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93 Cards in this Set
- Front
- Back
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Requirements for Marriage
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1. Marriage License
2. 72 Hour Waiting Period between issuance of license and ceremony 3. Marriage Ceremony |
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Marriage License
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• The license is valid for 30 days from issuance.
• NO medical examinations are required • No license is required for common law marriage • Marriage Ceremony is VALID without license |
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Parental Consent
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•A marriage license cannot be issued if EITHER party is under 18 without parental consent or court order
• Applicants aged 16 to 17 can obtain a license with consent of either parent or a person who has the court-ordered right to consent • Application must be made within 30 days of consent • A District Court can grant permission if "believes marriage is in the best interest of the child." |
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Marriage Ceremony
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• NO particular ceremony is required.
• A person authorized to conduct a marriage is prohibited from discriminating on basis of race, religion, or national origin |
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Common Law Marriage (Informal Marriage)
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The parties
1. Agreed to be married 2. Lived together in Texas as husband and wife (cohabitation) 3. Represented to others that they were married (holding out) NO impediments to marriage can exist, e.g. already married, under 18, etc. |
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Declaration of Informal Marriage
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• The parties can execute and record a sworn "Declaration of Informal Marriage"
• This is NOT required for establishing common law marriage. • It is a permissible method of proving an already established informal marriage |
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Presumption Against Common Law Marriage (Common Law Divorce)
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If an action to prove a common law marriage is not brought within 2 years after the parties separate, a presumption arises that the parties had NOT agreed to be married.
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Sam-Sex Marriages and Civil Unions
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•NOT recognized in Texas, even if entered into outside of the Texas.
• The results of a sex change operation are NOT recognized for the purpose of marriage. |
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State Policy
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• Every marriage entered into in Texas is considered valid UNLESS it is EXPRESSLY made void or voidably be statute (and is annulled)
• Generally, validity of marriage is not affected by fraud, mistake, or illegality in obtaining the license. • Ceremony will be valid even if performed by an unauthorized person, as long as the person conducting had apparent authority and at least ONE party to the marriage had a good faith belief the marriage was valid. |
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Void Marriages
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Marriages are void because
(1) Consanguinity--any blood or adoptive relative closer than first cousins. (first cousin marriages are not void but are now prohibited) (2) Bigamy (3) Either party is under 16 of age, UNLESS a court order, NO parental consent • Procedure (1) In rem proceeding brought by either party (2) May be brought ex parte (3) May only be brought if at least one party is in Texas or domiciled in Texas • NO marital property rights would have arisen from relationship • Children of void marriages are marital children for all purposes |
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Voidable Marriages
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• Types
1. Underage 2. Alcohol or Narcotics; Permanent Impotency; Fraud, Duress, Force 3. Mental Incapacity 4. Concealed Divorce within 30 Days of the Marriage 5. Marriage Less than 72 hours after issuance of license 6. Post-Death Action to annul marriage for Lack of Mental Capacity • Is NOT subject to challenge after death of one of the parties UNLESS it is allege a party did not have the mental capacity to marry • Aside from Underage Parties & 72-Hour Waiting, a party CANNOT bring suit to annul if the petitioner has VOLUNTARILY COHABITED with the other party AFTER the situation discovered |
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Voidable Marriage--Within 30 Days of Divorce
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• The divorced parties may remarry each other at ANY time
• A marriage in violation of the statute is voidable by the innocent spouse, but ONLY if the action is brought within 1 YEAR and the parties do NOT cohabit AFTER the innocent party learns of the divorce |
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Voidable Marriage--Post-Death Action to Annul Marriage
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• A marriage can be annulled if the decedent did NOT have mental capacity to consent if
(1) The marriage took place within 3 YEARS of the decedent's death, AND (2) The action for annulment is filed within 1 YEAR after the decedent's death |
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Rights, Powers, and Duties Arising from Marriage
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1. Duty of Support
2. Criminal Conversation or Alienation of Affection Action |
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Grounds for Divorce
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1. No-Fault Divorce--marriage has become "insupportable"
2. Fault Based Grounds (i) Adultery (ii) Cruel Treatment (iii) Abandonment for more than a year (iv) Living apart for at least 3 years (v) Confinement in mental hospital for at least 3 years (vi) Conviction of a felony (at least 1 year's imprisonment) |
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Grounds for Divorce—Cruelty
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• Cruel treatment is conduct that renders the couple’s living together insupportable (incapable of being borne, insufferable, or intolerable)
• Cruelty encompasses physical or mental cruelty |
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Damages Between Spouses
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• May recover for IIED may NOT recover for NIED.
