Family Law

Front 1

ceremonial marriage

Back 1

elements: (1) reasonable appearance of authority; AND (2) at least one party acting in good faith

no need for marriage license, but if no license, marriage must be established by proof (that elements were satisfied)

premarital counseling encouraged, but not required

no residency requirement for getting married in TX

no particular form of ceremony is required (can be informal)

Front 2

marriage license requirements

Back 2

(1) age 18 or older
(2) neither is already married
(3) not related within prohibited degree of consanguinity

Front 3

void marriage

Back 3

marriage is void if:

(1) bigamy: one spouse already married (but, marriage becomes valid if impediment removed), OR

(2) consanguinity: marriage within prohibited relationship (includes by adoption)
a. ascendants & descendants
b. 1st line collaterals (siblings, nephew/niece)
c. uncles & aunts
d. stepchild or former stepchild
e. 1st cousins, OR

(3) if either party is under 16 and no court order is obtained

**Void marriages are terminated by a suit to declare marriage void.

Front 4

voidable marriage
(marriage that may be annulled)

Back 4

grounds for annulling a marriage:

(1) underage

(2) concealed divorce w/n 30 days of marriage* action to annul must be brought w/n 1 yr

(3) impotency*

(4) incompentency*

(5) fraud, duress, force*

(6) marriage under the influence of alcohol or narcotics*

* there must have been NO cohabitation after facts discovered, fraud or force removed or effects of alcohol wear off. such cohabitation will kill the grounds for annullment.

(7) marriage less than 72 hrs after issuance of license

Front 5

voidable marriage: underage

Back 5

if child under 18 married w/o parental consent or court order, then underage marriage is voidable at the discretion of the court

if a parent consents to underage marriage, application for license must be made w/n 30 days of parental consent

SOL: if action to annul marriage is brought by child's next friend, must be filed within 90 days; if action brought by parent, managing conservator or guardian, must be filed before the child's 18th birthday

Front 6

voidable marriage: marriage less than 72 hrs after issuance of license

Back 6

marriage during 72 hr waiting period after license issued, not permitted unless:
(1) one of parties is in Armed Forces,
(2) 72 hr cooling off period waived by court, or
(3) applicant has completed premarital education course

To annul marriage under this ground, suit must be brought within 30 days after the marriage.

Note: the waiting period applies only if the couple got a marriage license

Front 7

grounds for divorce

Back 7

no-fault divorce on ground of insupportability: "Marriage has become unsupportable because of discord or conflict of personalities that destroys the legitimate ends of the marriage relation and prevents any reasonable expectation of reconciliation."

6 other grounds: cruel treatment (catch-all), adultery, felony conviction, abandonment for more than a year, living apart for 3 years, mental hospital for over 3 years

A divorcing spouse can recover for the other spouse's IIED, but no recovery for NIED.

Front 8

informal marriage
(C/L marriage)

Back 8

elements:

(1) no impediment to the marriage (bigamy, consanguinity, age 18 or older);

(2) "holding out" to others in TX that they were married;

(3) cohabitation in TX (no minimum time requirement, but just for the weekend is insufficient); AND

(4) agreed to be married (affirmatively prove by direct/circumstantial evidence, which can include holding out and habitation)

=> if action to prove C/L marriage isn't brought within 2 years after parties separate and cease living together, (rebuttable) presumption that the parties had not agreed to be married

Front 9

means of establishing proof of informal marriage

Back 9

file a declaration of informal marriage, which contains:

(1) same info as license application [age 18 or older, neither already married, no prohibited degree of consanguinity]; AND

(2) elements of informal marriage [holding out, cohabitation, agreed to be married]

Front 10

domicile-residence requirement for divorce

Back 10

at least one party must have:

(1) 6 mo. TX domicile, AND

(2) 90 day county residence

=> temporary absence over holidays is excused

Front 11

contesting a no-fault divorce

Back 11

reasonable expectation of reconciliation

NEITHER party has lived in TX for 6 mo. and 90 days in county (procedural, only postpones divorce action)

Front 12

venue for divorce

Back 12

county of residence of either party (subject to 90 day residence test)

Front 13

divorce pleadings

Back 13

- must be short and without evidentiary facts

- state grounds for divorce in language of statute

- state whether a protective order for family violence is in effect

- party must sign the pleading

Front 14

SAPCR & divorce

Back 14

if minor children of the marriage, Suit Affecting Parent-Child Relationship (SAPCR) must be joined in divorce proceeding

