The past legislative session produced significant changes to the Texas Family Code. There are changes to child support obligations, the impact of military deployment, communications with children, parenting plans, parenting coordinators, the burden of proof for economic reimbursement and more. Following is a summary of changes to the Texas Family Code, where the specific code sections are noted for easy reference. Bill references are also noted.

 

I. Child Support

Changes to Child Support Guidelines - Although the percentages per child for child support have not changed, the long-standing $6,000.00 cap on net resources when calculating child support has increased to $7,500.00. Tex. Fam. Code § 54.125, HB 448. Also, the cap on net resources will be adjusted every six years by the Office of the Attorney General, based on the consumer price index. Tex. Fam. Code § 154.125, HB 448.

Deduction for Health Insurance for a Child – When multiple children are covered under the same health insurance plan, the child support obligor receives a deduction for the obligor’s resources. The amount of the deduction is the cost of insuring the children divided by the number of children covered. Tex. Fam. Code § 154.062, HB 303.

Acceleration of Unpaid Child Support Obligation - When a child support obligor dies, the remaining unpaid balance of child support, through the month the child turns 18 years of age, becomes payable to the obligee through the obligor’s estate. Tex. Fam. Code §154.015, SB 617. The Texas Family Code sets out factors to consider when determining the amount of the remaining unpaid child support obligation when an obligor dies. Tex. Fam. Code §154.015(c), SB 617. The court shall render an order either terminating the child support obligation or render judgment in favor of the obligee, designated as the constructive trustee, in the amount of the unpaid child support obligation. Tex. Fam. Code § 154.015(d), SB 617. The obligee then has a claim against the deceased obligor’s estate for the unpaid child support and may present the claim as provided for in the Texas Probate Code. Tex. Fam. Code § 154.015(d), SB 617.

Life Insurance Policy to Cover Remaining Child Support Obligation - On a similar note, a court may now order a child support obligor to purchase life insurance that will satisfy the child support obligation under the child support order in the event of obligor’s death. Tex. Fam. Code § 154.016, SB 617.

School Attendance - The duty of a parent to pay child support still extends until a child graduates from high school; however, the legislature amended the statute which previously stated “until the end of the school year in which the child graduates” and clarified that this duty to pay child support remains until the child graduates, so long as the child complies with attendance requirements set out in the code. Tex. Fam. Code § 151.001, SB 228.

Enlistment of Child in Armed Forces - A conservator’s obligation to pay child support terminates on the date on which the child begins active service (as defined by 10 U.S.C. Section 101). Tex. Fam. Code § 154.006, SB 228.

Denial of License Renewal – A child support agency (the Office of the Attorney General) may provide notice to a licensing authority concerning an individual’s failure to pay child support of six months or more and request that the licensing agency deny renewal of the license until the child support obligor has: (1) paid all child support arrearages; (2) established satisfactory repayment schedule; (3) been granted an exemption in a court order; (4) successfully contested the denial of renewal of license through the review process by the child support agency. See Tex. Fam. Code § 232.0135, SB 228.

Modification of Health Care Coverage - Health insurance coverage is now included with the child support modification provision in the Texas Family Code and may now be modified if there is a material and substantial change in circumstances of the child or person affected by the order. Tex. Fam. Code § 156.401, SB 228.

Child Support Step-down Provision– The Texas Family Code now requires that an order for child support contain provisions for the change in child support obligation, per child support guidelines, when each child reaches emancipation. Tex. Fam. Code § 157.127, SB 228. Most lawyers have been doing this in their practice, but now the Code mandates having such a provision.

Retroactive Child Support – The court retains jurisdiction to hear an action for retroactive child support if the case is filed on or before the fourth anniversary of the child’s 18th birthday. Tex. Fam. Code § 154.131, SB 228.

Redirection of Child Support Payments - In cases that involve governmental entities (e.g. The Department of Family and Protective Services) or that fall under the juvenile justice code, a person having physical possession of the child for at least six months shall have the right to receive child support when a conservator of a child entitled to receive child support has voluntarily relinquished possession of the child, been incarcerated or sentenced to be incarcerated for at least 90 days, or relinquished primary possession of the child. Tex. Fam. Code § 156.409, SB 228.

 

II. Military Accommodations

The legislature acknowledged the effect that military deployment has on the function of the family unit and addressed some important issues for military parents.

