Family Law Overview Flashcards
Overview (134 cards)
1
Q
What make up a Family?
A
marriage, blood, adoption, quasi (same sex, foster parents, consanguinity)
2
Q
Types of Parentage:
A
Traditional: child birth/paternity based on marriage
Formal: Parentage by adoption
Functional: Based on child rearing and bonding
3
Q
Loving v Virginia
A
Right to marry not right to interracial marriage
4
Q
Obergefell v. Hodges
A
Right to personal choice regarding marriage individual autonomy
Right to marry is fundamental
The holding is the right to marry not right to same sex marriage
(Balancing test - determines if it fundamental)
5
Q
Lawrence
A
Private conduct & exercise of liberty.
Right to marry does not extend to those who cannot consent, who are harmed/injured, no consent for minors.
6
Q
Griswald
A
Right to privacy - Freedom of unwarranted government intrusion into fundamental matters
7
Q
Is cousin marriage allowed in Texas?
A
No it was voided in 2004, a clerk may not issue a wedding license to cousins
8
Q
What is the Texas Springing Marriage Rule?
A
1st marriage dissolve
2nd Springs to valid w/o another wedding
9
Q
Skinner
A
Procreation is a basic civil right
10
Q
Age qualifications to marry
A
a.) Most states 18, many with exceptions. 16 with parent signature, some no minimum b.) Texas 2007: 16 minimum parental or judicial consent up to 18. Underage voidable
(valid unless annulled) 2017: Marriage by unemancipated child under 18 is void.
11
Q
9.) Choice of partner, Consanguinity
A
a.) Incestuous marriage is void and criminal
b.) 1⁄2 states permit cousin marriage, exception in some states if one is sterile or beyond procreation age.
c.) choice of law, legal in some states, illegal if relocated d.) Cook:
First cousins, valid in VA, one child. Move to AZ=void. Which law applicable? AZ follows “place celebrated” but public policy issue. Conflict of law case. Apply AZ law. Procedural law can be retroactive, but not affect substantive rights. Right must be vested. “Immediate fixed right to enjoyment”.
12
Q
Prongs of polygamy:
A
1st: Act & Intent
2nd: Holding out that you are married
3rd: Cohabitating w/ person of other sex while married to another
But Adultery + Fornication are legal
13
Q
Promises to Marry
A
a.) Not enforceable unless in writing
14
Q
Is promise to marry binding in Texas?
A
Tx: Prior marriage no defense when unknown to promisee and good faith reliance. This case…remand for misrepresentation of promisee chastity
15
Q
Recovery of diamond ring following engagement. Conditional gift and unlawful
conversion?
A
Agreement not in writing. Statute of frauds?
Conditional-gift rule: must find fault. (ie woman is crazy)
16
Q
Is a license needed in Texas?
A
Texas: no license in statute. Not void or voidable unless expressly in statute
17
Q
Solemnization:
A
code silent. Just agreement they are married, and witnessed by
qualified official
18
Q
Is verbal communication of consent required?
A
Coulter:
Elderly and mute. No verbal communication of consent. Annulled only when
judicially ascertained to be void or voidable. Participants not legally required to speak or respond.
19
Q
Does lack of voluntary assent render marriage voidable?
A
Yes. Lack of voluntary assent renders marriage voidable but not void. Right to void belongs to person whose voluntary consent is in question. Death of one party bars action to annul. 611: standing to any interested person alleging lack of mental capacity at time of marriage.
20
Q
Is misrepresentation of character or wealth generally enough to render marriage
voidable?
A
No misrepresentation unless to essence of marriage (pregnancy, paternity)
21
Q
Material misrepresentation factors include:
A
Material misrepresentation essential to marriage (love, kids) H relied on. 1) known to be false 2) intended to be acted upon 3) relied on 4) caused injury. Misrepresentation of motive might be sufficient for annulment.
22
Q
Who is Marriage by Proxy for?
A
Only for armed services stationed in another country
23
Q
Common law marriage in Texas
A
1st: Agreement In praesenti (we are married-in the present tense).
