Family Law 2

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Procedural Issues - Jurisdiction and Child Support - Simultaneous Proceedings - Tex Code - When Jurisdiction does not exist

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§159.204. Simultaneous Proceedings

A tribunal of this state may not exercise jurisdiction to establish a support order if the petition or comparable pleading is filed before a petition or comparable pleading is filed in another state if

i. the petition or comparable pleading in the other state is filed before the expiration of the time allowed in this state for filing a responsive pleading challenging the exercise of jurisdiction by this state;

ii. the contesting party timely challenges the exercise of jurisdiction in this state; and

iii. if relevant, the other state is the home state of the child.

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Procedural Issues - Jurisdiction and Child Support - Simultaneous Proceedings - General

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The above rules apply when a crt is trying to establish an initial child support award.

§159.204(a) establishes when Texas has personal jurisdiction over a nonresident despite the fact that the pleading was filed in another state.

§159.204(b) specifies when Texas does not have personal jurisdiction over a nonresident even if a petition is filed in Texas before another state.

In the event Texas takes up jurisdiction of the proceeding, it must communicate with the other state’s court.

Default Rule – Home State of the Child
a. To resolve competing jurisdiction disputes, jurisdiction will occur in the home state of the child.
b. If the child has no home state, then the “first filing” will continue to control.

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Procedural Issues - Jurisdiction and Modification of Child Support Order

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To enter a modification of an already existing child support order, the following jurisdiction rules apply.

General Rule: An issuing tribunal retains continuing, exclusive jurisdiction over a child support order, except in very narrowly defined circumstances.

The basic concept of the general rule is that the tribunal issuing a support order retains continuing, exclusive jurisdiction to modify that order.

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Procedural Issues - Jurisdiction and Modification of Child Support Order - Important

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Even if all parties and the child support no longer reside in the State, the support order continues in existence and is fully enforceable unless and until a modification takes place in accordance with the requirements.

As long as one of the individual parties or the child continues to reside in the issuing state, and as long as the parties do not agree to a contrary arrangement, the issuing tribual has continuing, exclusive jurisdiction over its child support order – which means in practical terms that it may modify its order.

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Procedural Issues - Jurisdiction and Modification of Child Support Order - Tex Code

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§159.205. Continuing, Exclusive Jurisdiction to Modify Child Support Order

a. A tribunal of this state that has issued a child support order consistent with the law of this state has and shall exercise continuing, exclusive jurisdiction to modify its order if the order is the controlling order and:
i. at the time a request for modification is filed, this state is the state of residence of the obligor, the individual obligee, or the child for whose benefit the support order is issued; or
ii. the parties consent in a record or in open court that the tribunal of this state may continue to exercise jurisdiction to modify its order.

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Procedural Issues - Jurisdiction and Modification of Child Support Order - Tex Code - When Jurisdiction Does Not Exist

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§159.205. Continuing, Exclusive Jurisdiction to Modify Child Support Order

b. A tribunal of this state that has issued a child support order consistent with the law of this state may not exercise continuing, exclusive jurisdiction to modify the order if:
i. each party who is an individual files a consent in a record with the tribunal of this state that a tribunal of another state that has jurisdiction over at least one of the parties who is an individual or that is located in the state of residence of the child may modify the order and assume continuing, exclusive jurisdiction; or
ii. the order is not the controlling order.

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Procedural Issues - Jurisdiction and Modification of Child Support Order - Tex Code - Jurisdiction Of Other State

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§159.205. Continuing, Exclusive Jurisdiction to Modify Child Support Order

c. A tribunal of this state shall recognize the continuing, exclusive jurisdiction of a tribunal of another state if the tribunal of the other state has issued a child support order that modifies a child support order of a tribunal of this state under a law substantially similar to this chapter.

d. A tribunal of this state that does not have continuing, exclusive jurisdiction to modify a child support order may serve as an initiating tribunal to request a tribunal of another state to modify a support order issued in that state.

e. A temporary support order issued ex parte or pending resolution of a jurisdictional conflict does not create continuing, exclusive jurisdiction in the issuing tribunal.

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Procedural Issues - Enforcing the Controlling Order - Tex Code

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§159.206. Continuing Jurisdiction to Enforce Child Support Order

a. A tribunal of this state that has issued a child support order consistent with the law of this state may serve as an initiating tribunal to request a tribunal of another state to enforce:
i. the order, if the order:
1. is the controlling order; and
2. has not been modified by a tribunal of another state that assumed jurisdiction under the Uniform Interstate Family Support Act; or
ii. a money judgment for support arrearages and interest on the order accrued before a determination that an order of another state is the controlling order.
b. A tribunal of this state having continuing jurisdiction over a support order may act as a responding tribunal to enforce the order.

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Procedural Issues - Determining the Controlling Order - Tex Code

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§159.207. Determination of Controlling Child Support Order

a. If a proceeding is brought under this chapter and only one tribunal has issued a child support order, the order of that tribunal controls and must be so recognized.
b. If a proceeding is brought under this chapter and two or more child support orders have been issued by tribunals of this state or another state with regard to the same obligor and same child, a tribunal of this state having personal jurisdiction over both the obligor and individual obligee shall apply the following rules to determine by order which order controls:
i. if only one of the tribunals would have continuing, exclusive jurisdiction under this chapter, the order of that tribunal controls and must be so recognized;
ii. if more than one of the tribunals would have continuing, exclusive jurisdiction under this chapter:
1. an order issued by a tribunal in the current home state of the child controls if an order is issued in the current home state of the child; or
2. the order most recently issued controls if an order has not been issued in the current home state of the child; an
iii. if none of the tribunals would have continuing, exclusive jurisdiction under this chapter, the tribunal of this state shall issue a child support order that controls.

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Adoption - Introduction

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a. Adoption is the legal process of creating a parent-child relationship.

b. By adoption, an individual acquires a new parent (or parents).

c. The adoption process terminates the legal rights and responsibilities (i.e. custody, support) of the natural parent(s) and creates new legal rights and responsibilities in the adoptive parents. The adoption

d. There must be a complete severance of the legal relationship between the child and both natural parents if living.

e. Exception: For a stepparent-spouse to adopt a child, the natural parent-spouse does not have to terminate his/her parent-child relationship.

f. The termination may either be involuntary or voluntary.

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Adoption - Involuntary Adoption

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Involuntary adoption occurs when a biological parent may have his or her parental rights terminated judicially because of some act of misconduct

§161.001 – Involuntary Termination of Parent-Child Relationship
i. This section outlines a number of reasons why a court may terminated a parent-child relationship.
ii. A reason for involuntary termination must be established by clear and convincing evidence.
iii. A finding of any of the listed reasons and a determination that termination is in the best interest of the child meets the requirements for involuntary termination.

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Adoption - Voluntary Adoption - General

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Voluntary Adoption occurs when a biological parent chooses to relinquish a child for adoption.

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Adoption - Voluntary Adoption - Affidavit

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Affidavit of Voluntary Relinquishment
i. A parent who chooses to give their child up for adoption must file an affidavit of voluntary relinquishment.

ii. Texas courts require strict compliance with the statute.

iii. §161.103. Affidavit of Voluntary Relinquishment of Parental Rights
1. An affidavit for voluntary relinquishment of parental rights must be:
a. signed after the birth of the child, but not before 48 hours after the birth of the child, by the parent, whether or not a minor, whose parental rights are to be relinquished;
b. witnessed by two credible persons; and
c. verified before a person authorized to take oaths.
2. The affidavit must contain
a. the names and addresses of both parents
b. The parents whose rights are being relinquished must give either
i. The name and address of the other parent,
ii. A statement that the other parent’s rights have been terminated by death or court order, or
iii. A statement that the child has no presumed father and that an affidavit of status of the child has been executed.
3. The mother’s affidavit verifies there is no father if applicable.

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Adoption - Voluntary Adoption - Affidavit
- Tex Code

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§161.103. Affidavit of Voluntary Relinquishment of Parental Rights
1. An affidavit for voluntary relinquishment of parental rights must be:
a. signed after the birth of the child, but not before 48 hours after the birth of the child, by the parent, whether or not a minor, whose parental rights are to be relinquished;
b. witnessed by two credible persons; and
c. verified before a person authorized to take oaths.
2. The affidavit must contain
a. the names and addresses of both parents
b. The parents whose rights are being relinquished must give either
i. The name and address of the other parent,
ii. A statement that the other parent’s rights have been terminated by death or court order, or
iii. A statement that the child has no presumed father and that an affidavit of status of the child has been executed.
3. The mother’s affidavit verifies there is no father if applicable.

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Adoption - Voluntary Adoption - Alleged Fathers

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1. An alleged father does not have to sign an affidavit of voluntary relinquishment.
2. However, there is a risk that an alleged father may assert his interest in creating a legal relationship.
3. To ensure an alleged father does not have the potential to raise a challenge to an adoption procedure, §161.002 outlines the necessary steps to provide notice to the alleged father.

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Adoption - Voluntary Adoption - Alleged Fathers - Tex Code

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§161.002. Termination of the Rights of an Alleged Biological Father
a. The procedural and substantive standards for termination of parental rights apply to the termination of the rights of an alleged father.
b. The rights of an alleged father may be terminated if:
i. after being served with citation, he does not respond by timely filing an admission of paternity or a counterclaim for paternity under Chapter 160;
ii. he has not registered with the paternity registry under Chapter 160, and after the exercise of due diligence by the petitioner:
1. his identity and location are unknown; or
2. his identity is known but he cannot be located; or
iii. he has registered with the paternity registry under Chapter 160, but the petitioner's attempt to personally serve citation at the address provided to the registry and at any other address for the alleged father known by the petitioner has been unsuccessful, despite the due diligence of the petitioner.

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Adoption - Voluntary Adoption - Paternal Registry

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If a man fails to file with the paternal registry, he will not be served with citation in the event the woman does not remember his name.