Definition of “Military Deployment” - The Texas Family Code now defines “military deployment” as “…military duty ordered for a period of more than six months during which the person ordered to duty: (1) is not provided the option of being accompanied by the person’s child; and (2) is serving a location where access to the person’s child is not reasonably possible.” Tex. Fam. Code § 153.3161(a), SB 228. The definition of military deployment has been revised to no longer restricted to military assignments outside of the United States. See SB 228.

Designation of Alternate Person to Exercise Possession Periods with Child - Now a parent who does not have the exclusive right to determine the residence of a child and fits the definition of military deployment may designate a person to exercise his or her existing possession periods for the child. Tex. Fam. Code § 153.3161(b), SB 228. The legislature has changed what once was “limited possession of the child” to allowing the designated person to have all of the possession that the parent is allowed under the existing order, while the parent is under a “military deployment.” Tex. Fam. Code § 153.3161(b), SB 228. The previous limited possession during military deployment was limited to military parents deployed outside of the United States, which is no longer required. Tex. Fam. Code § 153.3161(b), SB 228. The designated individual is under the same provisions that the parent is under for possession of the child under the court order. Tex. Fam. Code § 153.3161(c)(3),(4), SB 228.

Modification of Orders based on Military Deployment - Although most courts have been acknowledging this fact, the legislature clarified that the military deployment of a conservator without the right to determine the residence of a child is a material and substantial change of circumstances sufficient to justify a modification of an existing order. Tex. Fam. Code § 155.105, SB 228.

 

III. Electronic Communications with Children

The legislature acknowledged the frequent and proficient use of electronic communication by children in this day and age in a new statute allowing courts to order communication between a child and the child’s conservator through “…communication facilitated by the use of any wired or wireless technology via the Internet or any other electronic media…[including] communications facilitated by the use of a telephone, electronic mail, instant messaging, videoconferencing, or webcam.” Tex. Fam. Code§ 153.015, SB 228. The electronic communication ordered by the court supplements a conservator’s possession periods, but is not a substitute for physical possession of the child where otherwise appropriate. Tex. Fam. Code§ 153.015(b), (d), SB 228. In determining whether to order such communication, the court considers if the communication is in the best interest of the child and if the necessary equipment is reasonably available. Tex. Fam. Code§ 153.015, SB 228. Further, the statute states that “[t]he court may not consider the availability of electronic communication as a factor in determining child support.” Tex. Fam. Code§ 153.015(d), SB 228.

 

IV. Parenting Plans

Elimination of Mandatory ADR in Parenting Plans - Of some recent controversy, the previous requirement for an alternative dispute resolution process to be stated in parenting plans has been eliminated. Tex. Fam. Code § 153.133(b), HB 555. The mandatory requirement that an agreed parenting plan must include an alternative dispute resolution procedure that the parties use before enforcing or modifying the terms of conservatorship has been amended. Now, it simply states that parties may agree to an alternative “dispute resolution process” which can include informal settlement conference. Tex. Fam. Code § 153.133(b), HB555.

Exception to Existing ADR Provisions in Parenting Plans - The legislature has provided exceptions to existing parenting plans that have a provision for dispute resolution prior to filing a case including: (1) modification of the parenting plan in an emergency, (2) modification of child support, (3) an allegation is made “…that the child’s present circumstances will significantly impair the child’s physical health or significantly impair the child’s emotional development; (4) enforcement of an order; or (5) a showing that an enforcement of a dispute resolution process requirement is precluded or limited by Section 153.0071 of the Texas Family Code. Tex. Fam. Code § 153.6031, HB555.

No More Temporary Parenting Plans - There is no longer a requirement that a litigant must provide a temporary parenting plan for temporary orders hearings. Tex. Fam. Code § 153.601(4); Tex. Fam. Code § 153.602, HB 555.

New Rules for Parenting Plans – The specific requirements of a parenting plan are eradicated, leaving only general guidelines for the parenting plan. Tex. Fam. Code § 153.601(4), HB 555; Tex. Fam. Code § 153.603, HB 555. The mandatory requirement of filing and serving a proposed parenting plan on or before the 30th day before trial is eliminated. Tex. Fam. Code § 153.603(c), HB 555.  The statute was changed from “shall” to “may,” removing the requirement for having a parenting plan before trial. Tex. Fam. Code § 153.603(c), HB 555.

No More Parenting Plans & Verified Income Statement in Modification Suits – The legislature repealed Section 153.604 of the Texas Family Code that required a proposed parenting plan and a verified income statement to be filed with modification pleadings and to be served upon the opposing party. See HB 555.

