Family Law Set 3

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VI. CHAPTER 5: Adoption

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.

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i. Who May Adopt? [Standing, 102.005]

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1. Stepparent
2. Possession within last 30 days (adoption placement)
a. Handled through state or private agency and are going through adoption process
3. Possession for 2 or 3 last months
4. Sibling’s foster or adoptive parent [new 2007]
a. Whether they want to separate or keep together in custody suits or foster, etc. Obviously favors keeping the kids together; there is a feeling that it needs more statutory support
5. Catch-all: “substantial past contact…sufficient to warrant standing”
6. Adults only – 162.001
7. If married, both spouses must join in petition for adoption – 162.022(a)

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ii. Who may be adopted? 162.001

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1. There must be at least one parent vacancy, can only have 2 parents but more than 2 people can have conservator rights
2. Theory: 2 parents max per child; 1 or both missing
3. 2 parent adoption:
a. If married, both must join in petition [162.002(a)]
4. 1 parent adoption – “an adult” may petition
a. Stepparent adoption if married (any age)
b. Or if child > 2yrs, a single adult may adopt if already:
i. Managing conservator (foster, who they were left with)
ii. 6 months care, possession or control OR
iii. Former stepparent + consent (or had the kid for 1 yr allowed w/o consent)

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iii. Relationship to Termination

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1. Can combine adoption with termination – 162.001(b)(1)
2. Does death equal termination? Probably
3. How does on terminate an unknown parent’s rights?
a. For father, default judgment if not registered or registered but cannot be located or served – 161.002
i. Only applies if you genuinely do not know who the father is r where to find the person
ii. Doesn’t think there is a duty imposed to look for updated address in the registry
b. Unknown mother? “John Doe” procedures?
i. Name the unknown litigant and get what information you can
ii. Then do the best notification you can – if don’t know anything, notice in a publication is sufficient
4. 6 month statute of limitations for challenge 162.012
a. Policy – to get on with life as quickly as possible

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iv. No per se right to adopt:

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iv. No per se right to adopt: equal protection or none discrimination – very different than the right to procreate

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B. “Best Interest” of Child
i. Statutes

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1. Court grants if in child’s best interest – 162.016(b)
2. Social Study [163.003, 107.0501+]
3. Criminal Background check – 162.0085
4. Managing conservator of child > 12yr must consent (unless waived)

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B. “Best Interest” of Child
i. Statutes

2. Social Study [163.003, 107.0501+]

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a. Qualified private contractor or agency [107.0501]
b. Data included: interviews with all, child and home observations, and obtaining the information from relevant collateral sources [107.0514(a)(4)]
c. Post-adoption study also (within 6 months tryout) 107.052
d. Usually paid by petitioner

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ii. In re Adoption of Gomez
1. Facts: Strawn (black) wants to adopt two white of Hispanic girls. TX anti miscegenation statute prohibits intermarriage between negro (defined as 1/8 or more black) and whites (defined as non-blacks).
2. Issue: does statute violate 14th Amd. and TX analogue?
Held:

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a. Yes, interracial adoption legal
3. Comments:
a. Race-based discrimination now prohibited – 162.015
b. BUT discrimination in favor of Native Americans required (id. and 25 USC 1915).
i. Why? Native Americans occupy an anomalous status as quasi-foreign nations in the U.S. They have a national interest that no other group can claim in terms of their treaty relations with U.S. We treat the children as we would treat foreign nationals. Treated as non-Americans and as foreign gov’t – create treaties, etc. viewed as quasi-foreign gov’t – one of the rare situations where being treated as independent works to their benefits – they asked for it.

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iii. Interest of W.E.R.
1. Facts: Trial ct denies single adult adoption in favor of placement with “a mother and a father” and a “proper family type.” Perhaps the underlying argument is that he’s gay.
2. Issue: Abuse of discretion?
3. Held:

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3. Held: Yes, statutes do not prohibit single-parent adoption. Accordingly, single status alone cannot bar otherwise acceptable person.
4. Comments:
a. Dissent argues social science data favoring 2 parent households.
b. TSC reverses b/c supposedly invalid reason (single parent status) not reflected in findings, and record might support decision.

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iv. Goodson v. Castellanos
1. Facts: Lesbian two step adoption. Goodson adopts as a single mom. Castellanos also adopts. After a falling out, Goodson claims Castellanos adoption is void contra public policy.
2. Issue—is two parent gay adoption illegal?
3. Held-

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3. Held- Court ducks the issue
a. 6 month SOL has run
b. If error, then it’s not fundamental, & Goodson party.
c. No question of adopting a pet or a dead child.

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iv. Goodson v. Castellanos
1. Facts: Lesbian two step adoption. Goodson adopts as a single mom. Castellanos also adopts. After a falling out, Goodson claims Castellanos adoption is void contra public policy.

4. Legal route(s) to 2 parent gay adoption?

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a. 2 step (Goodson v Castellanos) approach
i. Single parent adoption by Partner 1
ii. Partner 2 has six month + “actual care, possession, and control” and child is > 2 years old.
b. One step approach:
i. Partners 1 and 2 have 102.005 standing to adopt
ii. Unmarried or “married” w/162.002(a) consent of other spouse

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iv. Goodson v. Castellanos
1. Facts: Lesbian two step adoption. Goodson adopts as a single mom. Castellanos also adopts. After a falling out, Goodson claims Castellanos adoption is void contra public policy.

c. Public Policy rationale:

d. Birth certificate problems?

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c. Public Policy rationale:
i. One parent adoption is legal (Interest of WER)
ii. Gays are not excluded from one parent adoption
iii. No prohibition on step-parents etc.

d. Birth certificate problems?
i. Health and Safety code says that on a birth certificate or an amended birth certificate, you have to list a father and a mother—uses traditionally pre-determined ‘father’ and ‘mother’ roles.
ii. Can get rid of the original and get a sub, but you couldn’t honestly fill it out by putting two names in the father/mother spot.
iii. Fam code doesn’t have any barrier to two person or one person adoption- and fam code also uses word “Spouse” or “partner” not father and mother.

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C. Cont. Adoption Overview
i. Information for Adoptive Parent

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1. 162.005+ - Health, Social, Educ. and genetic History Report
a. Must include history of abuse [162.005(c)]
b. Medical (including immunizations)
c. School records
d. Genetic History (including ethnicity and race)
e. Social (educational level, criminal history, religion)
f. Duty to Update [162.005(f)]
2. Must be filed with court, unless within family or unknown
3. Right to examine other records [162.006]
4. All redacted

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ii. Voluntary Adoption Registries, etc.