§160.401. Establishment of Registry
i. A registry of paternity is established in the bureau of vital statistics

§160.402. Registration for Notification
i. Except as otherwise provided by Subsection (b), a man who desires to be notified of a proceeding for the adoption of or the termination of parental rights regarding a child that he may have fathered may register with the registry of paternity:
1. before the birth of the child; or
2. not later than the 31st day after the date of the birth of the child.
ii. A man is entitled to notice of a proceeding described by Subsection (a) regardless of whether he registers with the registry of paternity if:
1. a father-child relationship between the man and the child has been established under this chapter or another law; or
2. the man commences a proceeding to adjudicate his paternity before the court has terminated his parental rights.
iii. A registrant shall promptly notify the registry in a record of any change in the information provided by the registrant. The bureau of vital statistics shall incorporate all new information received into its records but is not required to affirmatively seek to obtain current information for incorporation in the registry.

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Adoption - Voluntary Adoption - Who May Adopt

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a. A parent who has had their rights terminated is ineligible to adopt that child at a later time.
b. Married couples must adopt a child together. If an adoptive parent is married, then his/her spouse must adopt the child as well. One married spouse cannot adopt a child individually without the other spouse’s involvement.
c. Single parents may adopt.

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Adoption - Voluntary Adoption - Reporting Procedures

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a. The Texas Family Code sets out a number of requirements that adoptive parents must meet.
b. Pre Adoptive Home Screening and Post Placement Report
i. Adoptive parents must undergo a pre-adoptive home screening and post-placement report.
ii. Only the court may waive any requirements of the screening and report procedures.

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Adoption - Voluntary Adoption - Reporting Procedures - Health, Social, Educational, and Genetic History Report

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Before placing a child for adoption, a report on the child’s available health, social, educational, and genetic history must be compiled.

The report must include a history of physical, sexual, or emotional abuse suffered by the child, if any.

The prospective parents are entitled to receive these reports as early as practicable before the first meeting with the child.

The purpose of the report is to give adoptive parents a health, social, educational, and genetic history of a child’s natural family.

However, the court may waive the report requirement if the natural parents could not be located and their absence results in insufficient information being available to compile the report.

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Adoption - Voluntary Adoption - Reporting Procedures - Contents of Health Report

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1. Child’s Health Status at the time of placement
2. Child’s Birth Information
3. Record of Immunizations
4. any examinations

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Adoption - Voluntary Adoption - Reporting Procedures - Contents of Social History

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1. relationship between child and natural parents
2. relationship between child and natural siblings
3. relationship between child and other natural relatives

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Adoption - Voluntary Adoption - Reporting Procedures - Contents of Genetic History

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1. medical history
2. health status at the time of placement
3. height, weight, eye and hair color
4. nationality and ethnic background
5. general levels of education
6. religious backgrounds
7. psychological, psychiatric, or social evaluations
8. criminal convictions

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Adoption - Voluntary Adoption - Reporting Procedures - Persons Entitled to Reports

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i. Prospective parents
ii. Managing conservator, guardian of the adopted child, or legal custodian of the adopted child
iii. The adopted child when he/she becomes an adult
iv. The surviving spouse of the adopted child
v. A progeny of the adopted child if the adopted child is dead and the progeny is an adult

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Adoption - Voluntary Adoption - Reporting Procedures - Criminal History Report for Adoptive Parents

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i. In an adoptive, the court shall order each person seeking to adopt the child to obtain that person’s own criminal history record information.
ii. This requirement cannot be waived.
iii. This requirement goes to the best interest of the child.

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Adoption - Voluntary Adoption - Residence with Petitioner

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a. The court may not grant an adoption until the child has resided with the petitioner for not less than six months.
b. The requirement may be waived.

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Adoption - Voluntary Adoption - Consent Requirement

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a. Unless the managing conservator is the petitioner, the written consent of a managing conservator to the adoption must be filed.
b. The court may waive the requirement of consent by the managing if the court finds that the consent is being refused or has been revoked without good cause.
c. A child of 12 years of age or older must consent to the adoption in writing or in court.

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Adoption - Voluntary Adoption - Direct or Collateral Attack

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a. The validity of an adoption order is not subject to attack after six months after the date the order was signed.
b. The validity of a final adoption is not subject to attack because a health, social, educational, and genetic history was not filed.

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Adoption - Voluntary Adoption - Attendance at Hearing

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a. An adoptive parent must attend the hearing.
b. If the joint petitioners are husband and wife and it would be unduly difficult for one of the petitioners to appear at the hearing, the court may waive the attendance of that petitioner if the other spouse is present.
c. A child to be adopted who is 12 years of age or older shall attend the hearing.
d. The court may waive this requirement if it is in the best interest of the child.

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Adoption - Voluntary Adoption - Selection Standards for Adoptive Parents

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The guiding standard in adoption is the best interest of the child.
b. Race
i. Race may be relevant, although not determinative, factor in the selection of an adoptive parent.
ii. Policy Debate
1. Race matching policies are the subject of a controversial policy debate.
2. Some commentators argue that limits on transracial adoption harm children by restricting th number of possible adoptive homes.
3. In contrast, others argue that transracial adoption results in the loss of children’s and the community’s racial and cultural heritage.
iii. Texas abolishes the use of race as a factor in placement.
c. Indian Child Welfare Act of 1978
i. Federal legislation dictates that Native-American origins are relevant in adoption.

ii. In 1978, Congress enacted the Indian Child Welfare Act, stemming from the concern that large numbers of Native-American children are being separated from their families and tribe through adoption or foster care.

iii. The Act provides that a Native-American child remain within the Native-American community whenever possible.

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Adoption - Voluntary Adoption - Effect of Adoption

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a. Establishes a parent-child relationship between the adoptive parent and child for all purposes
b. Entitled adopted child to inherit from and through the child’s adoptive parents

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Protective Orders and Family Violence - Historical Overview - Family Violence as a Societal Norm

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i. At common law, a husband had the right to hit his wife so long as it did not result in death.
ii. A husband could hit his wife with his hand or a stick, so long as it was no thicker than his thumb.
iii. A wife was barred from pursuing an action for assault or battery by the interspousal immunity doctrine.
iv. The women’s movement focused public attention on wife-beating and developed legislation surrounding family violence.
v. Currently, all states have legislation and case law that address spousal battery.

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Protective Orders and Family Violence - Historical Overview - Family Violence as a Criminal Offense

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i. A batterer may incur criminal liability for assault and/or battery.
ii. Many states have enacted mandatory arrest laws to shield themselves from potential liability from battered women, to address the complaints of activists and legislators, and to effectuate an alternative solution to the mediation process that poses dangers to abused spouses.

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Protective Orders and Family Violence - Historical Overview - Family Violence as a Civil Offense

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i. Most states have legislation providing for civil protection orders.
ii. Such temporary orders are issued ex parte (without notice to the batterer or an opportunity for a full adversary hearing).
iii. Restraining orders restrain a batterer from entering a dwelling or committing further acts of abuse.
iv. Orders of protection also permit awards of temporary custody and support of children and spousal support.
v. Following a full hearing, temporary orders may be made permanent.
vi. Constitutionality of Temporary Ex Parte Orders
1. While some cases have challenged these civil protection orders as a violation of due process, appellate courts have upheld their constitutionality.
2. Appellate courts reason that the legislation continues a reasonable means of achieving the state’s legitimate goal of preventing domestic violence.
3. Further, the process of obtaining a temporary ex parte order affords adequate procedural safeguards to the accused batterer because the decision is made by a neutral decision-maker who has grounds to justify the order.

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Protective Orders and Family Violence - Historical Overview - Civil Remedies in Texas

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i. The Texas Family Code provides for two types temporary ex parte orders: temporary protective orders and temporary restraining orders.
ii. Temporary Protective Orders
1. commonly used in domestic violence cases
2. a final order and appealable
3. issued without notice to the accused batterer
iii. Temporary Restraining Orders
1. commonly used in divorce and SAPCR cases
2. not a final order
3. may not appeal until final hearing occurs
4. Issued without notice to the accused
5. After a temporary restraining order is issued, then a hearing occurs and a temporary order or temporary injunction is issued. The accused is entitled to notice of this hearing. Then, a final hearing occurs, which is appealable.
6. Note: In divorce and SAPCR suits, property may be at dispute and the accused is entitled to due process (notice and an opportunity to be heard) when he/she is being deprived of their property.

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Protective Orders and Family Violence - Definitions - Family

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b. §71.003. Family
i. "Family" includes individuals related by consanguinity or affinity.
ii. It includes individuals who are former spouses of each other, individuals who are the parents of the same child, without regard to marriage, and a foster child and foster parent, without regard to whether those individuals reside together.

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Protective Orders and Family Violence - Definitions - Family Violence

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c. §71.004. Family Violence
i. "Family violence" means
1. an act by a member of a family or household against another member of the family or household that is intended to result in physical harm, bodily injury, assault, or sexual assault or that is a threat that reasonably places the member in fear of imminent physical harm, bodily injury, assault, or sexual assault, but does not include defensive measures to protect oneself;
2. abuse by a member of a family or household toward a child of the family or household; or
3. dating violence.

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Protective Orders and Family Violence - Definitions - Household

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d. §71.005. Household.
i. "Household" means a unit composed of persons living together in the same dwelling, without regard to whether they are related to each other.

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Protective Orders and Family Violence - Definitions - Member of a Household

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e. §71.006. Member of a Household
i. "Member of a household" includes a person who previously lived in a household.

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Protective Orders and Family Violence - Definitions - Dating Violence

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f. §71.0021. Dating Violence
i. The definition protects relationships where no household is involved.
ii. “Dating violence" means an act by an individual that is against another individual with whom that person has or has had a dating relationship and that is intended to result in physical harm, bodily injury, assault, or sexual assault or that is a threat that reasonably places the individual in fear of imminent physical harm, bodily injury, assault, or sexual assault, but does not include defensive measures to protect oneself.
iii. For purposes of this title, "dating relationship" means a relationship between individuals who have or have had a continuing relationship of a romantic or intimate nature. The existence of such a relationship shall be determined based on consideration of:
1. the length of the relationship;
2. the nature of the relationship; and
3. the frequency and type of interaction between the persons involved in the relationship.
iv. A casual acquaintanceship or ordinary fraternization in a business or social context does not constitute a "dating relationship."

