Family Flashcards
Standing for a suit affecting the parent-child relationship
1) Parent
2) Child (through a representative)
3) Sibling of a child separated by a state department
4) managing or possessory conservator
5) guardian appointed by a probate court
6) governmental entities
7) a man alleging to be the father
8) prospective adoptive parent
9) grandparent
10) anyone that has had custody for 6 months
Grounds for divorce
1) insupportability (insupportable due to a discord or conflict of personalities that prevents any reasonable expectation of reconciliation)
2) cruelty (living together is insupportable and can be used to support an unequal division of property)
3) adultery (can be used to support an unequal division of property)
4) conviction of a felony (must be imprisoned for at least 1 year)
5) abandonment (express intent to abandon and physically leave for at least 1 year)
6) living apart (for at least 3 years)
7) confinement in a mental hospital (for at least 3 years and a relapse is probable)
Divorce long-arm jurisdiction
1) Texas was the last marital residence, and it has not been more than 2 years since the marital residence ended or
2) Constitutions of Texas and US otherwise permit.
Constitutional limitation on grandparent or third-party standing
1) substantial past with the child; and
2) it would significantly impair the physical health or emotional development of the child if the [grandparent] was not given access
Marriage of a minor
Marriage of a 16 or 17 year old requires
1) emancipation and
2) judicial approval
Possessory conservatorship
Right to manage the child while the child is in the parent’s possession, provides fewer rights than a managing conservator.
Procedure
Begin by filing an original petition. Answer is required within 61 days.
Enforcement of child custody
1) Habeas corpus, if only issue is whether the movant is entitled to possession
2) Tort for intentional interference with child custody
3) Contempt
4) Criminal liability
Duty of support
If one spouse incurs a debt for necessities, typically food, shelter, and other essentials for living, both spouses are liable for the debt
Involuntary termination of parent-child relationship
A court may terminate the parent-child relationship if it finds by clear and convincing evidence that doing so is in the child’s best interest and that the parent has done one of the following:
i) Left the child alone or in a non-parent’s possession and expressed an intent not to return;
ii) Left the child alone or in a non-parent’s possession for 3 months without expressing an intent to return, without providing for the child’s adequate support, and remained away for a period of at least three months;
iii) Left the child alone or in another’s possession without providing for the child’s adequate support and remained away for 6 months;
iv) Knowingly placed or allowed the child to remain in conditions or surroundings that endangered the child’s physical or emotional well-being;
v) Engaged in conduct or knowingly placed the child with persons who engaged in conduct that endangers the child’s physical or emotional well-being;
vi) Failed to support the child in accordance with the parent’s ability during a period of one year ending within six months of the filing of the petition;
vii) Abandoned the child without identifying the child or furnishing means of identification, and the child’s identity cannot be ascertained by the exercise of reasonable diligence;
viii) Voluntarily, and with knowledge of the pregnancy, abandoned the child’s mother beginning during her pregnancy and continuing through the birth, failed to provide the mother adequate support or medical care during the abandonment period before the child’s birth, and remained apart from the child or failed to support the child since the birth;
ix) Refused to submit to a reasonable and lawful order of a court regarding an investigation of child abuse or neglect;
x) Been the major cause of the child’s failure to be enrolled in school or the child’s absence from home without the consent of the parents or guardian for a substantial length of time or without the intent to return;
xi) Relinquished his parental rights;
xii) Been convicted or has been placed on community supervision, including deferred adjudication community supervision, for being criminally responsible for a child’s death or serious injury;
xiii) Had her parent-child relationship terminated with another child based on a finding that she knowingly placed the child with persons who engaged in conduct that endangers the child’s physical or emotional well-being;
xiv) Used a controlled substance in a manner that endangered the child’s health or safety;
xv) Been the cause of the child being born addicted to alcohol or a controlled substance, other than a controlled substance legally obtained by prescription;
xvi) Voluntarily delivered the child to a designated emergency infant care provider without expressing an intent to return for the child;
xvii) Been convicted of the murder or sexual assault of the child’s other parent, or placed on community supervision for being criminally responsible for the sexual assault of the child’s other parent;
xviii) Constructively abandoned the child who has been in the permanent or temporary managing conservatorship of the Department of Family and Protective Services or an authorized agency for not less than six months, and:
a) The Department or authorized agency has made reasonable efforts to return the child to the parent;
b) The parent has not regularly visited or maintained significant contact with the child; and
c) The parent has demonstrated an inability to provide the child with a safe environment;
xix) Failed to comply with the provisions of a court order that specifically established the actions necessary for the parent to obtain the return of the child who has been in the permanent or temporary managing conservatorship of the Department of Family and Protective Services for not less than nine months as a result of the child’s removal from the parent for the abuse or neglect of the child; or
xx) Knowingly engaged in criminal conduct that has resulted in the parent’s conviction of an offense and confinement or imprisonment.
