Family Law Texas Bar 2009

Front 1

Family Law: Ceremonial Marriage - 2 requirements

Back 1

1) Reasonable appearance of authority
2) at least one party acting in GF

Front 2

Family Law: Marriage license?

Back 2

not reqruied
Requirements for issue:
over 18; neither already married; not related by prohibited degree of consanguinity

Front 3

Family Law: Void Marriage
3 reasons

Back 3

1)Bigamy (becomes valid if impediment removed
2) Consanguinity (prohibited relationship: Acsendants/descenadnats; 1st line collaterals- bros-sis or their kids; Uncles/aunts; Step child; first cousins; )
3) Under 16 and no parental consent or court order

Front 4

Family Law: Voidable marriages

Back 4

Underage under 18 without parental consent or court approval
Concealed divorce within last 30 days
Impotency; incompetency;
Fraud duress force; Under influence of alcohol/narcotics

Front 5

Family Law: Voidable marriages - lived together?

Back 5

for all viodable marriages, if lived together AFTER discovering ground for voidability, NO reliance on these grounds

Front 6

Family Law: Marriage
Cooling off period

Back 6

72 hour period from issuance of license
If married in the window, can annul the marriage, unless one party was in army, period wiaved by court, OR took the premarital education course.

Front 7

Family Law: Marriage
Jurisdiction over annulment

Back 7

IF marriage took place in TX or one party domiciled in TX

Front 8

Family Law: Informal Marriage/Common Law Marriage
ELEMENTS

Back 8

Holding out to others that are married
Cohabitation (no min required time)
Agreed to be Married (by direct or circum evidence - can prove by holding out and cohab)
**Must be no impediments - prior marriage existing

Front 9

Family Law: CL Marriage rebutting the presumption

Back 9

If 2 YEARS after stopped living together, there is NO acknowledgement of marriage, PRESUMED to not have AGREED to marry.
**Think Intestacy of one CL spouse- if 2 years elapsed, presumed not married.

Front 10

Family Law: Establising Proof of CL marriage

Back 10

Declaration of Informal Marriage filed
Contains all information in marriage license, but permits backdating of marriage

Front 11

Family Law: Divorce Grounds
At Fault Grounds
6

Back 11

Cruel Treatment - old catchall
Adultery
Felony conviction
Abandonment for more than 1 year
living apart for > 3 year
Mental Hospital > 3 yr

Front 12

Family Law: Divorce Grounds
No Fault

Back 12

Insupportability
"B/c of discord of personalities destroying legit ends of marriage & NO reasoanble expection of reconciliation"

Front 13

Family Law: Contesting a NO fault divorce

Back 13

D argues: reasonable possibilty of reconciliiation
Judge may order counseling.
Jurisdiction: One party must meet 6 mo TX/ 90 day county residence requirement for divorce

Front 14

Family Law: Divorce
4 Motions to protect assets or safety

Back 14

Protective Order
Temporary Protective Order
Temporary Restraining Order
Temporary Injunction

Front 15

NOTE: this skips out of order to outline--
Family Law: Adoption
4 reports required before adoption can be finalized

Back 15

1. preadoption Social Study of adoptive home
2. Post placement social study (going OK?)
3. Criminal History of adoptive family
4. SHEG report of child Social, Health, Education and Genetic History.

Front 16

Family Law: Divorce
Protective Order
Purpose
Venue and procedure required
Duration

Back 16

Prevents H from commiting violence. communicating, approaching.
H has committed PAST violence: Intentional Use or Threat of Bodily Harm
Venue: where respondent or relator resides.
Notice and hearing required.
2 yr duration

Front 17

Family Law: Adoption
Prvoding the SHEG report to child

Back 17

Only a summary may be provided to the child after his 18th BDay, edited to conceal family details unless they are registered and he is registered and looking for each other.

Front 18

Family Law: Divorce
Temp Protective Order
Purpose
Procedure
Duration
Eviction?

