Trust Fund from $3 of each marriage license fee dedicated to pay for the development and distribution of the premarital handbook and grants for academic research on families and children of divorcing parents, and the development of low-cost premarital education courses. This becomes effective September 1, 1999.

B. HB 3130

Amends §2.204 to allow a county judge (in addition to others) to waive the 72 hour waiting period between the issuance of a license and the marriage ceremony. Effective as to waivers granted on or after September 1, 1999. This is the biannual expansion of who can waive this waiting period.

C. HB 819

Amends §6.602 as well as §153.0071 and permits a party to object in writing to a referral to mediation because of family violence committed against the objecting party by the other party to the suit. Once filed the court is prohibited from referring the parties to mediation unless the other party shows at a hearing there is not a reasonable basis for the objection. If the case is then referred to mediation over the objection the court must order appropriate measures to ensure the physical and emotional safety of the objecting party including not requiring face to face contact. This applies to all cases pending or filed on or after September 1, 1999.

D. HB 145

Amends the "Alimony" Chapter 8 passed four years ago. It provides that a court may enforce an order for the payment of spousal maintenance by a wage garnishment as well as other remedies allowed in §8.009. The language of the bill is not clear if the wage garnishment can be ordered initially or only after the alimony is not paid, but it appears to not be limited to enforcement of unpaid alimony, although that is not what committee testimony indicated was the intent. A related constitutional amendment will be presented to the voters in November and this becomes effective only upon passage of the amendment.

E. HB 1209

Changes the "BOLD FACED LANGUAGE" requirements throughout the Family Code to "PROMINENTLY DISPLAYED IN BOLD FACED TYPE OR CAPITAL LETTERS OR BE UNDERLINED." Applies to § 6.404, 6.602, 85.026, 102.0085, 105.006, 152.005; 153.0071, 155.101, 156.003, 156.301, 234.102, 234.103, 234.104. It applies to provisions in documents executed after the effective date of this bill.

F. HB 734

Adds a Subchapter C to Chapter 4 to allow spouses to agree in writing to convert their separate property to community property. It sets up a procedure similar to a pre-marital agreement and contains a lengthy warning as to the consequences of the agreement that must be included in the agreement. This new law does not require independent representation for each spouse or a written waiver of this independent counsel. Once converted it allows the court to divide the previous separate property in a "just and right" manner as with all community property. This change requires the approval of a constitutional amendment and then becomes effective on January 1, 2000.

An amendment to this bill in the Senate also adds a §3.901 et.sg., that provides for an equitable interest of the community estate in separate property enhanced during the marriage due to a financial contribution of community property, such as the payment of a separate purchase debt with community funds. This creates an equitable interest and does not allow an offset for the community use and enjoyment of the separate property. The measure "net enhanced value" is not defined and it is unclear if it is enhancement during marriage or since purchase (both before and during marriage). It also adds a §3.006 that provides for proportional ownership of property by marital estates, which is determined by the rule of inception of title. These changes apply to suits for divorce pending on September 1, 1999 or filed on or after that date.

III. TITLE 2 - FAMILY CODE

A. SB 1741

Amends §31.005 to allow the Texas Supreme Court to issue an order to remove the disability of minority of a minor. This Act takes effect on September 1, 1999.

B. SB 30

Creates a Chapter 33 that requires parental notification at least 48 hours before an abortion may be performed on a minor. In this case, either a parent or a managing conservator (does not say sole or indicate if it is a joint or independent decision in the case of a joint managing conservatorship) must receive the notification or a court must issue an order authorizing the minor to consent without the required notice. This bill does not create a new right for divorced conservators, so it must fit into existing rights and duties, or you need to modify your decree forms to specifically provide for who will receive such notice. This applies to abortions performed on or after January 1, 2000.

C. SB 1192

Amends §42.007 to continue to provide an affirmative defense to a violation of an order of possession of a child that the plaintiff consented to the violation and eliminates a required request that he or she promptly comply with the underlying possession order after receiving notice of an allegation of a violation and defeats that he or she complied with the request. This amendment becomes effective on September 1, 1999 and applies to a suit pending on or filed on or after that date.