Front 15

counseling for divorce

Back 15

court may order parties to submit to counseling to determine if there is a reasonable expectation of reconciliation

court can order further counselng for up to 60 days if the court continues to believe there is a reasonable expectation of reconciliation

Front 16

mediation for divorce

Back 16

court may order the parties enter into mediation

mediated settlement is binding on the parties if: (1) it prominently provides the agreement is not subject to revocation; (2) it is signed by both parties; and (3) it is signed by the party's attorney(s) who were present at the time the parties signed the agreement

if a mediated settlement agreement meets these requirements, either party is entitled to judgment on the agreement

Front 17

other procedural resolutions of divorce

Back 17

the court may order that the parties attend a parent education and family stabilization course

collaborative law procedures:

- the parties and their attorneys can agree in writing to use their best efforts and make a good faith attempt to resolve their dispute without judicial intervention except to have the court approve the parties' settlement agreement

- attorneys must agree that if parties do not settle, attorneys will withdraw from the case and will not serve as litigation counsel

- 2 years to accomplish settlement with intermittent reports to the court

Front 18

What steps should you take in order to protect SAFETY of one spouse during the pendency of divorce?

Back 18

petition for protective order upon a showing that the other party has committed family violence, which consists of:
(1) an act intended to result in physical harm, bodily injury, assault, or sexual assault, OR
(2) mere threat of the same

can be used to prohibit party from committing family violence, communicating with family members, stalking, going near residence or place of employment, removing a child, carrying a concealed weapon, etc

Note: also available as to dating violence and a remedy for an independent c/a outside the context of divorce

venue: county where applicant or respondent resides

maximum duration of 2 years; but after 1 year, subject can request determination whether there is a continuing need for the order

court may also order respondent to complete a battering intervention and prevention program

Front 19

What should we do pending a hearing on the application for a protective order?

Back 19

file a temporary protective order (TPO)

ex parte: no notice

if court finds a clear and present danger that H is likely to commit family violence again

valid for 20 days, and may be extended for an additional 20 days upon motion

TPO can evict H from family home if: (1) W files a sworn affidavit giving description of facts supporting TPO, AND (2) W appears in person to testify

Front 20

What steps should you take in order to protect the ASSETS of one spouse during the pendency of divorce?

Back 20

petition for temporary restraining order (TRO)
- ex parte: no notice
- test: unreasonable acts of the sort that no reasonable person could think he could commit (e.g., vulgar phone calls with intent to annoy and alarm, threats of bodily injury, falsifying records, & removing concealing, or transferring property)

also petition for temporary injunction (TI)
- notice and hearing required
- granted for above unreasonable acts and reasonable acts which a person ordinarily could do or refrain from doing unless ordered by the court (e.g., ordering payment of temporary support, attorney's fees or other expenses; awarding one spouse exclusive occupancy of residence; requiring a sworn inventory; requiring production of books & records; restricting access to books & records, etc)

Front 21

protection of BFPs during pendency of divorce

Back 21

re: unauthorized transfers by a spouse

transfer of sole management CP does not require joinder of the other spouse

"BFP" is protected unless he knew the transfer was made for the purpose of defeating the other spouse's rights

but, other spouse's joinder would be required (BFP not protected) for a transfer of the homestead (the family home, even if the transferring spouse's SP)

Front 22

name change

Back 22

if didn't get it in divorce decree, file:

- petition for change of name in district court
- petiton must include current name, proposed name, reasons for change
- court must find good cause

Front 23

paternity suit: genetic testing

Back 23

- genetic tests must be taken by the alleged father and the child

- if a genetic specimen isn't available from the guy, the court can order his relatives to submit to genetic testing

- if the alleged father refuses to submit to genetic testing, court can: (1) hold him in contempt for violation of court order; OR (2) give a default judgment adjudicating paternity

Front 24

effect of genetic test results in paternity suits

Back 24

- If the genetic testing results establish at least a 99% probability that the man is the father, based on a paternity index of at least 100:1, the court shall enter an order that the man is the father.

- If the genetic testing results establish that the man is not the father, or that another man is the father, the court shall enter an order that the man is not the father.

