Family Law - WIP Flashcards
(226 cards)
1
Q
Who cannot get married?
A
Anyone under the age of 18.
2
Q
What is the age exception for marriage?
A
If minor has been emancipated by court order.
Parental consent is not sufficient.
3
Q
What is the validity of marriage of minors that took place before Sept. 2017?
A
They are not void, because they were married before the change in the law.
4
Q
What is bigamy, and what can cause it to be valid?
A
Bigamy occurs when one spouse is already married to someone else.
If the impediment is removed (e.g., first marriage voided through death, etc.), then the second marriage becomes valid.
5
Q
What is the rule against marriage of relatives?
A
Consanguinity
1) Ascendents and descendants
2) Brother, sister, nephew, niece
3) Uncles and aunts
4) Current and former step-parent or step-children.
6
Q
What is the rule regarding same-sex marriage?
A
These are no longer void.
7
Q
What is the rule regarding religious organizations participating in same-sex marriages?
A
Texas legislature passed a law ensuring the clergies and religious organizations would have have to participate in same sex marriages.
This also applies to individual people:
Requires a showing that doing so would violate a sincerely held religious belief.
8
Q
What is the rule regarding government officials refusing to conduct same-sex marriage?
A
May refuse if:
1) Doing so would violate sincerely held religious beliefs
2) They delegated the task of issuing the license to a deputy clerk
9
Q
What is required for a marriage to be valid?
A
1) Marriage license
2) Authorized person to perform ceremony
3) There was a reasonable appearance of authority to do so
4) At least one party acted in good faith
5) Neither party to the marriage is a minor
10
Q
What is the rule regarding marriage of first cousins?
A
First cousins cannot obtain a marriage license.
Except not void if entered into:
1) Before the change in law (Sept 2005)
2) In another state
11
Q
What is required of an informal marriage?
A
1) Neither party is a minor
2) An agreement to be married
3) Within Texas, the couple represented to others they were married
4) Within Texas, the couple lived together
12
Q
What is the presumption regarding an agreement to be married?
A
If the couple has separated and ceased living together for two years without filing suit, then there is a rebuttable presumption that the couple had not agreed to be married.
13
Q
What is a declaration of informal marriage?
A
Couples can make an official declaration of informal marriage by filling out a form at the courthouse admitting that the couple meets the requirement of informal marriage.
14
Q
Why fill out a declaration of informal marriage?
A
Couples can pick the effective date of the marriage (backdating)
15
Q
What are the grounds for annulment?
A
1) Aged 16 or 17, without parental consent and without a court order
2) Divorced less than 30 days before marriage, an concealed this fact (SOL - 1 year)
3) Impotency
4) Incompetency
5) Fraud, duress, force
6) Under the influence of alcohol or narcotics
7) Marriage took place within the 72-hour waiting period after marriage license obtained
16
Q
What constitutes fraud as grounds for annulment of marriage?
A
Fraud includes claiming to love someone but only really being interested in marrying them to obtain citizenship.
17
Q
What are the exceptions to annulment for marriage within the 72-hour waiting period after marriage license is obtained?
A
1) One party is on active duty in the armed forces, or
2) The waiting period was waived by a court
3) The spouses completed a premarital education course within the year.
SOL: 30 days after the marriage
18
Q
What are the exceptions to annulment after discovery of annulment-worthy facts?
A
Cannot get an annulment if the couple cohabitated after the relevant facts were discovered.
19
Q
Who has the discretion to grant an annulment, and what is a common reason for denying?
A
The court has discretion to grant an annulment.
Pregnancy is a common reason for a court denying an annulment.
20
Q
What is required to file for divorce in Texas?
A
In order to file for divorce in Texas, one party must have been DOMICILED in Texas for six months.
21
Q
What is the proper venue for a divorce action?
A
A spouse can bring suit in a county where one spouse has resided for 90 days.
22
Q
What is the venue exception for a divorce action?
A
If the filing spouse is not a Texas domiciliary, she can file as long as her spouse meets the 6 month domiciliary requirement.
23
Q
What are the contents of a divorce filing?
A
The petition must state whether a protective order is in effect.
If there are minor children of the marriage, the parties must also join a “suit affecting the parent-child relationship” (SAPCR)
24
Q
What is the most common grounds for divorce?
A
No-fault ground
“The marriage has become insupportable because of discord of conflict of personalities that destroys the legitimate ends of the marriage relation and prevents any reasonable expectation of reconciliation”.
25
HYPO: Marge attests that the above standard (no-fault) has been met, but Homer claims that there is a reasonable expectation of reconciliation. What options does the court have?
1) Grant the divorce
2) Order counseling to determine whether there is a reasonable expectation of reconciliation.
The counselor cannot testify, and the counselor's report cannot come into evidence.
26
What are other fault grounds for divorce?
1) Cruel treatment
2) Adultery
3) Felony conviction
4) Abandonment for more than a year
5) Living apart for 3 years
6) Confinement within mental hospital for 3 years
27
What are two caveats before finalizing a divorce?
1) A divorce cannot be finalized until the court divides the community property
2) If a spouse does not appear at the hearing after notice, the judge can still enter temporary orders or a default divorce decree.
28
What is required for a mediated agreement to be binding?
If:
1) It states in bold, caps, or underling that it is not subject to revocation
2) Signed by both parties, or both attorney's who were present, if any
29
What is the effect of a mediation on judgment?
The mediated agreement is not itself a judgment, but gives the parties a right to judgment on the terms
30
What is the exception to the effect of a mediation on judgment?
A court MAY decline to enter a judgment on a mediated settlement agreement if the agreement is not in the child's best interest, and
1) Family violence impaired the party's ability to make decisions, OR
2) The agreement would allow any of the following people to reside with or have unsupervised access to the child: i) registered sex offender, or ii) a person with ah history of abuse
31
When can a court decline to award judgment on a mediated settlement agreement?
If it would ENDANGER the child
32
What is the Collaborative Family Law Act?
Parties and their attorneys can agree in writing to use their best efforts to make a good faith attempt to resolve their dispute.
33
What is required under the Collaborative Law Act?
Attorneys must agree to withdraw from the case if no agreement is reached.
34
What is required of the court under the CLA if an agreement is signed?
The court must suspend any court intervention.
35
What is required of the court under the CLA if a settlement is reached?