2nd: Lived together in Texas
3rd: There (TX represented to others they were married
Result-> equal to formal marriage; dissolved only by death or judicial divorce.
Factors:
Requires cohabitation and
holding out (by both H&W) bc no witnesses. Joint tax returns, telling neighbor, hotel registration
24
Q
Is the court allowed to rebut common law marriage for spousal privilege?
A
Yes.
Court is allowed to rebut and review factors i.e. (Not living together during relevant time. Agmt to be married, not married sometime in the future).
25
Remedies for a voidable marriage?
Voidable marriage remedy is annulment, but cohabitation after finding flaw or
release from duress ratifies marriage (turns into common law) and precludes marriage.
Parties aware of flaw in marriage or voidable must cease cohabitation and file annulment before reliance through inaction ratifies marriage
(Annulment must happen so quickly after putative wedding there isn't much property to divide).
26
What is the putative spouse doctrine?
Any remedy for the putative spouse is likely to affect property interests of the lawful opposing spouse.
27
Does your duty to support a child end when your child gets married and annulled?
Emancipation and marriage ends duty of support. Reinstatement effective from
date of annulment of child's marriage.
28
Does your duty to support a child end when your child gets married and later divorces?
Yes. If child marriage ends in divorce, child remains emancipated.
29
Are the putative wife and lawful wife entitled to same property rights?
Yes- to the detriment of the lawful wife.
30
Does Texas laws provide for alimony?
No. It provides for Post marital spousal maintenance to lawful or putative wife.
31
Choice of law:
Validity determined by state married occured. Full Faith and Credit.
In CL marriages in non CL states depends on on choice of law followed by non CL state.
32
Elopement law:
Marry in another state bc prohibited in home state.
33
Reverse elopement law:
Prohibits marriage by non residents if home state prohibits.
34
Planned Parenthood v. Casey
Due process the state law required notice to H before abortion
State lacked sufficient "compelling" interest
35
Is legal separation allowed in Texas?
No it is allowed in some states, not in Texas
36
What are the requirements to seek spousal maintenance?
1) 10+ years
2) lacks property for reasonable needs 3)lacks earning ability.
More possibilities: physical/mental disability, custodian of child with disability, act of family violence w/in 2 years.
37
What is the max amount and time allowed for spousal maintenance?
20% or $5k max. Duration 10yrs max. Can grant spousal maintenance in annulment, void marriage
38
What is the Doctrine of necessaries:
Humanitarian or emergency function
Liable to 3rd parties for value of necessities furnished to W, can include clothing, can be owed to children, does not need authorization, even if seperated, and not fault of Wife, Husband is still liable.
39
Is Debt to Neiman Marcus by W, necessities?
Marriage alone doesn't make on liable for others debt.
W's implied agency for H is implied by course of dealing.
A frequent basis for H's liability for household needs
OR
A creditor may invoke the doctrine of "necessaries"
(Social status came to define scope of spouses necessaries)
40
What was spousal immunity and what tort does it apply to? (Price)
*Decline of spousal immunity
Immunity based on preservation of harmony; abolished for any cause of action
41
Can a spouse sue for IIED in Texas? (Twyman)
Yes in joinder of tort in divorce so there is no disproportionate recovery.
(Spousal immunity for torts abolished.)
**Torts for sexual acts too intrusive.
42
What are the elements of invasion of privacy?
Video camera in bdroom of H while W away. Investigator changed tape while W
away.
Must show 1)intrusive conduct 2)private nature 3)intrusion substantial and highly offensive to reasonable person. Aiding wrongdoer=liable. Marriage does not negate privacy. Can still expect privacy in bedroom, no matter if exposure is never public.
43
Is wiretapping allowed in the marital home?