- The only evidence that can rebut a genetic test finding that the man is or is not the father is other genetic tests reaching a contrary conclusion.

Front 25

procedural aspects of paternity suits

Back 25

- SOL: no SOL on paternity if child has no presumed, acknowledged, or adjudicated father; if child has presumed father, however, 4 yr SOL

- venue: county where child resides

- no jury trials

- either party can challenge paternity even if child was born during marriage

- minor or incapacitated child must be represented by guardian ad litem

Front 26

child support in paternity suits

Back 26

- child support (even temporary) cannot be ordered until genetic tests show the man is the father

- while court can order payment of child support retroactive to the child's birth, there is a statutory presumption that retroactive support not exceeding what would've been due under the child support guidelines for the preceeding 4 years is reasonable and in the child's best interest (presumption can be rebutted by showing (1) he knew/SHK he was the father and (2) sought to avoid support obligation)

Front 27

presumptions of paternity

Back 27

A man is presumed to be the father of a child if:

(1) Child born during (or within 300 days after) marriage or attempted (but void or voidable) marriage, OR;

(2) He married (or attempted to marry) the mother after the child's birth AND (1) acknowledged paternity in a record filed with the Bureau of Vital Statistics; (2) promised in a record to support the child; OR (3) was voluntarily named the father on the child's birth certificate; OR

(3) During first two years of child's life he resided with child and represented to others that the child was his. Note: this is the only presumption that does not involve marriage.

Front 28

rebutting presumption of paternity

Back 28

The only evidence that can rebut the presumption of paternity:

(1) genetic test results; OR

(2) written denial of paternity by presumed father AND written acknowledgment of paternity by another man

Front 29

paternity by estoppel

Back 29

- trigger: either spouse challenging presumption of paternity

- because of either party's conduct, the court may deny genetic testing and issue an order adjudicating the presumed father to be the father, if the court finds that (1) the conduct of the mother or presumed father estops the party from denying parentage, AND (2) it would be against child's best interest to disprove the father-child relationship

- doctrine only applies to married persons

Front 30

paternity by estoppel factors

Back 30

(1) length of time b/w date paternity action is filed and date presumed father was on notice that he might not be the father;

(2) length of time presumed father has assumed the role of father;

(3) facts surrounding presumed father's discovery of his possible non-paternity;

*(4) child's age, and nature of relationship b/w child and the presumed father, AND

*(5) harm that may result to the child if presumed paternity disproved

Front 31

adoption

Back 31

A child may be adopted if:

(1) both parents have died;

(2) second marriage situation: a stepparent (spouse of parent whose P/C relationship hasn't been terminated) wants to adopt the child; OR

(3) the P/C relationship as to each living parent has been terminated.

- a single person can adopt a child (no requirement that adopting parent be married)

Front 32

how to give an infant up for adoption

Back 32

prerequisite: termination of P/C relationship b/w biological parents and child

(1) Petition for Suit to Terminate P/C Relationship
- can be filed before the child is born
- BUT, hearing cannot be held until after Affidavit of Relinquishment of Parental Rights is filed

(2) Affidavit of Relinquishment of Parental Righs
- signed by mother (OK if she's a minor)
- lays predicate for consent decree terminating P/C relationship (eliminates trauma of court appearance)
* cannot be signed until 48 hrs after child's birth (gives mom chance to change mind)

(3) Affidavit of Waiver of Interest in the Child
- signed by (alleged) father
- effectively a quitclaim deed: man relinquishes any rights he may have had as a dad without admitting to being father or to having sexual relations with mother

Front 33

involuntary termination of alleged father's right to bring paternity suit

Back 33

If alleged father doesn't sign affidavit of waiver of interest in the child (or voluntary relinquishment), his rights can be involuntarily terminated:

(1) if, after being served, he does not respond by either admitting paternity or filing a counterclaim for paternity;

(2) by failing to file with the paternity registry w/n 30 days after the child's birth; OR

(3) by proof of culpable acts that are grounds for termination of the P/C relationship (abandonment of mom during pregnancy, abuse, neglect, imprisonment for more than 2 yrs, failure to support for 1 yr, drug use, etc) [F AIDAN]
- test is best interest of child by C&CE

Front 34

What reports must be completed before an adoption can be finalized?