IV. TITLE 4 - FAMILY CODE

A. SB 50

Provides a revised procedure for applying for a protective order when a previously rendered protective order has expired. The applicant would have to show a violation of the expired order or threatened harm. It also allows the court to enter a protective order when a previous order will expire within 30 days if there is threatened harm. It also adds to the warning included in the order, "NO PERSON, INCLUDING A PERSON WHO IS PROTECTED BY THIS ORDER, MAY GIVE PERMISSION TO ANYONE TO IGNORE OR VIOLATE ANY PROVISION OF THIS ORDER." It also requires the following language, "IT IS UNLAWFUL FOR ANY PERSON WHO IS SUBJECT TO A PROTECTIVE ORDER TO POSSESS A FIREARM OR AMMUNITION." Finally, it lengthens the life of protective orders to 2 years (previously 1). This Act is effective on September 1, 1999 and applies to an application for a protective order filed on or after that date. The expanded length of the protective order applies to a order issued on or after September 1, 1999.

V. TITLE 5 - FAMILY CODE

A. HB 3093

Amends §102.003 to allow standing to file a SAPCR to a person within 3 degrees of consanguinity of a child if the child's guardian, managing conservator or parent is deceased. It also provides standing to a grandparent if there is proof that the present environment presents a serious and immediate question concerning a child's physical health or welfare. This applies to suits pending on or after September 1, 1999.

B. SB 368

This is a bill relating to the child support functions of the Attorney General, but it also amends §105.002 to provide that you are not entitled to a jury trial to determine parentage. It also replaces the Supreme Court Guidelines Committee with the standing Legislative committees (now the Senate Jurisprudence Committee and House Juvenile Justice and Family Law Committee), and requires a biannual report by the Title IV-D Agency. It also has provisions regarding modification of support and a provision that continues a court's jurisdiction until a support obligation has been fully paid. It provides that if a custodial conservator voluntarily relinquishes possession for at least six months, the court may modify a support order so that the support is payable to the person having possession of the child.

C. HB 2441

This allows a court to order parties divorcing with children to attend a course of at least four hours in length on parent education and family stabilization. The course must be provided by a mental health professional or a religious practitioner. The requirement also applies to modification of conservatorship and possession cases. The parties may not be required to attend together, especially when there is a history of physical violence and cannot be required to attend more than twice in five years. This applies to a suit filed on or after September 1, 1999.

D. SB 609

Amends §107.014 to require an attorney ad litem to interview the child's care givers, including the child's foster parents. This Act applies only to an attorney ad litem appointed on or after September 1, 1999. An attorney ad litem appointed before September 1, 1999 is governed by the law in effect on the date he or she was appointed.

E. HB 797

Amends Chapter 152, now (UCCJA) to adopt the Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA). This has a Texas look to it so it is not a dramatic change to us. It becomes effective September 1, 1999 and applies to a motion filed on or after that date. A motion filed before September 1, 1999 is governed by the law in effect on the date it was filed.

F. HB 1411

Amends §153.001 to amend the current statement of public policy regarding conservatorship orders to include to provide a "safe" and "nonviolent" environment for a child. It prohibits the court from allowing a parent access to a child if the preponderance of the evidence shows a history or pattern of committing family violence during the past 2 years or during the pendency of the case. Some specific exceptions to this prohibition are allowed. Those exceptions include when the court finds a parent's access would not endanger the child's physical health or emotional welfare and is in child's best interest; and the court renders a possession order that is designed to protect safety of the other person (victim of family violence) - this may include supervised visitation, exchange at a protected setting, the prohibition of the consumption of drugs or alcohol, and that the parent complete a battering intervention program. This applies to a suit filed on or after September 1, 1999 and it does not, by itself, justify a modification of an existing visitation order.

G. HB 1337

Amends §153.004 to provide, in determining a conservatorship question the court can consider the abuse of a parent of the child as well as other violence currently listed in the Code. This amendment applies to a suit pending or filed on or after September 1, 1999.

H. HB 1462

Amends §153.076 to require notification of a former spouse appointed as a conservator of a child that the other parent resides with for at least 30 days, has married or intends to marry a person who is a registered sex offender or is charged with a sexual offense that would require such registration. The notice must be given no later than 40 days after residing begins or 10 days after the marriage. The notice must include a description of the offense involved. This Act applies to an order providing for possession or access to a child rendered on or after September 1, 1999.

I. HB 2353

Amends §153.133 (appointment of JMC) by requiring the agreement or rendered order first designate which conservator has the exclusive right to establish the primary residence. Once this is designated, the order may then either establish the geographical area of the primary residence or specify that there is no geographic restrictions. The geographic area for an agreement is not prescribed (neighborhood, county, state, nation, planet, universe?). In the event of a rendered order, the restriction, if any, is to a geographic area consisting of the county of residence or any contiguous county. It applies to an order rendered on or after September 1, 1999.