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Protective Orders and Family Violence - When a Protective Order is Issued

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a. §81.001. Entitlement to a Protective Order
i. A court shall render a protective order as provided by Section 85.001(b) if the court finds that family violence has occurred and is likely to occur in the future.

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Protective Orders and Family Violence - Fees and Costs Associated With Protective Order

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a. The “No Fee” Requirement ensures any victim of family violence can obtain a protective order.
b. Note: Family Violence transcends all income classes.
c. §81.002 No Fee for Applicant – There is no fee for an applicant to file a protective order
d. §81.003 Fees and Costs Paid By Party Found to Have Committed Family Violence – The court shall require fees and costs to be paid by the party found to have committed family violence.
e. §81.004 Contempt for NonPayment of Fee – A party who is ordered to pay the fee and does not pay may be held in contempt.
f. §81.005 Attorney’s Fees – The court may assess that reasonable attorney fees should be paid by the party committing family violence.

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Protective Orders and Family Violence - Appeal

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g. §81.009. Appeal
i. A protective order rendered against a party in a suit for dissolution of a marriage may not be appealed until the time the final decree of dissolution of the marriage becomes a final, appealable order.
ii. A protective order rendered against a party in a suit affecting the parent-child relationship may not be appealed until the time an order providing for support of the child or possession of or access to the child becomes a final, appealable order.

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Protective Orders and Family Violence - Applying for a Protective Order

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a. §82.002. Who May File Application for a Protective Order
i. An adult member of the family or household may file an application for a protective order to protect the applicant or any other member of the applicant's family or household
ii. May be filed by an adult member of the dating relationship.
iii. Any adult may apply for a protective order to protect a child from family violence.
iv. May be filed for the protection of any person alleged to be a victim of family violence by
1. a prosecuting attorney; or
2. the Department of Protective and Regulatory Services.

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Protective Orders and Family Violence - Applying for a Protective Order - Contents of Application

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b. §82.004 Contents of Application
i. An application must state:
1. the name and county of residence of each applicant;
2. the name and county of residence of each individual alleged to have committed family violence;
3. the relationships between the applicants and the individual alleged to have committed family violence; and
4. a request for one or more protective orders.

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Protective Orders and Family Violence - Applying for a Protective Order - When May an Application be Filed - During Suit for Dissolution of Marriage or Suit Affective Parent-Child Relationship

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i. §82.005. Application Filed During Suit for Dissolution of Marriage or Suit Affecting Parent-Child Relationship
1. A person who wishes to apply for a protective order with respect to the person's spouse and who is a party to a suit for the dissolution of a marriage or a suit affecting the parent-child relationship that is pending in a court must file the application as required by Subchapter D, Chapter 85.

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Protective Orders and Family Violence - Applying for a Protective Order - When May an Application be Filed - After Dissolution of Marriage

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ii. §82.006. Application Filed After Dissolution of Marriage
1. If an applicant for a protective order is a former spouse of the individual alleged to have committed family violence, the application must include:
a. a copy of the decree dissolving the marriage; or
b. a statement that the decree is unavailable to the applicant and that a copy of the decree will be filed with the court before the hearing on the application.

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Protective Orders and Family Violence - Applying for a Protective Order - When May an Application be Filed - Filed Before Expiration of Previous Protective Order

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iii. §82.0085. Application Filed Before Expiration of Previously Rendered Protective Order
1. If an application for a protective order alleges that an unexpired protective order applicable to the respondent is due to expire not later than the 30th day after the date the application was filed, the application for the subsequent protective order must include:
a. a copy of the previously rendered protective order attached to the application or, if a copy of the previously rendered protective order is unavailable, a statement that the order is unavailable to the applicant and that a copy of the order will be filed with the court before the hearing on the application; and
b. a description of the threatened harm that reasonably places the applicant in fear of imminent physical harm, bodily injury, assault, or sexual assault.
2. The procedural requirements for an original application for a protective order apply to a protective order requested under this section.

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Protective Orders and Family Violence - Applying for a Protective Order - When May an Application be Filed - Application for Temporary Ex Parte Order

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d. §82.009. Application for Temporary Ex Parte Order
i. An application that requests the issuance of a temporary ex parte order under Chapter 83 must:
1. contain a detailed description of the facts and circumstances concerning the alleged family violence and the need for the immediate protective order; and
2. be signed by each applicant under an oath that the facts and circumstances contained in the application are true to the best knowledge and belief of each applicant.

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Protective Orders and Family Violence - Applying for a Protective Order - Confidentiality of Application

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e. §82.010. Confidentiality of Application
i. This section applies only in a county with a population of 3.4 million or more.
ii. Except as otherwise provided by law, an application for a protective order is confidential, is excepted from required public disclosure under Chapter 552, Government Code, and may not be released to a person who is not a respondent to the application until after the date of service of notice of the application or the date of the hearing on the application, whichever date is sooner.
iii. Except as otherwise provided by law, an application requesting the issuance of a temporary ex parte order under Chapter 83 is confidential, is excepted from required public disclosure under Chapter 552, Government Code, and may not be released to a person who is not a respondent to the application until after the date that the court or law enforcement informs the respondent of the court's order.

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Protective Orders and Family Violence - Applying for a Protective Order - Response By Respondent to Protective Order

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i. §82.021. Answer. A respondent may file an answer at any time before the hearing. A respondent is not required to file an answer to the application.
ii. §82.022. Request by Respondent for Protective Order
1. A respondent may file his own request for a protective order.
2. To apply for a protective order, a respondent to an application for a protective order must file a separate application.

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Protective Orders and Family Violence - Applying for a Protective Order - Notice of Application for Protective Order

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i. §82.043. Service of Notice of Application
1. Each respondent to an application for a protective order is entitled to service of notice of an application for a protective order.
2. An applicant for a protective order shall furnish the clerk with a sufficient number of copies of the application for service on each respondent.
3. Notice of an application for a protective order must be served in the same manner as citation under the Texas Rules of Civil Procedure, except that service by publication is not authorized.
4. Service of notice of an application for a protective order is not required before the issuance of a temporary ex parte order under Chapter 83.
5. The requirements of service of notice under this subchapter do not apply if the application is filed as a motion in a suit for dissolution of a marriage. Notice for the motion is given in the same manner as any other motion in a suit for dissolution of a marriage.

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Protective Orders and Family Violence - Temporary Ex Parte Order - General

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Temporary Ex Parte Order (Granted without notice to the accused)
a. This is an emergency temporary order.

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Protective Orders and Family Violence - Temporary Ex Parte Order - Requirements for Temporary Ex Parte Order

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b. §83.001. Requirements for Temporary Ex Parte Order
i. If the court finds from the information contained in an application for a protective order that there is a clear and present danger of family violence, the court, without further notice to the individual alleged to have committed family violence and without a hearing, may enter a temporary ex parte order for the protection of the applicant or any other member of the family or household of the applicant.
ii. In a temporary ex parte order, the court may direct a respondent to do or refrain from doing specified acts.

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c. §83.002. Duration of Order; Extension
i. 20 day expiration period
ii. A temporary ex parte order is valid for the period specified in the order, not to exceed 20 days.
iii. On the request of an applicant or on the court's own motion, a temporary ex parte order may be extended for additional 20-day periods.

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§83.006. Exclusion of Party from Residence
i. A person may only be excluded from the occupancy of the person's residence by a temporary ex parte order under this chapter if the applicant:
1. files a sworn affidavit that provides a detailed description of the facts and circumstances requiring the exclusion of the person from the residence; and
2. appears in person to testify at a temporary ex parte hearing to justify the issuance of the order without notice.
ii. Before the court may render a temporary ex parte order excluding a person from the person's residence, the court must find from the required affidavit and testimony that:
1. the applicant requesting the excluding order either resides on the premises or has resided there within 30 days before the date the application was filed;
2. the person to be excluded has within the 30 days before the date the application was filed committed family violence against a member of the household; and
3. there is a clear and present danger that the person to be excluded is likely to commit family violence against a member of the household.

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a. Chapter 84 discusses the time requirements for hearings.
b. Hearings must be set no later than the 14th day after the date the application for a protective order is filed (exception: temporary ex parte hearings)
c. The court cannot delay the hearing to consolidate the issue with another issue.
d. The prosecuting may ask for an extension to 20 days if the county is large. The request is granted on a case by case basis.
e. The applicant may request the court to reschedule the hearing if the respondent did not receive service of notice.
f. If the respondent receives notice within 48 hours of the time set for the hearing, then the court shall reschedule the hearing for a date no later than 14 days.

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§85.001 Required Findings and Orders
i. The court must make two findings: whether family violence has occurred and whether family violence is likely to occur in the future.
ii. If the court makes these two findings, then the court shall render
1. a protective order applying to the person found to have committed family violence and
2. a protective order applying to both parties

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b. §85.003 Separate Protective Orders Required – If both parties are issued a protective order, then the court must render separate orders.

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§85.005 Agreed Order
i. To facilitate settlement, the parties to a proceeding may agree in writing to the terms of a protective order as provided by Section 85.021. An agreement under this subsection is subject to the approval of the court.
ii. To facilitate settlement, a respondent may agree in writing to the terms of a protective order as provided by Section 85.022, subject to the approval of the court. The court may not approve an agreement that requires the applicant to do or refrain from doing an act under Section 85.022. The agreed order is enforceable civilly or criminally.
iii. Note: By coming to this agreement, a respondent may avoid the findings of family violence by the court.