Back 18

Same purpose as PO but exparte - NO notice
Burden: court finds Clear and Present Danger likely to commit violence again.
up to 20 days - can extend for 20 days
Can evict the respondent IF sworn affidavit + W appears to testify

Front 19

Family Law: Adoption
Time child with placement prior to finalization

Back 19

Minimum 6 months

Front 20

Family Law: Divorce
Temporary Restraining Order
Purpose
Procedure
TEST

Back 20

Purpose: keeps party from disposing of CP during pendancy of divorce
Exparte - no notice needed
TEST: Unreasonble acts of sort NO reasonable person would commit: harrassing calls, removing/concelaing property

Front 21

Family Law: Adoption
Procedure for Giving up an infant

Back 21

Termination of parental child relationship:
1. File Petition to terminate PC relationship --can be filed pre birth, hearing only after affidavit signed.
2. Affidavit Relinquishing Parental Rights -- only signed by Mom (and Dad) 48 hours after birth. -lays predicate for consent decree
3. Affidavit of Waiver of Interest in Child
Dad's quitclaim - doesn't acknowledge parenthood (or sex) just disclaims whatever interest

Front 22

Family Law: Divorce
Temporary Injunction
Purpose
Procedure
Uses

Back 22

Enjoins reasonable AND unreasoanble actions
Notice and Hearing
Can get pymt of temp support; L's fees, award exclusive occupancy of HOME, require inventory, production of books.

Front 23

Family Law: Adoption
If Dad refuses to sign Affidavit of Waiver of Interest in Child
Things you can do:

Back 23

Involuntary Termination Proceeding:
If after served, doesn't respond-terminated
Doesnt register with paternity registry
Culpable Acts: Abuse, neglect, abandonment of pregnant mom, failure to support for 1 yr.
TEST IS BEST INTEREST and by CLEAR AND CONVINCING

Front 24

Family Law: Paternity
SOL on suits to establish if NO presumed father

Back 24

NONE

Front 25

Family Law: Paternity
Presumptions of Paternity
3

Back 25

Child born during marriage OR
Man married Mom After birth and volutnarily asserted paternity by: a) acknowleding in filed record b) voluntarily named on Birth Cert. c) promised in record to support as own
OR During first 2 years of child life, resided with MOM and represented child as his.

Front 26

Family Law: Paternity
REbutting this Paternity Presumption
SOL; How?

Back 26

4 years
Rebut with contrary genetic testing

Front 27

Family Law: Paternity
How established? Jury Trial?

Back 27

On genetic testing
NO jury trial. Science only.
If 99% certainty--court orders D as father.

Front 28

Family Law: Paternity
Paternity By Estoppel
When?

Back 28

IF MARRIED COUPLE, H is estopped from denying paternity IF Conduct should estop them and Best interests of Child: keeps H from denying, even if genetic testing might show otherwise.

Front 29

Family Law: Adoption
Inheritance rights of adopted
Child
Adult

Back 29

Child can inheirt from and through natural parents
Adopted adult CANNOT inherit from natural parents - its terminated.

Front 30

Family Law: Adoption
Standing to contest MC (TDFPS) denial of consent to an adoption petition

Back 30

If child was with foster parents >12 months; Other party (GP, Aunt) can challenge if held the child >6 months.

Front 31

Family Law: Adoption
SOL to set aside an Adoption

Back 31

6 months after decree entered. Best interests
EVEN applies to lack of service of process!!

Front 32

Family Law: Custody
SAPCR Final order requires Parenting Plan

Back 32

included rights of parties
provides for periods of possession
provides for child support

Front 33

Family Law: Custody
SAPCR Parenting Plan in high conflict cases: court can apponit --

Back 33

Parenting Coordinator
Failure to settle on a plan at least 30 days prior to trial- either party can propose one

Front 34

Family Law: Custody
Managing Conservator
Rights

Back 34

Decide primary residence, right to child services/earnings, make decisions re: education; right to receive child support

Front 35

Family Law: Custody
Possessory Conservator
What is it?

Back 35

Parent with visitation rights

Front 36

Family Law: Custody
Determining Managing Conservator
Test
Factors

Back 36

Best Interests of the Child:
Desires of the child
Physical/emo need of child
Parental Ability
Stablity of home
Negative Factors: Violence in home within 2 years; Acts showing less fit

Front 37

Family Law: Custody
Impermissible considerations in determining MC

Back 37

Gender of parent

Front 38

Family Law: Custody
MC determination
Who can make it?