Back 34

(1) pre-adoption social study
- report re: circumstances and conditions of home environment

(2) post-placement social study
- report re: circumstances of child in home environment

(3) report showing the adopting parties' criminal history record; AND

(4) Social, Health, Education (for an older child), and Genetic history (SHEG) report, including any history of abuse suffered by child

Front 35

petition for adoption

Back 35

- both spouses have to join in the petition for adoption

- the adoption proceeding abates if the adopting parents divorce, but it will continue if one of them dies

- child must reside with adopting parents for 6 mos before the final decree for adoption can be entered

- child age 12 or older must give written consent to adoption (but ct can waive this requirement if in best interest of child)

Front 36

What Family Code provisions insure confidentiality of adoption procedures?

Back 36

- when adopted children become adults, they can receive an edited version of the SHEG report

- the report is edited to protect identity of birth parents and any other person whose identity is confidential

- entire SHEG report may be released when both sides, parent & child are looking to find each other

Front 37

inheritance rights of adopted children

Back 37

the adopted child has inheritance rights from and through natural parents unless decree terminating P/C relationship expressly terminated inheritance rights

Front 38

adult adoption

Back 38

- adopted party must consent (recall, need consent if over 12 yrs old)

- no best interest test applied

- adopted party loses inheritance rights from biological parents

Front 39

challenging managing conservator's (e.g., TDFPS's) refusal to consent to adoption

Back 39

- MC's consent to adoption is required, but ct can waive this requirement if consent is refused or revoked w/o good cause

- persons who wish to adopt have standing to challenge MC's refusal if:
(1) foster parents & had possession for at least 12 mos; OR
(2) non-foster parents (e.g., stepparent) & had possesion for at least 6 mos.

Hint 39

foster parent: an adult who, though w/o blood ties or legal ties, cares for and rears a child, esp. an orphaned or neglected child who might otherwise be deprived of nurture, usu. under the auspices and direction of an agency and for some compensation or benefit

Front 40

setting aside an adoption

Back 40

SOL: validity of an adoption is not subject to direct or collateral attack more than 6 mos after the adoption decree is entered

POLICY: best interest of child

Front 41

step-parent adoptions of child

Back 41

Hypo: W & H1 have a child, C. They divorce & W is named sole MC. W marries H2, who wants to adopt C.

First (b/c H1 still alive), termination of the P/C relationship:

- if H1 is willing to cooperate, voluntary termination proceeding: H1 can sign affidavit of relinquishment of parental nights to expedite matters (lays a predicate for consent decree)

- if H1 not willing to cooperate, involuntary termination proceeding: need C&CE of BOTH (1) termination is in the best interest of child, AND (2) one of the following grounds: failure to support child for 1 yr; abandonment, abuse, neglect, imprisonment for over 2 yrs; culpable acts toward the child or another child; use of controlled substance

Note: termination of P/C relationship also terminates any support obligation the parent may have had

Front 42

parenting plan

Back 42

- A final order in a SAPCR tied to a dissolution proceeding must incorporate a "parenting plan" that (1) sets out the rights and duties of each parent; (2) provides for periods of possession of and access to the child; (3) provides for child support; AND (4) optimizes the development of a close and continuing relationship between each parent and the child.

- The parties are encouraged to enter into an agreed parenting plan, but if they haven't done so at least 30 days before trial, either party can file a proposed parenting plan for the court's consideration.

- For high conflict cases, the court can appoint a "parenting coordinator," an impartial 3d party appointed to assist the parties in resolving parenting issues.

Front 43

managing conservator (MC) v. possessory conservator (PC)

Back 43

Managing Conservator (sole MC): awarded custody/possession of the kids
- A MC has the right to designate the child's primary residence, the right to the child's services and earnings, the right to make decisions about the child's education, to consent to the child's marriage or military enlistment, the right to consent to the child's medical treatment/care, the right to receive child support and disburse it for the child's benefit, and the right to make other legal decisions concerning the child.