Tx and Fed law prohibits wiretapping w/in marital home
44
Stored Communications Act -> Amended by the "Patriot Act"
- Protects stored Data
- Unauthorized accessing of a facility for storage of data
- Facility is separate from person's personal device
But, searching another's personal device may be a forty
45
Special Property
- Assets acquired before marriage
- Gifts and inheritances received during marriage, which create only SP of the donee spouse
- Exception to the above for a clear gift by a spouse to community
- Damages for a personal injury
- Traceable: transmutations and appreciated value of SP
46
What some limits of community property?
1) Sham transfer prior to divorce
| 2) unauthorized use of spouse's special community property
47
What are misuses of community assets?
1) Waste/other fault
2) Fraud
3) Constructive Fraud
4) A spouses' fraud claim against other spouse's transferee (emu's sold cheap)
(Reckless)
48
What are some factors to consider whether Constructive fraud occurred?
1) Size of gift compared to CP
2) Relationship
3) Like purpose of gift
49
How is the reconstituted estate determined?(Schleuter)
Assets wrongful transferred + Remaining Community Property = Reconstituted Community Estate
50
An owner for purposes of trespass is who?
The person with the greater right of possession.
51
Who can consent to a warrantless search of a home?
Anyone with apparent authority may consent.
| Present consenter does not override present objector.
52
Do you have a duty to control the actions of your spouse?
No. No duty to control others except special relationship, but none for H &W. Not an agent solely bc of marriage
53
Is special community property subject to attachment of spouses non tortious liability. (Montemayor)
Special community property not subject to attachment of non tortious liability of other spouse before/during marriage. Profits reinvested into business.
54
What property can be seized for tort liability?
Community property may be seized but not special community property.
55
If a husband signs a settlement for personal injury recovery, can the wife bring a cause of action?
Yes. W can sue for loss of consortium even if Husband settled. H cannot contract for W loss. W sole power to settle claim.
56
In an action of loss of consortium are evidence of relationships admissible?
Evidence of actual marriage is admissible.
Common law,
extramarital relations, and marital prospects are not admissible.
57
May a spouse testify against another spouse in a criminal case? (Trammel)
Yes. The spouse has the freedom to testify or not independent of defendant’s control of communications made in presence of 3rd party (Marital confidences)
58
How do you rebut a paternal presumption of a married man?
Non access in excess of gestation shown to
| rebut presumption
59
To order removal what must you show:
1)no surviving parent/lacks care 2)Neglect/fitness.
Unwed father is not per se unfit.
60
Modern presumed father
Marriage at birth or likely conception:born during or before 301st day of dissolution, even if invalid or married at conception
61
Post birth marriage:
after birth marriage is voluntary assent to paternity
62
Cohabitation/holding out:
continuous in first 2 years of life and represented as own to others
63
Joint written acknowledgement:
if don't want to cohabit or marry. And not
| fraudulent
64
Parenthood by Estoppel
a. ) Tx Paternity Registry: w/in 1st month of child life to establish paternity
b. ) if child has presumed father, w/in first 4 years of child life
c. ) no presumed father, no statute of limitations
d. ) for presumed fathers, no sol if was precluded based on misrepresentations
65
Equitable Estoppel
1) false representation/concealment 2)knowledge
3) to party w/o knowledge
4) intent to be acted on 5)party relied to prejudice.
a) Genetic father can knock the psych father
b) Genetic father, no presumed father, has no SOL
66
When can a father reopen a decree of paternity after discovering facts he is not the genetic father?
You must sue within one year after his discovery of facts evidencing he is not the genetic father. TFC Section 161.005
67
Requirements for Voluntary Relinquishment
-Voluntary consent
Mother: After 48 hours after child's birth
-Need not name alleged father
Father:
may disclaim interest even before the child's birth or fail to oppose termination
68
When can you revoke voluntary relinquishment?
Relinquishment to licensed agency or state is irrevocable.
If directly to adoptive parents it is presumed revocable for 10 days but can be written irrevocable.
69
When is consent for relinquishment revocable?
Consent only
| revocable by fraud, mistake, misrepresentation. Not mere persuasion.
70
Can you relinquish your parental rights but maintain visitation rights?
No. Promise of visitation rights renders the relinquishment involuntary.