 

V. Parenting Coordinators

Confidentiality Rules - The parenting coordinator is under the same confidentiality rules as a mediator when the parenting coordinator is acting in an alternative dispute resolution capacity under Chapter 154 of the Civil Practice and Remedies Code. Tex. Fam. Code§ 153.0071, HB555.

Appointment of Parenting Coordinator – The appointment process for a parenting coordinator was refined somewhat by the legislature. The court must now hold a hearing, after proper notice, and make a finding that: (1) the case is a “high-conflict” case; or (2) there is good cause shown for the appointment of a parenting coordinator and the appointment is in the best interest of the minor child in the suit.” Tex. Fam. Code § 153.605(b), HB 555. Previously, if a party objected to the appointment of a parenting coordinator, the court had to make findings that: “the case is or is likely to become a high-conflict case; or (2) the appointment of a parenting coordinator is in the best interest of any minor child in the suit.” See HB 555. Therefore, this amendment limits the discretion of the court to appoint a parenting coordinator. Further, it more specifically defines a “high-conflict case” as “…a suit affecting the parent-child relationship in which the court finds that the parties have demonstrated an unusual degree of: (A) repetitiously resorting to the adjudicative process; (B) anger and distrust; and (C) difficulty in communicating about and cooperating in the care of their children.” Tex. Fam. Code § 153.601(2), HB 555. Although not a substantial change, it somewhat narrows the court’s discretion on the definition of a high-conflict case and when an appointment of a parenting coordinator is appropriate. 

Duties of Parenting Coordinators - A parenting coordinator’s duties are modified some. In addition to the previous duties, a parenting coordinator is to aid the parties in “understanding parenting plans and reaching agreements about parenting issues to be included in the parenting plan.” Tex. Fam. Code § 153.606(a)(7), HB 555. The duty to aid parties in “developing a parenting plan” was removed from the statute. See HB 555. The previous provision that stated a parenting coordinator “…may urge or suggest that the parties agree to minor temporary departures from a parenting plan if the parenting coordinator is authorized by the court to do so...” was deleted. See HB 555.  There is a new requirement that if an agreement is reached with the assistance of the parenting coordinator, the agreement must be written and signed by the parties, and the parties’ attorneys, and filed with the court. Tex. Fam. Code § 153.606(c), HB 555.

Removal of Parenting Coordinators - Now courts must remove a parenting coordinator if both parties agree to remove, or on motion of a party with good cause shown. Tex. Fam. Code § 153.607(b), HB 555.

Parenting Coordinator Report - The parenting coordinator’s report is limited to stating “…whether the parenting coordination should continue.” Tex. Fam. Code § 153.608, HB 555.  Previously, although the report was limited the parenting coordinator could give an opinion as to whether the parenting coordination is succeeding and should continue.

Payment of Parenting Coordinator & County Agencies - A court cannot appoint a parenting coordinator unless, after notice and hearing, the court finds that the parties have the ability to pay the fees of the parenting coordinator. Tex. Fam. Code § 153.609(a). HB 555. However, the court can now appoint a domestic relations office or a comparable county agency to act as a parenting coordinator. Tex. Fam. Code § 153.609(c), HB 555.

 

VI. Other Changes to the Texas Family Code

Offset to Reimbursement Claims - The legislature added a provision to the reimbursement statute stating that a party seeking “an offset to a claim for reimbursement has the burden of proof with respect to the offset.”Tex. Fam. Code § 3.408, SB 430.         

Standard Possession Order – Minor revisions were made to the Standard Possession Order. The Standard Possession Order now states that the Christmas break exchange will take place on December 28th at noon versus the previous December 26th at noon. Tex. Fam. Code § 153.314, HB 1864. The Standard Possession Order now also states that weekends in the summer begin at 6:00 p.m. on Friday and end on Sunday at 6:00 p.m., even if the visiting parent elects to have weekends begin at dismissal from school on Fridays and return to school on Monday mornings during the school year. Tex. Fam. Code § 153.312(a)(1), HB 1864.

 Assisted Reproduction Rules – The Texas Family Code now provides for an unmarried sperm donor to be the father of the child if the donor intends to be the father of the resulting child, provides sperm to a licensed physician, and consents to the use of the sperm for assisted reproduction by an unmarried woman. Tex. Fam. Code §§ 160.102, 160.7031, SB 228. The consent of the unmarried man, sperm donor, must be signed by the man and woman and kept by the licensed physician. Tex. Fam. Code § 160.7031, SB 228.  Regarding embryo agreements, the Texas Family Code now requires, in the event of a divorce, that a former spouse’s consent be valid only if “kept by a licensed physician.” Tex. Fam. Code § 160.706, SB 228.