The court must enter judgment on the settlement's terms
36
What is required of the parties during agreement discussions under the CLA?
Parties must provide the court with a status report after 180 days, and have 2 years to come to a settlement.
After this time, then use can be set for trial or dismissed.
37
What is the primary consideration in child custody determinations?
The Best Interest of the Child standard
38
What other public policy considerations are there in child custody determinations?
1) Ensure frequent contact with parents who act in the child's best interest
2) Provide a safe, stable and non-violent home environment
3) Encourage parents to share the rights and duties of parenthood
39
What are the Holley Factors in determining best interests?
(1) the desires of the children;
(2) the emotional and physical needs of the children, both now and in the future;
(3) the emotional and physical danger to the children, both now and in the future;
(4) the parental abilities of each individual seeking custody;
(5) the plans for the children;
(6) the stability of the home;
(7) the acts or omissions of the parents which may indicate that the existing parent-child relationship is not a proper one; and
(8) any excuse for those acts or omissions.
40
What other factors outside the Holley Facts are considered in best interest of the child?
1) Family violence, child abuse, or child neglect
2) False reports of child abuse
3) Intentional use of force within 2 years against spouse, child's parent, or child
4) Whether a protective order has been issued against a party
41
When may children be interviewed in a non-jury trial?
The court MUST interview children 12 or older,
and MAY interview children under 12.
42
What factors are prohibited from consideration for the best interest of the child?
1) Sex
2) Marital status
3) Race
4) Religion (except immoral, illegal, or harmful religious beliefs)
43
What are the unique terms for custody given to parents during custody disputes?
1) Joint Managing Conservators, or
| 2) One will be named Sole Managing Conservator, and the other will be named Possessory Conservator
44
What is the role of Joint Managing Conservator?
Each party will have legal rights to make important decisions for the child.
45
The appointment of JMCs do not require:
Equal or nearly equal physical possession of the child.
46
One of the JMCs can be given exclusive rights to:
Made educational decisions, and
Make medical decisions
47
One parent MUST be given the exclusive right to determine the child's:
Primary residence
48
What is the rule for geographical restrictions when a court is determining the JMC status?
The court must establish the geographical area of the primary residence OR specify that the JMC who has the right to determine the child’s primary residence (the “primary JMC”) can do so without any geographical restrictions.
49
What can be done about geographical restrictions if the parties agree to be JMCs?
They can simply set their own agreed-upon geographical restrictions.
50
Which JMC can be ordered t pay child support?
Either one
51
In determining whether to order JMCs, the court will consider a host of factors, including the following:
1) Whether parents have the ability to reach shared decisions
2) Whether parents can encourage and accept a positive relationship between the child and the other parent.
3) Whether both parents participated in child-rearing before the suit was filed.
4) Geographic proximity of the parent's home
52
When may the court NOT appoint JMCs?
If credible evidence is presented of a history or pattern of past or present child neglect, or physical or sexual abuse by one parent directed against the other parent, a spouse, or a child.
This also creates a presumption against appointing the perpetrator as managing conservator.
NOTE: A single pact act can constitute a history or pattern
53
What rights does a managing conservator have?
Has custody of the child. They have the right to make major decisions for the child and the right to determine the child's primary residence.
54
What rights does a possessory conservator have?
Visitation rights
55
What reasons does a court need to split up siblings?
Clear and compelling reasons
56
What is the parental presumption for appointing conservators?
A parent must be appointed MC, or both parents must be appointed JMCs, unless:
The court finds that this would not be in the best interests of the child because it would SIGNIFICANTLY IMPAIR the child's physical health or emotional development.
57
What is the presumption is a parent was NOT appointed either MC or JMC?
There is a presumption in favor of appointing the parent as PC.
58
When is the parental presumption rebutted in favor of a nonparent conservator?
If:
1) The parent has voluntarily relinquished actual care, control, and possession to a non parent for 1 year, a portion of which was 90 preceding filing of suit, AND
2) The appointment of the nonparent is in the child's best interest
59
Who has standing to seek conservatorship?
1) A person with whom the child and child's guardian, managing conservator, or parent have resided for at least 6 months, ending not more than 90 days preceding the date of the filing of the petition, if the child's guardian, MC, or parent is deceased at the time of filing the petition
2) A person, other than a foster parent, who has had actual care, control, and possession of the child for at least 6 months ending not more than 90 days preceding the date of the filing of the petition.
3) A person who is the foster parent of a child placed by the Department of Family and Protective Services in the person's home for at least 12 months ending not more than 90 days preceding the date of the filing of the petition
4) A grandparent, or another relative of the child related within the third degree of consanguinity if: both parents are dead, both parents or surviving parent consents, or the relative provides satisfactory proof that the child's present circumstances significantly impair the child's physical health or emotional development.
60
What are the split authorities about what constitutes "satisfactory proof" that the child's present circumstances significantly impair the child's physical health or mental development?
1) Under one view, the grandparent must prove significant impairment by a preponderance of the evidence
2) Under the second view, the grandparent must show that there is a genuine fact issue regarding significant impairment
61
What language is contained in the standard possession order?
Presumed to be in the child's best interests.
For parents that live within 100 miles of each other, the non-custodial parent gets possession:
(a) From 6pm Friday through 6pm Sunday starting on the FIRST, THIRD, AND FIFTH FRIDAYS in a month
(b) From 6pm-8pm on THURSDAY NIGHTS during the school year
(c) 30 DAYS OVER THE SUMMER
(d) Alternating spring breaks
62
What is the standard for denying access to the child, or requiring supervised visitation?
If there is a history of pattern of family violence WITHIN 2 YEARS before suit was filed, the court cannot allow a parent to have access to the child unless the court finds access is in the child's best interest, and:
1) Finds that awarding access will not endanger the child, and
2) Enters a possession order the is designed to protect the safety and wellbeing of the child and any person who has been a victim of family violence.
63
When is there a rebuttable presumption that it is not in the best interest for a parent to have unsupervised visitation with the child?
If credible evidence is presented of a history or pattern of past or present child neglect or abuse or family violence by:
1) That parent, or
2) Any person who resided in that parent's household, or
3) Any person who is permitted by that parent to have unsupervised access to the child (like a parent's new boyfriend or girlfriend)
64
What is a post-judgment temporary order pending appeal?
After notice and hearing, a court can make temporary orders while an appeal is pending in order to protect the safety and welfare of the child.