• In dividing the community estate, fault can be considered, but a spouse CANNOT recover for both tort damages and a disproportionate division of community property based on same conduct. |
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Spousal Maintenance
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• Eligible if
(1) Married for 10 years UNLESS other spouse is convicted of family violence within past 2 years (2) Spouse must lack sufficient property, including property distributed to the spouse under the Family Code to provide for her minimum needs; AND (3) The spouse must either (a) be unable to support herself because of a disability; OR (b) be custodian of a disabled minor or adult child; OR (c) lack employment skills adequate to provide for her minimum reasonable needs • Maximum award is LESSER of $2500/mo or 20% of spouse average monthly gross income. • Payment CANNOT continue for more than 36 months • Award can be modified downward (NOT upward) upon showing that circumstances have materially and substantially changed • Award Terminates (1) Death of either party (2) Remarries or cohabits conjugally |
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Divorce--Residence Qualifications
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Either party must have been domiciled in Texas for the preceding 6 months and a resident of the county in which suit filed for 90 days.
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Suit for Annulment or to Declare Marriage Void--Residence Qualifications
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ONLY if
(1) Parties were married in Texas; OR (2) either party is domiciled in Texas |
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Long Arm Jurisdiction over Nonresident Spouse
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In a suit for divorce, annulment, or to declare a marriage void if the petitioner is a resident or domiciliary of Texas the court may extend personal jurisdiction to non-resident spouse if:
(1) Texas is last marital residence and suit within 2 years of end of residence; OR (2) "There is any basis consistent with the constitutions of this State and the US for the exercise of the personal jurisdiction." |
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Procedures for Divorce, Annulment, and to Declare Marriage Void--Pleadings
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Allegations of grounds relied on substantially in the language of the statute and must NOT contain statement of evidentiary facts
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Procedures for Divorce, Annulment, and to Declare Marriage Void--Court Ordered Counseling
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• Court may order
• Counselor CANNOT testify, nor can his report, files, records, etc. be admitted in any action involving parties or children |
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Procedures for Divorce, Annulment, and to Declare Marriage Void--Custody and Support of Minor Children
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• The suit for Divorce, Annulment, and to Declare Marriage Void MUST include a separate "suit affecting the parent-child relationship" (SAPCR)
• SAPCR only required if the children are children of both spouses |
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Temporary Restraining Order and Temporary Injunction
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• Ex parte TROs may be issued to prevent unreasonable acts; after notice and hearing, the TRO can be extended beyond the 20 days to a temporary injunction.
