Family Law

Question 1

What is family?

Answer 1

A basis for allocating rights for imposing duties. It varies with culture, economic and psychological factors

Question 2

Constitutional rights of family?

Answer 2

Cohabitation/household unit, procreation/child rearing, “marriage”

Question 3

Rights of Self-definition of a family unit

Answer 3

Gvmt must pass “Strict scrutiny” (a) Identify liberty (b) State justification (c) means must be effective and well tailored

Question 4

Right to create a family (Right to have children)

Answer 4

(a) Procreation is fundamental right, essential to “the race”
(b) fundamental right to possession and custody of one’s own “children”
(c) Includes the right to make basic decisions re school, health care, discipline and religious or moral training
(d) NOT absolute: Subject to state’s rights to protect child from real dangers

Question 5

Right to create a family (Right to Marry)

Answer 5

(a) Marriage was once essential to procreation of paternity
(b) Loving v. Loving appeared to elevate marriage to a fundamental liberty interest
(c) Marital Motivations:
* Love/intimacy: personal declaration of committment to an exclusive relationship and a public commitment to an exclusive relationship
* Child rearing basis for presumed paternity and assigning weight to husband’s claim
* economic advantage: assures enjoyment of all public rights assigned to marriage; mutual duties of financial support, care giving; mutual right to public welfare, insurable interests
(d) Marriage is a fundamental interest, but is subject to regulation
(e) The severity of the restriction/regulation determines the degress of scrutiny of justification, means
(f) Must examine the state v. personal interests.

Question 6

Regulation of Entry into Marriage (Presumption of Validity)

Answer 6

i) TFC section 1.101: It is the policy of this state to preserve and uphold each marriage against claims of invalidity unless a strong reason exists for holding the marriage void or voidable. Therefore, every marriage entered into this state is presumed to be valid unless expressly made void by ch. 6 or unless expressly made voidable by ch. 6 and annulled as provided by that chapter.
ii) No disqualifications from marriage unless clearly stated as void or voidable (& annulled) by code
iii) if a wedding or marriage violates a rule, it is still valid unless the code expressly states as above.
iv) evidentiary presumptions favor inference of marriage based of cohabitation and holding out.
v) Wedding leads to rebuttable presumption that any prior marriage was properly full and dissolved.

Question 7

Regulation of entry into marriage (qualifications to marry)

Answer 7

Minors:

(1) Marriage by a person younger than 16 is void (unless a court has authorized the underage marriage)
(2) Marriage at 16 or 17 is voidable unless with parental or judicial consent.
(a) marriage emancipates a child
(b) emancipation severs parental rights and duties
(c) each party to a common law marriage much be at least 18 though
(d) a minor and her parents have standing to seek annulment but not the adult spouse.
(3) Consent is unnecessary at 18

Question 8

Regulation of entry into marriage (Restrictions on Marital partners)

Answer 8

i) Genders of the Partners
(1) Laws Prohibiting Same-Sex Relationships
(a) same se marriages are not recognized and perosn of the same sex who enter into a civil union or similar relationship in another state are not recognized in Texas. Texas has likewise rejected the “marriage-like relationship” doctrine. Furthermore the results of a sex change operation are not recognized for the purposes of marriage.
(b) lawrence stated that states cannot criminalize homosexuality

(2) choice of law problems: State v. State
(a) validity is usually decided by law of place of wedding
(b) exceptions:
(i) marriage violates public policy of other state with more or most significant relation to the parties
(ii) Or of state with more of most significant relation to certain issue
(c) elopement v. reverse elopement
(d) Texas courts lack jurisdiction to grant “same-sex” divorce, but can void the marriage

(3) Choice of law problems State v. Federal law
(a) no express constitutional authorization for federal regulation marriage or family life
(b) but federal interest sometimes requires a federal decision about marriage: Immigration, taxation, social security, welfare benefits, other “family rights” laws
(c) DOMA (Defense of Marriage Act)
(i) #1 the word marriage means only a legal union between one man and one woman as husband and wife, and the word spouse refers only to a person of the opposite sex who is husband or wife
(ii) #2 No state shall be required to give effect to any public act, record, or judicial proceeding of any other state respecting a relationship between persons for the same sex that is treated as a marriage under the laws of such other state
(iii) Justice Dept. No longer defends the validity of DOMA

(4) What is gender?
(a) Intersexual: Atypical sexual anatomy aka pseudo-hermaphratism
(b) transsexual-transgender gender dysphoria, gender ID conflicts with anatomy
(c) Geder is fixed at birth by chromosomes, gonads, and genitalia
(d) Decision to recognize gender is a legislative task
(e) small but growing number of states allow amendment of gender on birth certificate

Question 9

Consanguinity Rules

Answer 9

(1) A person cannot marry a brother or sister (including half blood), an ancestor or a descendant, a nephew or niece, and aunt or uncle, a first cousin or a stepchild
(a) except for first cousins, any marriage within the forgoing is void
(b) this applies to adoption as well as blood
(2) First cousin marriages are not void even though they are now prohibited in Texas because, until recently, Texans could marry a first cousin.