Examples:
1) Appointing a temporary conservator
2) Ordering temporary child support
3) Prohibiting removal of the child to another geographic area
4) Enjoining parties from disturbing the peace of the child or another party.
65
When can a court modify its temporary orders?
IF the circumstances of one party have materially and substantially changes, and the modification is equitable and necessary to protect the safety and welfare of the child.
66
Under what conditions may a court modify conservatorship and possession and access?
The modification is in the BIOC and:
1) Circumstances have materially and substantially changed since the date of rendition or signed of a mediated settlement agreement, OR
2) A child aged 12 or older has expressed to the court in chambers the name of the parent that the child wants to have the power to determine the child's primary residence, OR
3) The conservator who has the exclusive right to designate the primary residence of the child has voluntarily relinquished the primary care and possession of the child to another person for at least 6 months (n/a to people on military duty)
67
Where is a request for modification of a conservatorship or possession order to be filed?
In the court of continuing exclusive jurisdiction
68
What counts as a material and substantial change?
1) Conviction of a conservator for family violence
2) Constant changes in primary residence
3) A child wanting to go on an extended trip rather than spend time with a conservator
4) Remarriage (split courts)
5) The custodial parent wants to move with the kids someone else (several hours away > down the road)
6) Notice must be given regarding registered sex offenses
69
What are the additional requirements if a spouse seeks modification within one year and seeks to change which parent has the exclusive right to determine the child's primary residence?
1) The child's present environment may endanger the child's physical health or significantly impair the child's emotional development, OR
2) The person who has the exclusive right to designate the primary residence of the child is the person seeking or consenting to the modification and the modification is in the best interest of the child, OR
3) The person who has the exclusive right to designate the primary residence of the child has voluntarily relinquished the primary care and possession of the child for at least 6 months and the modification is in the BIOC.
(PURPOSE: Discourage repeat litigation)
70
What temporary orders can a court issue pending a suit to modify?
A court can issue temporary orders in a preceding to modify a previous final order, but those temporary orders CANNOT have the effect of altering who can determine the child's primary residence or ADDING a geographic restriction on that choice unless:
1) Present environment may endanger child's physical health or emotional development
2) Child 12 or older has expressed which parent he wants to designate his primary residence
3) The person w/ exclusive right to designate primary residence has voluntarily relinquished care and possession of child
71
When can grandparents seek visitation?
Grandparents have special rights to seek visitation. They can obtain court-ordered visitation if:
1) The child's physical health or emotional well-being will be significantly impaired if the grandparent is denied possession or access.
2) At least one child's parents has not had their parental rights terminated, and
3) The grandparent is the biological or adoptive parent (not a step-parent) of one of the child's parents, and
4) The grandparent's son or daughter:
- incarcerated for 3 months before the petition is filed, or
- is incompetent, or
- is dead, or
- does not have possession of the child, and
5) The child's remaining parent intends to completely deny the grandparent possession and access.
72
What constitutes "significant impairment" when considering a grandparent's right to seek visitation?
Sadness is not sufficient. The requisite level of impairment might be present if the child lived with the grandparent for some time.
The grandparent must attach an affidavit to his or her petition that sets forth the facts supporting the claim of significant impairment.
The "significant impairment" standard overcomes the presumption that parents act in their children's best interest.
73
How is custody enforced in the INTERSTATE context?
1) Habeas corpus
2) Statutory tort liability
3) The UCCJEA
74
How is custody enforced in the INTRASTATE context?
1) Habeas corpus
2) Statutory tort liability
3) Contempt
75
What is involved in habeas corpus analysis?
The sole purpose of the habeas proceeding is to return possession of the child to the person entitle to possession under the court order.
Writ is automatic, immediate, and ministerial, and must be ordered UNLESS:
1) There is a finding of a n immediate serious question concerning the child's welfare, or
2) The relator has by consent or acquiescence relinquished possession of the child for at least 6 months immediately preceding the filing of the habeas petition
76
When can a habeas proceeding be brought without a final child custody order?
A habeas proceeding can be brought even without a final child custody order when a parent, relying on her entitlement to possession simply due to the fact that she is a parent, brings a habeas case against a nonparent.
77
What is the proper venue for a habeas corpus proceeding?
County in which the child is found,
OR
Court of continuing exclusive jurisdiction
78
What is the court of continuing exclusive jurisdiction (CEJ)?
The court that made the initial child custody or visitation determination has continuing exclusive jurisdiction over that matter until the court determines that:
1) none of the parties resides in the state,. or
2) The child no longer has a significant connection with the state, and substantial evidence relating to the matter is no longer available in the state
79
When does a Texas court acquire continuing exclusive jurisdiction (CEJ) in parent-child matters?
When a final order in a child custody or visitation matter is rendered.
80
What orders do NOT create CEJ?
1) Dismissal of a SAPCR
2) Order in parentage suit finding that an alleged father in not the father; and
3) A final order of adoption
81
Under statutory tort liability, when does a person commit the tort of "interference with child custody"?
A person commits this tort when they:
1) Retain possession of a child, or
2) Conceal the whereabouts of a child in violation of a court order, or
3) Non-custodial parents kidnap a child
4) Custodial parents withhold visitation
(Also applicable against a third party who aids or assists the interference if that party had reasonable cause to believe that their actions would violate a custody order)
82
What is contempt?
In Texas only
Contempt is available for violations of TEXAS custody order. Because it can result in jail time, it is quasi-criminal, and therefore all criminal due process rules apply, including the right to be appointed counsel if indigent, the rights to appear at the trial, and an evidentiary standard of beyond a reasonable doubt.,
83
What is the purpose of the UCCJEA?
To avoid jurisdictional disputes and facilitate interstate enforcement of custody and visitation orders.
84
What determines jurisdiction for the UCCJEA?
1) The state with home state jurisdiction;
2) The state with significant connection/substantial evidence;
3) All other states with jurisdiction decline it
4) Default jurisdiction
85
Under UCCJEA, How is the jurisdiction with home state jurisdiction determined?
A court has home state jurisdiction if the state:
1) Is the home state of the child OR
2) Was the home state of the child within 6 months before the commencement of the proceeding AND the child is absent from this state but a parent or person acting as a parent continues to live in this state.
86
Under UCCJEA, What determines a child's home state?