• Temporary Injunctions can require sworn inventories and appraisals of reasonable or unreasonable acts, can exclude one spouse from the residence, can require the support of either spouse |
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Protective Orders
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In cases of family violence after notice and hearing, and upon showing of family violence or dating violence a Protective Order can be issued which prohibits
1. Committing family violence or dating violence 2. Directly or Indirectly communicating with other party 3. Removing child from possession of other party 4. Stalking 5. Engaging in conduct that is likely to harass, annoy, or embarrass 6. Possessing a firearm • If CLEAR AND PRESENT DANGER court may issue an ex parte temporary protective order • Filed in county were applicant resides OR in which respondent resides • Hearing NO sooner than 48 hours NO later than 20 days • Max. duration is 2 years • Violations of Protective Order is a criminal offense |
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Sixty Day Waiting Period
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• 60 days must elapse between filing of the suit and the granting of a divorce
• No waiting period for annulment or void marriage |
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Collaborative Law Procedures
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• Under which the parties and their attorneys agree in writing to use best efforts and make good faith attempt to resolve dispute without judicial intervention
• Attorney must agree to withdraw from the case and not act as litigation counsel if parties do not settle |
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Parent Child Relationship--Child
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• Any person under 18
• At 16 may petition court to remove disability of minority, and court will grant if best interest of the child (BIC). |
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Parent Child Relationship--Parent
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Means mother, a man presumed or adjudicated the father, or an adoptive mother or father
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Mother-Child Relationship
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Established by
(1) Giving birth to the child (2) An adjudication (3) Adoption |
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Father Child Relationship
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Established by
(1) Unrebutted presumption of the man's paternity (2) Acknowledgement of Paternity (3) Adjudication (4) Adoption (5) Man's consenting to assisted reproduction by his wife, which resulted in birth of the child |
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Presumption of Paternity
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(1) The child is born during the marriage of the man and the child's mother or within 300 days after termination of marriage
(2) Man married (or attempted) the child's mother after the child's birth, and he voluntarily asserted his paternity by filing a record with the Bureau of Vital Statistics, being named on birth certificate, or promising in a record to support the child as his own (3) During the first 2 years of the child's life, the man resided in the household with the child and represented to others that the child was his • Man signed a sworn statement acknowledging paternity • Paternity was established in a paternity suit • Paternity is established in probate proceedings by clear and convincing evidence *For good cause shown, a court may order genetic testing of a decedent (2001 Statute) |
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Challenge to Presumption of Paternity
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• Must be brought within 4 years of child's birth UNLESS court determines that the presumed father and mother did not live together or engage in sexual intercourse during the probable time of conception AND the presumed father never represented to others that the child was his own.
• Disproved by (1) Genetic Tests (2) Written denial of paternity in conjunction with the written acknowledgment of paternity by another man • The father of a nonmarital child is entitled to SERVICE of PROCESS in any SAPCR and can be adjudicated the child's parent in a paternity suit. |
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Rights and Duties of Parents
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• Right of Custody
• Duty of Care and upbringing • Duty to Support • Duty to manage the child's estate • Right to Consent to Marriage, Medical Treatment, and Military Service • Right to represent child in legal actions • Right to child's services and earnings • Right to receive and disburse funds for the child's support and benefit • Right to inherit from and through the child • Right to use corporal punishment for reasonable discipline |
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Parental Liability
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• A parent is liable for property damage caused by a child's negligent conduct if reasonably attributed to negligent failure to exercise parental control. NO dollar limit on liability
• Liable for willful and malicious conduct of child over 10, damages limited to $25,000. • Theft: Parental liability is limited to $5000. (No parental neglect) |
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SAPCR
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• Can be brought by parent, child, guardian, gov. entity, authorized agency, and sometimes foster parents
• Venue controlled by Divorce venue rules • Upon entry of a final SAPCR decree the court retains continuing, exclusive jurisdiction of all parties and matters in connection with the child |
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SAPCR--Long Arm Jurisdiction over Non-Residents
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Personal Jurisdiction for SAPCR if
(1) Personally served in Texas (2) Submits to the jurisdiction of Texas by consent, by entering a general appearance, or by filing a responsive document (3) Resided with the child in Texas (4) Resided in Texas and provided support or prenatal expenses for the child (5) Child resided in Texas as a result of acts or directives of the parent (6) Engaged in sexual intercourse in Texas and the child may have been conceived by the act (7) Registered with the Paternity Registry or signed an Acknowledgement of Paternity of a child born in Texas (8) Any other constitutional basis |
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SAPCR--Procedural Aspects
