Custody

Question 1

*Joint Managing Conservators (JMC)

Answer 1

Can be either ordered by the court or by the agreement of the parties if court finds that is is within

Overall test: the child’s best interest

Court will consider things like the geographical proximity of the parents, whether parents have shown an ability to reach shared decisions, what a child over 12 prefers

Agreement or order should be clear on what the rights of both JMCs are

one JMC is the parent with the right to control child’s residence

if just one parent, it is the “sole managing conservator”

Question 2

*Rebuttable Presumption JMC

Answer 2

Unless there is a history of family violence, there is a rebuttable presumption that appointing the parents as JMC is in the child’s best interest.

presumptions is rebutted, however, when there is credible evidence to show a history or pattern of family violence by one of the parents

Question 3

JMC equal possession not required

Answer 3

JMCs do not have to have equal possession of the child and usually one JMC’s home will be disunited as the child’s primary residence

Question 4

*Possessory Conservator

Answer 4

The noncustodial parent with visitation rights

Texas has a standard possession order that is mostly used- every other weekend, 30 days in summer….

Question 5

*When parent can be denied or restricted (e.g. supervised) access to child

Answer 5

if a parent has a history or pattern of family violence – particularly within the two years preceding the suit or while the suit is pending – there’s a rebuttable
presumption that awarding that parent unsupervised access and/or possession is not in the BIOC.

But presumption can be overcome if court writes order so that access will not endanger the child and it is in the child’s best interest

Question 6

• Modification of Conservatorship or Possession

Answer 6

Must be filed in the court of continuing jurisdiction under the SAPCR

Any party affected by the order has standing to file

Question 7

*Grounds for Modification of Conservatorship or Possession

Answer 7

If the modification is in the best interest of the child AND 1) there has been a materially and substantially change (e.g. like death of a parent), 2) child who is at least 12 has asked for modification, or 3) conservator voluntarily relinquishes the primary care and possession of the child for at least 6 months

family violence or abuse will be a grounds for modification and so will military deployment

Question 8

Modification - Temporary orders

Answer 8

while a suit for modification is pending, the court may enter a temporary order when 1) one is necessary because present environment may endanger the child, 2) the person designated in the order has voluntarily relinquished the primary car and possession for at least 6 month, or 3) child 12 or over has asked to live somewhere else during the pending modification and it is in the child’s best interest

Question 9

Post- Judgment Temporary Order Pending Appeal

Answer 9

After notice and hearing, a court can make a temporary order while an appeal is pending to protect the safety and welfare of the child

Question 10

Enforcement of Custody Order Remedies

Answer 10

Habeas Corpus, tort liability for parental kidnapping and contempt

Question 11

Habeas Corpus

Answer 11

the sole purpose of the proceeding is to return the possession of the child to the person entitled to possession under the court order

The write is automatic, immediate and ministerial, and habeas must be ordered unless:

1) there is a finding of an 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 proceeding the filing of the petition

Question 12

Tort Liability for interference with Child Custody

Answer 12

TX provides for civil liability if the noncustodial parent “kidnaps” the child or if the custodial parent withholds, conceals the child from the possessory conservator who has visitation rights

30 day notice of intent to file suit must be give to the D

Person cannot withhold visitation just because child support is not being paid

Question 13

Damages for Tort Liability

Answer 13

Actual damages may be awarded to the plaintiff, including the cost to locate the child, court costs and attorney fee, and damages for mental anguish and suffering

Exemplary damages may be awarded if D acted with malice or intent to cause harm

Question 14

Criminal Liability for Taking Child

Answer 14

3rd degree felony for a person to take possession of a child outside of Texas in contravention of custody order

Question 15

*Contempt

Answer 15

A court order regarding custody is enforceable by contempt, and punishable by confinement in county jail for up to 6 moths and or a fine up to $500

A MC may be held in contempt

Question 16

Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA)

Answer 16

Purpose is to avoid jurisdictional disputes with courts of other states in matters of child custody and visitation, to promote interstate cooperation, and to facilitate the interstate enforcement of custody and visitation orders