A child's home state is the state in which:
1) The child resided for 6 months with a parent or person acting as parent, OR
2) If the child is less than 6 months old, the state in which the child lived from birth with a parent or person acting as parent.
NOTE: An unborn child does not yet have a home state
87
Under UCCJEA, What determines jurisdiction for a state with "significant connection/substantial evidence"?
1) The child has no home state or the home state has declined jurisdiction, AND
2) The child and at least one parent or person acting as parents have a "significant connection" with Texas other than mere physical presence, AND
3) Substantial evidence is available in Texas concerning the child's care, protection, training, and personal relationships.
88
Under UCCJEA, Why would a home state decline jurisdiction?
1) Inconvenient forum
| 2) Unjustified conduct (by the parties?)
89
Under UCCJEA, What state has jurisdiction when all other states with jurisdiction decline?
If the home state and the states with significant connection/substantial evidence decline jurisdiction on the ground that a court in this state is the more appropriate forum, then this state (Texas) has jurisdiction
90
What is the default jurisdiction for UCCJEA?
If no other state has jurisdiction, then this state has jurisdiction.
91
What is the effect on jurisdiction once the initial custody order has been entered?
Once the initial custody order has been entered, the court has "continuing exclusive jurisdiction" until ONE of two events occurs:
1) Everybody leaves: the child and the child's parents do not presently reside in the state, or
2) The court with CEJ determines that neither the child nor one parent have a significant connection with this state, and that substantial evidence is no longer available in this state concerning the child's care, protection, training, and personal relationships.
92
What are the remedies for violations of the custody or visitation order?
1) Registration: If another state's custody or visitation order is registered in Texas, then the Texas court can grant any relief available for the enforcement of a Texas order, including contempt.
2) Expedited Enforcement: UCCJEA establishes a procedure similar to habeas corpus. The court issues an order directing the respondent to appear in person at a hearing held the next judicial day after service of the order or, if that day is not possible, the first judicial day possible. Possession of the child is awarded to the petitioner unless the custody or visitation has been stayed or vacated.
3) Warrant to take immediate possession: On filing a petition seeking to enforce a custody or visitation order, petitioner may file a warrant to take possession of the child if that child is imminently likely to suffer SERIOUS PHYSICAL HARM or be REMOVED from the state.
93
How does a party go about modifying custody and visitation order in the interstate context?
If a party seeks to move the proceeding to another state, they must persuade the Texas court that:
1) Texas is an inconvenient forum, OR
2) Neither the parent or the child has a significant connection with the state, AND substantial evidence about the child's care, protection, training, and personal relationships is no longer available in Texas.
94
What are the statutory child support guidelines?
1 child: 20% of the obligor's net resources
2 children: 25% of the obligor's net resources
3 children: 30% of the obligor's net resources
4 children: 35% of the obligor's net resources
5 children: 40% of the obligor's net resources
More than 5 = not more than the amount for 5 children
95
What is included in "net resources" calculated for child support?
Includes all cash revenues.
Subtracted from net resources are: Income tax, union dues, and health and dental insurance payments for the obligor's children.
96
What is not included when calculating net resources for child support?
- Accounts receivable,
- temporary assistance for needy families (TANF),
- funds from federal public assistance,
- payments for foster care.
97
What is the presumption regarding the guideline amount for child support?
There is a presumption that guideline amount is in the BIOC for both temporary and final orders.
98
When factors are considered in order for a court to deviate from the child support guidelines?
When considering relevant factors, including:
1) Special needs of the child
2) The ability of the parents to pay
3) The amount of possession and access to the child
4) The cost of travel to exercise possession, etc.
99
What must be shown by the courts in order to deviate from child support guidelines?
If the court deviates from the guidelines, its order must:
1) State why the guidelines amount is unjust or inappropriate
2) Provide the net resources of the obligor and obligee and the percentage applied to the obligor's net resources
3) Provide specific reasons for varying from the guidelines.
100
To what portion of income are the child support guidelines applied?
Only applied to the first $9,200 a month of net resources.
Anything after that, the court may award additional child support not to exceed the proven needs of the child.
101
How does "intentional unemployment" affect child support determinations?
A court MAY determine child support by looking to the obligor's EARNING POTENTIAL rather than his or her actual earnings if the obligor is earning significantly less than what the obligor could earn because of intentional unemployment.
102
When must child support terminate?
1) Child turns 18
2) Child graduates from, or ceases to attend, high school
Also terminates if the child dies, is emancipated, or marries.
103
Can a parent stop paying child support if the other parent denies them visitation?
No
104
Can a parent escape child support obligations by dying?
NO, his estate will owe the support
105
How could a court ensure that a parent pay his child support obligations even if he dies?
Order him to procure life insurance.
106
How can child support be modified?
A court may modify a child support order if:
1) Circumstances of the child or parent have materially and substantially changed since the order/mediation, OR
2) Three years have elapsed, and current child support deviates from the guidelines by the greater of $100 or 20%.
When one of these if met, the court has the DISCRETION to modify child support.
A modification can only apply retroactively from the earlier of the date the obligor was i) served or ii) appeared in the suit to modify.
107
What counts as a material and substantial change in child support considerations?
1) Remarriage,
2) Children growing up (braces, band uniforms, etc)
3) Etc.
NOTE: Changing conservator status for the parents is NOT a material and substantial change.
108
If a judge erroneously denies a motion to transfer, can the moving parent appeal?
NO. She should file a petition for writ of mandamus, since the judge's action would be unauthorized by statute.
109
Can parties enter into an agreement prohibiting modification of custody, or else pay each other $25,000?
No. It interferes with the court's ability to set support.
110
Can a settlement agreement provide for child support until the child turns 21, and the amount of child support not to be modified?
Yes, this goes beyond what Texas courts are authorized to order.
This is because anything beyond age 18 is not considered child support, and the courts cannot order anything beyond child support in this case.
This is instead a contractual obligation.
111
What are the rules for modifying child support in the interstate context?
Governed by the Uniform Interstate Family Support Act (UIFSA).
Says that the motion must be filed in TEXAS because Texas court has CEJ.
A court retains CEJ as long as at least on party resides in that state (obligor, obligee, or child).
112
Under the UIFSA, if a party moves from one Texas county to another, must the court transfer?
YES, The original court must transfer the proceeding to the new county under the UIFSA.