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• Appointment of guardian ad litem for the child or an attorney ad litem is in court's discretion
• MUST appoint guardian ad litem if suit to (i) Terminate parent-child relationship; or (ii) Remove disability of minority; or (iii) Paternity by estoppel |
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SAPCR--Jury Verdict
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May have verdict by jury on issues of
(1) Appointment of sole managing conservator (SMC) or joint managing conservator (JMC) (2) Which JMC has rights to decide child's primary residency (3) Whether to impose a restriction on the geographic area in which JMC may designate residency (4) What that geographic area may be • CANNOT have jury for (1) Support (2) Specific terms of Visitation (3) Rights or Duties of JMC |
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Parenting Plan
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• A final SAPCR must incorporate a "parenting plan" that sets forth rights and duties
• If court finds in BIC it will incorporate the plan in regards to (1) Provide for periods of possession of and access to child (2) Set out rights and duties (3) Child Support (4) Promote a close and continuing relationship between parent and child • Court may appoint an impartial third party to act as a parenting coordinator |
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Rights, Duties, and Power of Any Conservator
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• Right of access to the child's medical, dental, psychological, and educational records
• Right to speak with school officials and attend school activities • Right to be designated person to be notified in case of emergency • Right to manage child's estate |
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Exclusive Sole Managing Conservator Rights and Powers
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Right to
• Designate child primary residency • Child's services and earnings • Education decisions • Consent to marriage or military enlistment • Medical, dental, and surgical treatment involving invasive procedures • Psychiatric and Psychological treatment • Receive Child Support and disburse for the child's benefit |
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Conservator Parent in Possession of Child's Rights
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• Direct moral or religious training
• Duty of care, control, and reasonable discipline • Duty to support • Provide medical and dental care • In an emergency power to consent to medical, dental, or surgical treatment |
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Rights, Duties, and Powers of Nonparent Managing Conservator
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All rights as any other conservator EXCEPT powers duty to manage the child's estate and duty to provide medical care
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Sole Managing Conservator
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• BIC is used to determine questions of conservatorship, possession, and support and access
• Court MUST appoint parent a SMC or if JMC appropriate (Parental Presumption) UNLESS (1) Impair child's health or emotional development (2) One or both parents voluntarily relinquished possession and control for more than 1 year • Child age 12 or older may choose parent who can designate primary residence • Death of SMC does NOT terminate SAPCR, other parent has superior right unless imminent danger |
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Remove Minority Disability
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Child must be
(1) Self-supporting (2) Managing own financial affairs (3) Court must find BIC (4) For a 16 year old must be living apart from parents |
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Child Abuse
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• Texas Department of Protective Services (TDFPS) can take possession of a child WITHOUT court order upon information that would lead a person of ordinary prudence and caution to believe that the child was a victim of child or sexual abuse
• TDFPS must file a SAPCR and obtain an ex parte hearing within 3 working days after child taken • Parents must be given written notice of ex parte hearing: (1) Reason why child took (2) A summary of the parent's rights and a full adversary hearing within 14 days. • TDFPS retains possession if (1) Continuing danger to child's health or safety caused by parents (2) Reasonable likelihood of future abuse |
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Duty to Report Child Abuse
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• A professional (doctor, lawyer, minister, psychologist, etc.) must report child abuse within 48 hours of receiving information
• Identity of reporting individual is confidential, and can be disclosed only through court order • A person who in good faith reports alleged child abuse, or who testifies is immune from civil or criminal liability • Duty cannot be delegated • Failure to report is a misdemeanor |
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Grandparent's Standing to Petition for Reasonable Access
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• In Texas, following TROXEL, the only parties statutorily allowed to petition for reasonable possession or access are grandparents
• The granting over a parent's objection must state : (1) At time of request at least one parent had not had parental rights terminated (2) Grandparent is a biological grandparent of the child; AND (3) That a parent of the child: (i) has been incarcerated for 3 months proceeding the petition (ii) Incompetent (iii) Dead (iv) Does not have actual or court-ordered possession of or access to the child |
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Grandparent Access to Children
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• Grandparent has to overcome presumption in an affidavit that a parent acts in BIC by providing by a PREPONDERANCE of the evidence that denial of possession or access would significantly impair the child's physical health or emotional well-being
• A psychologist's testimony noting the children's sadness at not being able to see their grandparents did NOT rise to the level of significant emotional impairment • Words such as "would not be harmed" or "would not be healthy" also do NOT rise to the level to support a finding of significant impairment of the child's physical or emotional health |
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When can Grandparent be appointed Managing Conservator