J. HB 32

Amends §153.312 to require notification of extended summer possession by April 1 by the possessory conservator, and by April 15 by the managing conservator. The only impact of this bill is to require earlier notification of election of summer visitation. Both of the managing conservator's periods of summer possession needs to be noticed now on the same date. This applies to any Standard Possession Order entered on or after September 1, 1999 and is a sufficient change by itself to authorize a modification of an existing visitation order.

K. HB 2455

Amends §153.371 to allow a non-parent sole managing conservator or non-parent joint managing conservator the right to have access to the child's medical records. It is effective as of September 1, 1999.

L. HB 2594

Adds §154.012 to require child support payments made after the date the child support order has terminated be returned by the obligee if the obligor is not in arrears. If a suit is filed to recover this payment, attorneys fees and costs are also recoverable, but also may be waived by the court. It applies to a support payment made on or after September 1, 1999.

M. HB 2059

Adds a §154.132 that provides that in applying the child support guidelines for a disabled obligor, the court should subtract from the guidelines support the value of the benefits paid for the child as a result of the obligor's disability. It applies to a suit filed on or after September 1, 1999.

N. HB 3786

Amends §155.201 to provide that if a motion to modify or enforcement is pending at the time a subsequent suit to modify or enforcement is filed, the court may transfer the subsequent suit only if the court could have transferred the first suit when it was filed. This amendment applies to a modification or enforcement pending on or filed on or after September 1, 1999.

O. SB 160

Amends §156.401 to provide that the release of an obligor from jail is a material and substantial change of circumstances for the purposes of a child support modification, if the child support was abated, reduced or suspended because of the incarceration. This applies to support orders entered before, on or after September 1, 1999.

P. HB 2990

Amends §157.168 to require the court to order a make up visitation under an enforcement proceeding to occur within 2 years (rather than 1) of the denied visitation. This amendment applies to a motion pending on or filed on or after September 1, 1999.

Q. HB 2421

Amends §157.265 to establish a date of deficiency as to child support equal to one month when it becomes past due. This change takes effect January 1, 2000 and applies to a support payment due on or after that date.

R. HB 1322 & SB 686

Amends §157.315 to clarify that the clerk may not charge any party, the Title IV- D Agency, a Domestic Relations Office or a friend of the court a fee for recording a document styled, "Notice of Child Support Lien" and "Release of Child Support Lien." It applies to liens or releases filed on or after September 1, 1999.

S. HB 1884

Amends §158.204 to allow an employer to deduct from monthly earnings but not child support, the administrative costs in complying with a withholding order or $10 (previously $5), whichever is less. It also amends §158.206 to require an employer who receives a withholding order but does not comply to pay not only the support not paid, but interest on the unpaid support. (SB 581 provided for this also!) This Act applies only to child support withheld on or after September 1, 1999.

T. HB 3423

Amends §161.001 to add a termination ground of voluntarily delivering a child to an emergency medical services provider without expressing an intent to return for the child. It also provides for emergency possession of an abandoned child. This amendment takes effect on September 1, 1999.

U. HB 625

Amends §162.004 to allow a court to conduct a hearing for adoption at any time 40 days after the social study is ordered or the criminal history record information is requested under §162.0085. Previously the court had to set the date no later than the 60th day after the social study is ordered. The court may still order an earlier hearing if it provides adequate time to file the social study. It applies to any adoption suit filed on or after September 1, 1999.

V. HB 869

Adds §201.018 that provides for the appointment of a "visiting associate judge" when an associate judge is temporarily unavailable to perform his or her duties. To be eligible, the person must have previously served as an associate judge for at least six years and the Commissioner's court must authorize employment of the visiting associate judge. This provision becomes effective on September 1, 1999.

W. SB 1735

Amends § 201.001, 201.003,201 .004 and 201.005. It provides that you now must object to an associate judge presiding at a jury trial which means an associate judge can now preside over a jury trial. It also allows an associate judge to hear a termination case. A court reporter must be provided if an associate judge hears a jury trial or termination case. You may not demand a second jury on appeal from the associate judge's jury trial. (It appears you can appeal from a jury trial presided over by an Associate Judge). This Act takes effect on September 1, 1999, but it is not clear if it applies to associate judges assigned before September 1, 1999 or only after that date.