Question 10

Regulation on Entry into Marriage (one spouse at a time)

Answer 10

i) Three separate issues:
(1) In concurrent marriage, who of two same gendered spouses is married, and who is not?
(a) Polygamy does not void a prior valid marriage
(b) later marriages are void if an earlier one is still valid.
(c) BUT most recent marriage is presumed valid, subject to proof that earlier marriage is not yet dissolved
(d) “Springing” marriage rule
(i) A second marriage becomes valid on date first dissolved, w/out any further action, if still cohabitating and intending

(2) Is there a consitutional right to Polygamy as (a) religious practice or (b) liberty interest
(a) criminal prosecution is based on western christian values
(b) approved discrimination in public employment

(3) What is the effect and legality of pseudo-polygamy?
(a) extra-marital sex is no longer illegal
(b) Psuedo-Polygamy- First wife is official, the later wives are only spiritual.
(i) Criminal Polygamy:
(1) When one purports to be married or does marry a person other than his spouse. OR
(2) Lives with a person other than his spouse in this state under the appearance of being married
(a) appearance is defined as holding out plus cohabitation plus intent to be married (essentially common law marriage)

Question 11

Procedural Rules (The Agreement to Marry)

Answer 11

(1) A promise or agreement on consideration of marriage or non-marital conjugal cohabitation is not enforceable unless the promise or agreement or a memorandum of the promise or agreement is in writing and writing and signed by the person obliged by the promise or agreement.
(2) Where there is no agreement, the court adopts fault based rule.

Question 12

Procedural rules (Licensing and other admin requirements)

Answer 12

(1) A man and a woman desiring to enter into a ceremonial marraige must obtain a marriage license, which is valid for 30 days from the date of issue. Medical examinations are not required. No license is required for a CL marriage license was not obtained.
(a) There are no venue or residence requirements, but there is a 72 hour waiting period between issuance of the license and the date of the marriage (does not apply if one of the applicants is in the military or DoD, or if they completed a premarital ed course)
(b) A court may waive the waiting period.

(2) A recently divorced person cannot marry a third party within 30 days after the divorce decree is issued (unless the court waives this prohibition upon a showing of good cause)

Question 13

Procedural Rules: Solemnization (formal marriage)

Answer 13

(1) Authority of the Person solemnizing the marriage
(a) No particular form of ceremony is required for a valid ceremonial marraige
(b) a person authorized to conduct a marriage ceremony is prohibited from discriminating on the basis of race, religion or national origin.
(c) presumption of regularity wins in absence of rebuttal

(2) Consent and Intent to be Married
(a) Objective Consent - objective manifestation of assent and an official to act as a witness and by a promise in praesenti (at the present time as opposed to in the future)
(i) a response to vows is not necessary if it appears she is there willingly
(b) coerced consent: Lack of assent includes duress provided no cohabitation after release from force
(c) Subjective Intent: A sham wedding is still a wedding

Question 14

Procedural Rules: Informal Common Law marriage

Answer 14

(1) Three Part Test:
(a.) Agreement that the parties are married at this time.
(i) inconsistency affects credibility but cannot undo the agreement
(ii) if disputed, other elements may corroporate alleged agreement
(b) Lived together IN TEXAS (cohabitation)
(i) Did it become a home or just a place to visit?
(II)Household activity is relevant
(C) Represented to others that they were married (Holding out)
(i) Both parties must explicitly or tacitly declare a marriage
1. circumstantial evidence to corroborate direct testimony regarding express agreement
2. circumstantial evidence to prove express agreement in absense of any direct testimony
3. tacit agreement proven by conduct (i.e. alleged agreement was never expressly stated by one or both parties, but implied circumstances

Question 15

Procedural Rules (Declaration of Informal marriage)

Answer 15

(a) The parties can execute and record a sworn “ Declaration of Informal Marriage” this is not a requirement for establishing a common law marriage, nor is it an alternative to a ceremonial marriage as a means of marrying. Rather, it is a permissible method of proving an already established informal marriage

Question 16

Procedural Rules (When CL Marriage is NOT Possible)

Answer 16

If an action proves a CL marriage is not brought within two years after the parties separate, a presumption arises that the parties had not agreed to be married.

Question 17

Shortcuts to Marriage

Answer 17

(1) Judicial waiver of time limits
(2) proxy wedding for soldiers, prisoners, kings, busy people
(3) Common law marriage

Question 18

Remedies for Flawed Marriage (Annullment)

Answer 18

(1) Voidable Marriage is valid and emancipates, terminates, terminates support
(2) Child has option: Preserve or annul and seek other remedies
(3) Annulment makes voidable void
(4) With the exception of the underage parties and violation of the 72 hour waiting period; a party cannot bring suit to annul the parriage if the petitioner has voluntarily cohabitated with the other party after the situation was discovered

Question 19

Remedies for a Flawed Marriage(The Putative Spouse Doctrine)

