Family Law

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Family Law & the Adversarial System

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Family law doesn't really fit into the adversarial system.

The adversarial system makes several assumptions that cannot be assumed in the context of family law.
1. assumes all parties are of equal power
2. assumes societal norms are neutral
3. assumes rules/laws are neutral
4. assumes judges always appropriately resolve issues

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Definition of Parent - Child Relationship

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§101.025 - defines the LEGAL RELATIONSHIP between a parent and a child

DOES NOT INCLUDE the biological relationship (as a biological relationship does not automatically mean a legal relationship)

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Definition of Parent

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§ 101.024

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Establishment of Mother - Child Relationship
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§ 160.201(a)

The mother-child relationship is established between a woman and a child by:

1. the woman giving birth to the child
2. an adjudication of the woman’s maternity; or
3. the adoption of the child by the woman.

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Establishment of Father - Child Relationship

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§ 160.201(b)

The father-child relationship is established between a man and a child by:
1. an unrebutted presumption of the man’s paternity of the child;
2. an effective acknowledgment of paternity by the man under Subchapter D, unless the acknowledgment has been rescinded or successfully challenged;
3. an adjudication of the man’s paternity;
4. the adoption of the child by the man; or
5. the man’s consenting to assisted reproduction by his wife under Subchapter H, which resulted in the birth of the child.

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What is a Presumed Father - Background

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The husband of the birth mother is presumed to be the father of a child born during the marriage. Advances in technology have allowed the presumption to be rebuttable. The law has changed to follow medical advances.

In order to protect property and the right of succession, it was necessary to create a presumption of a father. Children born of a marriage are presumed to be legitimate and legally entitled to receive property. Illegitimate children were blocked from receiving any inheritance.

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What is a Presumed Father - Statute

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§160.201 (13)

“Presumed father” means a man who, by operation of law, under Section 160.204, is recognized as the father of a child until that status is rebutted or confirmed in a judicial proceeding.

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What is a Presumed Father - Presumption of Paternity

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§160.204 Presumption of Paternity

1. He is married to the mother of the child and the child is born during the marriage;
2. He is married to the mother of the child and the child is born before the 301st day after the date the marriage is terminated;
3. He is married to the mother of the child before the birth of the child in apparent compliance with law, even if the attempted marriage is or could be declared invalid, and the child is born during the invalid marriage or before the 301st day after the date the marriage is terminated;
4. He married the mother of the child after the birth of the child in apparent compliance with law, regardless of whether the marriage is or could be declared invalid, he voluntarily asserted his paternity of the child, AND:
a. the assertion is in a record filed with the bureau of vital statistics;
b. he is voluntarily named as the child's father on the child's birth certificate; or
c. he promised in a record to support the child as his own; or
d. during the first two years of the child's life, he continuously resided in the household in which the child resided and he represented to others that the child was his own.

NOTE - only place where birth cert. is tied to the child

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What is a Presumed Father - Rebutting the Presumption of Paternity

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§160.204

A presumption of paternity established under this section may be rebutted only by:
1. an adjudication; or
2. the filing of a valid denial of paternity by a presumed father in conjunction with the filing by another person of a valid acknowledgment of paternity as provided by Section 160.305.

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What is an Acknowledged Father - How to Establish

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A man who voluntarily acknowledges his paternity and has a legal relationship with the child.

To establish a legal relationship with the child, the father must follow the voluntary acknowledgement of paternity procedure ((§160.301-§160.315).

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What is an Alleged Father

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§ 101.0015 -

A man who alleges himself to be, or is alleged to be, the genetic father or a possible genetic father of a child, but whose paternity has not been determined. (covers unwed fathers and fathers who had an affair with a married woman).

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What is an Alleged Father - How to Establish Legal Relationship

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To establish a legal relationship with the child, the father must be defined as a father under §160.201(b)
1. May sign a voluntary acknowledgement of paternity (if a H exists, the H must sign a denial to rebut his presumed father status)
2. May initiate an adjudication proceeding and seek out genetic testing (if a H exists, then must bring action within 4 years)

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What is an Adjudicated Father

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An adjudicated father has a legal relationship with the child.


Court appointed fathers in paternity actions

Court appoints these fathers in an adjudication proceeding initiated by either the child, mother, man interested in adjudicating his parternity, etc.

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Paternity Procedures - Voluntary Acknowledgment of Paternity Procedure

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Acknowledged fathers follow this procedure.

It is a non-judicial procedure for establishing paternity. A valid acknowledgment of paternity or denial of paternity filing is equivalent to an adjudication of paternity or nonpaternity. (§160.305)

The state must give full faith and credit to an acknowledgment of paternity. (§.311)

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Paternity Procedures - Voluntary Acknowledgment of Paternity Procedure - How to Execute

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§ 160.301 Signature:

An acknowledgment of paternity must be may be signed by
a. the mother of the child, and
b. a man claiming to be the biological father of the child
c. Both must swear under the penalty of perjury that the father is biological

§ 160.302 - Execution Requirements

a. must be in the record
b. signed by the parties - the form may be signed by a minor.
c. indicate the child does not have a presumed father
d. indicate that the child does not have another acknowledged father
e. state whether genetic testing has been done

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Paternity Procedures - Voluntary Acknowledgment of Paternity Procedure - When Acknowledgment Is Void

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§ 160.302 When acknowledgment is void when:

1. states that another man is a presumed father of the child, unless a denial of paternity signed by the presumed father
2. states that another man is an acknowledged or adjudicated father of the child
3. falsely denies the existence of a presumed, acknowledged, or adjudicated father

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Paternity Procedures - Voluntary Acknowledgment of Paternity Procedure - Incorrect Uses

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1. May not be used as a substitute for adoption procedures OR to deny paternity.
2. Is not effective to rescind prior acknowledgment.
3. Cannot be used to avoid prior Court Order.

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Paternity Procedures - Denial of Paternity

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§ 160.303 - Denial of Paternity

1. An acknowledgment of paternity is signed by another man
2. The denial is in the record and is signed under penality of perjury
3. The presumed father has not acknowledged paternity unless rescinded
4. The presumed father has not been adjudicated to be the father

A denial of paternity cannot be used to avoid court order

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Paternity Procedures - Recission of Paternity

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§ 160.307 - Proceeding for Rescission

a. There is a time limit.
b. The earlier of 60 days filing the form or the birth of child.

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Paternity Procedures - Recission of Paternity after Time Expiration

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§ 160.308

a. Within 4 years of date of filing
b. Only grounds are fraud, duress, material mistake of fact
c. Genetic testing that disproves paternity is a material mistake of fact

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Paternity Procedures - Adjudication Proceeding

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1. An adjudication proceeding is a proceeding in which the court appoints the father.
2. This is a means for alleged fathers and unwed fathers to file for paternity if they wish.
3. A child or mother may also file the action to demand the court to adjudicate the father (who would be responsible for child support)

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Paternity Procedures - Adjudication Proceeding - Who can file?

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§160.602

a. Child
b. mother of child
c. man interested in adjudicating his paternity
d. adoption agency / licensed child-placing agency
e. representative of an individual who would be entitled
f. person related to mother if mother is deceased
g. person who is an intended parent

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Paternity Procedures - Adjudication Proceeding - Is there an SOL?

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No - § 160.606

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Paternity Procedures - Adjudication Proceeding - Exceptions to No SOL

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§ 160.607

1. If a presumed father exists, a putative father must bring the case within the first four years of the child’s birth.
2. However, the proceeding may be brought at any time if the presumed father and mother did not live together at the probable time of conception and the presumed father never represented the child as his own to others.
3. This statute of limitations reflects a concern to preserve the family unit.

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Paternity Procedures - Adjudication Proceeding - Necessary Parties

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§ 160.603

1. mother of the child
2. a man whose paternity of the child is to be adjudicated.