Section 161.103 -Violation does not invalidate termination or adoption
For State placement- Can have open adoption for state placement
or
in the process of termination of parental rights
71
To terminate parental rights:
1) establish act omission (drugs,abandonment, endangerment
2) BIC. Errors: affidavit must be 1)signed 2)witnessed by 2 persons 3)verified before person take oaths. Also, prison and murder cant support BIC finding alone.
* Must have standing for SAPCR
72
When can a child be adopted?
1) Parent termination
2) Spouse adopt
3) former step parent caring for child.
73
Elements of equitable adoption:
1) both parents agree 2)date to adopt 3)conferred love in reliance 4)conferred love based on representation.
74
How to prove equitable adoption:
1) Agreement or representation w/child or one parent
2) Performance: Child acts as father is father
3) Reliance: but child need not have know about promise and proof of tangible reliance not required
Remedy: (Equitable adoption by estoppel)
Analogous to putative spouse. Equitably adopted adult child gets probate right
75
What is a donor?
If you are a donor, you can't claim parentage based on genes.
Exception: H is a parent not donor regardless of conduct
W uses other sperm, H must consent
H's ability to deny consent is limited by estoppel
76
Who is a parent in a false surrogacy?
Surrogate mother is the mother. (Genetic mother)
The donor is the father
The intended mother is a step mother or mother by adoption.
77
Who is a parent in a "true" surrogacy?
A gestational mother who is not genetically related to the child is not the mother.
The intended parents (mother and father) are the parents of the child.
78
What is the Gestational Agreement Law in Texas?
1) the court must have granted advanced approval
2) Gestational mother must swear to no other pregnancy issues before
Intended parents:
1) need not have supplied sperm or egg;
2) Must be married
3) Show health justification
79
How to determine maternity between two "mothers"
1) Birth
2) Genetics
If there is a tie, it is broken by the intent of the parties.
80
How to establish paternity
1) marry mom 2)consent to be named father
| 3) promise to support also if dr inseminates W w/H sperm or consent.
81
When can a parent change a child's name?
Chapter 45 allows parent to change child's name when
1) Best interest of the child
2) Good cause for parent and child (paternity suit)
*Depends a lot on the initial naming & other factors
82
What are Best Interest factors "Holley Factors"?
* desires of the child
* emotional/physical needs of the C *emotional/physical danger of the c
* parental abilities of parent seeking custody *programs available to assist promotion of BIC *plans for the C
* stability of the home/placement *acts/omissions show existing p/c relation
* excuse for acts/omissions of parent
83
What is a Joint Managing conservatorship?
Designates Residence, makes important decisions (school)
84
What is a Sole Managing Conservatorship?
"One party possession" designates primary residence. Greater possession Joint
85
What is Possessory Conservatorship?
Right of scheduled periods of custody, lacks decision making, except during
possession. Right to consult with managing conservator about important decisions
86
What is Rights of access?
Temporary possession or visitation, maybe supervised or limited to contact or letters. No right to info or consultation.
87
Factors the considers when determining conservatorship (Doyle Factors):
1) Cooperative abilities
2) Benefit/stress to child
3) History of childcare
4) Geographic proximity
5) the age of the child
* Judge must consider history of domestic violence
* There is rebuttable presumption against abuser because "bad" isn't "worst" parent.
88
At what age is the child's preference a factor in appointments?
May grant < 12 (discretionary)
| Must grant > 12 (mandatory)
89
Are you entitled to possessory conservatorship if given supervised visits?
Yes. Once supervised visits were found appropriate, ct is required to appoint F possessory conservatorship.
90
What are grounds for rebutting the parental presumption?
VIR
1) Violence
2) Impairment
3) Relinquishment
Don't need to rebut the parental presumption to get JMC.
91
How does a step parent get standing in a SAPCR?
1) Living w/ child for 6 months
2) File w/in 90 days
3) Parent died
4) Rebut parental presumption to designate as primary conservatorship
92
When can a relative petition for Temporary Managing Conservatorship?