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d. § 85.021. Requirements of Order Applying to Any Party
i. In a protective order, the court may:
1. prohibit a party from:
a. removing a child who is a member of the family or household from:
i. the possession of a person named in the order; or
ii. the jurisdiction of the court; or
b. transferring, encumbering, or otherwise disposing of property, other than in the ordinary course of business, that is mutually owned or leased by the parties;
2. grant exclusive possession of a residence to a party and, if appropriate, direct one or more parties to vacate the residence even if the residence is the respondent’s separate property due to the duty of obligation.
3. provide for the possession of and access to a child of a party if the person receiving possession of or access to the child is a parent of the child;
4. require the payment of support for a party or for a child of a party if the person required to make the payment has an obligation to support the other party or the child; or
5. award to a party the use and possession of specified property that is community property or jointly owned or leased property

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e. §85.022. Requirements of Order Applying to Person Who Committed Family Violence
i. A protective order may require the person found to have committed family violence to do a number of things that directly relate to prohibiting violence.
ii. This section lists a number of options that may be required.

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f. §85.025. Duration of Protective Order
i. The protective order is effective for the period stated in the order, not to exceed two years, or until the second anniversary of the date the order was issued if it does not state duration.

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g. §85.041. Delivery of Protective Order to Respondent
i. The protective order may be delivered to the respondent as provided by Rule 21a, Texas Rules of Civil Procedure:
1. served in the same manner as a writ of injunction; or
2. served in open court at the close of the hearing as provided by this section.
ii. The respondent must personally receive the order either in court when he attends the hearing OR he is served with notice of order personally or by mail.
iii. Note: The accused must be served with notice to attend a hearing when a protective order is request by an applicant and if the court issues a protective order, then the court must personally give the order to the accused or mail it to him. The accused does not have to be served with notice when applicant files for a temporary ex parte hearing, but when the order is issued, it must be either personally given to accused or mailed to him.

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i. A violation of a protective order results in imprisonment.
ii. The protective order is tied to the penal code.
iii. An applicant simply needs to call police when the respondent violates the protective order, and there is not requirement that police see violence. Simply standing on forbidding property is violating the protective order.

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Protective Orders and Family Violence - Effects of Family Violence on Custody - General

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i. Either by case law or statute, virtually all jurisdictions take into account domestic violence in child custody disputes.
ii. The majority of jurisdictions consider domestic violence as a factor in the application of the best interest standard. Legislation also requires courts to consider domestic violence before awarding joint custody.
iii. In a few states, domestic violence will not be considered unless violence has been directed at the child.

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i. §153.001 Public Policy
1. It is public policy of the state to
a. assure that children will have frequent and continuing contact with parents who have shown the ability to act in the best interest of the child;
b. provide a safe, stable, and nonviolent environment for the child; and
c. encourage parents to share in the rights and duties of raising their child after the parents have separated or dissolved their marriage.
ii. To enforce the public policy of the state, the court will examine any history of domestic when deciding conservatorship and custody.

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a. §153.004 History of Domestic Violence
In determining whether to appoint a party as a sole or joint managing conservator, the court shall consider evidence of the intentional use of abusive physical force by a party against the party's spouse, a parent of the child, or any person younger than 18 years of age committed within a two-year period preceding the filing of the suit or during the pendency of the suit.

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§153.004 History of Domestic Violence

ii. The court may not appoint joint managing conservators if credible evidence is presented of a history or pattern of past or present child neglect, or physical or sexual abuse by one parent directed against the other parent, a spouse, or a child, including a sexual assault in violation of Section 22.011 or 22.021, Penal Code, that results in the other parent becoming pregnant with the child. A history of sexual abuse includes a sexual assault that results in the other parent becoming pregnant with the child, regardless of the prior relationship of the parents. It is a rebuttable presumption that the appointment of a parent as the sole managing conservator of a child or as the conservator who has the exclusive right to determine the primary residence of a child is not in the best interest of the child if credible evidence is presented of a history or pattern of past or present child neglect, or physical or sexual abuse by that parent directed against the other parent, a spouse, or a child.

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§153.004 History of Domestic Violence

iv. The court may not allow a parent to have access to a child for whom it is shown by a preponderance of the evidence that there is a history or pattern of committing family violence during the two years preceding the date of the filing of the suit or during the pendency of the suit, unless the court
1. finds that awarding the parent access to the child would not endanger the child's physical health or emotional welfare and would be in the best interest of the child; and
2. renders a possession order that is designed to protect the safety and well-being of the child and any other person who has been a victim of family violence committed by the parent and that may include a requirement that:
a. the periods of access be continuously supervised by an entity or person chosen by the court;
b. the exchange of possession of the child occur in a protective setting;
c. the parent abstain from the consumption of alcohol or a controlled substance, as defined by Chapter 481, Health and Safety Code, within 12 hours prior to or during the period of access to the child; or
d. the parent attend and complete a battering intervention and prevention program as provided by Article 42.141, Code of Criminal Procedure, or, if such a program is not available, complete a course of treatment under Section 153.010.

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v. It is a rebuttable presumption that it is not in the best interest of a child for a parent to have unsupervised visitation with the child if credible evidence is presented of a history or pattern of past or present child neglect or physical or sexual abuse by that parent directed against the other parent, a spouse, or a child.

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a. Chapter 91 mandates who has a duty to report family violence if seen.
b. This section only mandates medical professionals to provide information regarding local shelters to patients they believe have been victims of family violence.
c. Medical professionals are not required to report family violence injuries to law enforcement unless the victim is a child, elderly or disabled person, or the injury involves a gunshot wound.
d. Medical professionals do have a duty to document the injuries (for possibly future use)
e. §91.001
i. Medical professional means any licensed doctor, nurse, physician assistant, or emergency medical technician.
f. §91.002. Reporting by Witnesses Encouraged
i. An person who witnesses family violence is encouraged to report the family violence to a local law enforcement agency.

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g. §91.003 Information Provided by Medical Professionals
i. A medical professional who treats a person for injuries that the medical professional has reason to believe were caused by family violence shall
1. immediately provide the person with information regarding the nearest family violence shelter center;
2. document in the person’s medical file
a. the fact that the person ahs received the infrimation provided, and
b. the reasons the medical professional believes that the person’s injuries were caused by family violence
3. give the person written notice with the required information: “It is a crime for any person to cause you any physical injury or harm even if that person is a member or former member of your family household.”

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g. §91.003 Information Provided by Medical Professionals
i. A medical professional who treats a person for injuries that the medical professional has reason to believe were caused by family violence shall
1. immediately provide the person with information regarding the nearest family violence shelter center;
2. document in the person’s medical file
a. the fact that the person ahs received the infrimation provided, and
b. the reasons the medical professional believes that the person’s injuries were caused by family violence
3. give the person written notice with the required information: “It is a crime for any person to cause you any physical injury or harm even if that person is a member or former member of your family household.”

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a. If there is a conviction for child abuse or family violence, then it provides cause to modify any previous orders the court may have issued.
b. A conviction for child abuse is a material and substantial change of circumstances (which is necessary to meet the standard of modifying orders)

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§156.104. Modification of Order on Conviction for Child Abuse (Chapter 156.104)
i. Except as provided by Section 156.1045, the conviction of a conservator, or an order deferring adjudication with regard to the conservator, for an offense involving the abuse of a child under Section 21.11, 22.011, or 22.021, Penal Code, is a material and substantial change of circumstances sufficient to justify a temporary order and modification of an existing court order or portion of a decree that provides for the appointment of a conservator or that sets the terms and conditions of conservatorship or for the possession of or access to a child.
ii. A person commits an offense if the person files a suit to modify an order or portion of a decree based on the grounds permitted under Subsection (a) and the person knows that the person against whom the motion is filed has not been convicted of an offense, or received deferred adjudication for an offense, under Section 21.11, 22.011, or 22.021, Penal Code. An offense under this subsection is a Class B misdemeanor.

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d. §156.1045. Modification of Order on Conviction for Family Violence
i. The conviction or an order deferring adjudication of a person who is a possessory conservator or a sole or joint managing conservator for an offense involving family violence is a material and substantial change of circumstances sufficient to justify a temporary order and modification of an existing court order or portion of a decree that provides for the appointment of a conservator or that sets the terms and conditions of conservatorship or for the possession of or access to a child to conform the order to the requirements of Section 153.004(d).
ii. A person commits an offense if the person files a suit to modify an order or portion of a decree based on the grounds permitted under Subsection (a) and the person knows that the person against whom the motion is filed has not been convicted of an offense, or received deferred adjudication for an offense, involving family violence. An offense under this subsection is a Class B misdemeanor.

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Protection of the Child - General

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a. Historically, child neglect was linked to poverty.
b. The state’s ability to intervene in the family in cases of abuse and neglect rests on the historical power of the government to protect children from harm.
c. The state must have a compelling justification in order to intervene in the family. Parents have a constitutional right to the care and custody of their children.
d. State intervention takes the form of either civil proceedings and or/ criminal proceedings.

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Protection of the Child - Federal Standards

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i. Standard for summary seizure or temporary custody: For summary seizure and assertions of temporary custody, courts require that the child be subject to immediate or threatened harm. This high standard is necessary in order to justify infringement on the constitutionally protected right of family privacy.
ii. Standard for Termination of Parental Rights: For termination of parental rights, courts require that the child must be subject to serious physical or emotional harm and less drastic measures must be unavailing.

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i. Courts must examine the nature of parental acts or conduct that constitutes abuse.
ii. Such acts or conduct include: battering, excessive, unreasonable discipline, religious practices, substance abuse, emotional and psychological abuse, and sexual abuse.

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i. Abuse includes a number of activities such as any physical (including sexual) or emotional injury.
ii. §261.001 - "Abuse" includes the any one of these laundry list items.

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i. Parent’s failure to provide adequate care for children.
ii. Statutes often include broad definitions of parental acts of misconduct or omission, allowing room for highly subjective determination of proper parenting.
iii. A parent has a duty to provide adequate care including special care if the child’s physical or mental condition requires it, even if the parent has limited financial resources. Failure to do so may result in a judicial determination that the child is neglected or abused.
iv. Emotional Neglect: Emotional neglect may also be a ground for intervention in the family. One form of such neglect in young children is the “failure to thrive” characterized by malnutrition and developmental retardation caused by the parent’s emotional rejection.
v. Potential Neglect: Courts sometimes declare children neglected (or abused) even though no parental misconduct or omission yet has occurred.
vi. §261.001 - "Neglect" includes any one these items in this laundry list.

