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41 Cards in this Set
- Front
- Back
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Ceremonial Marriage & Marriage License Issues
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-If no marriage license is obtained, marriage must be established by proof (elements of ceremonial marriage were satisfied)
-No particular form of a marriage ceremony is required -Validity of marriage not affected by the lack of authority of person conducting ceremony if: a. that person had a reasonable appearance of authority b. at least 1 party to the marriage acted in good faith and treats the marriage as valid c. neither party of the marriage is a minor -Licensees, future spouses, encouraged to attend premarital education course when they apply for a license (but not required) |
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Void Marriage
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Marriage is VOID only if 1 of 3 situations exists:
1. Bigamy (one spouse is already married - but marriage becomes valid if impediment removed - ex. current spouse dies) 2. Consanguinity (marriage within prohibited relationship- adoption; ascendants/descendants; 1st-line collaterals; uncles/aunts; current or former stepchild/parent; but not 1st cousin marriages) 3. Either party to marriage is under 16 years of age, unless court order was obtained allowing the marriage |
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Grounds for Annulment
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1. Underage (can be filed by child's next friend within 90 days; if brought by parent, action must be filed before child's 18th birthday; annulment is in trial court's discretion, considering all factors - especially pregnancy)
2. Concealed divorce within 30 days of marriage (action to annul must be brought within 1 year) 3. Impotency 4. Incompetency 5. Fraud, duress, force 6. Marriage under influence of alcohol/drugs 7. Marriage occurred during 72-hour waiting period after license issued - not permitted unless one party is in Armed Forces, 72-hour cooling period waived by court, completed premarital education course (suit must be brought within 30 days after marriage) |
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No-Fault Divorce
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Texas is a no-fault divorce state; divorce may be decreed without regard to fault if the marriage "has become insupportable because of discord/conflict of personalities that destroys the legitimate ends of the marriage relationship and prevents any reasonable expectation of reconciliation"
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Grounds for Divorce
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1. No-fault divorce on the ground of insupportability
2. Cruel treatment 3. Adultery 4. Abandonment (more than 1 year) 5. Living apart (for 3 years) 6. Confinement to mental hospital (for 3 years) |
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Venue & Waiting Period for Divorce
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Venue = action can be filed in county of residence of either party as long as petitioner has resided in the county in which the divorce petition is filed at least for 90 days
Waiting Period = before spouse can file for divorce in TX, he/she must be a domiciliary of TX for at least 6 months and must meet the 90-day county residency requirement Divorced spouse cannot remarry until at least 30 days after divorce decree is final, but waiting period can be waived for good cause (marriage within 30-day period makes marriage voidable, not void) |
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Counseling
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Family Code gives TX courts discretion to order counseling:
1. to determine if there is a reasonable expectation of reconciliation of the parties and 2. to order further counseling for 60 days if court continues to believe that there is a reasonable expectation of reconciliation |
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Alternative Dispute Resolution
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Several statutes designed to encourage use of ADR procedures in dissolution of marriage proceedings (esp. in dividing couple's community estate in divorce actions) and in SAPCRs (objective is to reduce costs and animosity)
Arbitration = on written agreement of parties, court may refer suit for dissolution of marriage to arbitration; agreement must specify whether arbitration is to be binding or nonbinding Mediation = on written agreement of parties or on court's own motion, court may refer a suit for dissolution of marriage to mediation; mediated settlement agreement is binding on parties if: 1. provides that agreement isn't subject to revocation 2. signed by each party to agreement 3. signed by each party's attorney who was present when agreement signed |
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Common Law Marriage (Informal Marriage)
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TX recognizes common law marriage; there must be no impediment to the marriage, and 3 elements must be proven:
1. Agreement to be married (must be affirmatively proven by direct or circumstantial evidence - cannot be inferred) 2. Held themselves out to others that they were married 3. Cohabitation (no minimum time) If action to prove common law marriage not brought within 2 years after parties separated and ceased living together, presumption that parties had not agreed to marry (presumption can be rebutted) Declaration of informal marriage = means of establishing proof of common law marriage to establish eligibility for governmental benefits (contains same info as license application - age; neither is already married; not within prohibited degree of consanguinity - plus elements of common law marriage); couple picks effective date of marriage (can predate declaration) |
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Protective Order
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Issued by divorce court judge if divorce pending; can prohibit party from committing family or dating violence, from communicating with family members, from stalking, from going near residence/place of employment, removing child, or carrying weapon
Conditions of Protective Order: court may order respondent to complete battering intervention or prevention program, counsel with social worker, perform acts court determines necessary to prevent likelihood of further family violence Maximum Duration of Protective Order: 2 years, but 1 year after order entered, subject can request determination whether there is a continuing need for the order Notice and Hearing required - no sooner than 48 hours, no later than 14 days after service |
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Family & Dating Violence
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Act intended to result in physical harm, bodily injury, or sexual assault
Threat of the same Dating violence occurs where there was a continuing, intimate relationship but no cohabitation |
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Temporary Protective Order
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TPO - ex parte, no personal notice - issued if court finds clear and present danger that other party is likely to commit family violence again; only valid for 20 days (until hearing can be held on longer term protective order)
TPO can only evict a party from family home if applicant gives description of facts supporting TPO and appears in person to testify |
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Temporary Restraining Order