Possessory Conservator (PC): awarded visitation rights

Front 44

test for designating MC

Back 44

- statutory test: best interest of the child

- other statutory requirements: (1) no discrimination based on gender or marital status; (2) evidence of past domestic violence is considered; (3) evidence of false report of child abuse is considered

- court-developed factors: (1) desires of child; (2) child's physical and emotional needs; (3) parental ability; (4) stability of home environment; (5) parent's plans and opportunities for the child; AND (6) negative factors, including (i) intentional use of force against spouse, child's other parent, or any child within the preceding two years; and (ii) acts and omissions showing one parent less fit than the other

Front 45

jury trial re: MC/JMC

Back 45

There are two issues available for a jury trial:
(1) custody (who is MC?); AND
(2) if there is JMC, which JMC has the right to determine primary residence
=> there is no right to a jury trial on the issue of child support

- The jury verdict is binding on the court; no JNOV allowed

- Even though no JNOV, court can grant a motion for new trial if the verdict was against the weight of the evidence.

Front 46

child's request re: appointment of MC

Back 46

- A child age 12 or older can choose the MC in a writing filed with the court (but court can veto as not w/n child's best interest).

- If multiple kids, courts frown on split custody--there is a strong preference to keep the kids together as a family unit.
- Ex: If two kids over 12 request to be with H, court will probably award custody of the 7 year old to H also.
- BUT, in order to get custody, W may argue (1) best interest of child; (2) desires of child; OR (3) request jury trial => verdict will be binding on court

Front 47

denial of visitation rights

Back 47

- Visitation is always allowed unless there is C&CE of danger to the child's physical or emotional health.

- Recall, abuse is grounds for petitioning for involuntary termination of parental rights, but this cuts off any support obligations, so it's often a better idea to file a motion to terminate or restrict visitation.

Front 48

joint managing conservators (JMCs)

Back 48

court can order JMCs if it finds that JMCs are in the child's best interest [there is a rebuttable presumption that JMC is in the child's best interest], AND
- child's physical, psychological, or emotional needs will benefit;
- parents have shown the ability to reach shared decisions;
- parent can encourage and accept positive relationship b/w child and other parent;
- both parents participated in child rearing before suit was filed;
- geographical proximity of homes of the parties not a problem;
- child's preference, if any;
- no evidence of history or pattern of physical or sexual abuse

Front 49

re: appointment of JMCs

Back 49

- appointment of JMCs does not require equal/nearly equal physical time (a JMC is rarely an even split of custody)

- one home is usu. the primary residence

- one party can be ordered to pay child support

- court order MUST: (1) establish residence (or designate which JMC determines residence); (2) include provisions designed to minimize disruption of schooling, daily routine, and association with friends; and (3) set out rights and duties to be exercised solely by one JMC, and those to be exercised jointly

Front 50

non-parental party as MC

Back 50

- a parent MUST be appointed sole MC or parents as JMCs unless ct finds it is not in child's best interest b/c it would substantially impair the child's physical health or emotional development

- A relative (grandparent, aunt, uncle, etc) can be appointed MC if both parents are dead, both parents or survivng parent give consent, OR present circumstances substantially impair the child's physical health or emotional development.

- a grandparent can be a JMC if paired with a parent

Front 51

electronic communication of conservator (2007 statute)

Back 51

- court may award conservator reasonable periods of electronic communication w/ child (phone, email, IM, webcam) to supplement the conservator's period of possession
- factors to consider: child's best interest, whether equipment necessary to facilitate communication is reasonably available, etc

Front 52

visitation order

Back 52

visitation order must be a STANDARD POSSESSION ORDER (SPO) unless parties agree otherwise:

- If parents live within 100 miles of each other, noncustodial parent gets possession 6PM-8PM every Thursday during the school year, and from 6PM Friday to 6PM Sunday the first, third, and fifth weekends each month, plus 30 days in the summer.

- More flexible rules apply if the child is under age 3

- Different rules apply if parents live more than 100 miles apart.

- PC must pay for travel expenses related to visitation if he has adequate resources to do so.

Front 53

court-ordered support

Back 53

- court-ordered support MUST terminate by age 18 or graduation from high school, whichever is later, but child must obtain diploma by age 21

- . . . unless child is physically or mentally disabled BEFORE attaining age 18. An action to enforce child support can be brought after child turns 18, as long as child was disabled before her 18th birthday.

- Support obligation does not terminate on obligor parent's death. Remaining unpaid balance of obligation is accelerated; the amt due is discounted to present value, and is a claim against the obligor's estate.