Note: Child is not a necessary party in the proceeding. The court is not required to name an attorney for a child to look out for the interest of the child. Instead there is a presumption that the parents have the best interest for the child.

Texas follows a minority rule. Most states have a third party assigned to represent the interests of the child.

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Paternity Procedures - Adjudication Proceeding - Personal Jurisdiction & Venue

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§ 160.604-605

the court must have personal jurisdiction over the individual who is to be adjudicated

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Paternity Procedures - Adjudication Proceeding - Genetic Testing

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§ 160.505 & .506

If the man denies paternity when another party files a paternity action against him, he can ask for genetic testing.

Costs
1. Born by the individual who makes the request, or
2. As agreed by the parties,
3. As ordered by the court

d. Contesting Adjudication
A child can contest an adjudicated parent if the father or mother never asked for genetic testing during the adjudication.

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Paternity Procedures - Adjudication Proceeding - Rebuttal to Genetic Testing

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§ 160.505(b)

A man can contest the testing by producing
1. Genetic testing indicating he is not the father
2. Genetic testing indicating someone else is the father

99% Requirement → tests results report a figure of “99%” to indicate paternity

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Reproductive Issues - Artificial Insemination

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Artificial insemination is the reproductive technique where a woman is inseminated with the sperm of an anonymous third party semen donor.

Sperm Donor’s Rights: Many statutes on artificial insemination provide that the sperm donor has no rights or obligations to the child born as a result of the artificial insemination.

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Reproductive Issues - Assisted Reproduction & Texas - Donor Status

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§ 160.702

A donor is not a parent of a child conceived by means of assisted reproduction. The donor can neither sue to establish paternal rights nor be sued to support the resulting child. Donors are eliminated from the parental equation.

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Reproductive Issues - Assisted Reproduction & Texas - Husband Status

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§ 160.703

A husband who provides sperm for (his wife) or consents to assisted reproduction by his wife is the father of the resulting child. His consent to the assisted reproduction prevents him from denying parental status. He cannot use their lack of genetic relationship to the child to avoid paternity when they consent.

Note: The presumptive paternity of the husband of a married woman who bears a child through assisted reproduction reflects a concern for the best interests of the children of assisted reproduction.

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Reproductive Issues - Assisted Reproduction & Texas - Married Lady Consent

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§ 160.704

Consent by the married woman seeking assisted reproduction must be in the record and signed by her and her husband. A husband’s failure to sign does not preclude his status as a father if he and his wife openly treated the child as their own.

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Reproductive Issues - Assisted Reproduction & Texas - Husband SOL

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§ 160.705

A husband has a 4 year statute of limitations to contest his paternity if he did not consent to the assisted reproduction.

An action may be maintained at any time if the court determines that
a. the husband did not provide sperm for the child or consent to the assisted reproduction
b. the husband and mother have not cohabited since the probable time of assisted reproduction, and
c. the husband never openly treated the child as his own.

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Reproductive Issues - Surrogacy

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i. Surrogacy is a contractual arrangement whereby a woman agrees to be artificially inseminated with the semen of a man whose wife is unable to conceive or bear a child, and then to surrender the ensuing child to the natural father and his wife.
ii. From a legal perspective, the surrogate mother and her husband have legal rights; as a result, a surrogacy agreement requires the surrogate mother and her husband to surrender their legal rights to the couple interested in caring for the child.

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Reproductive Issues - Surrogacy - Public Policy Concerns

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1. Surrogacy, premised on contract, violates the best interest standard in custody determinations.
2. The natural father’s rights should not prevail over the natural mother’s rights.
3. Surrogacy exploits women, especially poor women. Surrogacy devalues women by treating them as “baby machines.”
4. Surrogacy commodifies children.

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Reproductive Issues - Surrogacy - Legal Issues

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1. When a wife gives birth to a child conceived using sperm from a man other than her husband, she is the mother and her husband is the presumed father.
2. The natural mother and her husband (a presumed father) have to surrender legal rights to the child.
3. Also, assisted reproduction may involve eggs from another woman, who may claim maternity rights to the child.

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Reproductive Issues - Surrogacy - Surrogacy Contracts

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1. PreBirth Consent: All states have statutes prohibiting a mother from granting irrevocable consent to adoption before the child’s birth. The purpose is to ensure that her consent is knowing and voluntary.
2. Payment
a. Surrogacy contracts for a fee violate public policy. However, the Supreme Court of New Jersey granted custody to the purchasing parents based on the best interest of the child standard.

b. Baby M. (Supreme Court of New Jersey) – struck down surrogacy contracts on two grounds: (1) direct conflict with existing statutes and (2) conflicts with public policies of this state.

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Reproductive Issues - Surrogacy - Surrogacy Agreements - Texas

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§ 160.756

a. To be enforceable, the gestational agreement must be validated by the court.

The suit to validate is intended to be commenced prior to conception. The agreement must be signed 14 days or more before conception.

b. The court must make the following 6 findings before validating the agreement:
1. Parties must submit to the jurisdiction of the court
2. Medical evidence shows that the intended mother is unable to carry a pregnancy to term and give birth to a child or is unable to carry the pregnancy to term and given birth to the child without unreasonable risk to her physical or mental health or health of the unborn child
3. Unless waived by the court, the agency has conducted a home study of the intended parents
4. Each party had voluntarily entered into the agreement
5. The prospective gestational mother has had at least one previous pregnancy
6. The parties have decided who is responsible for all the health care expenses associated with the pregnancy

c. Upon the 6 findings, the court may validate the agreement at their discretion.

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Reproductive Issues - Surrogacy - Parties Involved & Totality of Agreement - Texas

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§ 160.754

Parties Involved
a. Gestational Mother and her husband
b. Each donor
c. Each intended parent

The Texas Statute speaks specifically from the perspective that intended parents are married.

Agreement Provides that:
a. That the gestational mother, and her husband if she is married, relinquish all parental rights and duties with respect to the child
b. The intended parents are the parents of the child
c. That the intended parents are married to each other and each a party in the agreement
d. That the agreement does not apply to the birth of a child conceived by means of sexual intercourse

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Reproductive Issues - Surrogacy - Jurisdiction & Termination of Agreement - Texas

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§ 160. 755 - Jurisdiction: Gestational mother or intended mother must have resided in Texas for 90 days prior to filing the agreement
b. Husband of gestational mothers are a necessary party

§ 160.759 - Termination: The agreement can be terminated before the gestational mother becomes pregnant

§ 160.762 - Invalid Agreement: If an agreement is found unenforceable or invalid, a party who is an intended parent may be held liable for the support of the child born.

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Reproductive Issues - Surrogacy - Can Single Moms Engage in Surrogacy Contracts - Texas

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1. The statute does not mention this possibility.

2. By paralleling the situation to a single parent adoption arrangement, one can argue that if there is no policy reason to prevent single parent adoption, then there is no policy reason from preventing a single mother from entering a gestational agreement. Because the statute never speaks of an intended single parent, there is no law no law on single parent gestational agreements.

3. On the opposing side, there is no reason to create a child for the purpose of placing them in a single parent situation. The single parent surrogacy contract differs from the adoption situation where children are already created.

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Custody - Overview

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a. The parent child relationship is determined by law. Suits affecting the parent child relationship are known as SAPCR.

b. When there is a separation, parents arrange a parenting plan that they hope the court will adopt.

c. During a divorce proceeding, appointment of conservators take place.

d. There are a number of different methods for moving away from the adversarial system to determine custody.
1. Parenting plan
2. Conservatorship
3. Alternative dispute resolution
4. Collaborative law

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Custody - Parenting Plan

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a. The use of a parenting plan is fairly new in Texas.

b. It is an attempt to move away from the adversarial treatment of family matters.

c. Parenting plans are written agreements by which parents specify caretaking and decision-making responsibility authority for their children.

d. Parenting Plans includes the rights and duties of each parent, the amount of time each parent will spend with the child and how future problems might be addressed between the parties.