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Either
• Both parents are dead • Both parents or surviving parent give consent • Present circumstances substantially impair child's physical health or emotional development A grandparent can be a JMC if paired with a parent |
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Name Change After Divorce
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• Can be included in the divorce decree
• If not included in divorce decree file Petition for Change of Name in a District court. • Court must find good cause for name change • CANNOT deny solely to keep name of family members the same |
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Genetic Testing
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• Must be taken by an alleged father
• May take genetic specimens from relatives of alleged father for good cause • If alleged father refuses (1) Contempt (2) Default Judgment • If genetic tests show 99% probability the court SHALL enter an order naming man father • ONLY evidence that can rebut genetic test is other genetic tests |
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Venue for Paternity Suit
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County where child domiciled
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Paternity by Estoppel
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• The court can deny genetic testing and issue an order adjudicating the presumed father to be the father, if the court finds that:
(1) Conduct estops the party from denying parentage (2) It would be against BIC to disprove father-child relationship • Factors for Paternity by Estoppel (1) Length of time between suit and put on notice may not be father (2) Length of time presumed father (3) Facts surrounding discovery (4) Child's age and nature of relationship (5) Harm to child • ONLY applies to man married to mother |
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Adoption
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A child may be adopted if
(1) Parent-Child relationship of each parent has been terminated (2) Both parents have died (3) Second marriage situation--stepparent wants to adopt (4) Child is at least 2 years old, the P-C relationship has been terminated to 1 parent AND (a) Person seeking adoption was an MC or has had actual care, possession, or control for 6 Months preceding the adoption AND the non-terminated parent CONSENTS; OR (b) Former stepparent and has been MC or had actual care, possession, and control for 1 Year preceding adoption • Single person can adopt; no requirement of marriage • Both parents have to join in the petition for adoption • Adoption proceeding ABATE if Divorce NOT if one party dies |
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What reports must be completed before an adoption can be finalized?
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(1) Pre-Adoption Social Study
(2) Post-Placement Social Study (3) Report showing adopting parties' criminal history record (4) SHEG Report (Social, Health, Education, and Genetic History) • SHEG is confidential information not available to adoptee at majority |
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Attacking Adoption
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Validity of an adoption is NOT subject to direct or collateral attack more than 6 months after the adoption decree is entered
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Process of Adopting Child
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• The parental rights must be terminated
• If natural parent is willing to terminate file a Voluntary Termination Proceeding AND cooperating parent should sign an Affidavit of Relinquishment of Parental Rights • If natural parent is NOT willing to terminate file an Involuntary Termination Proceeding • If child is 12 or older MUST consent to adoption UNLESS court waives |
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Involuntary Termination of Rights of Alleged Father
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• Since an alleged father has the same rights as the child's mother his rights must be terminated before an adoption, which becomes a problem when he is UKNOWN or has NO interest in the child
• Grounds for terminating the rights of a father who has not signed an Affidavit of Waiver of Interest (1) Culpable Acts that would call for an involuntary termination (2) Failure to Respond to Citation--if after being served does not affirmatively respond by filing either a written acknowledgement of paternity or counterclaim for paternity (3) Failure to File with Paternity Registry--father may file a formal notice of his intent to claim paternity. If the father is unknown or cannot be located to preserve his rights the father must file with the registry within 30 DAYS after child's birth. If he fails to do so, he CANNOT assert any interest in the child except by filing an action to establish paternity BEFORE his rights are terminated |
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Involuntary Termination of Parental Rights
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• There are 20 grounds set forth in the code which requires (i) Clear and Convincing evidence on the grounds and (ii) BIC
• General grounds: 1. Abandonment 2. Abuse 3. Neglect 4. Endangering the Child 5. Imprisonment for over 2 years 6. Culpable Acts toward the child or another child 7. Failure to support for 1 year 8. Use of controlled substance • Termination of parental rights terminates obligation of support |
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Abuse and Neglect
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• Family Code does NOT employ with of these terms in setting out grounds for termination of parental rights. However, statutory ground commonly known as neglect and abuse do exists:
• Neglect--exists where the parent knowingly placed or knowingly allowed the child to remain in conditions or surroundings which endanger the child's physical or emotional well being • Abuse--when the parent has engaged in conduct or knowingly placed the child with persons who engage in conduct which endangered the child's physical or emotional well-being |
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Court Developed Factors for BIC (NOT exclusive list)
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• Desires of Child
• Child's physical and emotional needs • Parental ability • Stability of home environment • Parent's plans • Opportunities for the child • Excuses for any acts or omissions |
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Is a Jury Trial available for decision on Managing Conservator issues?