Answer 19

Remedy for a void marriage

(a) Must have a wedding (or CL elements)
(b) Putative spouse reasonable believed in validity and acted in good faith
(c) Then putative spouse might gain equitable property rights.
(i) Does not validate the marriage
(ii) Not limited to bigamy cases
(iii) remedy is only for reliance before notice of invalidity

Question 20

Remedies for a Flawed Marriage (Fraud)

Answer 20

Misrepresentation by one party to other regarding status of marriage is tort DAS unlimited by property

Question 21

Summary of Remedies for a flawed marriage

Answer 21

(1) CL Marriage
(2) Ignore Flaws, validate marriage
(3) Esoppel v. annulment, leaves parties to divorce
(4) SOL bars annulment leaves parties to divorce
(5) annulment still allows a division of property
(6) putative spouse gains property, no marriage
(7) fraud as a tort remedy

Question 22

Rights and Duties (Nature of the Institution of Marriage)

Answer 22

i) The CL view
(1) W can own property in TX but H has management power over all property, including hers.
(2) H restrained somewhat by W’s ultimate legal ownership of her separate property, if any.
(3) H has a duty of support and it is violated by his abandonment of household
(4) There is a mutual duty of fidelity that is violated by either party’s adultery
(5) Mutual duty of affection violted by cruelty
(6) Duty of companionship is violated by non-consensual abandonment, insanity, addiction, or prolonged imprisonment
ii) The Modern View
(1) The wife’s autonomy
(a) W now separate, equal, and autonomous individual, with separate privacy and liberty
(2) The wife’s identity and name
(a) continuation of name is personal and separate right.
(b) change at marriage is by tradition and use, not by law
(c) in a degree of divorce or annulment, court shall change name of party specifically requesting change to previous name unless court states reason for denying change
(d) court may not deny change solely to keep last name of family members the same

Question 23

Duty to Support

Answer 23

(1) Each spouse has a duty to support his/her minor children and the other spouse. As a result, each spouse is liable for the other spouse’s contracts for necessities
(2) The doctrine of necessities -food, clothing, shelter, etc…
(a) Texas treats alimony as spousal support (it’s technically called maintenance)
(b) Third parties have cause of action against the husband if they provide a necessity to the wife

Question 24

Tort Claims between Spouses

Answer 24

(1) One spouse is permitted to bring a tort action against the other spouse
(a) a divorcing spouse can recover for the other spouse’s intentional infliction of emotional distress, but no recovery is allowed for negligent infliction of emotional distress.
(i) Note that in dividing the community estate, fault can be considered, but a spouse cannot recover both tort damages and a disproportionate division of the community estate based on the same conduct.

(b) There is no independant tort cause of of action between spouses for injury to the community estate
(c) Fraud and Constructive Fraud are the only torts for which there’s no specific remedy between spouses. You can, however, bring them into divorce to influence the just and right division of community property.

(2) Strategic Advantages of Tort
(a) property division is for the judge; tort claim is for jury
(b) fault is discretionary factor in a divorce, but not a tort
(c) Divorce only compensatory; torts allows punitive DAS
(d) Tort DAS are awarded for from all property including separate or future property of the tortfeasor
(e) contingent fee unlawful for divorce but not tort.

(3) Tortious Invasion of privacy between spouses
(a) spouse’s autonomous individuals with separate rights including “privacy”.
(b) CL-Right of privacy based on reasonable expectation and a “highly offensive invasion”
(c) “Wiretapping” statutes
(i) Use of device to intercept oral or electronic communication is a crime
(ii) need not be “highly offensive”
(iii) Secretly picking up a shared line is “interception”
(d) Stored communications act:
(i) regulates stored communications
(ii) unauthorized accessing is illegal
(iii) includes recorded phone messages
(iv) includes email and possible files or data on the victim’s computer
(v) Also includes unauthorized accessing of email account

Question 25

Marital Property Interests

Answer 25

i) Ownership
(1) Community Property:
(a) ALL MARITAL PROPERTY IS PRESUMED TO BE CP. Unless it is shown to be separate property by clear and convincing evidence
(b) It includes income from property (including separate property, though an exception exists for oil and gas, and possibly for long term crops such as time) a spouse’s income etc…

(2) Separate Property
(a) Any property owned or claimed before marriage or property acquired during marriage by gift, devise or descent.
(b) Also includes personal injury awards (exception: Medical bills paid with community funds and awards for lost wages and earning capacity)
(c) Appreciated value of SP such as stocks (interest on savings accounts is probably CP)
(d) 99.9% of all gifts (marriaged couple is jointly given a house; it’s not CP. They each have a separate one half interest in the property)
(e) Traceable Transmutation
(i) One spouse gets an award for pain and suffering, puts money in stocks, which make money. Since the money can be traced, the stocks are still SP

Question 26

Management and Use of CP

Answer 26

(1) each party as M&C over their own SP
(2) Sole M&C CP: Property that would belong to that spouse if the marriage did not exist (“Special” CP)
(3) Joint M&C CP: Other CP, including that which would otherwise be SM&C but for comingling with the JM&C CP (ie putting your paycheck into a joint bank acct) Generally it’s not sole M&C if it’s joint