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Custody - Standards - Tender Years Doctrine

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Late 1800’s there was a clear distinction between the duties of men/women. Character of women was identified as being nurturing and carrying or children and as best caretakers.
Mother is presumed parents unless found to be unfit.

So, if a father wanted custody, all he would have to prove is that the woman was inadequate parent and this was relatively easy to do (if a women remarried, this was a negative, interracial was negative for everyone)

Courts treated the tender years presumption as
1. a rule requiring maternal custody if all other factors are equal
2. a rule placing a burden of persuasion on the father to show that paternal custody is in the best interest of the child, or
3. a rule affecting the burden of proof that requires the father to prove maternal unfitness.

“Tender years” generally was defined to include preschool children. Some courts, included children between ages 5 and 10.

When the child reached a productive age (generally the age of 12), it was sent to live with the father to learn work ethic.
1. Many fathers decided that they would have those children stay w/the mother’s – but the preference still existed for the father

Most courts invalidated the maternal preference as a violation of Equal Protection.

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Custody - Standards - Primary Caretaker Doctrine

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1. The child should go with the parent who is the primary caretaker.

2. Who is the child accustomed to relying on?

3. The doctrine stems from the idea that the structure of child should not be broken.

4. Today most courts consider the primary caretaker as one factor in the analysis.

Biller v. Biller – used the primary care doctrine as one factor in the analysis

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Custody - Standards - Best Interest Doctrine - General

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1. The Tender Years Doctrine and Primary Caretaker Doctrine are best interest standards.
2. However, the Tender Years Doctrine and Primary Caretaker Doctrine are a type of Best Interest Doctrine. The Best Interest Doctrine is simply a shift from the view of what is best interest.
3. The rule’s application depends on facts.

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Custody - Standards - Best Interest Doctrine - Fitness Factors

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Courts consider a number of factors relevant to the determination of a parent’s fitness. These include: sexual conduct, careers, daycare, wealth, domestic violence, and disability.

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Custody - Standards - Best Interest Doctrine - Fitness Factors - Sexual Conduct

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Traditionally, a parent’s acts of adultery and/or cohabitation resulted in a denial of custody.

According to the modern view, a parent’s sexual is only relevant if it has an adverse effect on the child.

Zepeda v. Zepeda – holding marital misconduct alone is not a controlling factor when making a custody determination. Only when misconduct results in some demonstrable harm to the child is parental fitness an issue. In this case, the wife’s conduct was not found to have a demonstrable effect on the child.

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Custody - Standards - Best Interest Doctrine - Fitness Factors - Career Choice

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A parent’s career may be a factor in the determination of the best interests standard.

Gender bias sometimes results in adverse decisions for mothers who work outside the home.

The subtext of many court opinions reveal their underlying dissatisfaction with a mother’s choice to work. Courts often misuse the term stability to suggest a parent is unfit.

Stability often masks a court’s bias. The proper use of stability should focus on stability in a relationship, not moving or changing careers.

Roe v. Franklin – examined mother’s career choice

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Custody - Standards - Best Interest Doctrine - Fitness Factors - Homosexual Conduct

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Homosexuality is evidence of parental fitness per se.

Homosexuality lead to a presumption of adverse impact that can be rebutted by the parent’s showing of absence of harm, or

Custody will be denied only if the parent’s sexual orientation has or will have an adverse impact on the child.

Tucker v. Tucker - awarded custody to the father by holding there was a question concerning mother’s morality because of her cohabitation with another individual. While the Court of Appeals initially reversed the trial court’s award to the father by raising the subtext issue, the State Supreme Court pointed out the issue was not lesbian identity, but mother’s willingness to move in so quickly with someone else. However, it may be masking a bias towards homosexuals.

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Custody - Standards - Best Interest Doctrine - Fitness Factors - Child's Preference

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McMillen v. McMillen – Wyoming case that considered child’s preference. The court stated: Although the express wishes a child are not controlling in custody decisions, such wishes do constitute an important factor that must be carefully considered in determining the child’s best interest. The child’s preference must be based on good reasons and the child’s maturity and intelligence must be considered. A review of the record showed the child’s preference to live with his father is supported by more than sufficient good reasons. The child testified his stepfather and mother frightened him and he does not get along with either and is often left alone.

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Conservatorship - General

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When the parent-child relationship is set up by the court.

Texas courts determine conservatorship on a best interest standard.

A conservator has a legal relationship with a child as a result of a court order. Usually a managing and possessory conservator are named because the parents have decided to separate.

Managing Conservator: has physical custody of the child

Possessory Conservator: has visitation rights to the child

A parent or a nonparent can be a conservator.

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Conservatorship - Public Policy

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§153.001

Conservatorships serve three public policy purposes

a. Assure 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 nonviolence environment for the child

c. Encourage parents to share rights and duties after they divorce

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Conservatorship - Alternative Dispute Resolution Procedures

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§153.007

1. collaborative law – both parties and their attorney’s will get together (no mediator) and instead there is responsibility through contract that they will disclose all info and there is an intent to settle info

a. essentially, you can’t throw up your hands and say “I’m going to court” – there is a agreement to work together

b. there is an understanding that this may take up to 2 years

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Conservatorship - Appointment of Conservatorship - Best Interest of Child

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§153.002

The best interest of the child shall always be the primary consideration of the court in determining the issues of conservatorship.

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Conservatorship - Appointment of Conservatorship - No Discrimination Based on Marital Sex

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§ 153.003

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Conservatorship - Appointment of Conservatorship - Appt of Sole or Jt Managing Conservator

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§ 153.005

a. The court may appoint a sole managing conservator or a joint managing conservator.

b. If the parents are separated, the court shall appoint at least one parent a managing conservator.

c. A managing conservator must be a
1. Parent
2. Competent adult
3. Authorized person, or
4. Licensed child placing agency

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Conservatorship - Appointment of Conservatorship - Appt of Possessory Conservator

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§ 153.006

a. If a managing conservator is appointed, the court may appoint one or more possessory conservators.

b. The court shall specify the rights and duties of a person appointed possessory conservator.

c. The court shall specify and expressly state in the order the times and conditions for possession of or access to the child, unless a party shows good cause why specific orders would not be in the best interest of the child.

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Conservatorship - Appointment of Conservatorship - Parental Preference - Managing Conservatorship

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§153.131

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Conservatorship - Appointment of Conservatorship - Parental Preference - Possessory Conservatorship

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§ 153.191

The court may limit the rights and duties of a parent appointed as a conservator if the court makes a written finding that the limitation is in the best interest of the child.

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Conservatorship - Joint Custody/ Joint Managing Conservatorship - General

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Joint Custody is an effort to keep both parents involved in the rearing of a child.

Joint Custody can take a variety of forms → maternal residence, paternal residence, or dual residence

In the majority of jurisdictions, a decree of joint custody actually means the child resides primarily with one parent or the other.

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Conservatorship - Joint Custody/ Joint Managing Conservatorship - Definition in Texas

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§ 101.016

Joint Managing Conservatorship means the sharing of the rights and duties of a parent by two parties, ordinarily the parents, even if exclusive right to make certain decisions may be awarded to one party.

FAVORED IN TEXAS

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Conservatorship - Joint Custody/ Joint Managing Conservatorship - Parental Preference

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§ 153.133

Upon a divorce, parents may specify in their parenting plan that they want joint managing conservatorship (§153.133) OR it may be court appointed if there is no parenting plan (§153.134).