113
Under the UIFSA, if a party moves from one Texas county to another STATE, must the court transfer?
If both parties don't live in Texas, the the party must file the motion to transfer in that new state.
114
How is child support enforced?
Child support payments are made to the State Disbursement Unit. This way, disputes can be avoided about whether payments were made.
115
What is mandatory withholding of child support?
All final orders for periodic child support must provide for mandatory withholding.
The court may provide, for GOOD CAUSE shown or on agreement of the parties, that the order withholding income need not be issued or delivered to an employer until a violation of the child support order has occurred.
Only applies to wage earners with employers, not self-employed.
116
What is the maximum amount subject to withholding of wages for child support?
Maximum amount subject to withholding is 50% of the obligor's disposable earnings, which include wages minus "the usual" deduction: Income tax, FICA, retirement contributions.
117
If mandatory withholding available for arrearages as well as current support obligations?
Yes
118
Does mandatory withholding apply to investment income?
No, just employment earnings.
119
How can the court ensure that the child of a self-employed obligor will get the needed child support?
Give bond, or provide other surety.
120
When can a court suspend an obligor's license for failing to pay child support?
A court can suspend the obligor's driving license if the obligor is three months in arrears and has been given an opportunity but has failed to make a payment under an agreed repayment schedule.
An obligor who is 30 days delinquent in paying child support cannot obtain state grants, loans, or contract.
121
To what can liens for child support arrears attach to?
Non-exempt personal property, and non-homestead real property.
122
What is the "second spouse" rule?
If the obligor remarries, the spouse can petition to release any community property or jointly owned property from the liens, if sale of that property would result in an unreasonable hardship upon the second spouse or family.
123
When can a money judgment be brought against an obligor?
Periodic child support payments not timely made automatically become money judgment for the amount due.
SOL: 10 years after the later of 1) the child becomes an adult or 2) the date on which the child support obligation terminates
124
When might an obligor's assets be frozen?
If a judgment for arrearages has been rendered, claimant can deliver a notice of levy to the financial institutions holding the obligor's assets.
Delivery of the notice freezes the assets.
125
When can a court hold an obligor in contempt?
A court can hold an obligor in contempt if he is behind on his child support at the time of the relevant hearing, and jail the obligor for up to 6 months, or fine the obligor a maximum of $500, or both.
OR: A court can also order community supervision up to 10 years, extended until the earlier of when the arrearages are paid and 2 years after the community supervision exceeds 10 years.
126
If a settlement agreement does not include child support, can it be enforceable by contempt?
NO. Contempt only applies for violations of Texas court orders.
127
Can a court hold an obligor in contempt of child support if their child turns 18 (thus terminating child support obligations)?
YES, a court retains jurisdiction to hold obligor's in contempt if the motion is filed not later than the SECOND year after the child support obligation terminated.
128
Are child support obligations and arrearages dischargeable in bankruptcy?
No
129
Can a Texas court hold an out-of-state divorce party in contempt for failure to pay child support?
No, only has jurisdiction for Texas orders.
130
How can an out-of-state divorcee make their child support orders enforceable by contempt in Texas?
Can convert the out-of-state order into a Texas child support order under the UIFSA by registering it in Texas.
Future violations can trigger contempt, but past violation of the Nebraska order cannot.
131
What options does an out-of-state obligee have in Texas besides converting into a contempt-enforceable child support order?
1) Obligee could also obtain a money judgment in the other state, which would be entitled to full faith and credit in Texas
2) If Obligee knows where Obligor is employed, she could mail a copy of her out-of-state income withholding order to Obligor's Texas employer. Under UIFSA, this automatically triggers withholding unless Obligor contests the order's validity.
3) Obligee could also mail her support order to the Texas Attorney General's Child Support Enforcement Division, which would seek administrative enforcement of the order.
132
What is the role of the jury in divorce cases regarding children?
Juries cannot determine child support or possession and access
Parties have a right to a jury trial on the issue of conservatorship, however.
133
What is required for a party to get a name change after divorce?
Party should file "petition for name change".
Requirement: The change is in the interest of the petitioner and the public.
Rule: A court cannot deny a name change solely to ensure that the parents and children have the same last name.
134
HYPO (Despicable Partners):
Homer hits Marge. Can Marge bring a tort suit in addition to her divorce action for:
1) Negligent infliction of emotional distress?
2) Intentional infliction of emotional distress?
1) No, Texas does not allow negligent infliction of emotional distress rewards.
2) Yes
135
Can a spouse use tortious conduct to get both a tort award and a favorable division of CP?
NO
136
HYPO (Despicable Partners):
Homer threatens Marge. What steps could you take on her behalf to protect her?
1) File a petition for a protective order
2) File a request for a temporary ex parte order.
Key requirement for both of these is the statutory concept of FAMILY VIOLENCE.
137
What acts constitute "family violence"?
1) An act "intended" to result in physical harm, bodily injury, assault, sexual assault, or
2) A threat that reasonably places the victim in fear of imminent physical harm, bodily injury, assault, or sexual assault.
138
What acts DON'T count as family violence?
1) Defense measures, and 2) corporal punishment for the reasonable discipline of a child.
139
Who is protected from family violence?
1) Member's of the perpetrator's family or household and their children.
2) Includes "dating violence" which can be committed against i) dating relationship, or ii) against whom the offender had a relationship (other person?)
140
What is required for a temporary ex parte order?
A clear and present danger of family violence, and a sworn affidavit containing relevant facts.
Duration: 20 days (but can be extended additional 20 days, especially when the perpetrator cannot be served).
141
What is the proper venue to file for a TEPO?
The county where either party resides, or if a SAPCR has already been filed, then a party to that suit can file with that court.
142
What type of relief can be included in a TEPO?
1) Protecting people (communication, stalking, going near homes/work)
2) Protecting property (transfer, encumbrances,disposal)
3) Protecting parenting (possession and access)
143
What is mandatory relief allowed when filing TEPO?
Perpetrator cannot possess firearms or ammunition?
144
What are the special findings required for an ex parte kick-out order?
1) The applicant must appear in person and file a sworn affidavit
2) The applicant resided on the premises within the past 30 days
3) The excluded person committed family violence against a member of the household within the past 30 days
4) The applicant at least jointly owns or leases the residence, or the excluded person has an obligation to support the applicant or her child.
145
What types or relief CANNOT be granted by a Temporary Ex Parte order?
