Bill Text: TX HB483 | 2011-2012 | 82nd Legislature | Introduced
Bill Title: Relating to genetic testing in the determination of parentage and to a proceeding to vacate an order of paternity or child support.
Spectrum: Partisan Bill (Democrat 1-0)
Status: (Introduced - Dead) 2011-02-17 - Referred to Judiciary & Civil Jurisprudence [HB483 Detail]
Download: Texas-2011-HB483-Introduced.html
82R2886 KSD-F | ||
By: Dutton | H.B. No. 483 |
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relating to genetic testing in the determination of parentage and | ||
to a proceeding to vacate an order of paternity or child support. | ||
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS: | ||
SECTION 1. Section 102.008, Family Code, is amended by | ||
amending Subsection (b) and adding Subsection (c) to read as | ||
follows: | ||
(b) The petition must include: | ||
(1) a statement that the court in which the petition is | ||
filed has continuing, exclusive jurisdiction or that no court has | ||
continuing jurisdiction of the suit; | ||
(2) the name and date of birth of the child, except | ||
that if adoption of a child is requested, the name of the child may | ||
be omitted; | ||
(3) the full name of the petitioner and the | ||
petitioner's relationship to the child or the fact that no | ||
relationship exists; | ||
(4) the names of the parents, except in a suit in which | ||
adoption is requested; | ||
(5) the name of the managing conservator, if any, or | ||
the child's custodian, if any, appointed by order of a court of | ||
another state or country; | ||
(6) the names of the guardians of the person and estate | ||
of the child, if any; | ||
(7) the names of possessory conservators or other | ||
persons, if any, having possession of or access to the child under | ||
an order of the court; | ||
(8) the name of an alleged father of the child or a | ||
statement that the identity of the father of the child is unknown; | ||
(9) a full description and statement of value of all | ||
property owned or possessed by the child; | ||
(10) a statement describing what action the court is | ||
requested to take concerning the child and the statutory grounds on | ||
which the request is made; [ |
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(11) notice to an alleged or presumed father of the | ||
child, if any, of the right to request paternity testing; and | ||
(12) any other information required by this title. | ||
(c) The notice described by Subsection (b)(11) must include | ||
the following statement printed in boldfaced type, in capital | ||
letters, or underlined: | ||
"YOU HAVE THE RIGHT TO REQUEST GENETIC TESTING TO DETERMINE | ||
THE PARENTAGE OF THE CHILD NAMED IN THIS SUIT. YOUR REQUEST FOR | ||
GENETIC TESTING MUST BE IN WRITING AND FILED WITH THE CLERK OF THE | ||
COURT IN WHICH THIS SUIT IS FILED. ANY ALLEGED OR PRESUMED FATHER | ||
WHO DOES NOT REQUEST GENETIC TESTING SHALL BE BARRED FROM BRINGING | ||
AN ACTION TO VACATE A CHILD SUPPORT ORDER OR A PARENTAGE ORDER." | ||
SECTION 2. Chapter 105, Family Code, is amended by adding | ||
Section 105.0035 to read as follows: | ||
Sec. 105.0035. PATERNITY TESTING. (a) In an original suit | ||
affecting the parent-child relationship, the court shall order | ||
genetic testing on the request of an alleged or presumed father. | ||
(b) Except as provided by Subsection (e), a court may not | ||
render in a suit affecting the parent-child relationship a child | ||
support order, an order finding paternity, or an order for | ||
possession of or access to a child unless the court finds that the | ||
man named as the father in the suit: | ||
(1) is, based on court-ordered genetic testing that | ||
complies with Section 160.503, rebuttably identified as the father | ||
of the child in accordance with Section 160.505(a); | ||
(2) is an adoptive parent of the child; | ||
(3) was served with notice of the suit, including the | ||
notice required by Section 102.008(b)(11), and failed to answer the | ||
suit; | ||
(4) was ordered by the court to submit to genetic | ||
testing under Chapter 160 and failed to comply with the court's | ||
order; | ||
(5) is the presumed father of the child and the man | ||
does not deny paternity as an affirmative defense; or | ||
(6) has filed an affidavit acknowledging paternity. | ||
(c) If the court makes a finding under Subsection (b), the | ||
court may render an order declaring the man to be the biological | ||
father of the child. The man may not challenge the adjudication of | ||
paternity based on a finding under Subsections (b)(1) through (5) | ||
in a subsequent proceeding under Subchapter J, Chapter 160, unless: | ||
(1) the court entered a default judgment against the | ||
man; and | ||
(2) the man was served notice of the suit by | ||
publication. | ||
(d) Payment of the costs of genetic testing under this | ||
section is governed by Chapter 160. | ||
(e) The court may render a temporary order for child support | ||
to be paid by a presumed father pending the outcome of a genetic | ||
test to determine paternity. | ||
SECTION 3. Chapter 160, Family Code, is amended by adding | ||
Subchapter J to read as follows: | ||
SUBCHAPTER J. PROCEEDINGS TO VACATE COURT ORDER | ||