(4) Duties of Shared ownership:
(a) SP: No duty to other spouse re it’s use
(b) CP: Spender owes some duty to the other owner
(c) Even foolish use of the CP is not a violation BUT
(i) You can’t do this with the other spouse’s SP or their sole M&C CP
(ii) You can’t defraud the community (i.e. giving stuff to your mistress you bought with community funds)

(5) Fraud may be an action to affect the just and right division of CP
(a) Constructive fraud can be established by 3 part test
(i) Size of the gift v. community estate
(ii) relationship of the donor to the donee
(iii) Adequacy of the remaining estate

(6) Other limits on Use of the CP:
(a) Criminal or immoral purposes
(b) Sale of homestead (even if it is CP)
(c) ERISA- Certain election on distribution of pension money
(d) Excessive spending prior to or during divorce. You can/should get a restrainign order to prevent this.

(7) 3 Remedies for unauthorized disposition of CP
(a) factor it into the just and right division at divorce
(b) spender owes a dept to the community estate
(c) Rescission of transfer: Just to get the money back

Question 27

Right to exclude (marital property)

Answer 27

(1) Excluding the other spouse
(a) Trespass: Entering property of another with notice of the owner’s denial of consent
(b) TPC defines “owner” as a person with a “greater right of possession” than the actor
(c) Spouse in possession of JMCCP may have greater right of possession (but recall notice requirement)
(d) courts may issue a TRO against harassing conduct
(i) notice and hearing are not required before initial order
(ii) after notice and hearing, court may grant exclusive possession of home

(2) Authority to consent to third party entry of use
(a) when co-occupants disagree, the authority to invite depends on to property law, but on use and access and social understanding. Any occupant can invite you in, but there’s a social understanding that another tenant can veto. This stops trouble and police are bound by this.
(b) Police and domestic violence: What if the husband is asleep and wife invites the copse in? Do the police need to wake him up and get his consent to enter? No, because it would force the cops to investigate too many things.
(c) What if the wife called the cops to tell them her husband hit her? Could the cops enter if the husband told them not to? Yes. They don’t need warrant to stop a crime
(d) what if there were audible loud crashes and screams that caused the neighbors to call the cops? The coups could enter because they don’t need a warrant to prevent a crime

Question 28

Liability to Third Parties

Answer 28

i) Personal Liability for the actions of a spouse: Marriage does not make one spouse the agent of the other, nor does it make them liable for the other’s debts or actions
(1) expenses incurred by other spouse
(a) Debt is incurred by the party who agrees to the debt
(b) accounts or loans may be in one name or both
(c) creditor can collect only from name on account
(d) Key Rule: Neither spouse is liable for the other’s debts unless they were.

(2) the other spouse’s torts: Neither S liable for the other’s torts, except under rules applicable to other sets of individuals.
(a) a spouse may be found to have premises liability but only if it can be proven that the S knew of the tort being committed on her premises.
(b) A spouse has no duty to control the other’s actions.
(c) Traveling as a family constitutes an enterprise so the wife may be found negligent if a husband crashes

ii) Property Subject to Claims of a Spouse’s Creditors
(1) Creditors cannot get at the separate property of the non-liable spouse
(2) non-tortious liability only extends to the liable spouse’s SM&C community property, JM&C Community Property and Separate Property. Creditors cannot reach the SM&C CP of the non-liable spouse
(3) For the tort liability, however, the SM&C CP of the non-liable spouse CAN be seized
(4) ALL pre-marital debts, whether tortious or not, are treated like non-tort debts

iii) Creditors after divorce
(1) After property division, all property is SP
(2) Creditor NOT bound by divorce as to status of “Marital” property

Question 29

Claims against Third Parties

Answer 29

i) Criminal Conversation and Alienation of Affections: Repealed in many states, including texas

ii) Loss of consortium and services:
(1) one who by reason of his tortious conduct is liable to one S for illness or other bodily harm is subject to liability to the other S the resulting loss of the society and services of the 1st S, including the impairment of capacity for sexual intercourse (only applies to husband and wife)
(2) Wife can still sue for loss of consortium even though her husband has already settle his tort claim

iii) The Relevance of a Claimants’s Other Relationships
(1) Wrongful Death: The P must stand int he shoes of the decedent
(2) This is only a cause of action for Ceremonial marriages; CL spouses can’t sue for wrongful death in Texas

Question 30

Testimonial Priviledges & Marital Confidences

Answer 30

i) Texas Rules of Evidence section 504(a) Confidential Communication Priviledge
(1) Inadmissible (priviledged): A communication between spouses not intended for disclosure to any other person
(2) How exercised: each spouse can refuse to disclose or prevent other spouse from disclosing
(3) Exceptions:
(a) Furtherance of crime/fraud
(b) civil proceeding by one S v. other
(c) Crime v. S or any child
(d) Commitment/competency

ii) Rule 504(b): Priviledge not to testify in Criminal Case
(1) Applies only to criminal proceedings
(2) In a criminal case, the spouse of the accused has a priviledge not to be called as a witness for the state. This rule does not prohibit the spouse from testifying voluntarily for the state, even over the objection from the accused
(3) Prosecution may “comment” re non testimony of spouse of the accused
(4) does not apply to pre-marital matters or crime v. witness spouse or any child
(5) if the communication did not have the reasonable expectation of privacy (spouses knew a 3rd party could hear them) it’s likely not priviledged