- ct MUST order obligor to provide health insurance for the child

- payment of child support cannot be conditioned on granting visitation rights (and vice versa)

Front 54

statutory child support guidelines

Back 54

- guidelines apply unless parties agree on (and court approves) some other amount of support

- 1 child = 20% of obligor's NET RESOURCES; add 5% per additional kid (2 = 25%, 3 = 30%, 4 = 35%, 5 = 40%); over 5 kids = not less than amt for 5 kids

- guidelines apply to the first $7500/mo of net resources (e.g., $90K/yr salary); thus, the max monthly award is $1500/mo for 1 kid, unless special needs are shown

- in no event may the obligor be required to pay child support that exceeds the proven needs of the child

Front 55

deviation from statutory child support guidelines

Back 55

- the guidelines provide a $ amt as a starting point, which can be increased or reduced taking into account the following statutory factors: (1) special needs of the child [regular allergy shots & meds, required educational services, etc.]; (2) ability of the parents to contribute to support; (3) any financial resources available for support of the child; (4) amount of possession and access to child

- But court order MUST contain written explanation justifying any deviation from statutory guidelines

- DON'T consider obligor parent's income/wealth or family lifestyle, or even despicable conduct (e.g., family violence)

Front 56

net resources for child support

Back 56

net resources = cash flow revenue from ALL sources MINUS social security taxes, union dues, health insurance for obligor's children, and the income tax withholding for a single person claiming one exemption and standard deduction

- but, if obligor's income is significantly lower b/c of unemployment or under-employment, the guidelines apply to obligor's earning potential

- if obligor has remarried, obligor's net resources do NOT include the net resources of the obligor's spouse (e.g., her sole management CP)

Front 57

Where are child support payments made?

Back 57

- child support payments are made to local child support registry OR attorney general

- avoids disputes as to whether payment was actually made

Front 58

What are remedies for enforcement of child support?

Back 58

[LMM LLC]

(1) license suspension

(2) mandatory withholding

(3) money judgment

(4) lien ("child support lien")

(5) levy & execution

(6) contempt

Note: can't discharge child support obligation in bankruptcy

Front 59

enforcement of child support: license suspension

Back 59

- ct can order suspension of licenses (driver's, hunting, fishing, attorney's, doctor's, CPA's, etc) if obligor is three months in arrears and has been given an opportunity but has failed to make payment under an agreed repayment schedule

- must give obligor 60 days notice of possible suspension

Front 60

enforcement of child support: mandatory withholding

Back 60

- All FINAL orders of child support MUST provide for mandatory withholding

- the max amount subject to mandatory withholding is 50% of disposable earnings (e.g., take home pay: salary and wages minus deductions for income tax withholding, social security, retirement contributions, etc)

- mandatory withholding is available for arrearages (late payments) as well as current support obligations

- mandatory withholding DOES NOT apply to investment income, only to earned income

- if obligor is self-employed, he can be ordered to post bond for security of payment

Front 61

enforcement of child support: money judgment

Back 61

- periodic child support payment not timely made automatically becomes money judgment for amount due.

- In action to reduce arrearages to judgment, plus interest at 6%, court's only function is to confirm amount of unpaid support, subject only to defense of actual payment.

- judgment is enforced by means generally available for enforcement of judgments for debts

- SOL for money judgment for arrearages: 10 yrs after child turns 18

Front 62

enforcement of child support: lien ("child support lien")

Back 62

- against obligor's real property (other than homestead) and non-exempt personal property

- lien also attaches to claims for negligence, personal injury or workers' compensation held by the obligor on or after date on which lien attaches.

- lien is secured by filing child support lien notice in county in which obligor is believed to own nonexempt property or in which obligor resides

- second spouse rule: if obligor remarries, 2d spouse can petition to release from the lien any CP if sale would result in unreasonable hardship upon the spouse or obligor's family

Front 63

enforcement of child support: levy & execution

Back 63

- If judgment for arrearages has been rendered, claimant can deliver a notice of levy to financial institutions holding obligor's assets; this freezes all of those assets.