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• Yes
• A jury verdict is binding on the trial court; a court CANNOT contravene a jury verdict by entering a JNOV; UNLESS absolutely no evidence |
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Non-Jury Trial for Managing Conservator
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• A court (upon application or its own motion) SHALL interview a child 12 or older in chambers to determine the child's wishes
• Court MAY so interview younger children • NO longer can a child of 12 or older choose his MC in a writing |
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Is there a Parental Preference in MC or JMC?
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Yes, a parent MUST be appointed MC or both JMC UNLESS the court finds that appointment of a parent would NOT be in BIC because it would substantially impair child's physical health or emotional development
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Joint Managing Conservatorship
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• There is a rebuttable presumption that a JMC is in BIC.
• JMC does NOT require equal or nearly equal periods of physical possession • A court order of JMC MUST designate a conservator with exclusive right to determine (1) Geographic area of primary residence; OR (2) Specify conservator who can determine primary residence without regard to geographic location • Either JMC may be ordered to pay child support |
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Is JMC in Best Interest of the Child
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• Wide latitude is given the Court’s consideration of the following factors
(1) Whether physical, psychological, or emotional needs and development of the child will benefit from the appointment of JMC (2) Ability of the parent to give first priority to the welfare of the child and reach shared decisions BIC (3) Whether each parent can encourage and accept a positive relationship between the child and the other parent (4) Whether both parents participated in childrearing before the filing of the suit (5) Geographical proximity of the parent’s residence (6) If child over 12, the child’s preference, if any, as to who should have right to designate primary residence (7) Any other relevant factors |
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Standard Possession Order
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Unless parties agree otherwise:
If a parents live within 100 miles of each other, noncustodial parent gets possession 6:00pm to 8:00pm every Thursday during the school year; from 6:00pm Friday to 6:00pm Sunday the first, third, and fifth weekends each month, plus 30 days in the summer |
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Scope of Child Support
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Court-ordered child support must terminate at age 18 or graduation from high school, whichever is later; however, except in case of a disabled child, a parent is NOT responsible for a child's support after they reach 21
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Can a parent stop paying child support if the other denies visitation?
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NO, payment of child support cannot be conditioned on granting visitation rights; likewise, visitation cannot be conditioned on payment of child support.
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Health Insurance
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Support guidelines are based on the assumption that the obligor will provide health insurance for the child
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Can a party have a jury trial for support or visitation?
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NO, jury submission as to support and visitation is precluded by statute
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Statutory Child Support Guidelines
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1 Child -- 20% of obligor's NET RESOURCES
2 Children -- 25% 3 Children -- 30% 4 Children -- 35% 5 Children -- 40% Over 5 children: Not less than amount for 5 children • Child support payments are made to the State Disbursement Unit • Guidelines apply to first $7,500/mo or 90K of net resources. • Maximum award for 1 child is $1500 a month |
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Is deviation from statutory guidelines permissible?
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• YES, the court order MUST contain written explanation justifying the deviation.
• In no event may the obligor be required to pay child support that exceeds the PROVEN NEEDS of the child • Special needs include learning disabilities, educational services, private school, gifts, pets, severe asthma, etc. |
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Retroactive Child Support
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• It is rebuttably presumed that limiting the amount of retroactive child support to 4 years is in the BIC.
• The presumption can be rebutted, ONLY if it is shown that the obligor (1) Knew or should have known that he was the child's father, AND (2) Sought to avoid the establishment of a child support obligation |
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Reduction of Child Support
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• NO reduction if an obligor's actual income is significantly lowered because of intentional unemployment or under-employment
• Can be if circumstances dictate |
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Enforcement of Child Support--Mandatory Withholding from Wages
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• All final orders for periodic child support MUST provide for mandatory withholding.
• Max. is 50% of Disposable Earnings • Mandatory withholdings IS available for arreages • Does NOT apply to investment income |
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Enforcement of Child Support--Suspension of Licenses
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• A court can issue an order suspending license if obligor is 3 months in arrears and has been give an opportunity but has failed to make payment.