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d. §261.101. Persons Required to Report Abuse
i. Any person having cause to believe that child abuse has occurred must report immediately.
ii. If a professional has cause to believe that a child has been abused, the professional must make a report within 48 hours the professional first suspects that the child has been or may be abused.
iii. A professional may not delegate to or rely on another person to make the report.
iv. Professional includes any individual who is licensed or certified by the state or who is an employee of a facility licensed, certified, or operated by the state and who, in the normal course of official duties or duties for which a license or certification is required, has direct contact with children. The term includes teachers, nurses, doctors, day-care employees, employees of a clinic or health care facility that provides reproductive services, juvenile probation officers, and juvenile detention or correctional officers
v. The requirement to report under this section applies without exception to an individual whose personal communications may otherwise be privileged, including an attorney, a member of the clergy, a medical practitioner, a social worker, a mental health professional, and an employee of a clinic or health care facility that provides reproductive services.
vi. Unless waived in writing by the person making the report, the identity of an individual making a report under this chapter is confidential and may be disclosed only to a law enforcement officer conducting the investigation.
vii. Note: There is no obligation to investigate suspicion of abuse. There is only a duty to report abuse if suspected.

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Protection of the Child - Immunities

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e. §261.106. Immunities – (Good Faith Standard)
i. A person acting in good faith who reports or assists in the investigation of a report of alleged child abuse or neglect or who testifies or otherwise participates in a judicial proceeding arising from a report, petition, or investigation of alleged child abuse or neglect is immune from civil or criminal liability that might otherwise be incurred or imposed.
ii. A person who reports the person's own abuse or neglect of a child or who acts in bad faith or with malicious purpose in reporting alleged child abuse or neglect is not immune from civil or criminal liability.

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f. §261.107. False Report; Criminal Penalty; Civil Penalty
i. A person commits an offense if, with the intent to deceive, the person knowingly makes a report as provided in this chapter that is false. An offense under this subsection is a state jail felony unless it is shown on the trial of the offense that the person has previously been convicted under this section, in which case the offense is a felony of the third degree.
ii. A finding by a court in a suit affecting the parent-child relationship that a report made under this chapter before or during the suit was false or lacking factual foundation may be grounds for the court to modify an order providing for possession of or access to the child who was the subject of the report by restricting further access to the child by the person who made the report.
iii. The person who is convicted of a false report offense may be ordered to pay any reasonable attorney's fees incurred by the person who was falsely accused of abuse or neglect in any proceeding relating to the false report
iv. The person convicted of a false report may be liable to the state for a civil penalty of $1,000.

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g. §261.108. Frivolous Claims Against Person Reporting
i. A court shall award a defendant reasonable attorney's fees and other expenses related to the defense of a claim filed against the defendant for damages or other relief arising from reporting or assisting in the investigation of a report under this chapter or participating in a judicial proceeding resulting from the report if:
1. the court finds that the claim is frivolous, unreasonable, or without foundation because the defendant is immune from liability under Section 261.106; and
2. the claim is dismissed or judgment is rendered for the defendant.
ii. To recover under this section, the defendant must, at any time after the filing of a claim, file a written motion stating that:
1. the claim is frivolous, unreasonable, or without foundation because the defendant is immune from liability under Section 261.106; and
2. the defendant requests the court to award reasonable attorney's fees and other expenses related to the defense of the claim.

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h. §261.109. Failure to Report; Penalty
i. A person commits an offense if the person has cause to believe that a child's physical or mental health or welfare has been or may be adversely affected by abuse or neglect and knowingly fails to report as provided in this chapter.
ii. An offense under this section is a Class B misdemeanor.

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i. §261.201 – Reports made are confidential. The person against whom the report is made has no right to see the report unless they allege the report is false.

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a. After the report is made, an investigation takes place by the Department of Protective Services. The Department either refers the case to the legal unit or to family preservation and a case worker is assigned to work with the family.
b. Chapter 262 authorizes police, juvenile probation officers, and caseworkers to take possession of a child in an emergency.
c. This may be done with either the prior approval of a judicial officer or without such order if the situation warrants immediate state intervention to rescue the child from dangerous circumstances.

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i. First, suit is filed by Department and sworn affidavit provides evidence child is in danger
ii. §262.101 Filing Petition Before Taking Possession of Child
1. An original suit filed by a governmental entity that requests permission to take possession of a child without prior notice and a hearing must be supported by an affidavit sworn to by a person with personal knowledge and stating facts sufficient to satisfy a person of ordinary prudence and caution that:
a. there is an immediate danger to the physical health or safety of the child or the child has been a victim of neglect or sexual abuse and that continuation in the home would be contrary to the child's welfare;
b. there is no time, consistent with the physical health or safety of the child, for a full adversary hearing under Subchapter C; and
c. reasonable efforts, consistent with the circumstances and providing for the safety of the child, were made to prevent or eliminate the need for the removal of the child.

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Second, the court must make certain findings before ordering removal.
§262.102 Emergency Order Authorizing Possession of Child
1. Before a court may, without prior notice and a hearing, issue a temporary restraining order or attachment of a child in a suit brought by a governmental entity, the court must find that:
a. there is an immediate danger to the physical health or safety of the child or the child has been a victim of neglect or sexual abuse and that continuation in the home would be contrary to the child's welfare;
b. there is no time, consistent with the physical health or safety of the child and the nature of the emergency, for a full adversary hearing under Subchapter C; and
c. reasonable efforts, consistent with the circumstances and providing for the safety of the child, were made to prevent or eliminate the need for removal of the child.
2. In determining whether there is an immediate danger to the physical health or safety of a child, the court may consider whether the child's household includes a person who has:
a. abused or neglected another child in a manner that caused serious injury to or the death of the other child; or
b. sexually abused another child.
3. If, based on the recommendation of or a request by the department, the court finds that child abuse or neglect has occurred and that the child requires protection from family violence by a member of the child's family or household, the court shall render a temporary order under Chapter 71 for the protection of the child. In this subsection, "family violence" has the meaning assigned by Section 71.004.
v. §262.103. Duration – A temporary order expires after 14 days unless extended.

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i. Children may be taken before any legal proceedings occur due to the dangerous conditions.
ii. Who Can Remove Child Without Court Order
1. ANY PERSON: §262.003. A person who takes possession of a child without a court order is immune from civil liability if, at the time possession is taken, there is reasonable cause to believe there is an immediate danger to the physical health or safety of the child.
2. LAW ENFORCEMENT: § 262.004. A law enforcement officer or a juvenile probation officer may take possession of a child without a court order on the voluntary delivery of the child by the parent, managing conservator, possessory conservator, guardian, caretaker, or custodian who is presently entitled to possession of the child.

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iii. §262.104. Taking Possession of a Child In Emergency Without a Court Order
1. This provision is used frequently to remove child before a lawsuit for an order is filed.
2. If there is no time to obtain a temporary restraining order or attachment before taking possession of a child consistent with the health and safety of that child, an authorized representative of the Department of Family and Protective Services, a law enforcement officer, or a juvenile probation officer may take possession of a child without a court order under the following conditions, only:
a. on personal knowledge of facts that would lead a person of ordinary prudence and caution to believe that there is an immediate danger to the physical health or safety of the child;
b. on information furnished by another that has been corroborated by personal knowledge of facts and all of which taken together would lead a person of ordinary prudence and caution to believe that there is an immediate danger to the physical health or safety of the child;
c. on personal knowledge of facts that would lead a person of ordinary prudence and caution to believe that the child has been the victim of sexual abuse;

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iv. When the child is removed, then a petition must be filed.
v. §262.105. Filing a Petition After Taking Possession of Child In Emergency
1. When a child is taken into possession without a court order, the person taking the child into possession, without unnecessary delay, shall:
a. file a suit affecting the parent-child relationship;
b. request the court to appoint an attorney ad litem for the child; and
c. request an initial hearing to be held by no later than the first working day after the date the child is taken into possession.
2. If the Department is filing the suit, they must do so within 45 days.

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vi. §262.106. Initial Hearing After Taking Possession of Child in Emergency Without Court Order
1. A hearing must take place as soon as possible and the court shall render orders that are necessary to protect the child.
2. The initial hearing may be ex parte if proof that a full adversary hearing is not practicable.
3. If the hearing does not occur, the child shall be returned to the parent.

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vii. §262.107 Standard for Decision At Initial Hearing After Taking Possession of Child Without a Court Order in Emergency
1. The court shall order the return of the child at the initial hearing regarding a child taken in possession without a court order by a governmental entity unless the court is satisfied that:
a. there is a continuing danger to the physical health or safety of the child if the child is returned to the parent, managing conservator, possessory conservator, guardian, caretaker, or custodian who is presently entitled to possession of the child or the evidence shows that the child has been the victim of sexual abuse on one or more occasions and that there is a substantial risk that the child will be the victim of sexual abuse in the future;
b. continuation of the child in the home would be contrary to the child's welfare; and
c. reasonable efforts, consistent with the circumstances and providing for the safety of the child, were made to prevent or eliminate the need for removal of the child.
2. In determining whether there is a continuing danger to the physical health or safety of a child, the court may consider whether the household to which the child would be returned includes a person who has:
a. abused or neglected another child in a manner that caused serious injury to or the death of the other child; or
b. sexually abused another child.
viii. §262.109 – The Department must give written notice to each parent of the child when the child is removed from the house.

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i. A suit may be filed to remove the child from a home before the child is actually removed from the home. – THEY DON’T HAVE TO DO THIS
ii. §262.113. Filing Suit Without Taking Possession of Child
1. An original suit filed by a governmental entity that requests to take possession of a child after notice and a hearing must be supported by an affidavit sworn to by a person with personal knowledge and stating facts sufficient to satisfy a person of ordinary prudence and caution that:
a. reasonable efforts have been made to prevent or eliminate the need to remove the child from the child's home; and
b. allowing the child to remain in the home would be contrary to the child's welfare.