1. Non-exclusive legal way to find out who birth parents are. Not precluded from using other means (internet, civil lawsuits discovery, etc.) – Little v. Smith

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a. Sealed court records can be accessed “for good cause under an order of the court” [162.002]
i. What is “good cause”? Doesn’t include possible inheritance
1. Probate – not a good reason – hoping for rich relatives
a. Possible reasons: bio parent wants to leave money to the birth child, medical necessity
b. Generally, the adoption records are sealed bc they are often coupled with parental rights terminations
c. Birth parent is a legal stranger

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ii. Voluntary Adoption Registries, etc.

2. Mutual Consent; voluntarily

3. Central adoption registry

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2. Mutual Consent; voluntarily
a. Can refuse at any time [162.407(f)], even post contact notice
b. Counseling

3. Central adoption registry
a. Required to submit duplicates of materials [162.404]
b. Unauthorized disclosure = felony [162.421]

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ii. Voluntary Adoption Registries, etc.

4. Test question: 2 ways that adoptive parents have it better than natural born kids?

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a. 2 chances to inherit
b. Actually had someone check out that you have fit parents

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iii. Little v. Smith p. 283
1. Facts: Katherine Smith, adopted as a child, sues to collect on will from biological grandma, or das for exclusion. TC rules barred by S/L, CA applies discovery rule.
2. Issue: Does discovery rule toll S/L for adopted child’s estate claim:
3. Held:

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3. Held: No, for public policy reasons.
4. What are the competing interests at issue?
a. Right of adopted children to inherit thru biological parents.
b. Need for confidentiality of adoption proceedings.
c. Need for probate finality.
5. Ruling emphasizes finality over inheritance.
a. But, no ruling on an “actual fraud” situation.

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iv. Adoption of Adults – 162.501+

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1. No best interest requirement
2. If adoptive parent married, both must join – consent
3. Adult must consent
4. Son or daughter for all purpose
a. Most common purpose is inheritance
b. Easy way to insure if will is invalid and have no heir
5. Cuts off inheritance through biological parents
6. Remember Texas anti-gay amendment issue
a. Also common to use in order to get inheritance

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7. Trivia: What Academy Award Winning movie features an adult adoption for the purposes of inheritance?

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a. Movie: Ben Hur – Charles Heston (Actor)
8. The writer O’Henry working at the Texas Gen Land Office. Who was the writer of the book upon which Ben Hur written
a. General Lou Wallace and his main job was to hunt down Billy the Kid

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D. Lehman v. Corpus Christin Nat’l Bank
i. Facts: Ganddad’s will leaves trust to “descendants” of “children,” including “those [children] who are adopted.”
ii. Issue: Is Randy, adopted as an adult, included in the definition of children?

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iii. Held: Yes, Randy inherits.
iv. Comments:
1. “Child” in family code usually not age-specific, but exceptions (such as when defined
2. Statute now reads “from and through” not “from” – so presumption that inheritance can run to an adopted child
3. Construe any language to include an adopted child if it is at all possible

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E. Adoption Procedure
i. General Consideration

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1. Lawsuit (can combine with termination)
2. Preferentially set 162.0045
3. Some time requirements
a. Six months’ possession (unless waived) [162.009]
b. Pre- and post-placement social studies completed
4. Divorce abates the adoption, can be restarted, but death does not 162.013
5. No attacks after six months – 162.012
6. Name change also available – 162.016

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iii. Matter of Thacker p. 293
1. Synopsis: Baby selling conviction.
2. Facts: Private adoption lawyer convicted of “purchase of a child,” 10 years probated + $10t
3. Issue: Is baby selling disbarrable “moral turpitude”?
4. Held:

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4. Held: Yes
5. Comments:
a. We classify the crime, not the person
b. Any money changing hands, outside authorized agency fees, legal fees, expense reimbursement

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F. Equitable Adoption – you can equitably adopt.
i. Don’t need to worry about for family law portion of the bar but need to know for PROBATE
ii. What is it?

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ii. What is it?
1. Not formally adopted but is through the common law. Establishing a parent-child relationship like CL marriage
2. Usual Elements of Estoppel
a. Agreement
i. Adoptive parent agrees through words and actions
b. Performance of Agreement on One Side
i. Being a child is enough

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iii. Why doesn’t the probate law extend to family law context?

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1. In the probate context – the adoptive parent is dead – but in family context it would go against the policy that the child is under the protection of the court

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G. In re MLPJ
i. Facts: H lives w/ W’s child for 10 years. Does not formally adopt (drug probation problems) but does hold out kid as his own. Divorce ct rules equitable adoption, child support.
ii. Issue: Is equitable adoption possible?
iii. Held:

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iii. Held: Not outside Probate Code.
iv. Comments:
1. Public policy issues?
2. Elements? Agreement, performance by child

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VII. CHAPTER 6: Divorce

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.

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B. Grounds for Divorce

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i. insupportability –6.001 – No fault divorce
ii. cruelty 6.002
iii. adultery 6.003
iv. criminality 6.004 Felony, 1 yr+ prison
v. abandonment 6.005 Intent + 1 Yr
vi. living apart 6.006 No cohab. 3 yrs
vii. mental hospital 6.007 3 yr + incurable
viii. Reason to plead the fault based divorce reasons is to get more stuff in the divorce

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C. Defenses to Divorce

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i. 6.008 – Condonation – only if reconciliation likely
ii. No recrimination – both at fault = no fault
iii. No adultery – ditto, more specifically

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D. A number of legal challenges to no fault divorce after it was added to the statute
i. Cusack v. Cusack
1. Facts: No fault divorce. W tried to plead H adultery in bar; also tries to contest insupportability
2. Issue: Is insupportability an independent ground for divorce?

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Yes
3. Granted as a matter of law

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E. Saltarelli v. Saltarelli
i. Facts: H obtains no-fault divorce
ii. Issue: Does no-fault violate 14th Amd by offering no protection to the institution of marriage?