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TRO - ex parte, no personal notice - test: unreasonable acts of the sort no reasonable person could think he could could commit: transferring property, falsifying records, vulgar phone calls, threats of bodily injury
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Temporary Injunction
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After notice and hearing, TI can be granted for unreasonable acts and for reasonable acts which a person ordinarily do unless ordered by the court: awarding one spouse exclusive occupancy of residency, ordering payment of temporary support, restricting access to records of family business
Temporary support and payment of attorney's fees can only be ordered as part of temporary injunction or protective order |
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Paternity
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Genetic tests must be taken by alleged father and child; no statute of limitations on paternity if child has no presumed father
If alleged father refuses, court may: 1. order specimen from his relatives 2. hold alleged father in contempt 3. enter default judgment adjudicating paternity which tends to yield to cooperation If test shows 99% probability that man is father, court shall enter order than man is father While court can order child support retroactive to child's birth, there is statutory presumption that retroactive support not exceeding what would have been due under child support guidelines for preceding 4 years is reasonable and in the child's best interest; presumption can be rebutted by showing man knew or should have known he was the father and sought to avoid establishment of child support obligations |
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Presumptions as to Paternity
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A man is presumed to be father if:
1. Child born during (or within 300 days after) marriage or attempted (but void/voidable) marriage 2. He married (attempted to marry) mother after child's birth AND: a. acknowledged paternity in a record filed with Bureau of Vital Statistics b. promised in record to support child c. was voluntarily named as father on child's birth certificate 3. During first 2 years of child's life he resided with child and represented to others that child was his (only presumption that does not involve marriage) Only evidence that can rebut presumption of paternity: 1. Genetic test results 2. Written denial of paternity by presumed father and written acknowledgment of paternity by another man |
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Paternity by Estoppel
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Court may deny genetic testing and issue order adjudicating the presumed father to be the father, if court finds:
1. conduct of mother or presumed father estops the party from denying parentage 2. it would be against child's best interest to disprove father-child relationship In determining whether to find paternity by estoppel, court considers: 1. length of time between date of paternity action is filed and date presumed father put on notice he might not be father 2. length of time presumed father had assumed the role of father 3. facts surrounding presumed father's discovery of his possible nonpaternity 4. child's age and nature of relationship between the child and presumed father 5. harm that may result to child if presumed paternity is disproved Only applies to married persons! |
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Adoption
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Any adult (single or married; resident or nonresident) can adopted a child as long as court finds adoption is in the child's best interest (if petitioner married, both spouses must join)
Child may be adopted if: 1. Both of child's parents are dead 2. Parent-child relationship as to each living parent terminated 3. Stepparent wants to adopt 4. Child is at least 2, parent-child relationship has been terminated with respect to 1 parent, and former stepparent who has been a managing conservator or had possession of child for specified period wants to adopt child Prerequisite to infant adoption: termination of parent-child relationship; can only be 1 set of parents at a time Child must reside with adoptive parents 6 months before final decree (can be waived by court) Child over age of 12 must consent Pre-adoptive and post-placement studies required to insure suitable home environment for child |
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History Records
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Adoption agency must file social, health, educational and genetic history report (SHEG report) providing all info agency has on child's background and existing relationships with siblings, parents by birth, and extended family; child's health, immunizations, and other medical info; educational background; genetic info; and any history of abuse suffered by child
Copy of report, edited for confidentiality purposes, must be furnished to prospective adoptive parents Prospective adopting parent must furnish court with criminal history record |
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Adoption Records
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Sealed and adopted child has no right to learn identity of birth parents; child's only right (at age 18) is to obtain edited copy of background report (not entitled to full report unless birth parent has also requested copy of edited report)
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Voluntary Termination Proceeding
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Parent terminating parent-child relationship must sign an Affidavit of Relinquishment of Parental Rights
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Involuntary Termination Proceeding
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Generally based on parent's conduct that is harmful to the child
Family Code authorizes involuntary termination if 2 elements are established by clear and convincing evidence: 1. Termination is in child's best interest 2. Valid ground is established (neglect, abuse, controlled substance use, failure to support for 1 year, imprisonment for 2 years, abandonment, endangering child = FANE CIA) Child over 12 must give consent |
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Sole Managing Conservator
Possessory Conservator Joint Managing Conservators |
parent awarded custody of the child
parent given visitation rights parents awarded joint custody |
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Best interest of the child
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Courts consider following factors:
1. desires of child 2. present and future emotional and physical needs of child 3. emotional and physical dangers to child now and in future 4. parental abilities of person seeking custody 5. stability of home environment 6. acts indicating existing parent-child relationship isn't an appropriate one 7. opportunities for child (SAND POD) |
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Sole managing conservator
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each parent appointed conservator has right of access to child's medical, dental, psychological, educational records; right to consult with school officials and attend school activities; right to be designated as person to be notified in case of emergency; right to manage child's estate to extent created by that parent or his family
Best interest of child is primary consideration of court in determining questions of managing conservatorship, possession, support of and access to child |
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Modifying Conservatorship
