Family Law: Multistate; Grandparents; Removal Of Disability; Abuse; Parental Liability

Front 1

To modify custody if multistate-- law is UCCJEA under which court that issued the custody order has continuing exclusive jurisdiction as long as one party still resides in that state.

Back 1

If seek to move proceeding, must persuade court that it's an inconvenient forum:

1) Neither child nor mom have sig connection w/state AND
2) Substantial evidence relating to matter is no longer available in the state

Front 2

In proceeding to modify child support, law is UIFSA which says that motion must be filed in TX SAPCR court because one party still resides in TX.UIFSA resolves jurisdictional disputes and establishes guidelines as to juris over support issues.

Just as w/UCCJEA and custody/visitation, court issuing support order has continuing, exclusive juris as long as one party (obligor/obligee or child continues to reside in that state.

Back 2

If all parties have moved from state where support order was issued, motion to modify support must be filed in state where obligor resides (to get personal juris over obligor), after registering support order in that state under UIFSA procedures.

Front 3

Petition for Reasonable Access for Grandparent [visitation]

*For biological or adoptive grandparent not step-grandparent, parental rights of at least one parent must not have been terminated (no access if parental rights of both parents have been terminated) and the parent who is the grandparent's child (1) is dead; (2) incompetent, (3) in jail or prison during preceding 3 months, or (4) doesn't have actual or court ordered access to child.

Back 3

* If child has been adopted by a new family, no reasonable access for Granny.

Front 4

2005 statute: gandparent must overcome presumption that fit parent acts in child's best interest in denying access, by proving by a preponderance of evidence that denial of possession or access would significantly impair child's physical health or emotional well-being.

Back 4

Grandparent or other relative can be appointed MC when both parents dead, both parents or surviving parent give consent, or present circumstances substantially impair child's physical health or emotional development.

However, grandparent can be JMC if paired with parent.

Front 5

Suit for access or possession by a grandparent requires affidavit that sets forth facts supporting denial of possession would significantly impair child's physical health or emotional well-being.

Back 5

*Order granting possession of/access to child by grandparent over parent's objections must track proof necessary to obtain such, it must state with specificity that:

1) at least 1 bio or adoptive parent of child had not had parental rights term
2) GP requesting possession has overcome presumption that parent acts in child's best interest- preponderance of evid that denial would significantly impair; AND
3) GP is parent of a parent of the child and parent has been incarcerated during 3 mos period preceding filing; found incomptent; dead;doesnt have actual or court ordered possession or access

Front 6

For 16 or 17, legal incapacity of minority may be removed if minor is financially independent and managing her own financial affairs.

For 16 y.o., there is add'tl req: minor must be living apart from parents, MC or guardian.

Back 6

Court must find that removal of disability of minority is in the best interest of the child.

Front 7

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

TDFPS must file SAPCR (w/appt of attorney ad litem for child) and obtain an ex parte hearing w/in 3 working days after child taken.

Back 7

Parents must be given written notice prior to ex parte hearing:

1) Reasons why took child
2) Summary of parents' legal rights. Full adversary hearing w/in 14 days. If neither ex parte or full, child returned.

Front 8

To retain child, TDFPS must present sufficient evidence to satisfy a person of ordinary prudence and caution:

1) There's continuing danger to child's physical health or safety caused by parents' act or failure to act, and
2) There's a reasonable likelihood that the child will be a victim of abuse in the future.

Back 8

* Professional must report suspected abuse. An attorney, minister, doc, psychologist, social worker, etc., having reason to believe child is being subjected to abuse or neglect must report w/in 48 hrs.

Duty to make report can't be delegated. Failure is a misdemeanor. Identity of reporting individual is confidential; disclosed only on court order or to a law enforcement officer for purposes of criminal investigation. Person who reports in good faith or who testifies in jud proceeding is immune from civ/crim liability. Bad faith/malicious isn't.

Front 9

Parent's liable for property damage caused by child's negligent conduct if conduct's attributable to parent's negligent failure to exercise duty of control and reasonable discipline of child. No $ limit on liability.

* 2 acts of neg req: child and parent.

Back 9

Theft: parental liability for theft by child under 18 limited to $5000.

Intentional tort: Parents liable for property damage caused by willful/malicious conduct of child age 10 to 18; damages limited to $25k per act plus court costs, attorney's fees.

** in these circ, no need to show parental neglect