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No
iii. Rational? Marriage not a contract; therefore no contract based expectation
1. Have to have a contractual ability to enter a k
2. Contrary ruling “would in effect force one of the parties into indentured servitude for the life of the contract.”
iv. “Marriage is a sacred institution that deserve protection in our society today.” –
v. Fault based divorce gave the economically disadvantaged spouse

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F. Waite v. Waite
i. Facts: No-fault divorce (high animosity).
ii. Issue 1: Does no-fault violate “free institutions” clause of Texas Constitution?
1. Held: No, intent is to focus on public institution
iii. Issue 2: Does no fault violate “open cts” clause of the TX constitution?
1. Held:

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1. Held: No, divorce not a well established law cause of action
2. Comment: Questionable, but probably good on other grounds

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F. Waite v. Waite
i. Facts: No-fault divorce (high animosity).

iv. Issue 3: Does no-fault violate Free Exercise and Establishment clauses?
1. Held:

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1. Held: No, marriage not a contract or a religious rite.
2. “We disagree with appellee’s contention that there exists two distinct forms of marriage – sacramental and civil
3. Comment: Wrong on both counts

v. Dissent:
1. Marriage is religious in nature
2. No-fault requires one to consider the “legitimate ends of marriage including religion.”
3. Therefore, statute requires unconstitutional inquiry

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VIII. CHAPTER 7: Procedural Issues (not really on the bar)

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his is usually enough to get you through the bar
i. 6 months residence in state
ii. 90 days in county

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B. Residency
i. Jurisdiction and Residency

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i. Jurisdiction and Residency
1. 6 months current TX domicile – 6.301(a)
a. One spouse is enough – 6.302
2. 90 day residence in county – 6.301(b)
a. Either spouse – 6.302
3. On divorce we consider all divorce as TX

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4. Trivia – X and Y were the divorce capitals of the country before Las Vegas

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4. Trivia – Sioux Falls, SD and before Fargo, ND were the divorce capitals of the country before Las Vegas

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B. Residency

5. Non-resident – 6.305

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5. Non-resident – 6.305
a. Within 2 years after leaving before losing person jurisdiction
b. Or “any basis consistent with the constitution of this State and the United States for the exercise of personal jurisdiction
i. Ie. International Shoe
c. Parent-child suit tags along – 6.305

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ii. Children: jurisdiction and residency
1. Core Concept: continuing, exclusive jurisdiction
2. Basic Test: where the child resides 103.001

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2. Basic Test: where the child resides 103.001
a. Exception 1: Another ct already has continuing exclusive jurisdiction – 103.001 (a)(1)
b. Exception 2: Divorce trumps – if there is a lawsuit on file involving child custody or support in another county and a divorce suit is later filed the child proceeding goes into divorce proceeding – 1002.001(a)(2), etc.
c. Exceptions handled by venue transfer -103.002

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ii. Children: jurisdiction and residency

3. Jurisdiction usually through final order – 155.001
4. Transfer 0 155.201+

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4. Transfer 0 155.201+
a. Required if child resides in another county > 6mths
b. Discretionary: convenience of parties, witness and interest of justice
c. Paper hearing

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iii. General Standing for SAPCR

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1. Parent - See Ch 160
2. Child - Thru rep
3.10. Custodian - Ct, or relinquish/adopt writing
4. Guardian
5. Gov't Entity
6.7. Agency - Authorized or licensed
8. Alleged Dad - Per JWT
9.11.12. Actual Care - 6 mo., w/in 3; inc. foster (12 mo.)
13. Relative - w/in 3d deg, if parents dead
14. Adopting - If so designated in writing

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C. Pleading and Procedural Matters
i. Lawsuit Caption

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1. “In the Matter of the Marriage of ___” – 6.401
a. Trying to make things less controversial and adversarial
2. “In the interest of ____, a child” – 102.008

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ii. Divorce Pleadings – 6.402

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1. Ok to just track the statute; no special exceptions
2. Do not permit pleadings to be dismissed bc they are too generic
a. Don’t want kids to find out specifics later
b. FC doesn’t want it to happen
3. Ok to strike evidentiary pleadings; sua sponte (the judge on his own can strike pleadings)

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iii. Initially Confidentiality

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1. Divorce pleadings, 31 days or service – 6.411
a. We don’t want the responding party to learn about it through a member of the public instead of the processor – a lawyer trolling in search of business
2. Ditto SAPCR proceedings – 102.0086

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iii. Initially Confidentiality

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3. Initial litigation issues all under the same number of the pleading – everything goes under divorce including child support, contempt, changes to custody proceedings. Go to the same judge in order to make sure that the person knows the background and discourages people from going back just to see if you could get a better outcome. Ruling against the person is not considered bias

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D. Jury Trial

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i. Different than all other jurisdictions – never really used in family law cases
1. Historical general feeling that everyone should have right to trial by jury
2. Less likely to
ii. Jury trial constitutionally guaranteed (+ civil Batson – see pg. 343 of text)

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D. Jury Trial
Procedure
Exceptions

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iii. Procedure
1. Either party may ask for jury – 6.703
2. Child-custody – jury is default setting – 105.002
iv. Exceptions
1. No jury in adoptions
2. No jury in parentage suits

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D. Jury Trial
Divorce
Children

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v. Divorce
1. Jury on facts justifying divorce, character of property, value of property
2. Jury doesn’t decide division of the property – advisory only
vi. Children
1. Jury on conservatorship and primary residence
2. Not on rights on conservators, child support

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E. Sam Houston – divorce to Eliza

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Sam Houston was married in Tennesse.
His separation lead him to move to Texas and win Texas' independence.
1. Never been a staute authorizing permanent alimony in TX, but no statute prohibiting it, so it exists.
2. Gets a divorce in 1836 under Mexican regime

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F. Family Violence Orders – On Exam (look at statutes too)
i. TROs and Injunctions

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1. Family Code permits Temporary Restraining Order (TRO) without notice – 6.501
a. Extended form provisions, including threats, harassment, injury – 6.501
b. Lax requirements (no oath, etc.) – 6.503
i. Reason: the things we say someone shouldn’t be doing in a TRO are usually illegal and not constitutionally protected
ii. If at a later hearing the other person is lying, the judge gets mad and it’s the same one from beginning to end

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2. TRO and Injunction Enforcement

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a. TRO cannot exclude one spouse from home, unless part of a family violence protective order – 6.501(b)(2)(A);
b. Injunction requires hearing – 6.502(a)
c. Must be incident to a suit for dissolution of marriage – 6.501(a)
d. Temp orders for SAPCR (kids) limited to child’s safety – 105.001
e. Enforcement by contempt – 6.506

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ii. Protective Orders
Generally
Ct involvement
Scope