Question 31

Surrogate Decision Making for lost or incompatent spouse

Answer 31

i) Procedure to assign mgmt of missing s’s sole or joint M&C CP to other if missing spouse has disappeared or has perm. abandoned hom TFC 3.301
(1) A spouse may file a sowrn petition stating the facts that make it desirable for the petitioning spouse to manage control and dispose of community property described or management, control, and disposition of the other spouse if:
(a) the other spouse has disappeared and that spouse’s location remains unknown to the petitioning spouse, unless the spouse is reported to be a prisoner of war or missing on public service.
(b) The other spouse has permanenty separated
(The petition may be filed in a court in the county in which the petitioner resided at the time the separation began, or the abandonment or disappearance occurred, not earlier than the 60th day after the date of the occurrence of the event. If both spouses are nonresidents of this state at the time the petition is filed, the petition may be filed in a court in a country in which any part of the described or definted community property is located.

ii) Incapacitated or Incompetent Spouses
(1) 2 step approach
(a) The individual spouse has a right to treatment or cessation of life preserving measures
(b) attempt to make the decision the incapacitate spouse would make if able
(2) Several factors:
(a) Is there an advance directive (i.e. DNR order)
(b) Other clear and convincing evidence of actual intent
(c) Look for trustworthy evidence (religion, political views, etc…)
(d) If all of that is absent, look to best interest
(3) In Texas, a presumption exists for the spouse as a surrogate; parents never want to pull
(a) if the other family members oppose the spouse’s decision, they have the option to seek a judicial review to look for things like conflict of interest because of money property or convenience.
(4) If there’s surrogate or guardian, the Dr. decides with person in the following order: spouse, kids, parents, then other nearest living relative.

Question 32

Variations on Marriage: Private agreements Changing the Rules of Marriage

Answer 32

i) In the modern era, divorce is a risk to be planned for. we do this with pre and post-nuptial agreements
ii) Reasons for these agreements
(1) one spouse doesn’t want to share, maybe wants the marriage to be a test of real love
(2) planning for divorce- 50% of marriages fail, so it’s obviously a real risk and people want to set out their own rules for dividing property.
(3) Protection from creditors-want to prevent seizure of comunity property. Unfortunatly this also results in many ways for one spouse to be taken advantage of.
(4) protect kids from prior marriages in the event of early death
(5) Keep the other spouse from getting the house by forcing them to waive their homestead rights
(6) Compensate one spouse for the likely loss of earning capacity

iii) Formal Requirements for Pre and Post Nups
(1) In writing. Signed by both parties
(2) No consideration is required
(4) capacity of both signatories
(5) It’s inadvisable, but not required to have an itemized list of assets. Without such a list it opens the agreement to potential attack based on unconscionability.

iv) What is a pre-nup? Rights, duties, management of property, rules for disposition at death, Also may include modification or elimination of alimony/maintenance (public policy prevents elimination or reduction of child support or other parental duties). The agreement may also include household duties, vacation time, and expected quality of life.
v) Can also agree to a covenant marriage, where people live under the old fault based rulees of marriage that make it really hard to get a divorce.

Question 33

Other Domestic Arrangements

Answer 33

i) The Common Law
(1) Property Rights of cohabititng partners
(a) Cohabitants retain separate property even if violating laws v. non marital sex
(b) Separation or death: Assets assigned or partitioned as separate property of parties
(2) Contract claims of the non-income earner:
(a) non-income producing service contributes indirectly to wealth
(b) express agreement to pay the non-income earner by share of income earner’s earned wealth?
(c) one setting: Indentured servant becomes “more” to a master.
(d_ Meretricious relation defense: If sex a part of consideration, entire k is void

ii) Statutory Reform
(1) ultimately, a quasi-marital relationship contract can create something similar to community property as long as the sex isn’t only consideration.
(2) Implied promises: Texas says implied promises are not OK for a quasi-marital contract.
(a) You can’t form a marriage just by living together long enough; you must have a written and signed agreement
(3) Reliance and restitution: What if there is no contract but Mrs. Marvin was very helpful around the house? Cooked, cleaned, etc…Mr. Marvin would be entitled to a credit for his support (provided the house and amenities) so any claim for restitution may be offset.

Question 34

Marital & Non-Marital Parents: Common Law

Answer 34

(1) Illigitimate Children:
(a) Child of unmarried woman has no father.

(2) The marital presumption
(a) Law automatically presumed that the husband was the father. Period.