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g. §262.201 Full Adversarial Hearing
i. A full adversarial hearing must be held no later than 14 days after the child was taken into possession by the Department.
ii. At the end of the hearing, the court shall order the return of the child to either the parent, conservator, guardian, or caretaker unless the court makes 3 findings:
1. there was a danger to the physical health or safety of the child which was caused by an act or failure to act of the person entitled to possession and for the child to remain in the home is contrary to the welfare of the child;
2. the urgent need for protection required the immediate removal of the child and reasonable efforts, consistent with the circumstances and providing for the safety of the child, were made to eliminate or prevent the child's removal; and
3. reasonable efforts have been made to enable the child to return home, but there is a substantial risk of a continuing danger if the child is returned home.

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a. The state places children in foster care either because the children have been adjudicated abused, neglected, or dependent, or because parents voluntarily given the state custody of the children.
b. The purpose of foster care is to provide the child with a stable environment while preparing the child for the eventual return to the biological parent.
c. A juvenile court may order, as an alternative to foster care, that a child be returned to the custody of the parent if the parent meets various conditions.

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i. Chapter 263 provides for the judicial review of the circumstances of children under the care of the Texas Department of Protective and Regulatory Services to prevent children from being “lost in the welfare system.
ii. Legislation mandates a basic one-year deadline for lawsuits in which the state intervened in a family. This mandate attempts to accelerate the placement of children and not to allow them to languish in an unresolved status.
iii. The clock begins ticking on the date the court makes its temporary order appointing the Department as the child’s temporary managing conservator.
iv. If there is no final order by the one-year deadline, then the court may grant a one-time 6 month extension. After that, the case is dismissed.

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i. The Department shall file a service plan within 45 days after the court renders the temporary hearing order.
ii. § 263.102. Contents of Service Plan
1. The service plan must:
a. be specific;
b. be in writing in a language that the parents understand, or made otherwise available;
c. be prepared by the department or other agency in conference with the child's parents;
d. state appropriate deadlines;
e. state whether the goal of the plan is:
i. return of the child to the child's parents;
ii. termination of parental rights and placement of the child for adoption; or
iii. because of the child's special needs or exceptional circumstances, continuation of the child's care out of the child's home;
f. state steps that are necessary to:
i. return the child to the child's home if the placement is in foster care;
ii. enable the child to remain in the child's home with the assistance of a service plan if the placement is in the home under the department's or other agency's supervision; or
iii. otherwise provide a permanent safe placement for the child;

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i. A status review hearing must be held not later than 60 days after the Department is appointed as the managing conservator in the temporary hearings.
ii. After this, the court has only 30 days to hold an initial permanency hearing.
iii. §263.201 Status Hearing Time
1. Within 60 days after the court renders a temporary order appointing the Department as temporary managing conservator, the court shall hold a status hearing to review the child’s status and the service plan developed for the child.
iv. §263.202 Status Hearing Findings
1. The court shall make findings to ensure that all parties have been served.
2. The court reviews the goals of the service plan and ensures all parties are aware of them and capable of meeting them.
3. At this point, if the attorney needs to amend the service plan, he should do so now.

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i. Permanency Hearings are hearings held during the time that the Department has placed the child in temporary foster care.
ii. Many of these formalities ensure that the State is complying with all necessary provisions.

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iii. §263.301 – Notice
1. Notice of a permanency hearing shall be given as provided by Rule 21a, Texas Rules of Civil Procedure, to all persons entitled to notice of the hearing.
2. The following persons are entitled to at least 10 days' notice of a permanency hearing and are entitled to present evidence and be heard at the hearing:
a. the department;
b. the foster parent, preadoptive parent, relative of the child providing care, or director of the group home or institution where the child is residing;
c. each parent of the child;
d. the managing conservator or guardian of the child;
e. an attorney ad litem appointed for the child under Chapter 107;
f. a volunteer advocate appointed for the child under Chapter 107; and
g. any other person or agency named by the court to have an interest in the child's welfare.
3. If a person entitled to notice under Chapter 102 or this section has not been served, the court shall review the department's or other agency's efforts at attempting to locate all necessary persons and requesting service of citation and the assistance of a parent in providing information necessary to locate an absent parent

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iv. §263.302 Child’s Attendance at Hearing
1. The child shall attend each permanency hearing unless the court specifically excuses the child's attendance.
2. Failure by the child to attend a hearing does not affect the validity of an order rendered at the hearing.

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v. §263.3025 – Permanency Plan
1. The Department shall prepare a written permanency plan and give a copy to each person entitled to notice within 10 days of the first permanency hearing.

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vi. § 263.303. Permanency Progress Report
1. The Department shall file with the court and provide to each party a progress report.
2. The progress reports
a. Recommends that the suit either continue or be dismissed
b. Identify the date of dismissal
c. Provide that all parties have been served
d. evaluate the parties' compliance with temporary orders and with the service plan;

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vii. § 263.304. Initial Permanency Hearing
1. After the first full adversarial hearing, an initial permanency hearing must occur within at least 6 months.

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viii. §263.305 Subsequent Permanency Hearings
1. Any subsequent hearings before entry of a final order shall not be held later than 4 months after the date of the last permanency hearing.

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ix. §263.306 Permanency Hearings: Procedure
1. At the permanency hearing, the court may either
a. return the child to the parent or parents if the child's parent or parents are willing and able to provide the child with a safe environment and the return of the child is in the child's best interest;
b. place the child with a person or entity, other than a parent if the person or entity is willing and able to provide the child with a safe environment and the placement of the child is in the child's best interest
c. place the child in institutionalized care.

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x. §263.307. Factors Determining Best Interests of Child
1. The prompt and permanent placement of the child in a safe environment is presumed to be in the child's best interest
2. §263.307 lists the factors taken into consideration to determine the best interest of the child.

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§263.401(a) – Dismissal After One Year
1. Unless the court has rendered a final order or granted an extension, on the first Monday after the first anniversary of the date the court rendered a temporary order appointing the department as temporary managing conservator, the court shall dismiss the suit affecting the parent-child relationship filed by the department that requests termination of the parent-child relationship or requests that the department be named conservator of the child.

§263.401(b) – Extension
1. An extension may be provided if the court finds that extraordinary circumstances necessitate the child remaining in the temporary managing conservatorship of the department and that continuing the appointment of the department as temporary managing conservator is in the best interest of the child. If the court makes those findings, the court may retain the suit on the court's docket for a period not to exceed 180 days after the time described by Subsection (a).

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§263.501. Placement Review After Final Order
1. If the department has been named as a child's managing conservator in a final order that does not include termination of parental rights, the court shall conduct a placement review hearing at least once every six months until the child becomes an adult.
2. If the department has been named as a child's managing conservator in a final order that terminates a parent's parental rights, the court shall conduct a placement review hearing at least once every six months until the date the child is adopted or the child becomes an adult.

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§263.501. Placement Review After Final Order

3. Notice of a placement review hearing shall be given as provided by Rule 21a, Texas Rules of Civil Procedure, to each person entitled to notice of the hearing.
4. The following are entitled to not less than 10 days' notice of a placement review hearing
a. the department;
b. the foster parent, preadoptive parent, relative of the child providing care, or director of the group home or institution in which the child is residing;
c. each parent of the child;
d. each possessory conservator or guardian of the child;
e. the child's attorney ad litem and volunteer advocate, if the appointments were not dismissed in the final order; and
f. any other person or agency named by the court as having an interest in the child's welfare.
5. The court may dispense with the requirement that the child attend a placement review hearing.

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§263.502. Placement Review Report
1. Not later than the 10th day before the date set for a placement review hearing, the department or other authorized agency shall file a placement review report with the court and provide a copy to each person entitled to notice under Section 263.501(d).
2. For good cause shown, the court may order a different time for filing the placement review report or may order that a report is not required for a specific hearing.

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The placement review report must:
a. evaluate whether the child's current placement is appropriate for meeting the child's needs;
b. evaluate whether efforts have been made to ensure placement of the child in the least restrictive environment consistent with the best interest and special needs of the child if the child is placed in institutional care;
c. contain a discharge plan for a child who is at least 16 years of age that identifies the services and specific tasks that are needed to assist the child in making the transition from substitute care to adult living and describes the services that are available through the Preparation for Adult Living Program operated by the department;
d. evaluate whether the child's current educational placement is appropriate for meeting the child's academic needs;
e. identify other plans or services that are needed to meet the child's special needs or circumstances; and
f. describe the efforts of the department or authorized agency to place the child for adoption if parental rights to the child have been terminated and the child is eligible for adoption, including efforts to provide adoption promotion and support services as defined by 42 U.S.C. Section 629a and other efforts consistent with the federal Adoption and Safe Families Act of 1997 (Pub. L. No. 105-89).

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§263.503. Placement Review Hearings; Procedure
1. At each placement review hearing, the court shall determine whether:
a. the child's current placement is necessary, safe, and appropriate for meeting the child's needs, including with respect to a child placed outside of the state, whether the placement continues to be appropriate and in the best interest of the child;
b. efforts have been made to ensure placement of the child in the least restrictive environment consistent with the best interest and special needs of the child if the child is placed in institutional care;
c. the services that are needed to assist a child who is at least 16 years of age in making the transition from substitute care to independent living are available in the community;
d. other plans or services are needed to meet the child's special needs or circumstances;
e. the department or authorized agency has exercised due diligence in attempting to place the child for adoption if parental rights to the child have been terminated and the child is eligible for adoption; and
f. the department or authorized agency has made reasonable efforts to finalize the permanency plan that is in effect for the child.

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Termination of parental rights constitutes a final, irreversible severance of all legal rights and duties between a parent and child.
b. Termination Standard: The state may terminate the parent-child relationship only when the child is subjected to real physical or emotional harm and less drastic measures are unavailing.
c. Standard of Proof: The Supreme Court holds that Due Process requires that the standard of proof for termination of parental rights proceedings must be, at a minimum, clear and convincing evidence.