Sec. 160.801. SUIT TO VACATE COURT ORDER. (a) A person | ||
identified in a court order as the father of a child may file a | ||
petition not later than the child's 18th birthday requesting the | ||
court to vacate a court order that: | ||
(1) states that the person identified in the order as | ||
the father of the child is the father of the child identified in the | ||
motion; or | ||
(2) requires the person identified in the order as the | ||
father of the child to pay child support for the child. | ||
(b) The petition to vacate a court order must be accompanied | ||
by: | ||
(1) an affidavit stating: | ||
(A) facts that show the court order was obtained | ||
by fraud or material mistake of fact; or | ||
(B) that the person did not receive the notice | ||
required by Section 102.008(b)(11); and | ||
(2) a certified copy of the court order to be vacated. | ||
(c) The court may not grant a petition to vacate a court | ||
order under this section if the person identified in the court order | ||
as the father of the child: | ||
(1) is the child's adoptive father; | ||
(2) consented to assisted reproduction by his wife | ||
under Subchapter H; | ||
(3) was an intended father under a gestational | ||
agreement confirmed by a court under Subchapter I; or | ||
(4) filed the petition under this section after the | ||
180th day after the date the person received the results of a | ||
genetic test described by Section 160.802(b)(3). | ||
Sec. 160.802. GENETIC TESTING. (a) In a proceeding under | ||
this subchapter, if the court finds that the affidavit filed with | ||
the petition under Section 160.801 establishes a prima facie case | ||
that the court order was obtained by fraud or material mistake of | ||
fact, the court shall order the child and the person identified in | ||
the court order as the father of the child to submit to genetic | ||
testing not later than the 30th day after the date the order | ||
requiring genetic testing is rendered. | ||
(b) A person establishes a prima facie case that a court | ||
order was obtained by fraud or material mistake of fact if the | ||
person's affidavit states that the person: | ||
(1) was the presumed father of the child or was induced | ||
by representations made by the child's mother to believe that the | ||
person was the child's father; | ||
(2) at the time the court order was rendered, did not | ||
know that he was not the father of the child; and | ||
(3) took a genetic test after the date the court order | ||
sought to be vacated was rendered that establishes that the person | ||
is not rebuttably identified as the father of the child in | ||
accordance with Section 160.505. | ||
(c) Genetic testing under this section is governed by | ||
Subchapter F. | ||
(d) If the affidavit filed with the petition does not | ||
establish a prima facie case, the court shall, on a motion by the | ||
respondent, dismiss the petition. | ||
Sec. 160.803. FAILURE TO SUBMIT TO GENETIC TEST. (a) If | ||
the person who has been awarded the exclusive right to designate the | ||
child's primary residence fails to allow the child to be | ||
genetically tested under Section 160.802, the court may suspend the | ||
legal obligation of the person identified in the court order as the | ||
father of the child to pay child support until the child is | ||
genetically tested. | ||
(b) If the person identified in the court order as the | ||
father of the child fails to submit to a genetic test ordered under | ||
Section 160.802, the court shall dismiss the person's petition to | ||
vacate with prejudice. | ||
Sec. 160.804. GROUNDS FOR VACATING ORDER. (a) Except as | ||
otherwise provided by this section, the court shall vacate an order | ||
described by Section 160.801(a) if the court finds that the court | ||
order was obtained by fraud or material mistake of fact, or that the | ||
person did not receive the notice required by Section | ||
102.008(b)(11), and the person identified in the court order as the | ||
father of the child: | ||
(1) was the presumed father of the child or was induced | ||
by representations made by the child's mother to believe that the | ||
person was the child's father; | ||
(2) at the time the order was rendered, did not know | ||
that he was not the father of the child; | ||
(3) based on genetic testing, is not rebuttably | ||
identified as the father of the child in accordance with Section | ||
160.505; | ||
(4) is not the child's adoptive parent; | ||
(5) is not the intended father of the child under a | ||
gestational agreement confirmed by a court under Subchapter I; and | ||
(6) did not consent to assisted reproduction by his | ||
wife under Subchapter H. | ||
(b) The court may not vacate an order under this section if | ||
the court finds that at any time the person identified in the court | ||
order as the father of the child knew that he was not the child's | ||
biological parent and: | ||
(1) consented to his name being entered as the child's | ||
biological father on the child's birth certificate; | ||
(2) was determined to be the child's father in a | ||
proceeding to determine parentage; or | ||
(3) filed an acknowledgment of paternity with the | ||
bureau of vital statistics. | ||
Sec. 160.805. POSSESSION ORDER; CHILD SUPPORT ARREARAGE. | ||