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1. PO not generic, it is a specific list of things you aren’t supposed to do
2. If there is a violation, don’t have to go to ct., just call cops and handled on the spot
3. Petition must disclose order status – 6.405
4. Ct required to inform when appropriate – 6.404 and 105.0011
a. Has to let the person at risk know there is PO option
5. Scope: Includes dating [71.0021] and family [71.003]
a. Applies to same sex relationships as well

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ii. Protective Orders
Ct must render PO when ...
Cost
Equivalent to...
Wide range of options
Duration

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6. Ct must render if violence
a. (a) Has occurred and
b. (b) Is likely to occur in the future – 81.001
c. Threat is considered violence – 71.0021, 71.004
7. Free for applicants, reimbursed by violent party – 81.002-.006
8. TRO equivalent (temp. ex parte order) possible Ch. 83
9. Wide ranging options in order: counseling, no contact, no guns (mandatory as of 2009), safe zones 85.022
a. Usually put more of list in to err on side of safety
10. 2 yr duration

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ii. Protective Orders
11. Enforcement

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a. It is put into all criminal data bases. So cops arrest ppl over protective order enforcement.
b. Eliminates major restrictions on TROs and injunctions
i. No problem excluding from family home
ii. Includes dating/unmarried persons
iii. Replaces contempt with criminal penalties
1. Once a PO in place, says what one individual cannot do – criminal statute specific to an individual – cop looks at order and looks at actions and then determine if violation
c. Violation of protective order is a Class A misdemeanor – 85.022
i. 1 yr prison and/or 4k fine [Penal Code 25.07]
d. Required to arrest on probable cause [Penal Code 14.03]
e. Supposedly reduces violence 80%
i. 288 J. Am. Med. Ass’n 589 (2002)

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IX. Chapter 8: Conservatorship – On Exam (look at statutes too)
Conservatorship = Custody in TX

A. Presumptions

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i. Parents over nonparents
ii. Joint over sole custody

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B. In re Derzapf
i. Facts: Mom dies. Grandma and step-grandpa care for kids while Dad adjusts. Tensions arise. Grandparents sue for SMC. TC denies and Dad cuts off visits. Kids’ grades improve, get off antidepressant meds. Grandparents sue for visitation under grandparent access state; TC grants.
ii. Issue 1: Does step-grandfather have standing?
iv. Issue 2: Did TC properly grant grandma access?

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ii. Issue 1: Does step-grandfather have standing?
iii. Held: No.
1. Initially, step-grandma did have general Conservatorship standing under 102.—3, but that suit dismissed
2. Grandparent access statute does not include step-grandparents
iv. Issue 2: Did TC properly grant grandma access?
v. Held No.
1. Post-2005 amendment, must show access denial would “significantly impair” physical health or emotional well-being
2. Psychologist not sure visits w/ Grandma alone a good idea.

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C. Chart – Grandparent Access
i. Provision / Notes

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ii. Special standing statute – FC 153.432
iii. Discretionary - FC 153.433, court “may” order
iv. Parent-favoring presumption – Preponderance of evidence
v. Significant impair child, phys/emot. –FC 153.433(2), aff’t + finding
vi. Preconditions
1. 1 parent not terminated - FC 153.433(1), or adopt’n .434
2. Blood parent: Jail for 3 mo, Incompetent, Dead, No access - FC 153.433

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D. Chart – SBOT Family Law Legislative Agenda – 2013
vi. Caution: Not enacted and not complete list

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i. Parentage – Gestational agreem’t – no marriage req’d
ii. Conservatorship – Gradp’t harm aff’t – expert not req’d; Grandp’t – no dead parent etc. req’d
iii. Child Support – Contempt still possible, even if $ paid; Repeals FC 157.162(d), (e); Repeals FC 157.162(d),(e)
iv. Spousal maintenance – Agreed maint. Hybrid enforcement; Contempt to stat. max; the rest is a K
v. Property division – Agreements incident to divorce; Same enforceability as divorce decree

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E. Conservatorship: Public Policy

Back 57

i. Basics – 153.001(a)
1. Assure contact w/ parents who can act in child’s best interests
2. Provide safe, stable environment
3. Encourage parents to share responsibilities
ii. Conservatorship and child support
1. Can’t condition access on money – 153.011(b), 154.011
2. Can be required to pay w/out access – 153.075s

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G. Conservatorship: Best Interest of the Child
Def
Statutory do's and don'ts

Back 58

i. Always the primary consideration (153.002)
1. No overall statutory definition
2. Case law: Holley factors [p. 198]
ii. Statutory do’s and don’t’s
1. Can’t consider sex or marital status – 153.003
2. Must consider family violence – 153.004
3. Quasi-generic list for JMC – 153.134

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iii. Family Violence & “Best Int”

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1. Ct “shall” consider w/in 2 year window
2. JMC not possible if credible evid of abuse or neglect
3. If child abused, judge must find no danger and craft a possession order
4. Sanctions for false reports of abuse (153.013)

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H. Rights of Any Parent Conservator (153.073)

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i. Receive health, educ & welfare info
1. Concomitant duty to provide (153.076)
2. Specific duty to provide info if parent about to move in w/ sex offender
ii. Attend school activities
iii. Deal w/ med emergencies
iv. Manage child’s estate (created by that parent)
v. UNLESS ct orders otherwise

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I. Rights & Duties During Possession 153.074

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i. Duty of care, control & discipline
ii. Duty to support
iii. Rt to consent to er & nonintrusive med care
iv. Right to direct moral and religious training
v. UNLSS otherwise ordered

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J. Exclusive Rights of SMC (153.132)

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i. Establish primary residence
ii. Consent to invasive med treatment & all psych care
iii. Receive support
iv. Make educ decisions
v. Rep in legal axn & Make “other decisions of subs legal significance”
vi. Consent to marriage or enlistment
vii. Child’s services and earnings
viii. UNLESS limited by ct order

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K. Parental Conservatorship Presumptions

Back 63

i. JMC presumed in child’s best int [153.131(b)]
1. Unless Family Violence
ii. Presumption for JMC parents, or SMC parent [153.131(a)]
1. Unless appointment “would significantly impair child’s physical health or emotional dev’t”
2. No “best int” test”
iii. Presumption for non-SMC or JMC parent to be PC [153.191]
1. Unless possession or access “would endanger” child’s “physical or emotional welfare” AND
2. Not in child’s “best int”

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K. Parental Conservatorship Presumptions
Possesssory Conservator C restriction/denial "may not...
Oddball Provision:

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iv. PC restriction/denial “may not exceed those [terms] that are required to protect” child’s “best int” [153.193]
v. Oddball Provision: Voluntary surrender for >1 year, w/in 90 days before filing, + best int of child rebuts parental presumption [153.373]

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L. Conservatorship: Child Input – 153.009

Back 65

i. Ct interview* [153.009]
1. Over 12, req on request
2. Under 12, discretionary w/ ct
3. In camera, for non-jury
ii. Over 12, child’s written preference serves as “material change” sufficient to warrant modification

Front 66

M. Brook v. Brook p. 353
i. Facts: Mom and Mom’s parents appointed as kids JMC. Dad squeezed out.
ii. Issue: does letting gma take over violate the parental presumption?