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Conservatorship - Joint Custody/ Joint Managing Conservatorship - Court Determination of Parental Duties

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§ 153.071

Once the joint managing conservatorship is decided, the court must specify the rights and duties of each parent.

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Conservatorship - Joint Custody/ Joint Managing Conservatorship - Does Jt Determination Mean Equal Time?

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§ 153.135

Joint custody does not necessarily mean equal time

The majority of child custody proceedings involve two adequate parents (Bell v. Bell)

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Conservatorship - Joint Custody/ Joint Managing Conservatorship - Agreed Parenting Plan

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§ 153.007

If the court finds that the agreed parenting plan is in the child's best interest, the court shall render an order in accordance with the parenting plan.

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Conservatorship - Nonparents - General

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In Texas, there is a preference for parents over non parents when awarding custody. Moreover, there is a preference for joint custody between parents.

To obtain custody, non parents must
a. first acquire standing and
b. second overcome the presumption in favor for parents.

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Conservatorship - Nonparents - Standing - Rescue Provision

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A grandparent or other person (nonparent) may come forward to rescue a child in a harmful situation. Both types of parties assert standing under this provision in an effort to obtain custody.

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Conservatorship - Nonparents - Standing - Rescue Provision - Texas Code

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§ 102.004. Standing for Grandparent or Other Person

a. In addition to the general standing to file suit provided by Section 102.003, a grandparent, , or another relative of the child related within the third degree by consanguinity (aunt or uncle are within the 3rd degree), may file an original suit requesting managing conservatorship if there is satisfactory proof to the court that

i. the order requested is necessary because the child's present circumstances would significantly impair the child's physical health or emotional development; or

ii. both parents, the surviving parent, or the managing conservator or custodian either filed the petition or consented to the suit

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Conservatorship - Nonparents - Standing - Rescue Provision - Grandparental Right to Possessory Conservatorship

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An original suit requesting possessory conservatorship (RIGHT TO VISITATION) may not be filed by a grandparent or other person. However, the court may grant a grandparent or other person deemed by the court to have had substantial past contact with the child leave to intervene in a pending suit filed by a person authorized to do so under this subchapter if there is satisfactory proof to the court that appointment of a parent as a sole managing conservator or both parents as joint managing conservators would significantly impair the child's physical health or emotional development.

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Conservatorship - Nonparents - Standing - Rescue Provision - Right to Lawsuit

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To come forward with a lawsuit, a grandparent must have satisfactory proof that the child’s present circumstances would significantly impair the child’s physical health or emotional development.

A grandparent or other persons who have had substantial contact in the past with the child may intervene in a lawsuit if they show satisfactory proof that leaving the child with the parents would significantly impair the child’s physical health or emotional development.

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Conservatorship - Nonparents - Standing - Rescue Provision - Once Standing is Established

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Once a grandparent or other person establishes standing → they still have to overcome the presumption in favor of parents in order to obtain custody → appointment of the parent or parents would not be in the best interest of the child because the appointment would significantly impair the child's physical health or emotional development.

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Conservatorship - Nonparents - Standing - Rescue Provision - Proper Jurisdiction

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Suit authorized: 102.002(11) - a person with whom the child and the child's guardian, managing conservator, or parent have resided for at least
six months ending not more than 90 days preceding the date of the
filing of the petition if the child's guardian, managing
conservator, or parent is deceased at the time of the filing of the
petition.

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Conservatorship - Nonparents - Presumption in Favor of Parents for Custody

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§153.131. Presumption That Parent to be Appointed Managing Conservator

a. Unless the court finds that appointment of the parent would not be in the best interest of the child because the appointment would significantly impair the child's physical health or emotional development, a parent shall be appointed sole managing conservator or both parents shall be appointed as joint managing conservators of the child.

b. It is a rebuttable presumption that the appointment of the parents of a child as joint managing conservators is in the best interest of the child. A finding of a history of family violence involving the parents of a child removes the presumption under this subsection.

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Conservatorship - Nonparents - Rebutting the Presumption for Parents

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§153.373. Voluntary Surrender of Possession Rebuts Parental Presumption

a. The presumption that a parent should be appointed or retained as managing conservator of the child is rebutted if the court finds that:

i. the parent has voluntarily relinquished actual care, control, and possession of the child to a nonparent, licensed child-placing agency, or authorized agency for a period of one year or more, a portion of which was within 90 days preceding the date of intervention in or filing of the suit; and

ii. the appointment of the nonparent or agency as managing conservator is in the best interest of the child.

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Conservatorship - Nonparents - Overcoming Presumption in Favor of Parent to Obtain Custody

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1. For non parents to have rebut presumption in favor of parents, they must meet the following standard: Must show that the appointment of parents would not be in the best interest of the child because the appointment would significantly impair the child’s physical health or emotional development

2. Types of People Facing this Situation: Stepparents and Homosexual Partners

3. The problem could be avoided if stepparent or homosexual parents both have conservatorship over the child when they made the decision to raise the child.

Conservatorship allows person to assert a legal relationship with the child.

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Conservatorship - Nonparents - Suit for Access (aka - sibling visitation rights)

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§ 153.551. Suit for Access.

a. The sibling of a child who is separated from the child because of an action taken by the Department of Family and Protective Services may request access to the child by filing: (1) an original suit; or (2) a suit for modification as provided by Chapter 156.

b. The sibling of a child may request access to the child in a suit filed for the sole purpose of requesting the relief, without regard to whether the appointment of a managing conservator is an issue in the suit.

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Conservatorship - Nonparents - Grandparent Visitation Rights - Troxel

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Troxel v. Granville: The U.S. Supreme Court has held that grandparent visitation constitutes a challenge to family autonomy when a fit custodial parent opposes visitation. The decision struck down a Washington law that permitted “any person” to petition for visitation rights. The law infringed on parents’ fundamental right to raise their children. Troxel does not hold that nonparental visitation statutes violate the Due Process Clause per se.

After Troxel - Following Troxel, many states are narrowing the circumstances in which grandparent visitation will be permitted.

Some courts have struck down grandparent visitation statutes for not authorizing sufficient deference to a fit parent’s decision.

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Conservatorship - Nonparents - Obtaining Grandparent Visitation Rights - Texas Code

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§153.432. Suit for Possession or Access by Grandparent

a. A biological or adoptive grandparent may request possession of or access to a grandchild by filing:
i. an original suit; or
ii. a suit for modification as provided by Chapter 156.

b. A grandparent may request possession of or access to a grandchild in a suit filed for the sole purpose of requesting the relief, without regard to whether the appointment of a managing conservator is an issue in the suit.

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Conservatorship - Nonparents - Court Granting Possession or Access by Grandparents - Texas Code

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§153.433. Possession of or Access to Grandchild

a. The court shall order reasonable possession of or access to a grandchild by a grandparent if:

i. at the time the relief is requested, at least one biological or adoptive parent of the child has not had that parent's parental rights terminated;

ii. the grandparent requesting possession of or access to the child overcomes the presumption that a parent acts in the best interest of the parent's child by proving by a preponderance of the evidence that denial of possession of or access to the child would significantly impair the child's physical health or emotional well-being; and

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Conservatorship - Nonparents - Court Granting Possession or Access by Grandparents - Requirements for Parent

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the grandparent requesting possession of or access to the child is a parent of a parent of the child and that parent of the child:

1. has been incarcerated in jail or prison during the three-month period preceding the filing of the petition

2. has been found by a court to be incompetent;

3. is dead; or

4. does not have actual or court-ordered possession of or access to the child

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Child Support - General

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Child support is the money paid to a parent by an absent parent for the support of a child.

It goes toward normal living expenses.

Any payments given in excess of child support are gifts.

Liability of Both Parents:
Both parents are responsible for the support of their children.

Federal law does not recommend any particular method of setting guidelines.