Question 35

Marital and Non-Marital Parents: US Const. Limits.: The Rights of the Child

Answer 35

(a) Texas denies unmarried mother’s petition for child support
(b) EP now applies to marital and non-marital children
(c) state must enforce right to support equally for both classes
(d) lurking problems of proof cannot justify discrimination
(e) Leg. puts a 6 month SOL on such claims

Question 36

Marital and Non-Marital Parents: US Const. Limits.: Rights of Non-Marital Parent

Answer 36

(a) stanley v. Illinois: Dad has a non marital relationship with a woman and they have three kids. Mom dies. Illinois law had a presumption that fathers were unfit parents and when the mom isn’t present they have to choose between a dependency proceeding and proceeding and a neglect proceeding. they ultimately argue that the kids are orphans because the parents were unwed and children of unwed parents legally have no father. they also find that the father still has to pay child support even though he’s not legally the dad.

(b) Supreme Court’s step father adoption cases:
(i) Quilloin: No cohabitation, little support; no right to veto adoption
(ii) caba: Pre seperation cohabitation and support; constitutional right to veto termination and adoption. strength of F’s right depends on relationship.

Question 37

Marital and Non-Marital Parents: US Const. Limits.: Rights of the marital parent

Answer 37

(a) The marital H is presumed F
(b) Michal H. v. Gerald D.: Michael was having an affair with Gerald’s wife. A child is born and Gerald thinks michael might be the father. He gets a blood test and his supsicions are confirmed. In california, a rebuttable presumption existed that the husband is the father unless he’s sterile. Michael wants visitation of the child as a special person. the court denies his motion. he argues that he’s been supporting and living with the child (is more like caban than quillion) Scalia says that marriage is still relevant if the mother is still married to another man. Liberty interests attach to traditional values.

Question 38

The Texas Constitution

Answer 38

(1) In re: JWT - Texas law precluded genetic father’s claim against the marital father. Now, Texas due process requires more standing if genetic F (1) asserts right near time of birth (2) acknowledges duty (3) makes serious/continuous effort at relationship

(2) How can genetic father secure his rights as a legal father.
(a) Marry Mother
(b) cohabit w/mother and child for 2 years and holding out.
(c) acknowledgement filed with bureau of stats.
(d) file a paternity suit
(e) file in putative father registry

(3) How a genetic father can lose his rights as a father:
(a) Voluntarily abandon and fail to support M or C, knowing of M’s pregnancy.
(b) Fail to support a child for one year
(c) termination after hearing based on usual rules for neglect/abuse
(d) fail to file in registry, followed by adoption

(4) In conflict between marital and genetic parent actual caretaking may be decisive.

Question 39

Protecting a child’s established family by estoppel, limitations, or degree

Answer 39

i) If a genetic parent is a complete non-participant in caretaking and support of a child they may eventually be estopped from a parenthood claim
(1) Birth parent rights may depend on an established relationsihp with the child
(2) non based on statutory law, has to do with equitable estopple

ii) Hausman v. Hausman: Mother petitions for divorce, forgets a paternity test. Turns out the child isn’t the husband’s and she’d been lying about it. She attempts to win the custody battle by changing her position on his paternity. However, the court may decline to order a paternity test is based in an inequitable conduct. It does so here and the marital father is declared to be the legal father
(1) inequitable conduct is established when someone misleads the other party or the court in an attempt to gain an unfair advantae
(2) additionally, the court can disregard a privately performed test entirely. They can also declare who the father is in the absence of a binding test.

iii) If there’s no marital presumption and no binding test, the de facto father may win

iv) In re: RJP: Husband and wife are separated they have very low income and wife needs support
(1) under texas state law, the state can sue any parent for repayment of support later on.
(2) The attorney general here wants to be paid back for welfare. Husband cant’ afford representation so he just signs the order. Husband eventually gets a raise and the attorney general sues him for back child support. They get a paternity test and it’s discovered he isn’t the real father.
(3) The court admits the private paternity test, but they still find him to be the legal father based on the fact that signed the attorney general’s form. Thus he has to pay back the state.

v) The court often won’t grant divorce until child support and custody are resolved
vi) A divorce decree is a final adjudication of paternity

Question 40

Adoption: Notice to Birth Parents

Answer 40

(1) Which fathers must be given notice
(a) any parent who wasn’t terminated and hasn’t waived service.
(b) Any man who’s filed in the putative father registry
(c) an omitted potential father known to the mother or adopter
(d) General rule is that an alleged father gets notice and standing. However, if the child is more than one year old and the father can’t be found and has not filed in the registry, he can be terminated with no notice. Also if the child is less than one and the father has not filed in the registry, he can be terminated without notice and the ability to locate him is irrelevant.