X. HB 3272

Amends Chapter 201 to provide for a "child support court monitor" for each child support master (IV-D Master) who will monitor compliance with probation terms in enforcement cases and help an unemployed obligor find a job. This Amendment becomes effective on September 1, 1999.

Y. SB 391

Amends §203.004(a) to allow a domestic relations office to provide an informal forum, not only to mediate disputes, but to structure an agreed repayment schedule for delinquent child support as an alternative to filing a suit to enforce. It also gives the DRO records from the Texas Workforce Commission and "new hires" records permitted by Federal law. It is effective on September 1, 1999.

Z. HB 1622

This bill started out as a Texas Department of Protective and Regulatory Services bill and it amends several relevant code sections applying to that department. It now contains other amendments which, among other things, give standing to file a SAPCR to a person with actual care or custody at least six months during a 12-month period ending not more than 90 days before the filing of the suit. It also cleans up the temporary restraining order/temporary injunction conflicts to clarify that such orders need not include a trial setting, as well as provides for fees for an attorney ad litem (and removes from the code any provision authorizing the payment of Guardian Ad Litem fees) and establishes as a requirement of an attorney ad litem that he or she be familiar with the statutes established by the ABA. It also lowers the age from 12 to 10 that a child must consent to a name change and may file a written choice for managing conservator (but not joint managing conservators) in an original or modification suit. It also adds a ground for modifying possession or rights and duties if a conservator has had a significant history of alcohol or drug abuse since the rendition of the order. Finally, it clarifies when a grandparent has or does not have standing to request visitation. This Bill becomes effective on September 1, 1999 and most of it applies to a suit filed on or after that date.

AA. HB 3838

Amends Chapter 262 that deals with procedures in a suit by a governmental entity to protect a child. It also provides a specific transfer provision in Chapter 262 suits. This applies to a Suit Affecting Parent Child Relationship filed on or after September 1, 1999. A child taken into possession before September 1, 1999 is governed by the law in effect on the date the suit was filed.

BB. HB 2208

This amends §264.4098 et.seq. to authorize the Attorney General to contract with a statewide organization to provide services to children's advocacy centers and to adopt standards for eligible local centers.

VI. OTHER LEGISLATION

A. SB 496

This amends §41.002 of the Property Code to expand an urban homestead to 10 acres (from one). It is the subject of a constitutional amendment to be voted on in November, and if that passes it will become effective on January 1, 2000.

B. SB 413

Provides for a "licensed marriage and family therapist associate" who would work under the supervision of a licensed therapist. It also increases the amount of training and experience the marriage and family therapist must have. This becomes effective on September 1, 1999.

C. SB 445

Establishes a Health Care Plan for low income children (18 years or younger, not covered by health benefits plan and income of less than 200% of federal poverty level). It uses the tobacco settlement funds to pay for this. The Health and Human Services Commission is to establish these benefits no later than September 1, 2000.

D. SB 1124

Amends Article 5.08 of Code of Criminal Procedures that a court may not refer a family violence prosecution to mediation or other ADR proceeding. This is effective September 1, 1999.

E. HB 3343

Amends §64.001 of the Civil Practice and Remedies Code to allow an appointment of a receiver by a Family Law court when a missing person's estate is in danger of injury, loss or waste or the missing person's estate needs a representative, but it does not take effect because of the nonsubstantive corrections of various codes enacted.

F. HB 955

Amends Chapter 402 of the Government Code to require the office of the Attorney General to provide notice of the name, telephone number and fax number of the Assistant Attorney General who is the attorney of record. It applies to each child support case handled by the Attorney General. It also requires notice of a change within 7 days. This applies to all cases on file on or after September 1, 1999.

G. HB 865

Amends Chapter 521 of the Transportation Code to require the Department of Transportation to issue a person a new driver's license number (or personal identification number) if that person has a court order stating that person has been a victim of domestic violence. This takes effect on September 1, 1999.

H. HB 912

Amends §411.1285-6 of the Government Code to provide to a Domestic Relations officer doing a social study under Chapter 107, Family Code access to the criminal history of the party. This applies to social studies done on or after September 1, 1999.

I. HB 2124

Amends Article 17.292 of the Code of Criminal Procedure to provide that if a defendant is charged with an offense involving family violence that involves bodily injury or, use or exhibition of a deadly weapon, a magistrate may issue an order for emergency protection and may include a suspension of a license to carry a concealed handgun. It also provides for such a suspension of a license to carry a concealed handgun if a protective order is issued. This Act takes effect September 1, 1999.