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1. Held: No, statutory presumption only applies when NO parent appointed to JMC
2. Problem: disregarding makes it equal protection issue but in this case the constitutional issue wasn’t raised
a. Counsel thought the statutes were clear
b. Nonsense opinion – but still law of TX
i. Whether or not a constitutional issue raised supposed to read the statute in a way that makes it constitutional

Front 67

M. Brook v. Brook (1995) p. 353

Back 67

iii. Discussion
1. Rational reasoning process?
2. Constitutional issues?
3. Note: Before 1995 statutory change establishing general preference for JMC; some minor language change in this statute as well

Front 68

N. In re de la Pena
i. Long and detailed oriented bc the abuse of discretion appeal so have to include in order to overturn a ruling
ii. Facts: 2 kids, mom disappears from the face of the earth; Dad (in jail or CA) places kids in Midland with his sister and her lesbian lover. In later fight, Dad becomes Sole Managing Conservatorship and sister Possessory Conservatorship.

iii. Held: app. Affirm
iv. What stnd was used? Two step analysis? – on Exam
v. Discussion:
1. Problem with PC for sister is the distance, taking the kids to Ca
2. Std abuse of discretion analysis affected by FC presumption and guidelines
3. Two step analysis:

Back 68

3. Two step analysis:
a. Does tc have sufficient information to exercise discretion?
b. Did tc err in applying its discretion?
4. Looks less like abuse of discretion std
vi. Worst you can say about father? False report of child abuse. Sister argues that the he is messing up
1. Ct need to have specifics about something the parent does to constitute taking conservatorship
vii. Turn over from P to D cts. Completely opposite Brook
viii. Subsidiary question: separation of siblings
1. Have separate standing to get access to one another

Front 69

O. Terms and Conditions
i. Elk Grove USD v. Newdow
1. Facts: Constitutional standing of a possessory conservator. Atheist dad from CA arguing about pledge.
2. Facts: Ca Pledge of Allegiance appeal by atheist father of kindergarten daughter; mom tries to intervene, claiming ct ordered “sole legal custody” with right to make education decisions.
3. Held:

Back 69

3. Held: dad didn’t have standing

4. Discussion:
a. Special family law

Front 70

ii. Terms and Conditions Presumptions – know this
1. Sole Managing Conservator

Back 70

a. Must have certain rights (picking residence, intrusive medical, legal representation, etc.)
b. Unless Limited by ct order

Front 71

ii. Terms and Conditions Presumptions – know this
2. Joint Managing Conservator

Back 71

2. Joint Managing Conservator
a. Std PC order presumed reasonable minimum and in child’s best interest [153.252]
b. What is the difference between PC and JMC – the name so it makes the people feel equal. PC requires you show there is something wrong with the PC
c. Purpose of a ct order is to tell you who wins incase of a fight. If you have both as JMC do a lot of adjustment without having to prove one is bad. Also helpful when parent isn’t in best place to care for the child bc there isn’t an order against you in the fact finding from original divorce.

Front 72

ii. Terms and Conditions Presumptions – know this
3. Possessory Conservatorship

Back 72

a. Std PC order presumed reasonable minimum and in child’s best interest [153.252]
b. How often does the presumed reasonable minimum constitute
i. Ct told in advance and PC gets what the Code says then it meets both

Front 73

O. Terms and Conditions
iii. Role of Guidelines - know this

Back 73

1. Guide the cts – 153.251 - his fav statute
a. Reality – exceptionally strong suggestion
2. Standard possession order [153.252]
a. Rebuttably presumed “reas minimum”
b. Rebuttably presumed in child’s best int
c. Neither PC or JMC
3. If std order unworkable, get close [153.253]
4. If order deviates from guidelines, specific fact findings justifying the deviation are req if requested at oral hearing or in writing within 10 days thereafter [153.258]

Front 74

iii. Role of Guidelines - know this – Guidelines for the Possession of a Child by a Parent Named as Possessory Conservator

Back 74

1. Guidelines est in stnd possession order are intended to Guide the cts – 153.251 - his fav statute
a. Reality – exceptionally strong suggestion
2. Standard possession order [153.252]
a. Rebuttably presumed “reas minimum”
b. Rebuttably presumed in child’s best int
c. For either PC or JMC
3. If std order unworkable, get close [153.253]
4. If order deviates from guidelines, specific fact findings justifying the deviation are req if requested at oral hearing or in writing within 10 days thereafter [153.258]

Front 75

iv. Terms of the Order: Standard Possession Order - know this/read the statutes
Under 100 miles -

Back 75

1. 1st, 3rd, 5th Fridays of each month
a. Starting Thursday at 6pm during school year (at PC’s option) [153.312 + 153.317]
b. Plus adjacent school holidays [153.316]
2. Every Thurs PM (at PC’s option, overnight)
3. Alternating spring breaks
4. 30 day min during summer; July default
a. PC election, on written notice
b. MC get one week visit during that 30 days

Front 76

iv. Terms of the Order: Standard Possession Order - know this/read the statutes
Over 100 miles -
Kids under 3 years of age -

Back 76

5. Over 100 miles apart, 1 weekend plus every spring break + 42 summer days (PC option) [153.313]
6. Not applicable to kids under 3 yrs [153.254]

Front 77

v. Cole v. Cole
1. Facts: Teen boys living with dad experience beer, naked strippers, 30-40 kid party, and guns
2. Issue: error in naming mom primary JMC?
3. Held:
4. Why this 15yrs preference not conclusive?
5. Held:
6. Why aren’t dad’s rights terminated?