(2) what if the mother refuses to identify the father.
(a) Duty to serve notice, if any, rests w/ petitioner (ie adoptive parent or agency seeking term/adoption)
(b) M not responsible for notice to F for purpose adoption proceeding or validity of final adoption order
(c) M’s own relinquishment need not identify father if there is no presumed F

Question 41

Adoption: Voluntary Relinquishment

Answer 41

(1) TFC 161. 103
(a) voluntary relinquishment is one way to terminate, prepare for adoption
(b) BM only 48 hours after birth but may give before birth
(c) Relinq. to agency irrevocable
(d) Relinq. to adopters revocable for 11 days unless expressly made irrevocable for period of up to 60 days
(d) Queen v. Goeddertz: BF in jail, demands visitation for GP; but omitted from final order. Denial of visit provokes his “bill of review” relinq. and waiver of notice involuntary. NOte: likely bar to bill of review under current 6 month statute of limitations even for collaterla challenge to adoption

(2) Are open adoptions valid?
(a) Relinquishment may not include visitation term.
(b) seems to preserve grandparent access, infra
(c) Court may approve birth parent access plan
(d) visitation in termination order does not invalidate adoption (rescues already issued adoption decrees)
(e) Thus parents may have visitation/access/ information rights in some circumstances after adoption
(f) additionally, a new rule gives biological grandparents right to gain access

Question 42

Adoption: Involuntary Termination

Answer 42

Based on specified grounds and best interst of the child

(1) Best interest alone is insufficient w/out proof of other particular grounds
(a) endangerment, murder, and imprisonment aren’t sufficient grounds by themselves

Question 43

Adoption: Finality

Answer 43

(1) A bill of review may still be available after years after adoption, but the courts must weigh the risk to child’s stability and emotional well being

Question 44

Adoption: Equitable Adoption

Answer 44

(1) Agreement (or representation) Is the child a necessary party
(2) Performance: But how does child “perform” for father
(3) Reliance: but the child need not know of the promise
(4) why eliminate a child’s reliance?
(5) Remedy: Analogous to putative spouse (property)

Question 45

Adoption: Same Sex adoption

Answer 45

If one parent is not terminated, peitioner must be person who has actual care, possession, control, one year.

Question 46

Assisted Reproduction: Rights of “intended Parents”

Answer 46

(1) In order to be a “donor” under UPA, doctor must be involved.
(2) UPA: an “alleged father” may seek declaration of his paternity.
(3) UPA: a “donor” is not a “father”
(4) If you do not have standing then there is no right to notice, no right to test, no jurisdiction, no hearing on merits of intent
(5) alleged father could include “donor” for purposes of standing
(6) TFC 160.102 UPA: (6) “Donor” means an individual who provices eggs or sperm to a licensed physician to be used for assisted reproduction, regardless of whether the eggs or sperm are provided for consideration. The term does NOT include (C) an unmarried man who, iwth the intent to be the father of the resulting child, provides sperm to be used for assisted reproduction by an unmarried woman
(7) TFC 160.7031 Unmarried Man’s paternity of a child of assisted reproduction
(a) if an unmarried man, with the intent to be the father of resulting child, provides reproduction by an unmarried woman, he is the father of a resulting child.
(b) consent by an unmarried man who intends to be the father of the resulting child in accordance with this section must be in a record signed by the man and the unmarried woman and kept by a licensed physician
(8) If it is NOT H’s sperm, he may be father based on written “consent” or conduct (estoppel)
(9) TFC 160.703: If it is H’s sperm for or consents to assisted reproduction by his wife as provided in 160.704, he is the father of the resulting child.
(a) exceptions to 160.703: H did not consent and sued within 4 years OR H has not cohabitated or held C as his own (No SOL)
(10) Gestational Agreement Rules: TFC 160.751
(a) Authorizes “true” Surrogacy based on agreement pre- and post birth judicial review and order
(b) intended ps need not supply sperm or egg but must be married and prove M’s health issues.
(c) Revocable until implant

Question 47

Assisted Reproduction: Changing mind (intended parties)?

Answer 47

(1) When the parties follow the path laid out by the UPA, the transaction is binding. The donor cannot change his or her mind and assert parentage, and the intended parents cannot change their minds and deny parentage
(2) However, parties might not comply with the UPA and choose a different path. Buzzanca states that the child who was conceived from neither parent’s sperm nor egg does have a mother and a father based on “causing” the birth to occur

Question 48

Assisted Reproduction: Dissolution Disputes

Answer 48

(1) Agreement in advance: Do not implant without verified consent; dispose in case of divorce
(2) Court: Agreement in advance to dispose embreyo is binding
(3) UPA states that if agreement exists that allows implantation after divorce either can revoke to avoid parentage. The deadline to revoke is implantation.

Question 49

Right to Name the child

Answer 49

i) Texas’s first special name change law for child: Apply a “best interests” standard
ii) But Texas also adopted a UPA “good cause” rule; and UPA states it will prevail in case of conflict
iii) Good cause includes consideration of P’s interests
iv) Best interests focuses only on the child’s interests
v) Court: best interest always paramount in a SAPCR; petitioner must show both

Question 50

Right to custody and possession

Answer 50

i) The Common Law: Progressive de facto P theory; risk to C of disruption is a factor
ii) Statutory reform:
(1) TFC 153. 131: One or both p’s shall be sole or joint MC’s unless a nonparent challenger rebuts the parental presumption by any one of three different means (in each case grant of MC to a nonparent requires a court’s additional finding re child’s best interests)
(a) proof of history & pattern of “family” violence
* A criminal past is not necessarily a present risk to child’s health
* *Punishment for parent’s past not proper goal or intention but past misconduct may be predictive of future
* **Crime against child or family is most predictive
(b) P’s vountary relinquishment of care, control, and possession to non P for one year
(c) P as MC would significantly impair C’s physical or emotional health
* Impairment must be because of the parent (ie parent at fault in causing initial separation