• Includes driver's license, doctor, law, CPA, hunting or fishing |
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Enforcement of Child Support--Childs Support Lien for Arreages
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Against obligor's real property (other than homestead) and non-exempt property
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Enforcement of Child Support--"Second Spouse" rule
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If obligor remarries, spouse can petition to release from the lien any community property of spouse and obligor, if sale would result in unreasonable hardship upon the spouse or obligor's family
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Enforcement of Child Support--Levy and execution on obligor's financial assets
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• If a judgment for arrearages has been rendered, claimant can deliver notice of levy to the financial institution holding assets
• Freezes assets and obligor has 10 days to pay in full |
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Enforcement of Child Support--Contempt penalty
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• Up to 6 months in jail, or $500 fine, or both
• In addition, probation can be ordered for up to 10 years • An agreement between the parties but NOT incorporated into the divorce decree is NOT enforceable by contempt |
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Enforcement of Child Support--Money Judgment
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• Periodic child support payment not timely made automatically becomes a money judgment for amount due
• Get interest of 6% • SoL is 10 years after child becomes an adult • Child support obligations and arrearages are NOT discharged in bankruptcy |
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UIFSA (Uniform Interstate Family Support Act)
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• To register under UIFSA should send 2 copies to State court parent in arreage moved to of the support order
• Upon registration under UIFSA the order becomes an order of the State arreage parent moved to and is enforceable by contempt • UIFSA allows a withholding order sent to a parent's employer to automatically trigger income withholding unless the parent in arreages contests the orders validity |
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Enforcement of Custody Orders--Habeas Corpus
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• If a parent withholds possession of a child in violation of a custody order parent should file a writ of habeas corpus
• Sole issue the court will rule on is the validity of the custody order, the parent unlawfully in possession cannot relitigate the custody issue • Venue is proper in the county where the child is found OR court of continuing jurisdiction |
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Statutory Tort Liability--Interference with Child Custody
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• This tort allows actual and exemplary damages and is available if a person takes or retains possession of a child or conceals child's whereabouts in violation of a court order.
• Also available against a third party who party who aids and abets • Must give notice by registered or certified mail or intent to file tort suit in 30 days unless custody order is complied with |
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UCCJEA (Uniform Child Custody Jurisdiction and Enforcement Act)
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• The purpose is to avoid jurisdictional disputes and facilitate interstate enforcement of custody and visitation orders.
• Home State Jurisdiction--where a child has lived for at least 6 months with a parent or if less than 6 months old, state in which child lived from birth with parent • Once the custody order is entered under UCCJEA the issuing court has continuing exclusive jurisdiction as long as at least 1 party continues to reside in that State. |
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Remedies Under UCCJEA
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• Registration of Order
• Expedited enforcement in habeas-type proceeding--allows a court to issue order directing respondent to appear in person at a hearing held the next judicial day after service of the order; possession of the child is awarded to Petitioner unless the custody or visitation order has been stayed or vacated • Warrant to take immediate possession of child, requires court to find child is imminently likely to suffer serious physical injury or be removed from State |
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Modification of Child Support Order
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• File Motion to Modify Support Order
• Test of Modification (1) Circumstances of child or an affected party have materially and substantially changed; OR (2) 3 years have elapsed and support deviates from guidelines by greater of 20% or $100. • Venue--mandatory in the county where the child has resided for last 6 months. If not granted petition for writ of mandamus. No appeal if improperly granted. |
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Modification of Managing Conservator
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• Motion filed in the SAPCR court with continuing jurisdiction
• If child has moved to a new county and resided there for 6 months transfer to that county is mandatory • Test (1) Modification is BIC, AND (2) Changed Circumstances (3) If order is filed WITHIN 1 YEAR from the original order UNLESS the current MC consents the petitioning parent must also prove--Danger to child's physical or emotional health • If MC voluntarily relinquished possession and control of the child for at least 6 months ONLY BIC is needed to change |
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Notice to each Conservator
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(1) Must give the other party notice of intent to move at least 60 days before move
(2) Must inform the other if he or she resides with for 30 days, marries, or intends to marry, a registered sex offender. |