(a) If the court vacates a parentage or child support order in a | ||
proceeding under this subchapter and the person identified in the | ||
court order as the father of the child is also entitled under an | ||
order to the possession of or access to the child who is the subject | ||
of the vacated order, the court shall determine whether the | ||
possession order should be terminated, modified, or continued based | ||
on the best interest of the child. | ||
(b) If the court modifies or continues the possession order | ||
under Subsection (a), the person identified in the court order as | ||
the father of the child shall have the rights and duties provided by | ||
Section 153.074 during the period he has possession of the child. | ||
(c) If the court vacates a child support order under this | ||
subchapter and an arrearage exists under that child support order, | ||
the court may reduce the amount of the arrearage to zero. If the | ||
court eliminates an arrearage under this subsection, the court | ||
shall issue an order stating that the child support obligation, | ||
including any arrearage, is terminated. | ||
(d) The elimination of an arrearage under a child support | ||
order that is vacated as provided by this subchapter is for purposes | ||
of correcting an act induced by fraud or material mistake of fact | ||
and is not a retroactive modification. | ||
(e) If the court vacates a parentage order in a proceeding | ||
under this subchapter, the court may order: | ||
(1) the child or any party to participate in | ||
counseling with a licensed mental health professional who: | ||
(A) has a background in family therapy; and | ||
(B) holds a professional license that requires | ||
the person to possess at least a master's degree; and | ||
(2) any party to pay the cost of counseling. | ||
(f) If a person possessing the qualifications of Subsection | ||
(e)(1) is not available in the county in which the court presides, | ||
the court may appoint a person the court believes is qualified to | ||
conduct the counseling under Subsection (e). | ||
Sec. 160.806. ATTORNEY'S FEES AND COURT COSTS. If the court | ||
vacates a parentage order or a child support order in a proceeding | ||
under this subchapter, the court may award reasonable attorney's | ||
fees to the petitioner. If the court does not grant the petition to | ||
vacate a parentage order or a child support order under this | ||
subchapter, the court shall order the petitioner to pay the costs of | ||
the action and each opposing party's reasonable attorney's fees. | ||
SECTION 4. Section 233.028, Family Code, is amended by | ||
adding Subsection (a-1) and amending Subsection (b) to read as | ||
follows: | ||
(a-1) The notice described in Subsection (a) and sent to a | ||
man alleged to be the father of a child must include the following | ||
statement printed on the notice in boldfaced type, in capital | ||
letters, or underlined: | ||
"YOU HAVE THE RIGHT TO REQUEST GENETIC TESTING TO DETERMINE | ||
THE PARENTAGE OF A CHILD WHOSE PARENTAGE HAS NOT BEEN ESTABLISHED. | ||
THE TITLE IV-D AGENCY WILL PAY FOR THE COSTS OF THE GENETIC TESTING, | ||
BUT IF THE RESULTS OF THE TESTING IDENTIFY YOU AS THE BIOLOGICAL | ||
FATHER OF THE CHILD, YOU MAY BE REQUIRED TO REIMBURSE THE AGENCY FOR | ||
THOSE COSTS." | ||
(b) If all parties agree to the child's parentage, the | ||
agency may file an agreed child support review order as provided by | ||
this chapter. The agreed order must include a statement signed by | ||
the parties entitled to genetic testing in the case that the parties | ||
have waived their rights to request genetic testing. | ||
SECTION 5. (a) Section 233.028, Family Code, as amended by | ||
this Act, applies only to an administrative proceeding under | ||
Chapter 233, Family Code, for the determination of parentage | ||
commenced on or after the effective date of this Act. | ||
(b) If before implementing any provision of this Act the | ||
Title IV-D agency determines that a waiver or authorization from a | ||
federal agency is necessary for implementation of the change in law | ||
made by this Act, the agency shall request the waiver or | ||
authorization and may delay implementing that provision until the | ||
waiver or authorization is granted. | ||
(c) Except as provided by Subsection (d) of this section, | ||
Section 105.0035, Family Code, as added by this Act, and the change | ||
in law made by this Act to Section 102.008, Family Code, apply only | ||
to a suit affecting the parent-child relationship filed on or after | ||
the effective date of this Act. 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 the suit was filed, and the | ||
former law is continued in effect for that purpose. | ||
(d) In a proceeding under Subchapter J, Chapter 160, Family | ||
Code, as added by this Act, to vacate an order rendered in a suit | ||
affecting the parent-child relationship filed before the effective | ||
date of this Act, the court may not vacate the order on the ground | ||
that the alleged or presumed father did not receive the notice | ||
required by Section 102.008(b)(11), Family Code, as added by this | ||
Act. | ||
SECTION 6. This Act takes effect September 1, 2011. |