Back 77

No
4. Why this 15yrs preference not conclusive?
5. Held: If you actually need an explanation, it’s a problem Powerpoint can’t solve.
6. Why aren’t dad’s rights terminated?
7. Granny Delta, living with her daughter’s ex, says everything is great

Front 78

vi. Roosth v. Roosth
1. Facts: Mom appointed sole managing conservator; dad’s PC “only at times mutually agreed to in advance”
2. Held:
3. Why?

Back 78

2. Held: CA says abuse of discretion
4. Rationale:
a. Not bc dad was a bad guy but bc it effectively terminated
b. Equivalent of termination but doesn’t outright terminate despite the fact that the parents could already not agree
c. TC could have denied PC, if all evidenced believed
d. TC cannot grant PC, but refuse to set out specific terms
e. Abuse of discretion to fail to outline the terms of conservatorship

Front 79

vii. In re R.D.Y. – Prof wrote amicus brief
1. Facts: Mom SMC. Dad and Gma (mom’s mom) move to appoint GMa SMC. TC appoints all as JMCs, but limits mom to Gma’s sole discretion to determine whether Mom is mentally and physically capable of properly exercising her visitation.
2. Held:

Back 79

2. Held: CA holds no abuse of discretion; 3 TSC questions and note division of CAs
3. Discussion: Case that mentions Paulsen’s name! Reread.
a. Essentially this is abdication of cts job
i. Letting Gma decide everything is essentially giving the gma the discretion of the ct to decide how conservatorship works

Front 80

P. Modification of Conservatorship (156.101 - .105)
i. Different rules for than the initial

1. Conservatorship Modification 156.101
a. General: Conservatorship, or any term, can be modified if:

Back 80

i. Child’s best interest; and
ii. Circumstances (child, conservator, “other party affected by the order”) have “materially or substantially changed” since the date of the last order.

Front 81

1. Conservatorship Modification 156.101

b. Specific: Can also modify if:

Back 81

i. Child (over 12) expresses reference to judge
ii. Conservator w/sole right to pick residence has voluntarily relinquished primary care for 6 months (not military deployment)
iii. Child abuse/family violence conviction [156.104-5]

Front 82

1. Conservatorship Modification 156.101

Scope -

Back 82

c. Scope: limited to the stuff happening between last trial and this one

Front 83

1. Conservatorship Modification 156.101

d. Exception – 156.102: If less than 1 yr since last order,

Back 83

i. Environment may endanger physical health or significantly impairs emotional development OR
ii. Child’s best interest AND
iii. Unless primary parent asking, or has given up kid for 6 months
iv. Paulsen: Hasn’t seen a case where the exceptions necessary bc it takes too long to get back into ct anyways. But need to know bc may test and bar

Front 84

iii. Interest of V.L.K.
1. Facts: Mother accused of murdering dad. She was in and out of jail while awaiting trial. Infant bounced between relatives. Mom initially agrees for Gran (her mom) be the SMC. Dead Dad’s relatives move to modify. Mom asks for SMC. TC instructs jury no presumption favoring mom. Jury rules for dad’s relatives.
2. Issue: No parental presumption in modification even if parties are different?
3. Held:

Back 84

3. Held: right, no presumption. Weaker law than usual because no constitutional issue raised.
4. Ct: there is no parental presumption in modification even if parties are different. The code doesn’t involve a parental presumption and since she gave up parental rights to mom.

Front 85

6. Paulsen – Parent-child relationship and parental rights are fundamental rights protected by the Constitution. Troxel – must have some presumption of parental rights and so this must be a bad decision. Can’t lose parental right just bc you relinquish conservatorship – especially since she gave it up to her mother and in jail at the time so she couldn’t do much – actually a rational move, would have been the strongest move on her part possible but the ct didn’t like her!
a. Does the parental presumption have to be explicitly set out in the FC in order for it to be a constitutional right?

Back 85

NO! but wasn’t specifically raised and cts are supposed to read the statutes to be constitutional
7. No constitutional issues raised in this case. Straight statutory interpretation.

Front 86

iv. TX Supreme Ct case going on right now—pauly’s confused
1. Adopted kid and bio dad being deported to Mexico.
2. Trial Ct leaned in favor of

Back 86

2. Trial Ct leaned in favor of the dad and the foster parents are saying that the TCt illegitimately ruled in favor of the Dad. Modification issue.
3. No constitutional issues raised. But no constitutional harm yet. In theory, the constitutional issue can be raised at any point until rehearing.

Front 87

v. In re J.R.D. & T.C.D.
1. Facts: Garden variety modification proceeding, JMC dad gets more liberal but not equal, terms of possession.
2. Issue: Are constitutional rights or state statutes violated by allowing unequal physical possession on “best interest” alone, by preponderance of evidence, and abuse of discretion review?
3. Held:

Back 87

3. Held: No

Front 88

v. In re J.R.D. & T.C.D.

4. Discussion
a. Lots of standard black letter law
i. Modify conservatorship only if:

Back 88

1. Modification in child’s best interest
2. Circumstances have materially and substantially changed
3. BoP (preponderance) on party seeking to modify

Front 89

v. In re J.R.D. & T.C.D.

4. Discussion
a. Lots of standard black letter law
ii. Appellate review

Back 89

1. Abuse of discretion std
2. Wiggle room in how standard is stated and applied
Stnd: Arbitrary, unreas, w/out reference to guiding rules or principles
Nonstnd: Legal and factual sufficiency analysis relevant in determining abuse of discretion
b. Majority response: US S.Ct says “best interest” enough, per Flores dicta – immigration case
c. Dissent with novel analysis points

Front 90

v. In re J.R.D. & T.C.D.

d. Puryear dissent
i. Statutory complaints

Back 90

d. Puryear dissent
i. Statutory complaints
1. Presumptive minimum is maximum in reality
2. Unequal possession not contemplated “sharing” – misses the spirit of JMC. Doesn’t look like it’s carrying the sharing into effect.
3. Abuse of discretion std scuttles legislative intent – applying this standard when clearly that’s not the situation—maybe shouldn’t even be talking about abuse of discretion.