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Child Support - Two Models Determining Child Support

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1. The income shares model

2. The percentage of income model

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Child Support - Income Shares Model

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Majority Rule: The income shares model is the most popular model.

Each state that follows the model has adopted a variation of the model.

The model requires both parents to make a monetary contribution to child support.

The model is based on the belief that a child should receive the same proportion of parental income as if the parents lived together.

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Child Support - Income Shares Model - How it Works

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The model looks at the combined monthly income of both parents and computes a percentage of child support both parents have to meet.

Each parent pays a child support obligation based on a percentage of his/her net income.

The parent whom the child is living with is assumed to be contributing his/her share toward the child, while the absent parent makes monetary payments to the other for the child.

Many states follow a guideline chart to determine the percentage of child support both parents must meet based on their combined monthly income. (Example: If parents combined NET monthly income is 2000, then both parents must contribute 23% of their paycheck to child support for 1 child)

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Child Support - Income Shares Model - If Income Exceeds Chart (1 of 3)

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Use Percentage Amount on the Chart as a Max:

The percentage under the highest guideline acts as a maximum amount of child support that may be contributed. Under this sample chart, $1500 is the maximum monthly amount of child support that may be awarded regardless of the combined monthly income in excess of $10,000.

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Child Support - Income Shares Model - If Income Exceeds Chart (2 of 3)

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Use Percentage Amount on the Chart as a Minimum:
The percentage under the highest guideline acts as a minimum amount and based on other factors, the court may increase the percentage to be contributed to child support. Under this sample chart, $1500 is the minimum monthly amount of child support that may be awarded and more may be awarded depending on other factors.

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Child Support - Income Shares Model - If Income Exceeds Chart (3 of 3)

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Apply Percentage to Actual Income:

The parent contributes the percentage of their actual monthly income to the child support. If the parents make 20,000 in combined monthly income, under this chart, the court would take 15% of 20,000 to determine the child support award. --- remember, once you calculate what the child support is, then you break down per parent based on the percentage they contribute

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Child Support - Percentage of Income Model - General

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The percentage of income model, the second most popular model, is the simplest.

The percentage of income model allocates child support based on a percentage of the obligor’s (absent parent) income and the number of children. The custodial parent, parent living with the child, receives the child support payments.

The obligor pays the same amount regardless of the custodial parent’s income.

Texas follows the percentage of income model.

Texas’s child support guidelines are set out in Chapter 154 of the Texas Family Code.

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Child Support - Percentage of Income Model - Texas Code

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§154.122 - The statutory scheme and the child support tables are rebuttably presumed to be in the best interest of the child

§154.001. Support of Child – pretty consistent throughout the states

a. The court may order either or both parents to support a child in the manner specified by the order:

i. until the child is 18 years of age or until graduation from high school, whichever occurs later;

ii. until the child is emancipated through marriage, through removal of the disabilities of minority by court order, or by other operation of law;

iii. until the death of the child; or

iv. if the child is disabled as defined in this chapter, for an indefinite period.

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Child Support - Percentage of Income Model - Child Support through HighSchool

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§154.002. Child Support Through High School Graduation – this is a provision that is pretty much consistent throughout the states
a. The court may render an original support order, or modify an existing order, providing child support past the 18th birthday of the child to be paid only if the child working toward his/her high school diploma or is enrolled in a joint high school and junior college credit program.

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Child Support - Percentage of Income Model - Manner of Payment

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§154.003. Manner of Payment
a. The court may order that child support be paid by:
i. periodic payments;
ii. a lump-sum payment;
iii. an annuity purchase;
iv. the setting aside of property to be administered for the support of the child as specified in the order; or
v. any combination of periodic payments, lump-sum payments, annuity purchases, or setting aside of property

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Child Support - Percentage of Income Model - Net Resources

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§154.062. Net Resources (this means income)

a. The court shall calculate net resources for the purpose of determining child support liability as provided by this section.

c. Net resources do not include:
i. return of principal or capital;
ii. accounts receivable; or
iii. benefits paid in accordance with aid for families with dependent children.

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Child Support - Percentage of Income Model - Net Resources - Deductions

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§154.062.
d. The court shall deduct the following items from resources to determine the net resources available for child support:
i. social security taxes;
ii. federal income tax based on the tax rate for a single person claiming one personal exemption and the standard deduction;
iii. state income tax;
iv. union dues; and
v. expenses for health insurance coverage for the obligor's child.

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Child Support - Percentage of Income Model - Medical Support

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§ 154.064. Medical Support for Child Presumptively Provided by Obligor

a. An obligor is responsible for providing medical support for the child in addition to his/her child support payments.

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Child Support - Percentage of Income Model - Calculating Child Support When Income is 6K or less

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§154.125. Application of Guidelines to Net Resources of $6,000 or Less

i. The guidelines for the support of a child in this section are specifically designed to apply to situations in which the obligor's monthly net resources are $6,000 or less.

1 child 20% of Obligor's Net Res.
2 child 25% of Obligor's Net Res.
3 child 30% of Obligor's Net Res.
4 child 35% of Obligor's Net Res.
5 child 40% of Obligor's Net Res.
6+ child Not less than the amount for 5 children

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Child Support - Percentage of Income Model - Calculating Child Support When Income is more than 6K

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§154.126. Net Resources of More Than $6,000 Monthly

i. If the obligor's net resources exceed $6,000 per month, the court shall presumptively apply the percentage guidelines to the first $6,000 of the obligor's net resources. Without further reference to the percentage recommended by these guidelines, the court may order additional amounts of child support as appropriate, depending on the income of the parties and the proven needs of the child.
ii. The proper calculation of a child support order requires that the entire amount of the presumptive award be subtracted from the proven total needs of the child. After the presumptive award is subtracted, the court shall allocate between the parties the responsibility to meet the additional needs of the child according to the circumstances of the parties. However, in no event may the obligor be required to pay more child support than the greater of the presumptive amount or the amount equal to 100 percent of the proven needs of the child.

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Child Support - Percentage of Income Model - Calculating Child Support When Income is more than 6K - What are Proven Needs?

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Proven Needs
i. Proven needs are costs beyond the child support guidelines set out in the table.
ii. The court will determine the allocation of additional payments by the obligor based upon just and right principles.
iii. To show proven needs, each side must put on evidence of what they deem is reasonable and necessary.
iv. Proven needs depends on evidence and what the court thinks is actually a proven need.

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Child Support - Percentage of Income Model - Agreement Between Parties

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§154.124 - Parents may come to alternative agreements concerning child support. These agreements must be in writing and approved by the court and by both parties in order to be effectively enforced.

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Child Support - Percentage of Income Model - Alt Method of Computing Child Support When Kids are From Different Households

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When the obligor has more than one child in different households, the code provides for an alternate method of computing child support.

§154.129. Alternative Method of Computing Support for Children in More Than One Household -- LOOK AT CHART

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Child Support - Percentage of Income Model - Child Support Based on Potential Earnings

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If the absent parent chooses not to work, the court looks at the parent’s earning potential or applies the federal minimum wage of a 40 hour work week when computing child support.

§154.066. Intentional Unemployment or Underemployment

If the actual income of the obligor is significantly less than what the obligor could earn because of intentional unemployment or underemployment, the court may apply the support guidelines to the earning potential of the obligor (not their spouse).

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Child Support - Percentage of Income Model - Disabled Obligor

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§154.132. Application of Guidelines to Children of Certain Disabled Obligors

In applying the child support guidelines for an obligor who has a disability and who is required to pay support for a child who receives benefits as a result of the obligor's disability, the court shall apply the guidelines by determining the amount of child support that would be ordered under the child support guidelines and subtracting from that total the amount of benefits or the value of the benefits paid to or for the child as a result of the obligor's disability.

