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Texas Bar Exam (February 2019) > Family Law > Flashcards

Flashcards in Family Law Deck (106)
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1

Adoption:
Under what circumstances can the ex-spouse of a parent adopt the parent's child

1) The child is at least 2 years old
2) The parent-child relationship has been terminated with respect to one parents
3) The ex-spouse has been the child's managing conservator or has had actual care, possession, and control of the child for at least six months (if the nonterminated parent consents to the adoption), or at least one year (if the nonterminated parent does not consent to the adoption)

2

Adoption:
What rules apply to a military service member's petition for adoption?

In a suit for adoption, the fact that a petitioner is a member of the armed forces may not be considered by the court, or any person performing an adoption evaluation or home screening, as a negative factor in determining whether the adoption is in the best interest of the child or whether the petitioner would be a suitable parent

3

Adoption:
What if the prospective adoptive parent or child cannot attend the adoption hearing?

Attendance at the adoption hearing is required.

If joint petitioners are husband and wife it would be unduly difficult for one of the petitioners to appear at the hearing, the court may waive the attendance of that petitioner if the other spouse is present.

A child to be adopted who is 12 years of age or older shall attend the hearing. The court may waive this requirement in the best interest of the child.

4

Adoption:
What are the legal requirements to adopt a child age 14 and older?

Child must consent to adoption.
A child to be adopted who is 12 years of age or older shall attend the hearing for adoption.

5

Adoption:
What are the rules for step-parent adoption?

The Health, Social, Educational, and Genetic History Report is not required. If step-parent is married to child's parent, child's parent must join in adoption proceeding.

6

Bankruptcy:
Does a bankruptcy filing during the pendency of divorce stay the proceeding?

The family court retains the authority to dissolve the marriage, but the court may not divide the marital assets or enter a final order for support while the bankruptcy stay is in place.

7

Bankruptcy:
While an automatic stay is in place, may the family court order the petitioner to make mortgage payments?

The court cannot require bankruptcy petitioner to pay the mortgage payments while the automatic stay is in effect.
The purpose of the automatic stay is to give the debtor a "breathing spell" so that the debtor can reorganize or liquidize its debts.

8

Character of Assets:
Describe each spouse's separate/community property interests in the listed assets.

Answer varies by asset.

Separate Property:
-Owned by spouse before marriage.
-Acquired during marriage by gift, will or inheritance.
-Purchased during marriage with separate funds.
-Community property partitioned or exchanged by written agreement.

Community Property:
-Salary and wages.
-Income from separate and community property.
-Assets acquired during marriage.
-Assets acquired on credit during marriage.
-Assets on hand at dissolution of marriage.

9

Character of Assets:
What portion of a personal injury settlement is community property when settlement funds include pain and suffering? Mental anguish? Medical expenses and loss of earning capacity?

Personal injury judgments and recovery are Separate Property, save any portion allocated as compensation for lost wages.

10

Character of Assets:
Is a gift to one spouse from another, purchased with separate property, a community property asset?

All gifts are separate property. A gift from one spouse is presumed to include all income from said gift, unless otherwise agreed

11

Character of Assets:
Is a gift to one spouse from another, purchased with community property, a community property asset?

All gifts are separate property. A gift from one spouse to another is presumed to include all income from said gift, unless otherwise agreed.

12

Character of Assets:
What factors give rise to a presumption of community property

All property on hand upon dissolution of marriage is presumed to be community property unless a spouse overcomes the presumption by clear and convincing evidence.

13

Character of Assets:
Characterize an asset purchased with separate property but titled in both spouses names.

Presumptively a gift from one spouse to the other. When a spouse gives a gift, it is rebuttably presumed that all income from SP gift is intended to be SP of receiving spouse

14

Child Custody:
Is it judicial error to split siblings in a custody award?

Yes, unless it is in the best interest of the child to do so.

15

Child Custody:
Did the court err in making a custody award based on the gender of the parent (placing children with the parent of the same gender)?

The statute requires that neither party be favored on account of gender or marital status.

16

Child Custody:
When MAY a court interview a child in chambers

Court MUST interview a child 12 years old and older upon request.
Court MAY interview a child under 12 years; but the child's preference is not binding

17

Child Custody:
What is the procedure for grandparents to seek possession or access to grandchildren?

File an original petition (SAPCR)
OR
File a motion to modify if an order has already been issued.

