Family Law - WIP Flashcards
Who cannot get married?
Anyone under the age of 18.
What is the age exception for marriage?
If minor has been emancipated by court order.
Parental consent is not sufficient.
What is the validity of marriage of minors that took place before Sept. 2017?
They are not void, because they were married before the change in the law.
What is bigamy, and what can cause it to be valid?
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.
What is the rule against marriage of relatives?
Consanguinity
1) Ascendents and descendants
2) Brother, sister, nephew, niece
3) Uncles and aunts
4) Current and former step-parent or step-children.
What is the rule regarding same-sex marriage?
These are no longer void.
What is the rule regarding religious organizations participating in same-sex marriages?
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.
What is the rule regarding government officials refusing to conduct same-sex marriage?
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
What is required for a marriage to be valid?
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
What is the rule regarding marriage of first cousins?
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
What is required of an informal marriage?
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
What is the presumption regarding an agreement to be married?
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.
What is a declaration of informal marriage?
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.
Why fill out a declaration of informal marriage?
Couples can pick the effective date of the marriage (backdating)
What are the grounds for annulment?
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
What constitutes fraud as grounds for annulment of marriage?
Fraud includes claiming to love someone but only really being interested in marrying them to obtain citizenship.
What are the exceptions to annulment for marriage within the 72-hour waiting period after marriage license is obtained?
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
What are the exceptions to annulment after discovery of annulment-worthy facts?
Cannot get an annulment if the couple cohabitated after the relevant facts were discovered.
Who has the discretion to grant an annulment, and what is a common reason for denying?
The court has discretion to grant an annulment.
Pregnancy is a common reason for a court denying an annulment.
What is required to file for divorce in Texas?
In order to file for divorce in Texas, one party must have been DOMICILED in Texas for six months.
What is the proper venue for a divorce action?
A spouse can bring suit in a county where one spouse has resided for 90 days.
What is the venue exception for a divorce action?
If the filing spouse is not a Texas domiciliary, she can file as long as her spouse meets the 6 month domiciliary requirement.
What are the contents of a divorce filing?
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)
What is the most common grounds for divorce?
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”.
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.
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
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.
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
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
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
When can a court decline to award judgment on a mediated settlement agreement?
If it would ENDANGER the child
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.
What is required under the Collaborative Law Act?
Attorneys must agree to withdraw from the case if no agreement is reached.
What is required of the court under the CLA if an agreement is signed?
The court must suspend any court intervention.
What is required of the court under the CLA if a settlement is reached?
The court must enter judgment on the settlement’s terms
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.
What is the primary consideration in child custody determinations?
The Best Interest of the Child standard
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
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.
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
When may children be interviewed in a non-jury trial?
The court MUST interview children 12 or older,
and MAY interview children under 12.
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)
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
What is the role of Joint Managing Conservator?
Each party will have legal rights to make important decisions for the child.
The appointment of JMCs do not require:
Equal or nearly equal physical possession of the child.
One of the JMCs can be given exclusive rights to:
Made educational decisions, and
Make medical decisions
One parent MUST be given the exclusive right to determine the child’s:
Primary residence
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.
What can be done about geographical restrictions if the parties agree to be JMCs?
They can simply set their own agreed-upon geographical restrictions.
Which JMC can be ordered t pay child support?
Either one
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
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
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.
What rights does a possessory conservator have?
Visitation rights
What reasons does a court need to split up siblings?
Clear and compelling reasons
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.
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.
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
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.
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
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
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.
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)
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.
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.
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)
Where is a request for modification of a conservatorship or possession order to be filed?
In the court of continuing exclusive jurisdiction
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
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)
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
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.
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.
How is custody enforced in the INTERSTATE context?
1) Habeas corpus
2) Statutory tort liability
3) The UCCJEA
How is custody enforced in the INTRASTATE context?
1) Habeas corpus
2) Statutory tort liability
3) Contempt
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
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.
What is the proper venue for a habeas corpus proceeding?
County in which the child is found,
OR
Court of continuing exclusive jurisdiction
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
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.
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
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)
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.,
What is the purpose of the UCCJEA?
To avoid jurisdictional disputes and facilitate interstate enforcement of custody and visitation orders.
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
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.
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
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.
Under UCCJEA, Why would a home state decline jurisdiction?
1) Inconvenient forum
2) Unjustified conduct (by the parties?)
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
What is the default jurisdiction for UCCJEA?
If no other state has jurisdiction, then this state has jurisdiction.