1) Relative in 3rd degree or prior medical authorization; and
2) 30 days possession
Burden for non-parent: Preponderance
93
Granparent Access:
Must prove BIC and denial of access would “significantly impair the childs physical health or emotional well being”
*Gparents own loss not sufficient. Must be child loss.
94
Who has standing to file SAPCR?
Must have 1)actual care, custody, control and possession of C for 6 mo not ending more than 90 days before filing.
95
When can you file for a Modification of Custody?
1) Material & Substantial Change
2) Child older than 12 seeks new designation
- OR-
3) Managing Conservator voluntarily relinquished possession for more than 6 months
- AND-
5) In the child's Best Interest
96
What is the rule for changing residence with in one year?
To change within 1 year, you must also prove:
1) Endangerment
2) Consent of designator
3) Relinquishment for 6 months
- OR-
4) Violence or abuse
97
What are some considerations for relocation of a child?
Distance, relationship, quantity of contact, meaningful access, motive. Must prove BIC.
When unable to determine burden, persuasion on both and balancing test.
*Contiguous counties designates area within reason.
98
When can a judge reject an MSA?
1) Violence or Sex offender
- And-
2) Not best interest of Child
99
What is the remedy for a person w/o standing to recover for support?
File a suit to recover under the Doctrine of Necessaries.
Child Support guidelines are a useful aid to determine the amount.
100
Can you recover for Retroactive Child Support?
Yes. Liability accrues from birth, retroactive to 4 years (based on knowledge, conduct of parties).
*State can assert its own reimbursement claim for support
101
What is the duration of the duty to support?
-Unemancipated minor thru HS;
or until death of the child
or judicial termination of parentage
*death of obligor accelerates the duty to lump sum by estate
102
Can you recover for additional agreed upon monies under child support?
No. Agreements for other monies are not cs and enforceable as K.
103
How is Child Support calculated?
*20% of take-home pay
up to the first $7500/mo income.
Unless child's actual needs exceed presumed amount of cs.
20% for one Child
5% for each additional
40% max
104
Can a court reduce or modify the amount of Child Support arrearages?
No. Court may not reduce or modify amount of cs arrearages except as provided by family code.
* Trial court can award offsets and credits the court has no discretion to forgive or decrease a past cs obligation.
* Equitable estoppel not a defense to arrearages, even if didn't know about child or cs obligations
105
When can a court
| authorize offset or credit for support?
1)voluntarily relinquish actual possession and control of child in excess of ct ordered periods where actual support provided 2)obligors disability.
106
What is a Cumulative
| money judgment?
1)unpaid support 2)balance owed 3)interest 4)statement it is cumulative
107
What are some affirmative defenses for contempt for non payment of child support?
1) lacked ability to pay
2) lacked assets to be liquidated
3) unsuccessful in borrowing funds
4) no other source which legally obtain or borrow funds
108
In Texas, do you have the right to an attorney?
No. Safeguards 1)notice to pay critical issue
2) use of form to elicit info
3) opportunity to respond
4) finding of ability to pay
Texas: if determination of incarceration is possible
Might owe legal fees of obligee fees to file contempt
Ultimate sanction for non payment: termination of p/c relationship.
109
When can there be a Modification of Child support?
Marital change or 3 years have passed
or if the child support has changed 20% or $100/mo
Another solution: Escalator clause in original order- Increases gradually
110
Is a state's interest in universal education free from a balancing test under due process?
No. balancing test. In Wisconsin: Goal of education in Amish community is agrarian life. Not deleterious to health or exploit children. *States legitimate social concern v religious exemption.
To Satisfy Due process:
1) have compelling state interest
2) be tailored to minimize burden
111
Do parents have a right to excuse child from classes?
The right to excuse C from classes fundamental, but no right to dictate curriculum of public schools.
112
Do parents have a right to religious training?
Yes. Right to direct the moral and religious training of the child as long as does not present danger to child or public.
**Pre divorce agreements regarding religion contrary to public policy and promotes religion.
113
What is the Emergency rule?
permits a doctor to act without consent in an emergency if parents are absent, but parents were present.