- Obligor has 10 days to pay (in full or by entering into a satisfactory payment schedule) or file suit to contest; unless obligor contests, bank MUST pay the amount no sooner than 15 days & no than 21 days after delivery of notice

Front 64

enforcement of child support: contempt

Back 64

- up to 6 mos in jail, $500 fine or both; up to 5 yrs probation

- all criminal due process rules apply (rt to be present at trial, right to appointed counsel if indigent, std is beyond a reasonable doubt)

- Note, if (somehow) the agreement to pay support is in the settlement agreement, but is not incorporated into the divorce decree, the obligation is not enforceable by contempt (b/c contempt is available only for violation of a court order)

Front 65

ways to enforce an out-of-state child support order in TX

(Note: also works to enforce TX support order outside of TX)

Back 65

(1) reduce it to a money judgment in the state that ordered it, b/c then get full faith & credit in TX

(2) (best): mail a copy of the income-withholding order to obligor's TX employer; under UIFSA, this will automatically trigger income withholding unless obligor contests the order's validity
- if MC does not know obligor's employer's address, she can mail the support order and/or income-withholding order to the TX child support enforcement agency, which will seek administrative enforcement of the order

(3) if MC wants to enforce out-of-state order in TX by contempt, she should register the order under UIFSA: (i) send 2 copies of the out-of-state support order (1 certified) to a TX court, AND (ii) a sworn statement by MC showing name & address of obligor (& name/address of obligor's employer, if known)
=> effect: any future violations of the now-TX child support order can be enforced by contempt by a TX ct

Front 66

habeas corpus

Back 66

- trigger: parent withholding possession of a child in violation of a custody ("managing conservator") order

- SOLE ISSUE: is there a valid court order awarding custody?

- parent withholding custody cannot cross-file or re-litigate custody issues in a habeas proceeding

- venue: (1) county where child found; (2) court of continuing exclusive j/d under SAPCR

- parent may bring habeas even without a court order against a non-parent who withholds custody

Front 67

statutory tort liability - interference with child custody

Back 67

- trigger: person takes or retains possession of a child or conceals child's whereabouts in violation of a court order

- can get actual and exemplary damages

- available against 3d party aider and abettor (e.g., an attorney)

- procedure: must give 30 days notice of intent to file tort suit unless custody order is complied with (purpose: to catch person's attn & get kid back w/o abuse)

Front 68

enforcement of custody orders: contempt

Back 68

- trigger: violation of a custody order in an all TX setting (Ex: MC and kids live in Houston; father wrongfully takes kids to Lubbock)

- only available for violation of a TX order

- criminal due process rules apply (rt to be present at trial; rt to appointed counsel if indigent; std is BRD)

- can get probation for up to 5 yrs

Front 69

Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA)

Back 69

- trigger: violation of a custody order in an interstate setting

- purpose is to avoid j/dal disputes and facilitate interstate enforcement of custody and visitation orders

Front 70

UCCJEA jurisdiction

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Jurisdiction to initially enter a custody order lies in state with (in descending order):

(1) SAPCR ct: once the custody order is entered, under the UCCJEA, the issuing court has continuing, exclusive j/d as long as at least one party continues to reside in that state

(2) home state j/d: where child has lived for last 6 mos
- if child there for last 6 mos, it retains exclusive j/d as long as at least 1 party resides in that state

(3) temporary emergency j/d: where child has been abandoned or abused

(4) if no other state has j/d, then a state where (i) child and one parent have a significant connection with the state, AND (ii) substantial evidence is available there

*(5) a ct may decline j/d if it is an inconvenient forum, taking into account whether domestic violence is involved, length of time child resided outside of state, relative financial circumstances of the parties, and the nature and location of relevant evidence.

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remedies under UCCJEA

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(1) registration of order (2 copies, one certified)
- TX ct can grant any relief available for enforcement of order, including contempt

(2) expedited enforcement in a habeas-type proceeding
- ct issues order directing respondent to appear in person at hearing held the next judicial day after service of the order (or the first judicial day possible)
- possession of child is awarded to petitioner unless the custody or visitation order has been vacated or stayed

(3) warrant to take immediate possession of child
- need a finding that the child is imminently likely to suffer serious physical harm or be removed from the state

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modification of child support order: filing/venue

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(1) motion to modify support order should be filed in SAPCR ct of continuing exclusive j/d

(2) if child has resided in a new county for at least 6 mos, transfer is MANDATORY
- so, simultaneous with motion to modify, file a motion to transfer to new county

- an erroneous ruling on a motion to transfer is an unappealable interlocutory order; losing party must file a manadamus

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modification of child support: test

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To modify the support order, either:

(1) circumstances of child or an affected party have materially and substantially changed
- e.g., child has more or less need, obligor has more or less income or more kids with another spouse (obligor owes a duty to support ALL of his children); OR

(2) 3 yrs have elapsed, and support deviates from guidelines by greater of 20% or $100
- if only grounds for modification is statutory guideliness, have to wait 3 yrs

- The COURT has the power to determine what is in the child's best interest (e.g., parties cannot usurp this power by agreeing that support is not subject to modification)

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modification of custody: filing/venue

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(1) motion for modification of MC (or PC) should be filed in SAPCR ct of continuing exclusive j/d

(2) if child has resided in a new county for at least 6 mos, transfer is MANDATORY
- so, simultaneous with motion to modify, file a motion to transfer to new county

- Note: conservators must give each other 60 days notice before moving (prevents frustration of visitation rts by surprise move)

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modification of custody: test

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To modify sole MC, PC, or in JMC, designation of person who has right to designate child's primary residence:

(1) modification is in the best interest of the child; AND

(2) circumstances of child or an affected party have materially and substantially changed

(3) (If the motion to modify is brought w/n 1 yr from the ct's order of conservatorship & MC doesn't consent to the modification, movant must also show) * danger to the child's physical or emotional health [in an affidavit attached to the motion]
- POLICY: prevents excessive litigation

- Exception: this test does not apply (and only test is best interest of child) if MC voluntarily relinquishes possession and control of the child for at least 6 mos

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modification of support (or custody) interstate

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To modify child support - under UIFSA, the SAPCR ct retains j/d as long as at least 1 of the parties remains in the state. If no parties remain, then file in state where OBLIGOR resides (to get personal j/d) after registering the order there per UIFSA

- Note, under both UIFSA (for support) and UCCJEA (for custody), if one party still lives in the state where the order was filed, that state retains j/d

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grandparent visitation

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- file a Petition for Resonable Access for Grandparent

- to be granted reasonable access, (1) the parental rights of at least 1 parent must not have been terminated; AND (2) the parent who is the grandparent's child (i) is dead, (ii) is incompetent, (iii) has been in jail or prison during the preceding three months, OR (iv) does not have actual or court ordered access to the child.

- Grandparent must overcome presumption that a fit parent acts in the child's best interest in denying access, by proving by a preponderance of the evidence that denial of possession or access would significantly impair the child's physical health or emotional well-being

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removal of disability of minority

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disability (legal incapacity) may be removed (e.g., to allow child to sell property w/o appointing a guardian) if:

for 16 or 17 yr old, child is financially independent & managing her own affairs, AND (if 16), living apart from parents, MC, or guardian, AND ct must find that removal of disability is in the best interest of the child

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child abuse / sexual abuse

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TX Dept. of Family and Protective Services (TDFPS) can take possession of a child w/o ct order upon information that would lead a person of ordinary prudence and caution to believe that child was victim of child abuse or sexual abuse and there is no time to obtain a TRO.

1st hearing: TDFPS must file a SAPCR & obtian an ex parte hearing w/n 3 days after child taken into possession. Parents must be given notice of hearing listing both why child was taken and a summary of their rts.

2d hearing: full adversarial hearing must be held w/n 14 days

- if either hearing not held in time, child must be returned to parents

- to keep the kid, TDFPS must show sufficient evidence to satisfy a person of ordinary prudence and caution that there's a (1) continuing danger to the child's physical health or safety caused by the parents' act or failure to act, AND (2) reasonable likelihood that child will be victim of abuse in future

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professional's duty to report child abuse

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A professional MUST report suspected child abuse.

An attorney, doctor, minister, psychologist, social worker, etc. having reason to believe a child is being abused must personally file a report (no delegation allowed) w/n 48 hrs. Failure to do so is a misdemeanor.

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parental liability for child's negligence

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parent is liable for property damage caused by child's negligent conduct IF conduct is attributable to parent's negligent failure to exercise duty and control and reasonable discipline of child.

thus, need 2 negligent acts => child and parent

no limit on liability

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parental liability for child's theft

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parental liability for child under 18 limited to $5000

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parental liability for child's intentional tort

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parent liable for $25,000 (+ costs & atty fees) per act of damage caused by willful & malicious conduct of child 10 to 18

all that is needed is intentional act by the child; parent is on the hook for up to $25,000 even if parent was not negligent