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Child Support - Percentage of Income Model - Social Security Benefits

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§154.133. Application of Guidelines to Children of Obligors Receiving Social Security

i. In applying the child support guidelines for an obligor who is receiving social security old age benefits and who is required to pay support for a child who receives benefits as a result of the obligor's receipt of social security old age benefits, the court shall apply the guidelines by determining the amount of child support that would be ordered under the child support guidelines and subtracting from that total the amount of benefits or the value of the benefits paid to or for the child as a result of the obligor's receipt of social security old age benefits.

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Child Support - Percentage of Income Model - Social Security Benefits - Example

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Example: If the obligor owes $200.00 in child support for two children, he pays the amount remaining after the children receive social security benefits. If social security pays $150.00, the obligor only pays $50.00.

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Child Support - Percentage of Income Model - Retroactive Child Support

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§154.009, §154.131-
a. The court may order retroactive child support in certain situations.
b. The court may order a parent to pay retroactive child support if the parent:
i. has not previously been ordered to pay support for the child; and
ii. was not a party to a suit in which support was ordered.
c. In ordering retroactive child support, the court shall apply the child support guidelines provided by this chapter.

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Child Support - Percentage of Income Model - Withholding Earnings From Child Support

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§ 154.007 – Order to Withhold Child Support From Income
a. This is an order to the employer to withhold income.
b. The question is whether the order should be sent to the employer – if it’s not sent to the employer, the withholding won’t take place (oftentimes this is what both parties want, but it’s good to have the signed order in case the agreement falls apart).

Chapter 158 of the Texas Family Code discusses withholding from earnings for child support.

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Child Support - Enforcement of a Child Support Order

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Failure to pay child support does not strip a parent of their visitation or custody rights. The right to visitation and custody are independent from the duty of child support. A parent’s right to visit is not dependent upon their payment of child support.

The custodial parent or anyone who has an interest in collecting child support must file a motion for enforcement to order payment of child support. A motion for enforcement is similar to filing a lawsuit.

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Child Support - Enforcement of a Child Support Order - Motion for Enforcement

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§157.001 – Motion for Enforcement
i. A motion for enforcement may be filed to enforce a final order for conservatorship, child support, possession of or access to a child, or other provisions of a final order.
ii. A motion for enforcement shall be filed in the court of continuing, exclusive jurisdiction

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Child Support - Enforcement of a Child Support Order - Contents of Motion for Enforcement (1 of 2)

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i. A motion for enforcement must, in ordinary and concise language:
1. identify the provision of the order allegedly violated and sought to be enforced;
2. state the manner of the respondent's alleged noncompliance;
3. state the relief requested by the movant; and
4. contain the signature of the movant or the movant's attorney.

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Child Support - Enforcement of a Child Support Order - Contents of Motion for Enforcement (2 of 2)

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A motion for enforcement of child support:
1. must include the amount owed as provided in the order, the amount paid, and the amount of arrearages;
2. if contempt is requested, must include the portion of the order allegedly violated and, for each date of alleged contempt, the amount due and the amount paid, if any; (must be specific if requesting contempt)
3. may include as an attachment a copy of a record of child support payments maintained by the Title IV-D registry or a local registry; and
4. if the obligor owes arrearages for a child receiving assistance under Part A of Title IV of the federal Social Security Act (42 U.S.C. Section 601 et seq.), may include a request that:
a. the obligor pay the arrearages in accordance with a plan approved by the court; or
b. if the obligor is already subject to a plan and is not incapacitated, the obligor participate in work activities, as defined under 42 U.S.C. Section 607(d), that the court determines appropriate

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Child Support - Enforcement of a Child Support Order - Contents of Motion for Enforcement - Movant Must and Must Not Plead

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The movant is not required to plead that the underlying order is enforceable by contempt to obtain other appropriate enforcement remedies.

The movant may allege repeated past violations of the order and that future violations of a similar nature may occur before the date of the hearing.

The custodial parent must comply with the constitutional requirements of service when filing a motion to enforce a child support order.

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Child Support - Enforcement of a Child Support Order - Contents of Motion for Enforcement - SOL

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§157.005 - Time Limitations for Filing Enforcement of Child Support

i. For the court to render a contempt order, a motion for enforcement of child support must be filed no later than the sixth month after the date
1. the child becomes an adult, or
2. on which the child support obligation terminates under the order.

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Child Support - Enforcement of a Child Support Order - Affirmative Defense (1 or 2)

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§157.008 – Affirmative Defense to Motion for Enforcement of Child Support
i. Voluntary Relinquishment: An obligor may plead as an affirmative defense that the obligee voluntarily relinquished to the obligor actual possession and control of a child and the voluntary relinquishment must have been for a time period in excess of any court-ordered periods of possession.

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Child Support - Enforcement of a Child Support Order - Affirmative Defense (2 or 2)

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§157.008 – Affirmative Defense to Motion for Enforcement of Child Support
ii. Inability to Pay: An obligor may plead as an affirmative defense to an allegation of contempt or of the violation of a condition of community service requiring payment of child support that the obligor:
1. lacked the ability to provide support in the amount ordered;
2. lacked property that could be sold, mortgaged, or otherwise pledged to raise the funds needed;
3. attempted unsuccessfully to borrow the funds needed; and
4. knew of no source from which the money could have been borrowed or legally obtained.

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Child Support - Modification of Child Support Order - General

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To modify a child support order, there must be a substantial and material change of circumstances since the entry of the order.

To modify the order, a court does not retry the issue. The court looks at the facts that have occurred since the date of the first order.

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Child Support - Modification of Child Support Order - Grounds for Modification of Child Support Order

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§156.401 – Grounds for Modification of Child Support

i. The court may modify a child support order if
1. the circumstances of the child or a person affected by the order have materially and substantially changed since the order or
2. it has been 3 years since the order was rendered or last modified and the monthly amount of the child support award under the order differs by either 20 percent or $100.00 from the amount that would be awarded in accordance with the child support guidelines

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Child Support - Modification of Child Support Order - Voluntary Additional Support

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§156.403 – Voluntary Additional Support
i. A history of support voluntarily provided in excess of the court order does not constitute cause to increase the amount of an existing child support order.

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Child Support - Modification of Child Support Order - Net Resources of New Spouse

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§156.404 – Net Resources of New Spouse
i. The court may not add any portion of the net resources of a new spouse to the net resources of an obligor or oblige in order to calculate the amount of child support to be ordered in a suit for modification.

ii. The court may not subtract the needs of a new spouse, or of a dependent of a new spouse, from the net resources of the obligor or oblige in a suit for modification.

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Child Support - Modification of Child Support Order - Change in Lifestyle

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§156.405 – Change in Lifestyle

i. An increase in the needs, standard of living, or lifestyle of the obligee since the rendition of the existing order does not warrant an increase in the obligor’s child support obligation.

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Visitation Rights for the Noncustodial Parents - General Rule

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Courts are reluctant to impose a total denial of visitation because the parent-child relationship is constitutionally protected.

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Visitation Rights for the Noncustodial Parents - Mutual Agreement

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§153.311 – Mutual Agreement

i. The court shall specify in a possession order possession of the child at times mutually agreed by the parties.

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Visitation Rights for the Noncustodial Parents - Default Visitation Standards

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§153.312 – Parents who Reside 100 Miles Apart

§153.313 – Parents who Reside Over 100 Miles Apart

§153.254 – Provision for Children Less than 3 Yrs of Age
1. The court shall render an order appropriate under the circumstances for a child less than 3 years of age.
d. The default visitation standards are presumed to be in the best interest of the child.

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Visitation Rights for the Noncustodial Parents - Default Visitation Standards - Court Manipulation

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The court may render an order for periods of possession that vary from the standard orders based on the agreement of the parties.