Question 51

Sole Managing Conservator

Answer 51

Management and decision making predominant in one; possession possibly shared with another

Question 52

Joint managing conservators

Answer 52

Shared management and decision making; Shared possession; one normally designating residence

Question 53

Possessory conservator

Answer 53

Shared possession, limited management

Question 54

Problem of Standing

Answer 54

(1) Non-p’s must have standing to seek to manage, control or possession of a child
(2) Standing rule especially important if non-p’s are potential joint MC
(3) Current TX list of those who have standing: 102. 003 (3 examples from Carlson)
(a) person with 6 months actual care, control possession of C
(b) Person cohabitated w/C and one P for six months, P now dead
(c) Relative (w/in 3rd degree of consanguinity) If both parents are deceased

Question 55

Are close relatives special?

Answer 55

(1) Grandparents and other relatives are potential quasi or defacto parents
(2) A parental presumption is mandated by due process of US constitution even against GP’s
(3) Presumption for parent’s right to manage a child applies to decision re time with GP’s
(4) GP’s bear BOP the C’s best interests favor overruling the parent.
(5) 102.004 Relative may seek MC if circumstances would significantly impair C’s physical/emotional health
(6) Grandparent access
(a) If GP’s own child dead or cut off, GP depends on the other parent
(b) remedy: GP Access/possession
* *P who is GP’s own C is dead, terminated, incomp. or w/o access and
* *Denial would significantly impair the child’s physical health or emotional dev.
(7) If a parent may need to assign temporary custody of child:
(a) TFC ch. 34 authorization agreement for relative- written signed notarized w/required provisions, will result in the equivalent of a MC
(8) Right to custody and possession: Collateral rights and powers

Question 56

Duty to Support

Answer 56

i) To whom is support owed?
(1) A parent may not contract away his or her rights and obligations to a child and/or the child’s right to support through a preconception K for fertilization.
(2) The right to support is the child’s
(3) There is no such thing as “artificial insemination by intercourse”

ii) Termination of the Duty of support
(1) Support for an estranged child
(a) minor child’s estrangement and misconduct is no defense
(b) nor can parent unilaterally emancipate a child w/out regard to child’s capacityand financial independence
(c) parents do satisfy duty by keeping door open
(d) necessaries claim likely limited by parent’s reasonable right to discipline and control
(2) Child support and Emancipation in Tx
(a) Duty to support unemancipated minor untilt he child is 18 or untilt he child ceases to attend high school
(b) Emancipation only by marriage or court order for C more than 16 years or by other operation of law
(c) you can have partial emancipation

Question 57

Rights and Duties in Providing education

Answer 57

i) Balance the state’s interest with the parents constitutional rights
ii) Homeschooling
(1) secular goals? Yoder only applies to religious beliefs to restrict education
(2) The state “probably” could prohibit homeschooling
(3) the state can regulate content and subject homeschooling to an approval process
iii) Parents have a DUTY to make sure the child is receiving an education
iv) Parents have a RIGHT to manage the child’s education
v) The RIGHT to excuse a child fraom mandatory public school calss is NOT a protected funamental right(1) Rational basis review of state education regulations is all that is requiresd (2) secular reasons for objecting to the schools regulations are not sufficient

Question 58

Rights and Duties in Providing Medical Care

Answer 58

i) Factors affecting balance between right and duty
(1) Elective v. non-elective care
(2) matter incindental v. essential
(3) essential to life v. quality of life
(4) professional certainty regarding alternative medical treatments
(5) pain of treatment v. certainty and duration of success

ii) Withholding consent
(1) Religious-based denial of care v. managerial decision about what care or course of action is best
(a) the parent’s first and 14th amdmet guarantee of religious freedom does not include the liberty to expose their child to ill health or death
(b) State always has standing (CPS) and argues that the state’s interest in protecting the child is greater than the parent’s interest in managing the child’s care
(c) Ask if it is essential to life, and not just to the prospective quality of C’s life?
(d) Mature child rule (TX has neither adopted nor rejected)
* *Competent to understand the consequences of accepting or rejecting treatment
* *Psychiatrist interview
* *judge has heard testimony from both
(2) Child may give his own decision if he is emancipated
(3) Penn. rule: Defer to P’s if C’s death is not a serious risk (most states reject a penn. rule)
(4) right to DAS depends on P right to reject care
(5) Emergency exception to tort law allows Dr. to treat C w/out P consent but P’s were present and refused
(6) Is parental right tempered by duty to provide needed care.
(a) P may refuse life saving care for term. ill child
(b) P has right to abort fetus in 3rd trimester in case of severe abnormality (up to leg. to decide)
(7) May doctors override P generally rests with the state, not the doctors
(b) CPS petitions court for temp. MC

Question 59

Approving Dangerous Med. treatment

Answer 59

1) Consenting to organ donation