Voidable Marriages
1) under the influence of alcohol or narcotics
2) impotency
3) fraud, duress, or force
4) concealed divorce (brought within 1 year of the marriage)
5) marriage within 72 hours of marriage license (brought within 30 days of the marriage)
Common law marriage (informal marriage)
1) Cohabitation
2) holding themselves out to the public as a married couple within Texas
3) agreement to be married (can be oral or written or inferred from conduct)
Parties may file a declaration of common law marriage which creates a rebuttable presumption.
Statute of limitations for physical assault tort claim
2 years
Collaborative Family Law Act
- Allows parties to voluntarily, by contract, elect out of formal proceedings. Parties agree to work together, in good faith, etc.
- If settlement is not reached, both of the attorneys representing each party must withdraw from the case.
Consanguinity limit
Cannot marry:
1) ancestor or descendant
2) sibling
3) first cousin
4) niece or nephew
5) uncle or aunt
Void marriages
Bigamy
Marriage to a minor (absent emancipation and court approval)
Marriage license
- 72-hour waiting period (may be waived with participation in a premarital course)
- lasts for 90 days
Temporary orders hearing
May determine issues such as:
1) requiring spousal support;
2) determining occupancy of residency or use of property
3) ordering discovery
4) providing for interim attorney’s fees; and
5) prohibiting transfers or expenditures outside of the ordinary course of business or to pay for reasonable living expenses and attorney’s fees
Child support
Until child is 18 or finishes high school.
-Rebuttable presumption that the following is reasonable: $8,550 x a percentage based on the number of kids 1 - 20% 2 - 25% 3 - 30% 4 - 35% 5 - 40%.
If obligor’s monthly net resources are above $8,550, then the amount may be based on the proven needs of the children.
“kick-out” order
Evicts a spouse from a residence without a hearing first
- lasts for 20 days until a hearing can occur
- requires a showing of family violence and a clear and present danger that it will continue
Long-arm jurisdiction for child-parent suit
1) Personal service in Texas
2) consent
3) child resides in Texas as a result of person’s actions
4) person resided with child in Texas
5) person resided in Texas and provided prenatal expenses or support
6) person engaged in sexual intercourse in Texas and child may have been conceived as a result
7) person registered with the paternity registry or signed an acknowledgment of paternity in Texas
8) otherwise constitutionally permitted
Parenting coordinator
Confidential, and cannot be compelled to testify
Recovery for physical assault tort
Spouse can either:
1) seek damages
2) seek an unequal division of the assets based on fault
Conducting the ceremony
May be conducted by:
1) a Christian minister
2) a Jewish rabbi
3) a person who is an officer of a religious organization and who is authorized by the organization to conduct a marriage ceremony
4) any judge or justice of the peace
If a non-authorized person has a reasonable appearance of authority, the parties acted in good faith, and neither is a minor, the ceremony is valid.
Effect of bigamy
- Void marriage
- Crime
- Putative spouse may acquire rights in the community property acquired during the marriage
- When there are multiple marriages, the most recent is presumed valid
Modifying child support
1) Material and substantial change in the circumstances; or
2) it has been 3 years and the modification differs by 20% or $100
Change in exclusive jurisdiction
Can change if the child moves to a new county and establishes a residence for 6 months.