Factors courts consider in determining possession
i. Age, developmental status, circumstances, needs, best interest
ii. Circumstances of parents
iii. Other relevant factors.

If the standard possession order proves to be unworkable or inappropriate, the court may render an alternative order.

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Visitation Rights for the Noncustodial Parents - Modification of Visitation Order - General

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General Standard: The standard for modification of a visitation order requires the petitioner to show that a material or substantial change of circumstances has occurred.

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Visitation Rights for the Noncustodial Parents - Modification of Visitation Order - Tex Code

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§156.101. Grounds for Modification
i. The court may modify an order that provides for the appointment of a conservator of a child, that provides the terms and conditions of conservatorship, or that provides for the possession of or access to a child if modification would be in the best interest of the child and:
1. the circumstances of the child, a conservator, or other party affected by the order have materially and substantially changed since the earlier of:
a. the date of the order; or
b. the date of the signing of a mediated settlement agreement on which the order is based;
2. the child is at least 12 years of age and has filed with the court, in writing, the name of the person who is the child's preference to have the exclusive right to designate the primary residence of the child; or
3. the conservator who has the exclusive right to designate the primary residence of the child has voluntarily relinquished the primary care and possession of the child to another person for at least six months

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Visitation Rights for the Noncustodial Parents - Relocation

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Relocation controversies often arise in post-decree periods when the custodial parent decides to relocate due to reasons of remarriage, employment, or educational opportunities, etc.
ii. Courts employ different standards in relocation cases.
iii. Allison v. Allison – Trial court erred in terminating a mother’s right of access to child simply because she moved. Moving did not qualify as material or substantial change.

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Visitation Rights for the Noncustodial Parents - Limits on Visitation

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Courts may impose limitations in certain situations if necessary to protect the best interest of the child. However, the limitation employed must be the least restrictive.

§153.193 – Minimal Restriction on Parent’s Possession or Access
i. The terms of an order that denies possession of a child to a parent or imposes restrictions or limitations on a parent’s right to possession of or access to a child may not exceed those that are required to protect the best interest of the child.
c. Situations involving limitation on visitation: domestic violence, sexual abuse, religious practices or beliefs, sexual conduct.
d. Hankee v. Hankee (visitation limited due to sexual conviction of father)

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Procedural Issues - Venue - General

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Venue – The proper place or possible place for the trial - usually because the place has some connection with the events that have given rise to the case

General Rule: An original suit is filed in the county where the child resides.

A child resides where the parents reside. If the parents live separately, the child resides with the parent who has actual care and control. If the child is not under anyone’s actual care or control, the suit is filed where the child is found.

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Procedural Issues - Venue - Tex Code

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§103.001. Venue for Original Suit
i. Except as otherwise provided by this title, an original suit shall be filed in the county where the child resides
ii. A suit in which adoption is requested may be filed in the county where the child resides or in the county where the petitioners reside.
iii. A child resides in the county where the child's parents reside or the child's parent resides, if only one parent is living, except that: (look at statute)

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Procedural Issues - Service

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a. SAPCRs must comply with the constitutional requirements of service.
b. § 102.009 – lists the people are who entitled to service.
c. § 102.010 – service may be publication if no other way to notify parties

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Procedural Issues - Standing

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§ 102

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Procedural Issues - Jurisdiction

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A government’s general power to exercise authority over all persons and things within its territory; a court’s power to decide a case or issue in a decree.

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Procedural Issues - Jurisdiction - Continuing, Exclusive Jurisdiction

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i. A SAPCR differs from other lawsuits in that orders may be continually modified.
ii. A court retains continuing, exclusive jurisdiction over a SAPCR so long as the child remains a minor.
iii. Modifications to a SAPCR must be made in the court with continuing, exclusive jurisdiction. If necessary, a party may ask for the case to be transferred; however, they must first file the case in the court with continuing, exclusive jurisdiction before transferring it.
iv. Any orders entered by a court without jurisdiction are void and unenforceable.

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Procedural Issues - Jurisdiction - Acquiring Continuing, Exclusive Jurisdiction

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§155.001. Acquiring Continuing, Exclusive Jurisdiction
1. Except as otherwise provided by this section, a court acquires continuing, exclusive jurisdiction over the matters provided for by this title in connection with a child on the rendition of a final order.
2. If a court of this state has acquired continuing, exclusive jurisdiction, no other court of this state has jurisdiction of a suit with regard to that child except as provided by this chapter or Chapter 262.

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Procedural Issues - Jurisdiction - Loss of Continuing, Exclusive Jurisdiction

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§155.004. Loss of Continuing, Exclusive Jurisdiction
1. A court of this state loses its continuing, exclusive jurisdiction to modify its order if:
a. an order of adoption is rendered after the court acquires continuing, exclusive jurisdiction of the suit;
b. the parents of the child have remarried each other after the dissolution of a previous marriage between them and file a suit for the dissolution of their subsequent marriage combined with a suit affecting the parent-child relationship as if there had not been a prior court with continuing, exclusive jurisdiction over the child; or
c. another court assumed jurisdiction over a suit and rendered a final order based on incorrect information received from the bureau of vital statistics that there was no court of continuing, exclusive jurisdiction.

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Procedural Issues - Jurisdiction and Child Custody - Traditional Rule

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1. Under the traditional rule, a court could assert jurisdiction to adjudicate custody if the child was domiciled in the state. Other courts permitted assertions of jurisdiction if another state had a substantial interest in the child’s welfare. That interest may be based on the child’s domicile, residence, or temporary presence, or the domicile or residence of one or both parents.
2. The varying standards led to concurrent jurisdictions asserting jurisdiction.

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Procedural Issues - Jurisdiction and Child Custody - Uniform Child Custody Jurisdiction Act (UCCJA)

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1. The UCCJA was drafted to reduce jurisdictional competition and confusion and to deter parents from forum shopping to relitigate custody.
2. The UCCJA provided for 4 alternate basis for a state to assert jurisdiction:
a. Home state basis – has to have lived in that homestate for at least 6 months and the only exception is for a child younger than that (and then the standard is from birth)
b. Evidentiary best interest basis
c. Emergency basis
d. Default basis
3. Under the UCCJA, a court may decline to exercise jurisdiction if the petitioner for an initial decree wrongfully removed the child from another state or has engaged in similar reprehensible conduct.
4. The UCCJA attempted to prohibit simultaneous proceedings. However, courts found other methods of addressing custody matters in different states.

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Procedural Issues - Jurisdiction and Child Custody - Parental Kidnapping Prevention Act (PKPA)

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1. The PKPA pertains to cases involving jurisdiction over child custody. The name address parental abduction. Under the UCCJA, an abducting parent would flee the child’s home state and attempt to relitigate the issue in a new forum.

2. The PKPA was drafted to provide uniformity in custody decision-making. It was another attempt to unify states.

3. The PKPA ensures that custody decrees issued by states asserting jurisdiction in conformity with the PKPA will receive recognition and enforcement through full faith and credit.

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Procedural Issues - Jurisdiction and Child Custody - Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA)

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1. The UCCJEA is the latest attempt to harmonize some of the differences between the UCCJA and PKPA. It is currently in effect in 32 states.

2. Texas has adopted in the UCCJEA in Chapter 152.

3. § 152.201 is hierarchical and in order of priority.

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Procedural Issues - Jurisdiction and Child Custody - Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA) - Initial Child Custody Jurisdiction

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§152.201. Initial Child Custody Jurisdiction (this is hierarchical)

Subsection (a) is the exclusive jurisdictional basis for making a child custody determination by a court of this state.

Physical presence of, or personal jurisdiction over, a party or a child is not necessary or sufficient to make a child custody determination.