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Court can modify an order that provides for appointment of conservator if modification would be:
1. in best interest of child and 2. one of following tests met: a. circumstances of child or conservator have materially and substantially changed since date order was entered b. child is at least 12 and has filed with the court the name of person whom child prefers c. conservator who has right to establish child's primary residency has voluntarily relinquished primary care and possession of child for at least 6 months |
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Steps to Take if Parent Wants to be Named Managing Conservator:
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1. File in SAPCR court, court of continuing exclusive jurisdiction
2. If child has moved to new county and has resided there more than 6 months, file a motion to transfer to new county (transfer is mandatory and will be granted) 3. Conservator must give other party notice of intent to move at least 60 days before the move 4. To modify sole managing conservatorship, 2-pronged test: a. modification in child's best interest b. changed circumstances 5. To discourage repeated custody litigation, if motion to modify custody has been filed within 1 year from order to be modified, party must show danger to child's physical or emotional health |
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Possessory conservator
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noncustodial parent with visitation rights
Court may set time/conditions for possession of/access to child TX legislature has adopted Standard Possession Order that provides detailed rules for possession/access to child if parties cannot work out their own agreement; this one-size-fits-all order must be incorporated into the court's decree |
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Joint managing conservators
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sharing of rights, privileges, duties,and powers of a parent by two parties
Unless there is a history of family violence, there is a rebuttable presumption that appointment of parents as JMCs is in child's best interest |
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Duty to Support
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Parent has duty to support her child while child is a minor, and thereafter as long as child is in high school
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Child Support
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Court may order parent to make child support payments until child is 18 or ceases to end high school (whichever is later); can be extended if child disabled; payment may be periodic or lump sum
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Determining Level of Child Support
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-Court considers statutory guidelines, child's needs, ability of parents to contribute to child's support, any financial resources available for support of child, and amount of possession to child
-Statutory guidelines fix amount of child support to percentage of obligor's "net resources" - presumption that percentages are reasonable and in child's best interest; to deviate, court must make specific findings as to reasons justifying deviation; (1=20%; 2=25%; 3=30%; 4=35%) -Apply to obligor's 1st $7500/month of net resources; if resources exceed that amount, court may order additional support only if child had special needs (ex. asthma) -Right of child support cannot be adversely affected by premarital agreement (against public policy) |
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Modifying Child Support
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Two grounds:
1. Circumstances of child have materially and substantially changed or 2. 3 years have elapsed, and support deviates from guidelines by greater of 20% or $100 |
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Enforcement of Child Support
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1. Mandatory withholding from earnings
2. Contempt 3. Suspension of license 4. Child support lien 5. Money judgment for child support arrearages |
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Mandatory Withholding
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Step 1: determine amount of child support by statutory guidelines; Step 2: 50% of disposable earnings rule fixes maximum amount that can be withheld
-support orders must provide for mandatory withholding against disposable earnings, much narrower than "net resources" -"disposable earnings" (take home pay) = gross salary and wages minus "usual" deductions -maximum amount that can be withheld for child support is 50% of disposable earnings |
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Bankruptcy discharge
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under federal law, neither an obligation to furnish future child support nor child support arrearages may be discharged in bankruptcy
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UIFSA (Uniform Interstate Family Support Act)
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Purpose = provide for child support actions involving several states
Under UIFSA, state that establishes a child or spousal support order is an issuing state; law of issuing state supplies the substantive and procedural law for support order UIFSA contains a broad provision for asserting long-arm jurisdiction over absent defendants; tries to keep continuing, exclusive jurisdiction over a child support order in issuing state |
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UCCJEA
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Applies in multi-state child custody situations
Court that issued custody order has continuing exclusive jurisdiction as long as one party still resides in that state To transfer to other state, petitioner must show that it is an inconvenient forum: a. neither child or petitioner have significant connection to state b. evidence is no longer in that state |
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Grandparent's Petition for Reasonable Access
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For biological/adoptive grandparent (not step-grandparent) to be granted reasonable access over parent's objections:
1. at the time access was requested, at least one parent must not have had parental rights terminated 2. grandparent must overcome presumption that parent acts in best interest of child by proving by a preponderance of the evidence that the denial of access to the child would significantly impair child's physical/emotional well-being 3. grandparent's child who is the parent of child: a. has been incarcerated during 3 months prior to filing of petition b. has been found incompetent c. is dead d. does not have actual or court-ordered possession of child |
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Reporting Child Abuse
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A professional must report suspected child abuse within 48 hours; duty cannot be delegated; failure to make report is a misdemeanor; identify of reporter is confidential
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Parental Liability for Child's Tortious Conduct
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1. Negligence: parent liable for property damage caused by child if conduct attributable to parent's negligent failure to exercise duty of control and reasonable discipline; no dollar limit on liability (2 acts of negligence required: parent and child)
2. Intentional Tort: parents liable for property damage caused by malicious/willful conduct of child age 10 to 18; damages limited to $25,000 per act |