Question 17

Primary Test for UCCJEA - Home State Jurisdiction

Answer 17

a court has jurisdiction to initially enter or modify a child custody or visitation or if the state:

1) is the child’s home state or
2) was the child’s home state within the past 6 months and the child is absent from the state, but a parent or person acting as a parent continues to live in the state

A child’s home state is where they loved with a parent for at least 6 consecutive months immediately before the commencement of the proceeding (temp absences ok)

Only obtains a home state when born

MEMORIZE!! Frequently tested

Question 18

When Home State Rule does not apply

Answer 18

A court has jurisdiction to enter a child custody or visitation order if no other state has or accepts home state jurisdiction, AND

1) the child and at least one parent have significant connection with the state; AND
2) substantial evidence concerning the child is available in the state

Lastly, a court will jurisdiction to enter a child custody or visitation order if no other state has jurisdiction under another test

Question 19

Continuing Exclusive Jurisdiction - UCCJEA

Answer 19

The court that made the initial custody or visitation determination will have continuing exclusive jurisdiction until:

1) none of the parties reside 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 state

Question 20

Court may decline jurisdiction UCCJEA

Answer 20

when it determines that is is an inconvenient forum under the circumstances and that another state court is more appropriate

Question 21

Temporary Emergency Jurisdiction UCCJEA

Answer 21

A court may have temp jurisdiction if the child has been abandoned or it is necessary in an emergency to protect the child because the child, or her sibling or parent, is subjected to or threatened with abuse

Question 22

Enforcement of Another State’s Order UCCJEA

Answer 22

A custody or visitation order of another state can be registered in TX and enforced in the same manner as a TX order

Question 23

Parental Kidnapping Prevention Act

Answer 23

States are required to give full faith and credit to child custody determinations of another state if the Act’s jurisdictional standard are met

same standards as UCCJEA

Question 24

*Must a court interview a minor for custody preferences?

Answer 24

If 12 or older: court must interview in court (writing or oral) if requested by minor or parent or BIOC

If younger than 12: court may interview in court (writing or oral) if requested by minor or parent or BIOC

Question 25

• When can grandparent seek visitation access (only happens if the parent denies it)?

Answer 25

Grandparent has standing to seek access if it first shown that the lack of access to the child’s grandparent would result in such significant impairment.

Further, the parent who is the Grandparent’s child must have either died, been imprisoned for 2+ years or lost their conservatorship.

*does not include aunts and uncles

Question 26

• if mother/father of child is harming child and grandparent wants conservatorship, what can she do?

Answer 26

(1) File a new SAPCR suit arguing that that the present circumstances of the child significantly impair their physical health and emotional well-being; or
(2) Seek to terminate parental rights: need clear and convincing evidence that parental termination is in the best interests of the child, and (2) one of the grounds for termination is satisfied. The grounds include drug addiction and a subsequent refusal to participate in rehabilitation efforts

Question 27

*When does grandparent have standing to bring SAPCR to seek MC or PC?

Answer 27

(i) if both parents are dead;
(ii) both parents, a surviving parent, or the MC consents;
(iii) grandparent provides satisfactory proof that child’s present circumstances would significantly impair child’s health or emotional development

Question 28

*When does grandparent have standing to intervene in a SAPCR?

Answer 28

Generally speaking, it is easier to intervene in a SAPCR than it is to bring one.

The policy behind this is that
once the best interests of the child are before the court, the court wants as many options as it can in order to
effectuate the best interest of the child standard.

As a result, the standards for a relative to intervene in a
SAPCR are easier to satisfy, and rightfully so.

The requirements to intervene in a SAPCR are as follows:
substantial past contact with the child and significant impairment to the child’s physical health or emotional
well-being.

Question 29

• What are grounds that cannot be used to decide who receives conservatorship?

Answer 29

marital status,
sex,
race,
or religion (unless religion is dangerous to child)

Question 30

• Splitting children in custody

Answer 30

rebuttable presumption that presumption that an award of custody separating siblings from one another is not in their best interests.