Back 38

Jury can make the determination. OR can make determination as to which of JMC has right to decide Primary residence

Front 39

Family Law: Custody
Who sets Amount of Support?

Back 39

JUDGE
NEVER a jury question!

Front 40

Family Law: Custody
Visitation - how determined?

Back 40

MUST be Standard Possession Order unless parties agree otherwise
(every other weekend + 30 days in summer)
More flexible IF child <3 yr OR parents live > 100 mi apart
ORDER CANNOT just say REASONABLE visitation

Front 41

Family Law: Support
When terminates?

Back 41

At Age 18 OR when graduate from HS. Not later than 21
UNLESS disabled before 18th BDay
Doesnt terminate on Obligor's death - becomes claim on estate.

Front 42

Family Law: Support
Amount - How determined?

Back 42

Statutory Child Support Guidelines (unless agree otherwise)
20% of Obligor's Net Resources for first child add 5% for each addtl child up to five

Front 43

Family Law: Support
Amount - How high?

Back 43

Up to $1500/mo per child max. Unless special needs shown

Front 44

Family Law: Support
Deviation from Guidelines
Why?
How to do it?

Back 44

Special needs of child; Ability of parent to contribute;
Amount of possession and access to child
Deviation reasons MUST BE INCLUDED IN COURT ORDER

Front 45

Family Law: Support
Improper Considerations in Determining Amount

Back 45

* Parent's wealth
Not even despicable conduct

Front 46

Family Law: Support
How Payments are Made?

Back 46

To child support registry or AG
Avoids dispute as to whether payment was made!

Front 47

Family Law: Support
Enforcement of Child Support
6 ways
MMCLLL

Back 47

Mandatory Withholding
Money Judgment
Contempt action
License revocation
Lien on proeprty
Levy and execution

Front 48

Family Law: Support
Mandatory withholding
Max? How done?

Back 48

Max withheld is 50% of disposable (takehome earnings)
ALL FINAL ORDERS MUST HAVE MANDATORY WITHHOLDING!!
Send judgment to the ER to trigger withholding.

Front 49

Family Law: Support Enforcement
Money Judgments
Effect
Court purpose
SOL

Back 49

Arrearage automatically becomes a money judgment + 6% interest.
ONLY job for court is to determine amount unpaid
Defense: actual payment
SOL for money judgment: 10 years after child becomes adult

Front 50

Family Law: Support Enforcement
Contempt

Back 50

Action in quasi criminal proceeding - must have DP rights, Must be for TX Order
$500 fine, 180 days jail OR 5 yr probation

Front 51

Family Law: Support Enforcement
License Suspension
Notice?

Back 51

Can suspend any state license (Dr.; Hunting; driving) IF 90 days in arrears.
Must provide 60 days notice

Front 52

Family Law: Support Enforcement
Lien - Child Support lien
Against?

Back 52

Any real property other than exempt and homestead

Front 53

Family Law: Support Enforcement
Levy and Execution

Back 53

If judgment on arrearage, can levy on financial institution- D has 10 days to protest; Institution must pay no sooner than 15 days, no later than 21

Front 54

Family Law: Support Enforcement
Interstate: How to enforce?

Back 54

UIFSA action.
Mail order to ER in new state-triggers withholding in other state; if don't know ER, mail to State's support enforcement agency who will act.
2. Reduce to Money Judgment - other state must honor
3. Contempt - Only for a out of state judgment FILED in TX. and only for accured after filing.

Front 55

Family Law: Support Enforcement
Jurisdiction where

Back 55

Remains in SAPCR court if at least ONE party remains in state, OR if no one remains in state, in new state of child residence if 6 mo.

Front 56

Family Law: Custody Enforcement
What actions can be filed?

Back 56

1. Habeus Corpus action
2. Statutory Tort - Interference with Child Custody
3. Contempt
4. UCCJEA

Front 57

Family Law: Custody Enforcement
Habeus Action
What is disputed?
Venue?