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Procedural Issues - Jurisdiction and Child Custody - Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA) - Temporary Emergency Jurisdiction

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§152.204. Temporary Emergency Jurisdiction

A court of this state has temporary emergency jurisdiction if the child is present in this state and the child has been abandoned or it is necessary in an emergency to protect the child because the child, or a sibling or parent of the child, is subjected to or threatened with mistreatment or abuse.

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Procedural Issues - Jurisdiction and Child Custody - Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA) - Exclusive Continuing Jurisdiction

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§152.202
a. Except as otherwise provided in Section 152.204, a court of this state which has made a child custody determination consistent with Section 152.201 or 152.203 has exclusive continuing jurisdiction over the determination until:
i. a court of this state determines that neither the child, nor the child and one parent, nor the child and a person acting as a parent, have a significant connection with this state and that substantial evidence is no longer available in this state concerning the child's care, protection, training, and personal relationships; or
ii. a court of this state or a court of another state determines that the child, the child's parents, and any person acting as a parent do not presently reside in this state.
b. A court of this state which has made a child custody determination and does not have exclusive, continuing jurisdiction under this section may modify that determination only if it has jurisdiction to make an initial determination under Section 152.201.

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Procedural Issues - Jurisdiction and Child Custody - Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA) - Jurisdiction to Modify

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§152.203. Juris to Modify Determin.
a. Except as otherwise provided in Section 152.204, a court of this state may not modify a child custody determination made by a court of another state unless a court of this state has jurisdiction to make an initial determination under Section 152.201(a)(1) or (2) and:
i. the court of the other state determines it no longer has exclusive continuing jurisdiction under Section 152.202 or that a court of this state would be a more convenient forum under Section 152.207; or
ii. a court of this state or a court of the other state determines that the child, the child's parents, and any person acting as a parent do not presently reside in the other state.

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Procedural Issues - Jurisdiction and Child Custody - Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA) - EXTRA INFO

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§152.202 and §152.203 never apply in the same state. §152.202 outlines when a Texas court has exclusive, continuing jurisdiction. If Texas does not have exclusive, continuing jurisdiction, then §152.203 prevents a Texas court from modifying a child custody determination unless the two prong test is met.

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Procedural Issues - Jurisdiction and Child Support

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Child support enforcement is difficult when the parties reside in different states.

Traditionally, a custodial parent had limited ability to enforce interstate child support obligations for several reasons:
a. The original state lacked personal jurisdiction over the noncustodial parent in the latter’s new state;
b. The noncustodial parent’s new state could not help because no nexus existed between that state and the custodial parent; and
c. Limits were imposed by federalism.
3. Because support orders are continuing obligations, they are not enforceable under the Full Faith and Credit Clause, which applies only to final and nonmodifiable child support orders. Therefore, a child support order is not automatically enforced by the Full Faith and Credit Clause.

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Procedural Issues - Jurisdiction and Child Support - Personal Jurisdiction

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To make (or modify) an award of child support, a court must have personal jurisdiction over the obligor.

§159.102 (13) "Obligor" means an individual or the estate of a decedent:
a. who owes or is alleged to owe a duty of support;
b. who is alleged but has not been adjudicated to be a parent of a child; or
c. who is liable under a support order.

3. According to the traditional rule, personal jurisdiction must accord with the requirements of a state long-arm statute and the Constitution’s Due Process Clause.

4. The recent trend among the states is to expand the traditional methods of acquiring personal jurisdiction over nonresidents for child support purposes.

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Procedural Issues - Jurisdiction and Child Support - Interstate Enforcement of Child Support

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1. To assist custodial parents when a noncustodial parent leaves the state and then refuses to pay support, the Uniform Reciprocal Enforcement of Support Act and its subsequent revised version were passed:

2. Both acts significantly increased collections and lightened the burden on the welfare system. However, problems of lack of uniformity between states and the proliferation of multiple support orders remained.

3. In 1992, the Uniform Interstate Family Support Act (UIFSA) was passed.

4. UIFSA aims to eliminate cases in which more than one child support order applies to a child (or children) and also to encourage states to apply restraint in the modification of existing child support orders, especially if modification is sought in a state other than the rendering state.

5. UIFSA contains new procedures for establishing, enforcing, and modifying support orders.

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Procedural Issues - Jurisdiction and Child Support - UIFSA - Meaning of "initiating state" and "responding state"

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§159.102 (7) "Initiating state" means a state from which a proceeding is forwarded or in which a proceeding is filed for forwarding to a responding state under this chapter or a law or procedure substantially similar to this chapter.

§159.102 (18) "Responding state" means a state in which a proceeding is filed or to which a proceeding is forwarded for filing from an initiating state under this chapter or a law or procedure substantially similar to this chapter.

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Procedural Issues - Jurisdiction and Child Support - UIFSA Procedure

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1. UIFSA has been passed by every state.
2. UIFSA is a two – state procedure and a registration process.
3. The UIFSA provides that the responding state can establish, modify, and enforce temporary and permanent support orders, and rely on civil and criminal contempt. However, UIFSA applies the procedural and substantive law, including the rules on choice of law of the initiating state.
4. One-Order-One-Time Rule: To eliminate multiple orders, UIFSA provides that only one support order can be in effect at any one time.
5. The court entering the original support order maintains continuing, exclusive jurisdiction until that state ceases to be the residence of the child or a party, or a party files consent to another state’s jurisdiction. If no state has continuing, exclusive jurisdiction, an order made by the child’s home state has priority.

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UIFSA provides that only the state with continuing, exclusive jurisdiction can modify a registered order unless the parties file a written consent to assertion of jurisdiction or the original state is no longer the residence of the child or either of the parties.

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Procedural Issues - Jurisdiction and Child Support - Texas Long Arm Statute for Child Support

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§159.201. Bases for Jurisdiction over Nonresident
a. In a proceeding to establish or enforce a support order or to determine parentage, a tribunal of this state may exercise personal jurisdiction over a nonresident individual or the individual's guardian or conservator if:
i. the individual is personally served with citation in this state;
ii. the individual submits to the jurisdiction of this state by consent, by entering a general appearance, or by filing a responsive document having the effect of waiving any contest to personal jurisdiction;
iii. the individual resided with the child in this state;
iv. the individual resided in this state and provided prenatal expenses or support for the child;
v. the child resides in this state as a result of the acts or directives of the individual;
vi. the individual engaged in sexual intercourse in this state and the child may have been conceived by that act of intercourse;
vii. the individual asserted parentage in the paternity registry maintained in this state by the bureau of vital statistics; or
viii. there is any other basis consistent with the constitutions of this state and the United States for the exercise of personal jurisdiction.

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§159.202. Duration of Personal Jurisdiction
a. Personal jurisdiction acquired by a tribunal of this state in a proceeding under this chapter or other law of this state relating to a support order continues as long as the tribunal has continuing, exclusive jurisdiction to modify its order or continuing jurisdiction to enforce its order under Sections 159.205, 159.206, and 159.211.

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1. To eliminate multiple orders, UIFSA established the one order system.
2. The one order system requires cooperation between and deference by sister state tribuals in order to avoid issuance of competing support orders.
3. Tribunals are expected to take an active role in seeking out information about support proceedings in other States concerning the same child.
4. Depending on the circumstances, one or the other of two tribunals considering the same support obligation should decide to defer to the other.

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Procedural Issues - Jurisdiction and Child Support - Simultaneous Proceedings - Tex Code

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§159.204. Simultaneous Proceedings
a. A tribunal of this state may exercise jurisdiction to establish a support order if the petition or comparable pleading is filed after a pleading is filed in another state only if
i. the petition or comparable pleading in this state is filed before the expiration of the time allowed in the other state for filing a responsive pleading challenging the exercise of jurisdiction by the other state;
ii. the contesting party timely challenges the exercise of jurisdiction in the other state; and
iii. if relevant, this state is the home state of the child.