114
Can a parent refuse needed care?
There are no common law exceptions for a parent to reasonably necessary to preserve a child's life.
Statutory exceptions:
1) Terminally ill child (to avoid needless pain)
2) Right to abortion through 3rd trimester in case of severe abnormality
*Parent's decision about medical care is presumptively valid but is subject to rebuttal by the state
115
Is religious belief a defense to provide needed care?
No.
116
Who can consent to Medical Care in Parent absence?
1) Non parent adults: If granted a medical authorization
2) Child (partial emancipation): 16 and living apart. Abortions: no blanket,
unreviewable power to veto
117
Are parents liable for their children's torts?
Father not liable unless father implicated as pricipal or
| accessory. If counseled or conceled the offense might be liable, otherwise children liable for own torts.
118
Does a Divorce decree establish parent duty to control for benefit to 3rd party?
No. Decree establishes parent duty to control for benefit to the child & the state. Not to a 3rd party.
119
What is the max amount of restitution for property damage?
Max $25k. No good faith effort presumption, burden on parents to prove.
120
What is the doctrine of parental immunity?
Barrier to children who attempt to recover
| damages for injuries sustained as result of parents tortious actions.
121
What are the exceptions to parental immunity?
If parent deceased, act is intentional tort, employee/er relationship.
Immunity under the doctrine is limited to transactions that are essentially parental.
122
How can the state intervene (removal of child)?
1) immediate danger to childs physical health/safety or child a victim of neglect, sexual abuse 2)leaving child in home would be contrary to child welfare
3) no time for full adversary hearing in advance
4) officials have made reasonable efforts consistent to avoid removal
123
What is child neglect?
A course of conduct; omissions persisting over time.
“deprived on necessary food, clothing, shelter, or medical treatment” or “permitted to live in environment when such deprivation or environment
causes childs physical, mental or emotional health to be significantly impaired”
124
What is the standard for the state's removal of a child?
Clear and convincing standard (strikes fair balance)
125
What are the three ways to provide material support to a child?
1)parent provide care in own home 2)parent can provide money or other means of support 3)arrange for other person to satisfy obligation by living with and caring for child
126
What must a petition requesting termination find?
1) parent voluntarily left and express intent not to return 2)without providing adquate support for at least 3 months 3)remained away for at least 6 months
4) failed to support within ability.
127
Is incarceration grounds for termination?
No. It is not in itself abuse or neglect. However it is grounds for private parties to seek termination.
128
What are the limits for choice of court for domestic relations proceeding?
1) status jurisdiction over at least one of the affected individuals
2) ct must be able to exercise personal jurisdiction over all parties affected
129
What are the residence requirements for a divorce?
1) resident of county for preceding 90 days
2) actual, physical continuous living
3) good faith intent to make that county home
130
What is the Long Arm of Texas law for non-residents?
1) Personally served/consented
2) Resided or while paying support
3) Child resides in TX because of Acts/Directive
4) Child possibly conceived here
5) Filed in TX paternity registry
6) Other factors consistent w/ due process
131
What are some considerations to determine what state is appropriate?
Physical location is a central factor.
```
Other considerations are:
Domestic violence
Time child resided outside state
Distance bw state court and court assuming jx Financial circumstances of parties
Agreement of parties to jx
Nature and location of evidence
Familiarity of court with facts
```
132
How do you prioritize the home state jurisdiction?
1) commencement home state of child 6 mo prior, parent still resides
2) another state no jx or declines
3) significant connection with state other than mere presence
4) substantial evidence in state
133
Affirmative defenses to wrongful removal?
1) grave risk return exposes child to harm
2) protection of human rights 3)proceedings not commenced 1yr after abduction and child now settled. 4)petitioner actually exercising custody at the time.
134
Under the Hauge convention what must you prove?
Petitioner bears the burden of wrongful removal and proving the child was a habitual resident prior and the petitioner had the right of custody (not legal).
*restores status quo not settles custody disputes