Parenting facilitator
Can be compelled to testify
Rights/duties
A parent of a child has the following rights and duties:
i) physical possession of the child, to direct the child’s moral and religious training, and to designate the child’s residence;
ii) The duty of care, control, protection, and reasonable discipline of the child;
iii) The duty to support the child, including providing the child with clothing, food, shelter, medical and dental care, and education;
iv) The duty, except when a guardian of the child’s estate has been appointed, to manage the child’s estate;
v) The right to the child’s services and earnings;
vi) The right to consent to the child’s marriage, enlistment in the U.S. armed forces, medical and dental care, and psychiatric, psychological, and surgical treatment;
vii) The right to represent the child in legal action and to make other decisions of substantial legal significance concerning the child;
viii) The right to receive and give receipt for payments for the support of the child and to hold or disburse funds for the benefit of the child;
ix) The right to inherit from and through the child;
x) The right to make decisions concerning the child’s education; and
xi) Any other right or duty existing between a parent and child by virtue of law.
Marrying a divorced person
Cannot marry someone who has been divorced within the past 30 days without a court order
Duty to report child abuse
Within 48 hours:
- attorneys
- psychologists
- psychiatrists
- social workers
- doctors
Modification
- Material and substantial change of circumstances, or a preference of a child who is 12 years or older
- Modification must be in the best interest of the child
- Possession has been relinquished for at least 6 months
- Special rules within 1 year of the last order:
a) present environment may endanger the child’s physical health or significantly impair the child’s emotional development
b) person with primary possession consents and it is in the best interests of the child
c) voluntary relinquishment of possession for at least 6 months and it is in the best interests of the child
Temporary restraining orders
Typically to prevent:
1) prevent threats
2) repetitive or vulgar phone calls
3) falsifying writings
4) transferring property outside the ordinary course of business
Does not require sworn pleadings, lasts for 14 days and can be renewed for another 14 days.
Protective orders
Requires a showing that family violence has occurred, and is likely to occur again
1) Additional family violence
2) stalking
3) communicating; and
4) being a certain distance
Support for disabled children
- Known before 18
- Court may order support indefinitely based on the needs of the child and ability to pay of the parents
Transfer of property during divorce proceedings
Void if transferee has knowledge and notice of the pending divorce.
Managing conversatorship
Who has primary possession of the child?
- can be joint
- primary consideration is best interest of the child
- court can consider the child’s preference (child is 12 or over for a modification).
- must be a parent unless that would significantly impair the child’s physical health or emotional development.
- cannot discriminate on the basis of gender or marital status.
Venue
1) Divorce action
2) where the child resides (with the parent or guardian who has the right to establish the child’s primary residence)
Custody jurisdiction
1) Texas is the home state (child has lived there for the last 6 months)
2) Texas was the home state within the last 6 months and removed, but a parent is still a Texas resident
3) No other state has jurisdiction or the child’s home state has declined jurisdiction
4) Temporary emergency jurisdiction for abuse
Enforcement of child support
1) mandatory wage withholding (default, cannot exceed 50% of disposable income)
2) money judgment
3) suspension of licenses, including handgun, driver’s license, hunting and fishing license, professional license, etc.
4) child support liens (only exempts homestead)
5) contempt (6 months in jail and/or $500 per count)
Paternity presumption
A man is presumed to be the father of a child if:
i) The child was born during a marriage, or within 300 days of a marriage that ends by death, divorce, or annulment (even if the marriage was void or voidable);
ii) After the child’s birth, a man married to the child’s mother voluntarily asserts paternity in a record filed with the Bureau of Vital Statistics, was voluntarily named as the child’s father on the birth certificate, or promises in a written record such as email to support the child; or
iii) During the first two years of the child’s life, a man lives in the child’s residence and holds himself out to others as the child’s father.
To rebut a paternity presumption, genetic test results must exclude a man as a father or there must be an acknowledgement of paternity by another man.
4-year statute of limitations on challenges to a presumption of paternity, unless a court determines that the mother and presumed father did not cohabit or engage in sexual intercourse and the presumed father did not hold himself out to others as the child’s father. Standard is clear and convincing evidence.
Jurisdiction over divorce
Considered an in rem proceeding, but the filing spouse must be domiciled in Texas for at least 6 months before filing and a resident of the county for 90 days before filing.
Division of out-of-state property requires personal jurisdiction, as does imposition of personal support obligations.