Back 57

Only whether there is a VALID custody order
Cannot relitigate the custody issue
Venue: County where child found OR SAPCR continuing j/d
Can be in state or out of state.

Front 58

Family Law: Custody Enforcement
Statutory Tort Action - what called?
Damages recoverable
Procedure
Who Liable?

Back 58

"Intereference with Child Custody"
Damages: Actual and Exemplary
Msut give 30 notice of intent to file
parent AND aider and abettor liable

Front 59

Family Law: Custody Enforcement
Contempt action
Available for what?
Process Due?

Back 59

Violation of a TX order can get contempt finding. NOT for non-TX order -- so register your TX order to get contempt.
Quasi criminal - due process requried. Beyond Reas Doubt.

Front 60

Family Law: Custody Enforcement
UCCJEA
Jurisdiction disputes decided with this order:

Back 60

SAPCR court - continuing exclusive j/d if one party continue to reside
2. Home State J/d of child for last 6 months.
3. Temp Emergency j/d - where child abandoned or abused
4. If NO other state, where child and one parent have significant connection + substantial evid available.

Front 61

Family Law: Custody Enforcement
UCCJEA
Remedies

Back 61

Registration of Order (2 copies, one certified) with court. Grant any listed relief
2. Expedited Enforcement in Habeus type proceeding
3. Warrant to TAKE immediate possession of child- MUST show potential serious Physical harm or that could be removed from the state.

Front 62

Family Law: Custody and Support Modification
Support - Modification TEST

Back 62

to change $, must show
1. Circumstances changed MATERIALLY & SUBSTANTIALLY OR
2. 3 yrs passed and support deviates from guidelines by > 20% OR $100/mo

Front 63

Family Law: Custody and Support Modification
Custody - Modification TEST
(3)

Back 63

1. Best Interests of Child
2. Circumstances Materially and Substantially Changed
3. (if brought w/in 1 yr of custody award) Danger to child physical/emo health.
NOTE: No test if abandonned child >6mo.

Front 64

Family Law: Custody and Support Modification
Mandatory Venue Transfer

Back 64

Must transfer from SAPCR court with continuing Exclusive j/d to new court IF Child in new county for > 6 months.
Agreement not to transfer (or to not seek support modification) unenforceable on Public Policy ground.

Front 65

Family Law: Custody and Support
Conservator Moving Notice

Back 65

60 days

Front 66

Family Law: Grandparent Rights
Process to seek access

Back 66

File pet for Reasonable Access for GP
Req: at least ONE parent's rts NOT terminated & GP's child must be incomp or dead or has NO actual access
GP must overcome presumption fit parent acts in child BI in denying access - proving by prepond denial access signif impairs child health

Front 67

Family Law: Child Abuse
Responsibility of Reporting
Who?
When?
Liability?

Back 67

Any professional with REASON to believe child being abused MUST report in 48 hours.
Not liable for GF mistaken report.

Front 68

Family Law: Child Abuse
TDPFS actions on report

Back 68

1. can immediately take child w/o ct order if ordinary prudent person would beleive victim of abuse and NO time for a TRO
1st hearing Ex parte 3 days
2nd full adversarial hearing w/in 14 days

Front 69

Family Law: Child Abuse
Effect of Failure to have TDPFS hearing:

Back 69

Child returned to home

Front 70

Family Law: Child Abuse
Burden on TDPFS to show at abuse hearing to retain child

Back 70

sufficient evid to satisfy reas prudent person theres:
Continuing Danger to health & Reasonable likelihood victim of abuse in future.

Front 71

Family Law: Parental Tort Liability
Negligence Action

Back 71

Liable if CHILD negligent conduct PLUS Parent negligent failure to exercise control
Need both negligence
NO limit on amount

Front 72

Family Law: Parental Tort Liability
Theft action

Back 72

for child under 18, limited to $5000

Front 73

Family Law: Parental Tort Liability
Intentional Tort liability
Amount
Age range

Back 73

Liable for $25k for willful and malicious actions of child 10-18
NO need to show parental negligence in supervision, only Child's intentional action.