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A termination suit may be brought by
i. A private party
1. Examples: one parent against the other; a relative against a parent
ii. A Department
1. Examples: Child Protective Services, an Adoption Agency
iii. The State
1. intervention by the state to terminate allegedly culpable parents on grounds of abuse or neglect of a child

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e. Involuntary termination of parental rights may be based on a number of causes.
f. §161.001 includes a laundry list of causes/grounds for terminating one’s parental rights
g. 2 main requirements for involuntary termination of parental rights:
i. GROUNDS: clear and convincing evidence of a laundry list provision, and
ii. STANDARD: Best interest of child
h. Usually more than one ground is pleaded

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§161.001. Involuntary Termination of Parent-child Relationship
i. The court may order termination of the parent-child relationship if the court finds by clear and convincing evidence:
1. that the parent has:
a. voluntarily left the child alone or in the possession of another not the parent and expressed an intent not to return; (no time limit)
b. voluntarily left the child alone or in the possession of another not the parent without expressing an intent to return, without providing for the adequate support of the child, and remained away for a period of at least three months;
c. voluntarily left the child alone or in the possession of another without providing adequate support of the child and remained away for a period of at least six months; (theoretically, may leave with another parent)
Note
• Notice the differences between (a), (b), and (c): time limits; intent to return; whether child is left with someone else or other parent
• (A parent may provide adequate provisions for their child by placing the child with another family – leaving child with another family is not necessarily grounds for termination)
• (a), (b), and (c) may be used by a private individual to terminate another parent’s rights

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§161.001. Involuntary Termination of Parent-child Relationship

d. knowingly placed or knowingly allowed the child to remain in conditions or surroundings which endanger the physical or emotional well-being of the child;
e. engaged in conduct or knowingly placed the child with persons who engaged in conduct which endangers the physical or emotional well-being of the child;
Note
• (d) and (e) are very similar and usually decided together in pleading
f. failed to support the child in accordance with the parent's ability during a period of one year ending within six months of the date of the filing of the petition;
g. abandoned the child without identifying the child or furnishing means of identification, and the child's identity cannot be ascertained by the exercise of reasonable diligence;
h. voluntarily, and with knowledge of the pregnancy, abandoned the mother of the child beginning at a time during her pregnancy with the child and continuing through the birth, failed to provide adequate support or medical care for the mother during the period of abandonment before the birth of the child, and remained apart from the child or failed to support the child since the birth;

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§161.001. Involuntary Termination of Parent-child Relationship
i. contumaciously refused to submit to a reasonable and lawful order of a court under Subchapter D, Chapter 261; [FN1]
j. been the major cause of:
i. the failure of the child to be enrolled in school as required by the Education Code; or
ii. the child's absence from the child's home without the consent of the parents or guardian for a substantial length of time or without the intent to return;
k. executed before or after the suit is filed an unrevoked or irrevocable affidavit of relinquishment of parental rights as provided by this chapter;
l. been convicted or has been placed on community supervision, including deferred adjudication community supervision, for being criminally responsible for the death or serious injury of a child under the following sections of the Penal Code or adjudicated under Title 3 for conduct that caused the death or serious injury of a child and that would constitute a violation of one of the following Penal Code sections:
m. had his or her parent-child relationship terminated with respect to another child based on a finding that the parent's conduct was in

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§161.001. Involuntary Termination of Parent-child Relationship
Note:
• Must be done by CPS
• This previous termination must have been done by “clear and convincing” evidence
n. constructively abandoned the child who has been in the permanent or temporary managing conservatorship of the Department of Family and Protective Services or an authorized agency for not less than six months, and:
i. the department or authorized agency has made reasonable efforts to return the child to the parent;
ii. the parent has not regularly visited or maintained significant contact with the child; and
iii. the parent has demonstrated an inability to provide the child with a safe environment;
o. failed to comply with the provisions of a court order that specifically established the actions necessary for the parent to obtain the return of the child who has been in the permanent or temporary managing conservatorship of the Department of Family and Protective Services for not less than nine months as a result of the child's removal from the parent under Chapter 262 for the abuse or neglect of the child;
Note:
• Done by CPS

p. used a controlled substance, as defined by Chapter 481, Health and Safety Code, in a manner that endangered the health or safety of the child, and:
i. failed to complete a court-ordered substance abuse treatment program; or
ii. after completion of a court-ordered substance abuse treatment program, continued to abuse a controlled substance;
q. knowingly engaged in criminal conduct that has resulted in the parent's:
i. conviction of an offense; and
ii. confinement or imprisonment and inability to care for the child for not less than two years from the date of filing the petition;
Note:
• usually pleaded with (m) and possibly (t) if applicable

r. been the cause of the child being born addicted to alcohol or a controlled substance, other than a controlled substance legally obtained by prescription, as defined by Section 261.001;
s. voluntarily delivered the child to a designated emergency infant care provider under Section 262.302 without expressing an intent to return for the child; or
Note
• Baby Moses Provision
• No charges brought against parent unless evidence of abuse
t. been convicted of the murder of the other parent of the child under Section 19.02 or 19.03, Penal Code, or under a law of another state, federal law, the law of a foreign country, or the Uniform Code of Military Justice that contains elements that are substantially similar to the elements of an offense under Section 19.02 or 19.03, Penal Code; and
2. that termination is in the best interest of the child.

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§161.003. Involuntary Termination: Inability to Care for Child
i. The court may order termination of the parent-child relationship in a suit filed by the Department of Protective and Regulatory Services if the court finds that:
1. the parent has a mental or emotional illness or a mental deficiency that renders the parent unable to provide for the physical, emotional, and mental needs of the child;
2. the illness or deficiency, in all reasonable probability, proved by clear and convincing evidence, will continue to render the parent unable to provide for the child's needs until the 18th birthday of the child;
3. the department has been the temporary or sole managing conservator of the child of the parent for at least six months preceding the date of the hearing on the termination held in accordance with Subsection (c);\
4. the department has made reasonable efforts to return the child to the parent; and
5. the termination is in the best interest of the child.
ii. Immediately after the filing of a suit under this section, the court shall appoint an attorney ad litem to represent the interests of the parent against whom the suit is brought.
iii. A hearing on the termination may not be held earlier than 180 days after the date on which the suit was filed.
iv. An attorney appointed under Subsection (b) shall represent the parent for the duration of the suit unless the parent, with the permission of the court, retains another attorney.

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§161.004. Termination of Parental Rights After Denial of Prior Petition to Terminate
i. The court may terminate the parent-child relationship after rendition of an order that previously denied termination of the parent-child relationship if:
1. the petition under this section is filed after the date the order denying termination was rendered;
2. the circumstances (not act) of the child, parent, sole managing conservator, possessory conservator, or other party affected by the order denying termination have materially and substantially changed since the date that the order was rendered;
3. the parent committed an act listed under Section 161.001 before the date the order denying termination was rendered; and
4. termination is in the best interest of the child.
ii. At a hearing under this section, the court may consider evidence presented at a previous hearing in a suit for termination of the parent-child relationship of the parent with respect to the same child

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§ 161.006. Termination After Abortion
i. A petition requesting termination of the parent-child relationship with respect to a parent who is not the petitioner may be granted if the child was born alive as the result of an abortion.
ii. In this code, "abortion" means an intentional expulsion of a human fetus from the body of a woman induced by any means for the purpose of causing the death of the fetus.
iii. The court or the jury may not terminate the parent-child relationship under this section with respect to a parent who:
1. had no knowledge of the abortion; or
2. participated in or consented to the abortion for the sole purpose of preventing the death of the mother.

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§161.007. Termination When Pregnancy Results From Criminal Act
i. The court may order the termination of the parent-child relationship of a parent and a child if the court finds that:
1. the parent has been convicted of an offense committed under Section 22.011, 22.021, or 25.02, Penal Code;
2. as a direct result of the commission of the offense by the parent, the victim of the offense became pregnant with the parent's child; and
3. termination is in the best interest of the child.

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Marriage - Valid Marriages

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Presumptions:
i. §1.101 Presumption of a Valid Marriage
ii. §1.102 Most Recent Marriage is Presumed Valid
iii. §1.104 Capacity of Spouse – A person who has been married has the capacity of an adult – including the capacity to contract.

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Marriage - Underage Applicants

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Under Age Applicants:
a. §2.101 General Age Requirement
i. Both applicants for marriage must be at least 18 years of age
b. §2.102 Parental Consent
i. If an applicant is 16 → may get married if parent consents
ii. Parental consent must be written
c. §2.103 Court Order for Under Age Applicant
i. Minor may petition to court in the minor’s own name for an order granting permission to marry

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Marriage - Types of Marriage - Formal and Common Law

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§2.401 Proof of Informal Marriage
i. In a judicial, administrative, or other proceeding, the marriage of a man and woman may be proved by evidence that:
1. a declaration of their marriage has been signed as provided by this subchapter; or
2. the man and woman agreed to be married and after the agreement they lived together in this state as husband and wife and there represented to others that they were married.
ii. If a proceeding in which a marriage is to be proved as provided by the above subsection is not commenced before the second anniversary of the date on which the parties separated and ceased living together, it is rebuttably presumed that the parties did not enter into an agreement to be married. (not a divorce clause)
iii. A person under 18 years of age may not:
1. be a party an informal marriage; or
2. execute a declaration of informal marriage under Section 2.402.
iv. A person may not be a party to an informal marriage or execute a declaration of an informal marriage if the person is presently married to a person who is not the other party to the informal marriage or declaration of an informal marriage, as applicable.

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Holding Out – For a valid common law marriage, the parties must hold themselves out as man and wife. Merely living together is not enough. Holding joint property, common bank accounts, and joint tax returns are typical indicia.
c. Time Requirement: There is no set period of time for cohabitation.