Front 91

v. In re J.R.D. & T.C.D.

d. Puryear dissent
ii. Constitutional complaints

Back 91

1. Best interest of the child is not enough in custody—do not terminate parental rights in the best interest of the child.
a. Termination proceedings require more
b. Makes analogy to Troxel (grandparent visitation)
c. Conservatorship decisions can have similar effect
2. Clear and convincing evidence should be required (which is required for terminating parental rights—anything deviated from 50/50 is terminating parental rights bit by bit, so should have C&CE standard for each little bit you want to terminate)
Maj response: US SC says “best int” enough, per Flores dicta

Front 92

R. Coordinators and Facilitators [newly revised]
i. May test on these statutes but will not likely be on the BAR but recently revised
ii. For the most part it is ignored because people can’t afford
iii. General theory:

Back 92

iii. General theory:
1. Outside referees appointed by parties or court
2. “Facilitator” new in 2009
3. Functionally defined—defined by job titles
4. Facilitator can testify in ct and coordinator cannot
iv. When used:
1. Ct motion or party agreement [153.601]
2. Facilitator in high-conflict, low-violence situation [153.6051], but in general the cts tend to stay away from this in these situations
v. Cost:
1. Rich couples or volunteers [152.609, .6091].
2. TX has become the most expensive jurisdiction in which to get a divorce.

Front 93

S. Military Deployment [Expanded 2009-11]

Back 93

i. Temp conservatorship orders for deployment [153.702]
ii. If residential conservator is deployed, can designate temporary replacement [153.703]
iii. Ditto visitation [153.704]
iv. Temporary support modification [153.706]
v. Once you get back, make-up possession or access [153.709]

Front 94

Not on slides:
T. State Intervention
i. See slide and p. 387; case not assigned
U. Conservatorship—practice questions (p. 390)
i. July 2010:
1. Legal criteria for a motion to modify are:

Back 94

a. Material and substantial change in circumstances
b. Best interest of the child
c. Burden (preponderance) on movant father
2. Discuss facts inc. that child could be 11 or 12 with different evidence weight
3. Standard of appellate review…SEE SLIDE
4. SEE SLIDE ON REAL BAR ANSWERS (doesn't exist)

Front 95

Chapter 9: Child Support

Back 95

.

Front 96

Chapter 9: Child Support
i. Structure is like conservatorship—you have a norm (standard order),deviation has to be justified by the ct.

Back 96

conservatorship—you have a norm (standard order),deviation has to be justified by the ct.

Front 97

ii. Child Support: Statutory Overview
Who Pays?
1. Gen rule—

Back 97

Who Pays?
1. Gen rule—one parent pays to another, but if custody is given to neither parent, then third party has the right to collect (154.001)
2. No sex discrimination—moms can pay too (154.010)
3. Remarriage OK, but even if remarried, new stepdad isn’t assumed to pay for child. Money is assumed to go to custodial parent—turn a blind eye if the money is going to pay for something else. No requirement that the rich spouse pay the poor spouse. (154.010)

Front 98

iii. How long do you pay child support?
1. Gen rule:
2. What extends?

Back 98

1. Gen rule: 18 years old (154.001(a))
2. What extends?
a. Disability (154.001(a)(1))
b. Making progress toward graduation—super picky—(154.002, .006)
c. Agreement to pay beyond age 18

Front 99

iii. How long do you pay child support?

3. What cuts off?
4. Obligor death?

Back 99

3. What cuts off?
a. Child’s death (154.006(a)(3))
b. Emancipation (154.001(a)(1))
c. Enlistment (154.001(a)(5))
d. Remarriage—if the two divorced parents remarried each other—(154.006(b))
4. Obligor death?
a. Accelerates payment; becomes debt of estate (154.015)
b. Unless life insurance order (154.016)

Front 100

Child support
iv. How much?
Guidelines -
Calc -
Deviation -

Back 100

-Guidelines: Intended to guide the ct. [154.121], Guidelines presumed reas. [154.122(a)], Also presumed in best int.
-Calculation:
20% net resources per 1 child [154.125]
+5% per child to 5 (or 40%)
>$7,500/mo. net resources need-based, - guideline amnt
-Deviation:
If “unjust or inapprop” [154.122(b)]
And in child’s best int [154.123(a)]
16 factors, + #17 catch-all [154.123(b)]

Front 101

Child support
What is “monthly net resources”? [154.062]
Included
Excluded

Back 101

Included: Actual Income: active, passive, prize, gift, pensions, SS benefits, trusts etc.
Excluded: Return of principal or capital, Accnts receivable, AFDC payments, Fedl & state income tax (+SS tax), Union dues, Health insurance for kids *cz paid anyways [154.064], New spouse’s income [154.069] *cuz needs also ignored *ct control of liens

Front 102

Child support
Deviation Factors

Back 102

Deviation factors - [154.123b]
Child’s age and needs - College tuition etc.
Parents’ financial ability – Employer benefits
Other financial resources – Deductions from pay
Amnt of possessory time – Health ins situation
Net resources – Underemp – Extraordinary expenses
Child care expense – Cost to exercise custody
Care of other kids – Business cash flow
Alimony or spousal maint. – Debts
Anything else – best int of child

Front 103

Child Support: Statutory Overview cont.
Getting Around ppl who get around income
Req info:
Presumptions:

Back 103

Req info: Furnish sufficient info [154.063]
Presumptions:
At least min wage [154.068]
Deemed income from assets [154.067]
Underemployment = potent’l [154.066]
Based on Iliff case – handout – he said actually read this

Front 104

Factors in Setting Support

Roosth v. Roosth
Facts: High-end support case in which support order deviates from guidelines cuz obligor withheld evid on actual income.
Held:

Back 104

Held: Order OK
Discussion:
-Lack of findings and %s explained by recalcitrance
-Intentional underemployment best handled in setting net resource amnt
-Potential income from underutilized assets considered
-Clear abuse of discretion review, tempered by factual sufficiency review of fact findings

Front 105

Stark v. Nelson
-Facts: Man w/ erratic employment history gets temp reduction, followed by automatic increase one year down the road. Remarriage considered as ground for deviation from guidelines.
-Held

Back 105

-Held: Reversed; wrong on both counts
-Discussion: If remarriage not considered directly (154.069), then not a legitimate ground for deviation. Can’t have auto increases, absent extraord circumstances (speculation is not fact)

Front 106

i. Illif v. Illif – READ CASE
1. Facts: Engineer making 100k/yr and quits his job, occasional odd jobs making less than 10k yr. Six months later, W files for divorce
2. Issue: Is H “intentionally underemployed” so that support should be based on potential?