Payment of support or attorney's fees, or requiring the alleged perpetrator to attend counseling.
146
What are the requirements for a Protective Order?
1) Notice of hearing, and
2) Family violence occurred and is likely to occur in the future, or
3) The respondent violated a previous protective order
147
What is the timing of a hearing on a protective order?
Between 48 hours and 14 days after the application is filed unless the prosecuting attorney requests a later hearing in which case it must take place within 20 days.
148
What is the duration of a protective order?
Not to exceed 2 years
Exception: May exceed two years if
1) The subject of the order caused serious bodily injury, or
2) Was the subject of 2 or more previous protective orders rendered on behalf of the same applicant, or
3) Committed a felony involving family violence against the applicant or a member of the applicant's family or household, regardless of whether the person has been charged or convicted.
149
When can a protective order be extended?
If the protective order is set to expire while the perpetrate is confined or imprisoned, or set to expire within one year of after their release, the duration is extended and the order expires:
1) One year after their release, if the person was sentenced to confinement or imprisonment for more than 5 years; or,
2) Two years after their release, if the person was sentenced to confinement or imprisonment for 5 years or less.
150
What is the proper venue for filing a protective order?
1) The county where either party resides, or
2) If a SAPCR has already been filed then a party to that suit can file with that court, or
3) The county in which the violence has allegedly occurred.
151
What type of relief can be provided by protective orders?
Same as temporary ex parte orders, plus:
Order support payments, attorney's fees, and order the perp to attend a battery and intervention program (contra with TROs)
152
What mandatory relief must a protective order provide?
Perp cannot possess firearms or ammunition
153
When is modification of a protective order allowed?
No earlier than one year after the order was entered, the subject of the protective order may file a motion requesting that the court determine whether is a "continuing need" for the order.
If the order exceeds two years, the respondent gets one additional change to ask the court to review whether the order is still needed.
154
When is a Temporary Injunction or a Temporary Restraining Order appropriate?
If people have a pending SAPCR or suit for the dissolution of their marriage.
155
Is a temporary restraining order ex parte?
Yes
156
What is the duration of a TRO or?
14 days
157
What are the common types of relief for a TRO?
1) Protecting people: Prohibiting unreasonable acts
2) Protecting property
3) Protecting parenting
158
What types of relief cannot be granted by an ex parte TRO?
Payment of support or attorney's fees, can't prohibit reasonable or necessary acts, and no kick-out orders.
159
What is the duration of a temporary injunction?
Until a final judgment is entered in the trial.
160
What relief can you get from a temporary injunction?
Same as a TRO, plus:
Now you can order support and attorney's fees, prohibit reasonable acts, and you can grant exclusive possession of the residence.
161
What is the standard reporting requirement for child abuse?
All people have a duty to report abuse if they have cause to believe that a child's physical or mental health or welfare has been adversely affected by abuse or neglect.
162
What is the professional standard for reporting child abuse?
A professional having reason to believe that a child is subject to abuse or neglect, or MAY BE subject to it, must report it within 48 hours.
The duty to report CANNOT BE DELEGATED.
The reporting party's identity will remain confidential, and can be disclosed only upon court order or to a law enforcement agency for purposes of a criminal investigation.
If the reporting party acted in GOOD FAITH, then he or she is immune from civil or criminal liability.
163
When can the Texas Department of Family and Protective Services (TDFPS) take possession of a child without a court order?
If they receive information that would lead a person of "ordinary prudence and caution" to believe that child was the victim of sexual abuse or is in immediate danger, and there is no time to obtain a temporary restraining order.
- TDFPS must file a SAPCR and obtain an ex parte hearing within ONE working day after the child was taken into possession. Parents must give written notice prior to ex parte hearing containing (a) the reason why TFDPS took possession of the child and (b) a summary of the parent's legal rights.
164
What must be done at the initial hearing after TFDPS takes possession of a child?
To retain the child, TDPFS must show that there is a continuing danger to the physical health or safety of the child and reasonable efforts were made to prevent the need for removal.
A full adversary hearing must be held within 14 days.
165
When can TDFPS remove a child WITH a court order?
TDFPS can obtain a court order to remove a child, without notice and a full hearing, by showing that:
1) There is no time for a full hearing,
2) Continuation for the child in the home would be contrary to the child's welfare, and
3) Reasonable efforts were made to prevent the need for removal, and
4) There is an immediate danger to the child OR the child has been a victim of neglect or sexual abuse
The TROs last 14 days, to give the court time to hold a full adversarial hearing
166
What must be done at the FULL adversarial hearing for the TDFPS to retain a child?
To retain the child, TDFPS must present sufficient evidence to satisfy a person or "ordinary prudence and caution" that:
1) There was a danger to the physical health or safety of the child caused by the parent and,
2) Reasonable efforts were made to prevent the need for removal, and
3) Despite reasonable efforts, there is a substantial risk of a continuing danger if the child is returned home, including the risk that the child might be the victim of trafficking.
If either the ex parte or full adversary hearing is not held within the specified time, TDFPS must return the child to the parents.
167
What is required in order for parental rights to be terminated?
An involuntary termination of the parent-child relationship generally is based on conduct of the parent that is harmful to the child.
In order to terminate parental rights, a court must find that termination is in the child's best interest and must find one of the grounds for termination was presented by CLEAR AND CONVINCING EVIDENCE.
168
What are the grounds for termination of parental rights?
1) The parent constructively abandoned a child who had been in the custody of TDFPS for 6 months by failing to regularly visit or maintain contact with the child and demonstrating an inability to provide the child with a safe environment, provided that the TDFPS has made reasonable efforts to return the child.
2) The parent has filed to comply with a court order that specifically established Thea actions necessary for the parent to obtain the return of the child who has been with TDFPS for not less than 9 months as a result of the child's removal from the parent for abuse or neglect of the child.
- -- Exception: The court cannot terminate on this ground if the parent shows by a preponderance of the evidence that they made "good faith" efforts to comply with the court order, they were unable to comply, and the failure to comply was not attributable to any fault.
3) The parent was criminally responsible for the death or serious injury of any child.
- -- This ground does not require BODILY injury.
169
In a termination hearing, a court may consider, but MAY NOT terminate parentage on the (sole) basis of:
1) Homeschooling
2) Refusal to vaccinate
3) Provision of prescribed low-THC cannabis to the child
4) Economic disadvantage of the parents, or
5) A parent's nonviolent misdemeanor other than those that would qualify as family violence, offense against the family, or offenses against the person.