In the petition or motion the grandparent(s) must provide an affidavit that contains supporting facts and an allegation that denial of possession of or access to the child by the petition would significantly impair the child's physical health or emotional well-being.

The court shall deny the relief sought and dismiss the suit unless the court determines that the facts stated in the affidavit, if true, would be sufficient to support the relief authorized.

18

Child Custody:
What are the evidentiary requirements for grandparents to seek managing conservatorship of grandchildren?

When both natural or legal parents of the child must be dead, it remains within the court's discretion to appoint a grandparent (or aunt or uncle) as managing conservator.

19

Child Custody:
What are the evidentiary requirements for grandparents to seek possession or access to grandchildren

The grandparent must submit an affidavit on knowledge or belief that contains:
1) Supporting facts
2) the Allegation that denial of possession of or access to the child by the petitioner would significantly impair the child's physical or emotional health.

The Court shall deny the relief sought and dismiss the suit unless the Court determines that the facts stated in the affidavit, if true, would be sufficient to support the relief authorized.

20

Child Custody:
May the court award possession or access to a grandparent over a living parent's objection?

The grandparent requesting possession of or access to the child has overcome the presumption that a parent acts in the best interest of the parent's child by proving by a preponderance of the evidence that:
1) The denial of possession of or access to the child would significantly impair the child's physical or emotional health;
2) The grandparent is the parent of the child's parent who has been incarcerated; been declared incompetent; is deceased; or does not have judicial access to or possession of the child

21

Child Custody:
Did the court err in appointing one parent managing conservator?

The court MUST appoint both parents as joint managing conservators, unless the Court finds that it would not be in the best interest of the child because the appointment would significantly impair the child's physical health or emotional development.

In that event, the Court may appoint one parent as sole managing conservator.

22

Child Custody:
Do a child's aunts and uncles have standing to seek conservatorship?

Yes. When both natural or legal parents of the child die, it remains within the court's discretion to appoint a grandparent (or aunt or uncle) as managing conservator

23

Child Custody:
Do grandparents have standing to seek managing conservatorship? Under what circumstances?

Yes. When both natural or legal parents of the child die, it remains within the court's discretion to appoint a grandparent (or aunt or uncle) as managing conservator.

24

Child Custody:
What shall the court consider in determining conservatorship?

The best interest of the child.

Holley v. Adams factors:
1) Desires of the child
2) Emotional and physical needs of the child now and in the future
3) Emotional and physical danger (of one parent) to the child now and in the future
4) Parental abilities of the individuals seeking custody
5) Programs available to assist the parents
6) Plans for the child by these individuals
7) Stability of both parties’ homes and any acts or omissions of a parent which may indicate that the existing parent-child relationship is not a proper one
8) Any excuse for the acts or omissions of a parent.

25

Child Custody:
Do grandparents have standing to seek possession?

Yes.

26

Child Custody:
What must grandparents show to seek possessory conservatorship?

The court may order reasonable possession of or access to a grandchild by a grandparent if:
1) At least one biological or adoptive parent of the child has not had that parent's parental rights terminated
2) The grandparent requesting possession of or access to the child overcomes the presumption that a parent acts in the best interest of the parent's child by proving by a preponderance of the evidence that denial of or access to the child would significantly impair the child's physical health or emotional well-being
3) The grandparent requesting possession of or access to the child is a parent of a parent of the child and that parent of the child: (i) has been incarcerated in jail or prison during the three-month period preceding the filing of the petition; (ii) has been found by a court to be incompetent; (iii) is dead; or (iv) does not have actual or court-ordered possession of or access to the child

27

Child Custody:
When is the standard possession order presumed NOT to be in the best interest of the child?

Standard possession order is presumed in the best interest for children who are 3 years old and older.
Standard possession order is not deemed in the best interest of the child.

28

Child Custody:
Did the court err in appointing one parent as managing conservator?

Joint Managing Conservatorship is presumed in the best interest of the child; and may only be overcome by clear and convincing evidence.

29

Child Custody:
Under what circumstances may a court modify a child custody award?

Special needs of the child.

30

Child Support:
May a court grand an order for retroactive child support reduction?

Yes, the court may modify an order that provides for child support if the circumstances of the child, or the parent paying support, have materially and substantially changed.

The way to address this issue is to file a Motion to Modify the child support payment.

A parent has a monthly court ordered obligation to pay child support that continues to accrue unless the order is changed.

The court has the discretion to retroactively reduce the child support obligations back to the date of filing or when the parent receiving support is given notice.