Back 106

a. Yes, 12 contrary App. Ct. decisions overruled
b. Can base child support on what you could be making v. what you are actually making
c. Expected reasoning (that they didn’t follow): Set child support based on underemployment and then deviate as a factor
d. “May” and “Cautionary language” put some check on when the ct will and wont find intentional underemployment to warrant the basis for child support

Front 107

Child support
Underemployment
3. Things to worry about

Back 107

4. Is there a good reasons for being underemployed?
a. Be closer to them
b. Become a public servant
5. Talks big game about the right to choose career but all that it comes down to is the best interest of the child
6. Could have used the – but if the judge decides to allocate support the ct must issue fact findings
7. Both exams ok to know just underemployment

Front 108

Child support
ii. When can you modify? 156.401

Back 108

1. Material and substantial chance in circumstances of child, or “person affected by the order” OR
a. Material: getting out of jail, going to jail, 6 months voluntary
2. Three years since last order and More than 20% or $100 from current calculations
3. Do guidelines matter

Front 109

iii. Child Support: Modification – What is “Material and Substantial”?

Back 109

1. General Rule: Judicial discretion, “may” [156.401a]
2. Material:
a. Getting out of jail (usually) [154.401d]
b. Going into jail (specifics) [154.409]
c. 6 mo. vol. poss’n change [154.409a]
d. Some invol changes [156.409]
e. Military service [154.410]
3. Not material:
a. Joint Conservatorship (usu) [156.401d]
b. Vol add’l support [156.403]
c. New spouse [156.404]
d. Obligee lifestyle change [156.405]

Front 110

iv. Child Support Modification – Do the Guidelines Matter? [156.402]

Back 110

1. Can help prove mat’l & subs change
2. Can modify to fit guidelines
a. If in child’s best int
b. Can consider other factors
3. Practice Note: Cts consider guidelines, period

Front 111

v. Cole v. Joliet
1. Facts: Motion to modify support, based on increase from $5t to $38t per year; support increased $50 per month
2. Held:

Back 111

2. Held: No abuse of discretion in denying both appeal and cross-appeal
3. Discussion:
a. Dad: Mom’s $ and child not going hungry do not justify deviation
b. Mom: Facts not stated incl Dad lying about income 3 times, 3 separate proofs of $120t income (loan statements, expensive analysis, tax tables)

Front 112

vi. Clark v. Jamison
1. Facts: High end modification. Ex-H plaintiff’s attorney seeks reduction based on massive income fluctuation; TC denies.
2. Held:

Back 112

2. Held: Affirmed, support reduction denied.
3. Discussion: Guidelines not required for high-end support (though may be consulted). Old order wasn’t in compliance w/ guidelines either. High end kids have high end “needs.” Material and substantial change not shown.

Front 113

U. Child Support: Appeal
i. Factors to Consider on Appeal
ii. Presumption:
iii. Deviation:

Back 113

U. Child Support: Appeal
i. Factors to Consider on Appeal
ii. Presumption: Guideline amnt reas [154.122a]
iii. Deviation:
1. If “unjust or inapprop” [154.123a]
2. Evidentiary hearing [154.123b]
3. Tied to statutory factors [154.123b]

Front 114

U. Child Support: Appeal
v. Appellate Rev.

Back 114

v. Appellate Rev.
1. General: Abuse of discretion
2. But: Evid must support

Front 115

vi. Tucker v. Tucker
1. Facts: Dad loses modification hearing, despite losing his job, undisputed inability to get a satisfactory new job, responsibility for a new child, and personal bankruptcy.
2. Held:

Back 115

2. Held: TC abused discretion by not modifying.
3. Discussion:
a. Rare example of abuse of discretion reversal
b. TC ruling on modification not w/in guidelines

Front 116

V. Child Support: Enforcement
i. Child Support: Statutory Overview – Retroactive Support – FC 154.131
Time pd:
Guidelines:
Factors:
Moral:

Back 116

1. Time pd: 4 years back presumed. More than 4 years if:
a. Should have, or did, know parent + Tried to avoid liability
b. But: No new filings > 4 years after 18
2. Guidelines: Stnd guidelines helpful (no pres). But: No req fact findings (so ask)
3. Factors: Financial: Dad’s net resources? Hard on Dad & fam? Past actual support?
4. Moral: Did Mom try to notify? Did Dad know?

Front 117

ii. Child Support Enforcement – Wage Witholding Orders
1. Feature:

Back 117

a. Order + Service generally req [158.001]
i. Except for good cause or agreement [158.002]
ii. Due Process: notice & hearing
b. Employer responsibility [158.201-215]
i. No liability to ee if followed [158.206a]
ii. Can’t consider in hiring/firing [158.209]
iii. Liable to recipient (+fine) if ignored [158.206b]
iv. Can deduct admin fee [158.204]
c. Maximum 50% of income [158.001]

Front 118

iii. Child Support Enforcement – Statewide Support Collection

Back 118

1. Statewide collection & disbursement
a. State case registry – support orders [234.001+]
b. State disbursement unit [234.006+]
c. State directory of new hires [234.101+]
d. Local registry for ~pre-1999 orders [154.241+]
2. High tech encouraged
a. State & local encourage EFT [234.009, 234.012]
b. Local can pay by credit card (2003) [154.241f]
3. State & Local Printouts = Official Record [154.242, 234.012]

Front 119

iv. Child Support Enforcement – Ct Action for Support $: Overview
1. Procedure: Motion to enforce [157.001+]

Back 119

a. Enforce as w/ any other judgment [157.264]
b. Support lien (pre or post judgment) [157.312, 157.315]
c. Must be specific for contempt [157.002, Acker]
d. Free lawyer if incarceration possible [157.163, Acker]
e. Probation possible [157.165]

Front 120

iv. Child Support Enforcement – Ct Action for Support $: Overview

Back 120

a. Obligee has relinquished child [157.008a&b]
b. Contempt: Inability to pay or get $ [157.005]
c. Contempt – 6 mo. after end or adult [157.004]

Front 121

v. Ex parte Rojo
1. Facts: After serving time on a crim contempt charge, Dad arg inability to pay as a defense to civil contempt.
2. Held:

Back 121

2. Held: TX SC says inability to pay is a good defense.
3. Discussion: Crim contempt for past violations; civil contempt to encourage current payments

Front 122

vi. Ex parte Acker
1. Facts: Mom uses habeas to challenge contempt confinement.
2. Held:

Back 122

2. Held: Granted
3. Discussion: Contemnor must be advised of rt to L; Order stating “June 1” for ins payments must specify the year to be effective, even if the context is relatively clear