170
How does the termination of the parent-child relationship affect the obligation to pay child support?
Generally, termination ends a former parent's duty to pay FUTURE child support, but does not eliminate past-due child support.
171
When may the court continue ordering child support, despite termination of the parent-child relationship?
1) TDFPS is appointed the managing conservator
2) The child was conceived by actions that would constitute the crime of sexual assault., "consensual" sex with a minor, or incenst; or
3) The parent's rights were terminated because he was convicted of (or placed on community supervision or deferred adjudication for) sexually assaulting the other parent.
NOTE: The child's adoption will terminate the former parent's support obligation.
172
What are the four types of fathers?
1) Presumed fathers
2) Acknowledged fathers
3) Adjudicated fathers
4) Alleged fathers
173
What is a presumed father?
1) The child was born within 300 days of marriage or attempted (but void) marriage, or
2) He married the mother after the child's birth, and
- -- Acknowledged with the Bureau of Vital Statistics
- -- Promised on record to support the child, or
- -- Was voluntarily named on the birth certificate, or
3) During the first 2 years of the child's life, he
- -- resided with the child
- -- represented to others that the child was his
174
What is an acknowledged father?
The mother and alleged father can sign and file an acknowledgment of paternity. This has the same effect as a judicial determination that the alleged father sit he father.
175
What is an adjudicated father?
When a court has determined a man's parentage in a paternity suit.
176
Who can bring a suit to adjudicate parentage?
The child, mother, father, alleged father, support agency, or:
A representative authorized by law to act for an individual who would otherwise be entitled to maintain a proceeding but won is deceased or incapacitated or a minor.
If the mother is deceased, the following people also have standing: The mother's parents, grandparents, children, grandchildren, and siblings.
177
Where is proper venue when adjudicating parentage?
Where the child is found or,
If the child does not reside in this state, where the respondent resides.
178
What is required to establish parentage?
Genetic evidence
99% probability makes a man the father.
If genetic testing says not, then the court SHALL enter an order that the man is not the father.
179
What can rebut the result of a genetic test for paternity?
Only the result of another genetic test.
180
If the alleged father refuses to submit to genetic testing, what are the court's options?
1) Hold him in contempt
| 2) Default judgment
181
If, for good cause, a genetic specimen is not available from the alleged father, what are the court's options?
Order a relative to provide one
182
Can either party demand a jury trial when adjudicating parentage?
No, genetic test controls.
183
What is the statutory presumption for new dads regarding retroactive child support?
There is a statutory presumption that it is in the best interests of the child to provide an amount not to exceed 4 years of retroactive child support.
184
How can the statutory presumption for new dads regarding retroactive child support be rebutted?
The presumption can be rebutted by showing:
1) The actual father SHOULD HAVE KNOWN that he was the father, and
2) Sought to avoid support obligations
185
If a mother files a paternity suit against a father, can she seek temporary child support before genetic testing is done?
NO
But she can if the father file suit instead.
186
What is paternity by estoppel?
If a man not the father accepts his role as the father, and the mother relies on that acceptance, then the court may deny genetic testing and issue an order adjudicating a presumed or acknowledged father to be the father if it can be shown that:
1) The conduct of the mother of father estops them from denying paternity,
2) It is not BIOC to disprove the father/child relationship
187
What other factors can a court consider for paternity by estoppel?
1) The time elapsed since presumed father was put on notice that he might not be the father
2) Other facts surrounding the discovery of his possible non-paternity
3) The length of time he assumed role of father
4) Child's age, and the nature of their relationship
5) Harm that may result to the child if paternity is disproved
188
How can a presumed father eliminate his rights and obligations in uncontested cases?
By providing a written denial of paternity and a written acknowledgement of paternity that is signed by another man and by the mother.
(Applies only in uncontested cases)
189
How can a presumed father eliminate his rights and obligations in CONTESTED cases?
SOL to challenge paternity of a presumed father: Four years, unless either
1) The presumed father and the mother of the child did not live together or engage in sexual intercourse during the probable time of conception, or
2) The presumed father was precluded from commencing a proceeding because of the mistaken belief that he was the biological father based on. misrepresentations
190
What is the rule for ousting acknowledged fathers when the challenge is brought either the ack. father OR mother?
The acknowledgement can be RESCINDED by one of the parties who signed it before the earlier of:
a) 60 days after the effective date of the acknowledgement, or
b) The date of a court hearing about the child, if the person seeking to rescind is a party
---
They can also file suit to challenge paternity on the basis of fraud, duress, or material mistake of fact, but must do so before the court issues an order affecting the child.
191
What is the rule for ousting acknowledged fathers when the challenge is brought either the ack. father ALONE?
An ack. father can TERMINATE his parentage if:
1) He was under a mistaken belief that he was the father based on misrepresentations, and
2) He is not the genetic father, and
3) He brings the termination suit within 2 years after he becomes aware of the relevant facts.
192
What effect does termination have on child support?
Does NOT affect past due child support
Terminates:
1) Future child support, and
2) Post-judgment interest on past due child support
193
When must suit be brought by an alleged father or anyone other than the child and the signatories to the acknowledgement who has standing to challenge paternity?
Suit must be brought before 4 years after the effective date of the acknowledgement.
194
What are the limitations when the child has no presumed, acknowledged, or adjudicated father?
1) No Statute of Limitations
2) No paternity by estoppel
3) Standing after the child becomes an adult: Only the ADULT child has standing to adjudicate paternity.
195
When may a child be adopted?
1) Both parents have died
2) That parent-child relationship of each living
3) A STEPPARENT wants to adopt a stepchild
4) A child is at least two years old and the parent-child relationship has been terminated with respect to one parent AND
- -- a) The person seeking adoption has been a managing conservator or has had actual care, possession, and control of the child for 6 months preceding the adoption and the non-termination parent consents, OR
- -- b) The former step-parent is seeking adoption and he or she has been managing conservator or has had actual care and control of the child for ONE YEAR
196
How can a mother put up a child for adoption?
Mother can sign an affidavit of relinquishment, which will lay the predicate for a consent decree terminating the parent-child relationship.
The affidavit cannot be signed before 48 hours after the birth.