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Marriage - Voidable / Void Marriages

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a. Void Marriage
i. Marriage that is automatically invalid
ii. Considered invalid from its inception
b. Voidable Marriage
i. Marriage that has a defect that may be overcome
ii. Void by annulment

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Marriage - Annulment

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Annulment – Procedure that voids a void or voidable marriage
b. Grounds for Annulment
i. Parent Seeks for Child Under 16
1. §6.101 Annulment of Marriage of person Under Age 16
a. May be filed before party turns 16
b. If filed after party turns 16, must be filed within 90 days after petitioner knew or should have known of the marriage; or 90 days after the date of the 14th birthday of the party.
ii. Parent Seeks for Child Under 18
1. Not voidable if parental consent was obtained.
2. §6.102 Annulment of Marriage of Person Under Age 18
a. If it occurred without parental consent
b. A petition may be filed by parent, next friend or managing conservator
c. Must be filed within 90 days
3. §6.103 Underage Annulment Barred by Adulthood
a. May not be filed by other than next friend after 18th birthday.
4. §6.104 Discretionary Annulment of Underage Marriage
a. In exercising its discretion, the court shall consider the pertinent facts concerning the welfare of the parties to the marriage, including whether the female is pregnant.

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§6.105 Under Influence of Alcohol or Narcotics
1. Court may grant annulment if petitioner was under the influence and did not have capacity to consent and has not cohabitated since the effects of alcohol/narcotics ended
iv. §6.106 Impotency
1. May grant if either party was permanently impotent at the time of marriage; petitioner did not know of impotency; petitioner has not cohabitated since learning of impotency.
v. §6.107 Fraud, Duress, or Force
1. The other party used fraud, duress or force to induce marriage and petitioner has not cohabitated since being released.
vi. §6.108 Mental Incapacity
1. Petitioner did not have mental capacity to consent; since the ceremony has not cohabitated. Or, if other party did not have mental capacity; petitioner did not know of defect; has not voluntarily cohabitated since.
vii. §6.109 Concealed Divorce
1. The other party was divorced within 30 days preceding the marriage; petitioner did not know of the divorce; has not cohabitated since.
2. May not be brought after the first anniversary of the date of the marriage

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§6.201 Consanguinity
1. A marriage is void if one party to the marriage is related to the other as
a. An ancestor or descendant, by blood or adoption;
b. A brother or sister, of the whole or half blood or by adoption;
c. A parent’s brother or sister, of the whole or half blood or by adoption; or
d. A son or daughter of a brother or sister, of the whole or half blood or by adoption

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§6.202 Marriage During Existence of Prior Marriage
1. A marriage is void if entered into when either party has an existing marriage to another person that has not been dissolved by legal action or terminated by the death of the other spouse.
2. The later marriage is void under this section becomes void when the prior marriage is dissolved if, after the date of the dissolution, the parties have lived together as husband and wife and represented themselves to others as being married.

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§6.204 No Recognition of Same Sex Marriage or Civil Union
1. A marriage between persons of the same sex or a civil union is contrary to the public policy of this state and is void in this state.

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Marriage - Declaring a Marriage Void - Marriage to Minor

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§6.205 Marriage to Minor
1. A marriage is void if either party to the marriage is younger than 16 year of age.

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Marriage - Declaring a Marriage Void - Marriage to Stepchild or Stepparent

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§6.206 Marriage to Stepchild or Stepparent
1. A marriage is void if a party is a current or former stepchild or stepparent of the other party.

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Marriage - Grounds for Divorce

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a. A divorce is a legal termination of the marital state. There are two types of divorces: marital fault and no fault. Either may be obtained when one or both parties cease to desire to continue the marriage.
b. Only Requirement for Divorce – one party wants divorce
c. Consent of Other Party is Not Required

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No Fault Divorce
i. No fault divorce permits the termination of a marriage without the finding that either party has violated a grounds for a fault based divorce.
ii. A party only must demonstrate that the marriage broke down irrevocably, or that the partners are no longer compatible.
iii. §6.001 Insupportability
1. The court may grant a divorce without regard to fault if the marriage has become insupportable because of discord of conflict of personalities that destroys the legitimate ends of the marital relationship and prevents ant reasonably expectation of reconciliation

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e. Fault Based Divorce
i. §6.002 Cruelty
ii. §6.003 Adultery
iii. §6.004 Conviction of Felony
iv. §6.005 Abandonment
v. §6.006 Living Apart
vi. §6.007 Confinement in Mental Hospital

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a. Texas district courts are courts of general jurisdiction which may hear family law divorce cases. Some county courts at law share concurrent jurisdiction with district courts.
b. General Residency Rule
i. A suit for divorce may not be maintained in this state unless at the time the suit is filed either the petitioner or the respondent has been:
1. a domiciliary of this state for the proceeding 6 month period; and
2. a resident of the county in which the suit is field for the preceding 90 day period
c. Acquiring Jurisdiction Over Non Resident Spouse
i. If the petitioner in a suit for dissolution of a marriage is a resident or a domiciliary of this state at the time the suit for dissolution is filed, the court may exercise personal jurisdiction over the respondent even if not a resident of this state if
1. this state is the last marital residence of the petitioner and the respondent and the suit is field before the 2nd anniversary of the date on which marital residence ended, or
2. there is any basis consistent with the constitutions of this state and the U.S for the exercise of the personal jurisdiction
ii. A court acquiring jurisdiction under this section also acquires jurisdiction over the respondent in a suit affecting the parent-child relationship.
iii. Even if only one of the parties is before the court, the court will still have jurisdiction to issue a divorce decree that is effective to both parties. However, the court may not adjudicate alimony, child support, or property allocation without personal jurisdiction.

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Jurisdiction to Annul Marriage
i. May be maintained in this state only if the parties were married in this state or if either party is domiciled in this state

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e. Jurisdiction to Declare Marriage Void
i. Either party may sue to declare marriage void and the court may declare marriage void in a collateral proceeding
ii. The court may declare a marriage void only if
1. the purported marriage was contracted in this state; or
2. either party is domiciled in this state

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f. Waiver of Service – no service is necessary
g. Waiting Period Requirement
i. The court may not grant a divorce before the 60th day after the date the suit was filed.
h. Change of Name
i. In a decree of divorce or annulment, the court shall change the name of a party specifically requesting the change to a name previously used by the party unless the court states in the decree a reason for denying the change of name.
i. Citation of Publication
i. May serve spouse by posting on court house door
ii. No attorney ad litem necessary

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6.501 Temporary Restraining Order - After the filing of a suit for dissolution of a marriage, the court may grant a temporary restraining order without notice to the adverse party for the preservation of the property and for the protection of the parties as necessary, including an order prohibiting parties from communicating over phone, threatening the other spouse or the child, or destroying property, etc.

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6.502 Temporary Injunction and Other Temporary Orders – while a suit for dissolution of a marriage is pending and on motion of a party, the court may render an appropriate order, including temporary injunction for the preservation of property and protection of the parties. (what may be ordered at a hearing is listed in 101.005)
c. TRO is issued after filing suit for divorce; during the divorce case, then the judge may issue a TI or TO

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Marriage - Divorce - ADR

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Alternative Dispute Resolution and Collaborative Law
a. 6.601 – Arbitration Procedures
b. 6.602 – Mediation
c. 6.603 – Collaborative Law

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Marriage - Divorce - Property Division

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Property Division
a. Community Property – property acquired during the marriage that is under the joint control and ownership of each spouse and may be allocated by the courts in accordance with that principle.
b. However, a court may treat community property under a scheme that resembles equitable distribution.
c. 7.001 General Rule of Property Division
i. In a decree of divorce or annulment, the court shall order a division of the estate of the parties in a manner that the court deems just and right, heaving due regard for the rights of each party and any children of the marriage.
d. 7.002 Quasi Community Property
i. Property attained outside the state is treated as if it was acquired in Texas

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Marriage - Divorce - Maintenance and Alimony

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Maintenance and Alimony
a. There is less of an inclination by the courts to award permanent alimony in large amounts.

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Marriage - Divorce - Maintenance and Alimony - Eligibility

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8.051 Eligibility
i. In a suit for dissolution of a marriage or in a proceeding for maintenance in a court with personal jurisdiction over both former spouses following the dissolution of their marriage by a court that lacked personal jurisdiction over an absent spouse, the court may order maintenance for either spouse only if:
1. the spouse from whom maintenance is requested was convicted of or received deferred adjudication for a criminal offense that also constitutes an act of family violence under Title 4 and the offense occurred:
a. within two years before the date on which a suit for dissolution of the marriage is filed; or
b. while the suit is pending; or
2. the duration of the marriage was 10 years or longer, the spouse seeking maintenance lacks sufficient property, including property distributed to the spouse under this code, to provide for the spouse's minimum reasonable needs, as limited by Section 8.054, and the spouse seeking maintenance:
a. is unable to support himself or herself through appropriate employment because of an incapacitating physical or mental disability;
b. is the custodian of a child of the marriage of any age who requires substantial care and personal supervision because a physical or mental disability makes it necessary, taking into consideration the needs of the child, that the spouse not be employed outside the home; or
c. clearly lacks earning ability in the labor market adequate to provide support for the spouse's minimum reasonable needs, as limited by Section 8.054.

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8.053 Presumption Against Maintenance
i. Except as provided, it is presumed that maintenance is not warranted unless the spouse seeking maintenance has exercised diligence in
1. seeking suitable employment, or
2. developing the necessary skills to become self-supporting during a period of separation and during the time the suit for dissolution of the marriage is pending.
ii. This section does not apply to a spouse who is not able to satisfy the presumption in Subsection (i) because the spouse
1. has an incapacitating physical or mental disability, or
2. is the custodian of a child with a disability requiring substantial care.

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8.054 Duration
i. An alimony order may not remain in effect for more than 3 years after the date of the order.

8.055 Amount
i. A court may not order maintenance that requires an obligor to pay monthly more than the lesser of
1. $2,500, or
2. 20 % of the spouse’s average monthly gross income.