Standing – The legislature expanded the scope for standing to file an original suit requesting managing conservatorship beyond just grandparents to other relatives, related within the third degree of consanguinity. Tex. Fam. Code § 102.004(a), SB 758. Also, in termination and adoption cases, an adult who has adopted a sibling or is a foster parent and has petitioned to adopt a sibling now has standing to file an original suit requesting only an adoption or for termination of the child. Tex. Fam. Code § 102.006(c), SB 758.

Time to Appeal Associate Judge’s Ruling – A party now has seven days to appeal an associate judge’s ruling, which more than doubles the former three day time period to file an appeal. Tex. Fam. Code § 201.015, HB 1995.

Health Insurance – The definition of “reasonable cost” of health insurance was changed from 10 percent of a parent’s monthly income to nine percent of a parent’s annual resources. Tex. Fam. Code § 154.181, SB 303. A wage withholding order may be issued for health insurance. Tex. Fam. Code § 154.183, SB 303.

Premarital Education Course – The legislature revised the requirements for the premarital education course, extending it to an eight-hour course from the previous four-hour course, changed the topics, and changed requirements for instructors. See Tex. Fam. Code§ 2.013, HB 2685. The legislature added the premarital education class as another exception to the 72 hour waiting period to get married after issuance of marriage license. Tex. Fam. Code § 2.204, HB 2685. The bypass of the 72 hour waiting period applies to individuals who have completed a premarital education course within a year of application for a marriage license. Tex. Fam. Code § 2.204, HB 2685.

Attorney Ad Litems – This amendment states that courts may allow Attorney Ad Litems to meet with the child or other relevant individuals by telephone or video conference. Tex. Fam. Code § 107.004(e), HB 1972. This enables Attorney Ad Litems to more easily satisfy the requirement to meet with the child and with the individual with whom the child resides prior to each hearing. See Tex. Fam. Code § 107.004(d).

Marriage to a Minor - The legislature repealed Section 6.101 of the Texas Family Code that set out provisions when a court could grant an annulment of a licensed marriage of a person under 16 years of age. See SB 432. The legislature also amended Section 6.205 which previously stated that “A marriage is void if either party to the marriage is younger than 16 years of age.” Section 6.205 now states that “[a] marriage to a person under the age of 16 is void, unless a court order has been obtained under Section 2.103.” Tex. Fam. Code § 6.205, SB 432.

Release of Information from State Case Registry – Parties are ordered to keep the state case registry in Austin, Texas informed of their current address and employment information. This new statute allows specific individuals and agencies to obtain this information including: “…(1) any party to the proceeding; (2) an amicus attorney; (3) an attorney ad litem; (4) a friend of the court; (5) a guardian ad litem; (6) a domestic relations office; (7) a prosecuting attorney or juvenile court acting in a proceeding under Title 3; or (8) a governmental entity or court acting in a proceeding under Chapter 262.” Tex. Fam. Code§ 234.012, SB 228.

Probate Code Change that Impacts Matrimonial Law – Although not a change to the Texas Family Code, there is an important change to the Texas Probate Code that affects the practice of family law. The Texas Probate Code now allows an “interested person” to file an application to declare a marriage void when a decedent dies within the first three years of marriage and lacked mental capacity. Tex. Probate Code§ 47A, HB 391. If brought within one year of the date of decedent’s death, this application to declare the marriage void may be brought in the court in which probate or heirship proceedings are pending.Tex. Probate Code§ 47A, HB 391.

 

V. Conclusion

Although most of the significant changes to the Texas Family Code are mentioned in this article, not every change enacted by the 80th Legislative Session is included. For more information, you should refer to the Texas Legislature Online website at www.capitol.state.tx.us. For more information on how you can participate in the drafting and passage of family law legislation in the next session, contact the Texas Family Law Foundation at www.texasfamilylawfoundation.com. This organization is dedicated to ensuring that family lawyers have a voice in legislation that affects Texas family law.

 

Lauren E. Waddell is an associate with Joseph Indelicato, Jr., P.C., where she practices family law. She is a 1998 graduate of Baylor University and earned her law degree in 2002 from South Texas College of Law.