197
How can an alleged father put up a child for adoption?
Voluntary waiver
An alleged father can sign a waiver of interest in the child.
This document does not admit paternity. It merely waives the father's potential parental rights.
A father who already has parental rights, such as a husband of the birth mother, can file an "affidavit of relinquishment", then they could file a voluntary termination proceeding.
198
When can a father's rights be involuntarily terminated?
A father's right can be involuntarily terminated if:
1) After being served, an alleged father does not respond by either admitting paternity or filing a counterclaim for paternity, or
2) The alleged father failed to file with Texas's paternity registry, or
3) There is proof that the alleged or legal father committed culpable acts that would be grounds for terminating a parent-child relationship
- -- a) The father voluntarily, and with knowledge of the pregnancy, abandoned the mother of the child during the pregnancy, failed to provide support, and remained apart from the child or failed to support the child since the birth.
- -- b) The father failed to support the child in accordance with the parent's ability during a period of ONE YEAR ending within 6 months of the date of the filing of the petition.
199
HYPO: Homer and Marge are divorced and Marge is now married to Moe. Moe wants to adopt the children. What has to happen for the adoption to occur?
Homer's parent rights must be TERMINATED.
There can only be one set of parents at a time.
200
HYPO: Homer has not paid child support in 11 months. What strategy could Marge and Moe use to terminate Homer’s parental rights?
Wait one month, then file.
Failure to support for a year is grounds for termination.
201
If the government seeks to terminate a person's parental rights and that person is indigent, the court must:
Appoint an attorney
202
What procedures must be followed before a parent can finalize putting their child up for adoption?
1) Pre-placement portion of adoption evaluation
2) Post-placement portion of adoption evaluation
3) A report showing the adoptive parents' criminal record
4) A SHEG report about the child (social, health, education, genetic history)
203
Do both parents have to join the petition for adoption?
Yes
204
Does the adoption proceeding abate if the adopting parents divorce?
Yes
205
Does the adoption proceeding abate if one of the adopting parents dies?
NO
206
If the Texas Dept. of Family and Protective Services' consent required for adoption?
Yes, if they're the managing conservator of the child.
EXCEPT: If their consent is withheld without good cause, then it's not required.
207
How long must a child reside with the adopting parents before the final decree of adoption can be entered?
6 months.
EXCEPT: If a waiver of this requirement is in the child's best interest.
208
What is required for adoption of a child 12 or older?
The child must give written consent to the adoption.
EXCEPT: If the court waives the requirement (BIOC)
209
When the adopted child becomes an adult, what information is he entitled to?
A copy of the SHEG report, which is edited/redacted to protect the confidentiality of both parents.
210
When can the non-redacted version of the report be released to an adopted child?
If both sides (child and bio-parents) file a request for report together.
211
Does an adopted child lose his rights to inherit through their biological parents?
No
EXCEPT: If the adoption decree expressly terminates inheritance rights.
212
Under what conditions can one adult adopt another adult?
With consent of both parties.
NOTE: Adults DO lose inheritance rights if adopted as an adult.
213
Which adults have the right to consent on behalf of the child if the parent cannot be located, and that parent has not given actual notice to the contrary?
Grandparents, siblings, aunts, uncles, and SAPCR court.
214
What powers do "adult caregivers" have over children?
The power to consent to:
1) Medical treatment
2) Enroll the child in school
3) Get the child a social security card, etc.
215
What powers do adult caregivers NOT have?
The power to consent to abortions or emergency contraception.
216
What is required for a parent to give authorization to an adult caregiver?
Authorizations must be in writing, signed by one parent, and notarized.
If only one parent signs the authorization, it is void unless that parent sends copies of the authorization to the other parent within 10 days. This requirement does not apply if the other parent is dead, or has had their rights terminated, or the other parent:
1) Has no court-ordered possession and access, and
2) Was the subject of a protective order on behalf of the other parent or any of her children, or has been convicted of a crime that involves as an element a violent act or prohibited sexual conduct.
217
What is required for adult caregiver authorization if there is pending litigation about the child?
Court approval of the CEJ
218
Can two authorization agreements be in effect at the same time?
No, only one may be in effect for a child at any time. An authorization agreement is void if it Is executed while a prior authorization agreement remains in effect.
219
What is the duration of an adult caregiver authorization?
6 months
They automatically renew for additional 6 month period.
Parties can stipulate a shorter time period, but not a longer one.
Any parent can revoke them at any time, as long as they give a copy of the revocation to all parties and oil eit with all relevant courts.
Authorizations automatically terminate when a court issues an order affecting the parent-child relationship.
220
When can a court grant temporary authorization persons authorized to consent for a child?
Courts can do so if:
1) No parent objects, and
2) No parent is available to sign an authorization, and
3) There are currently no other authorization agreements, and
4) The adult does not have some other written agreement giving them the power to provide for the child, and
5) The child has resided with the relevant adult for 30 days, and
6) Grant the authorization is necessary to the child's welfare
221
What is the duration of court-granted temporary authorization orders?
These authorizations last ONE YEAR by default, but the court may set a shorter duration.
They can be renewed for additional up-to-one-year periods.
222
When can a court-granted temporary authorization order be terminated by the court?
The court shall terminate the authorization if a parent requests it and there is no longer a need for the order.
223
When can the court remove the "minor" disability from a 17-year-old child?
For 17 year olds, the legal incapacities related with being a minor may be removed if:
1) The minor is a Texas resident, and
2) Is self-supporting and managing her own financial affairs, and
3) Removal of the legal incapacities related with being a minor is in the minor's best interest
224
When can the court remove the "minor" disability from a 16-year-old child?
The same rules as a 17yo, plus one requirement:
- the minor must be living SEPARATE AND APART from his or her parents, MC, or guardian.
225
What is a parent's liability for a child's tortious misconduct for negligence?
A parent is liable for property damage caused the child's NEGLIGENT conduct regardless of the child's age, if the conduct is attributable to a parent's negligent failure to exercise their duty of control and REASONABLE DISCIPLINE of the child.
There is NO limit on liability.
226
What is a parent's liability for a child's tortious misconduct for intentional torts?
Parents are liable for property damage caused by willful and malicious conduct of children 10 or older.
Damages are limited to $25,000 per act plus court costs and attorney's fees.
THEFT: Parent liability for theft by a child under 18 is limited to $5,000.
