Family Law Flashcards
1
Q
Can a marriage license expire?
A
Yes if a marriage ceremony does not occur before the 90th day after the license is issued.
2
Q
Marriage is a _________?
A
Status. You are either married or you are single.
3
Q
Does Texas recognize marriages in other states?
A
Yes. Generally, Texas recognizes any marriages contracted elsewhere if the marriage was VALID where contracted.
Exception - Texas does not recognize any same-sex marriage or marriage like relationships based upon a same-sex relationship. Violates public policy.
4
Q
Does Texas allow non-marital cohabitation agreements?
A
Yes. They must specify all aspect of the agreement IN WRITING BEFORE the relationship begins. This is NOT LIMITED to same-sex relationships.
5
Q
What are the different ways to get married? What are the requirements for each?
A
FORMALLY:
1) Obtain a license from a county clerk on an application;
2) Fill out the application under OATH;
3) Provide proof of identity (you are who you claim you are;
4) Must be 18, provide parental consent if between 16 and 18 (consent must be given within 30 days before the application is filled out), or provide court order if under 16;
5) You are not related to each other within two degrees of consanguinity OR affinity; AND
6) You are NOT CURRENTLY MARRIED already to someone else or IF YOU WERE MARRIED, it ended by death or divorce.
6
Q
How long must you wait after divorce to get married?
A
There is a 30-day waiting period before you can get married again UNLESS it’s the same parties in the divorce that are remarrying.
This creates a VOIDABLE marriage giving rise to the ability to seek an annulment. The petitioner cannot have known about the previous marriage AND a reasonable person should not have known. Further, as with all annulments, the petitioner must immediately cease cohabiting with the other party.
7
Q
Is there a waiting period after getting a marriage license? If so, can it be waived?
A
Yes. There is a 72-hour waiting period. If a marriage occurs within this period, there is a 30-day statute of limitations in which the court can grant an annulment.
Can be waived if a party is in the military or on active duty; the parties participated in marriage counseling; OR the parties can present other good evidence to the court.
8
Q
What is a declaration of registration?
A
A couple can register their INFORMAL MARRIAGE if they meet the following:
1) BOTH over the age of 18;
2) Informally married;
3) Fill out the required form AND SELECT THE DATE ON WHICH THE RELATIONSHIP BEGAN (can backdate marriage to determine what property is community property and what is separate property; AND
4) Must sign and register the declaration with the COUNTY CLERK under oath.
9
Q
What are the requirements for common law marriage?
A
1) Agreement - the parties must establish that they intend to be married (does not have to be expressed);
2) Cohabitation - the parties must live together FOR ANY PERIOD OF TIME; AND
3) Hold out - the parties must hold themselves out to the public as being married to each other.
10
Q
As far as marital status goes, is there any difference between formally married couples and informally married couples?
A
No.
The only difference is that if informally married couples live apart and separate for more than 2 years, there is a PRESUMPTION that there was never a marriage in the first place. This presumption can be overcome by CLEAR AND CONVINCING evidence.
11
Q
Can courts require a medical exam or premarital education to get married?
A
No
12
Q
What is the effective date of a formal marriage?
A
The date of the ceremony (NOT the issuing date of the license).
13
Q
What is required to have a valid marriage ceremony?
A
The party performing the ceremony must have ACTUAL AUTHORITY to do so.
However, if they do not have actual authority but rather the APPEARANCE of authority, and ONE party to the marriage believed that person had authority, the marriage will still be valid.
14
Q
What are the consanguinity and affinity limitations?
A
CANNOT marry any ancestor or descendant by blood or adoption of the whole or half blood. This includes: brother, sister, niece, nephew, aunt, uncle, mother, father, and any CURRENT OR FORMER step-parents or step-children (you can marry any other step-relation).
15
Q
How does Texas treat children of void marriages due to marrying within two degrees of consanguinity or affinity?
A
There are NO ILLEGITIMATE CHILDREN IN TEXAS. A child is the legitimate heir of both its mother and father once they are identified.
16
Q
What are annullable marriages?
A
These are marriages that can be set aside based on:
1) Lack of CAPACITY of one of the parties due to consumption of alcohol or narcotics;
2) Impotency UNKNOWN before marriage; OR
3) Fraud (that goes to the essentials of marriage), duress, or force used in the inducement; AND
4) A party MUST CEASE COHABITATION and seek the annulment as soon as the basis for an annulment is discovered.
NOTE: Marriages between 16 and 18 without parental consent are annullable marriages. These actions can be brought by a parent within 90 days of the marriage AND BEFORE the child turns 18.
17
Q
What are void marriages? Who may bring a claim to void a marriage? Do both parties have to be present?
A
These are those marriages which are:
1) Contracted by people who are UNDER THE AGE OF 16 without a court order;
2) Contracted by people related within a prohibited degree of consanguinity or affinity; OR
3) In Texas, contracted by people of the same sex.
These actions to set aside the marriage can be brought by EITHER PARTY in an EX PARTE hearing (only one party required).
18
Q
What are the duties of spouses?
A
Duty to support each other and their children born or adopted into that community.
Liable for ALL NECESSITIES IN LIFE (food, medical care, clothing, shelter, etc.
Duty not to negligently or intentionally harm each other.
19
Q
Does Texas have inter-spousal immunity?
A
No. Spouses may sue each other for intentional and negligent torts.
20
Q
Property acquired during the marriage is ________?
A
Presumed to be community property.
21
Q
T/F - Spouses can recover for IIED.
A
Yes, a spouse can recover for ONLY EXTREME AND OUTRAGEOUS conduct inflicted intentionally or recklessly causing severe emotional distress.
22
Q
Does Texas recognize actions against third parties for interfering with a relationship between spouses?
A
No. Criminal conversion (someone boinked your wife) and alienation of affection (stole your spouse from you) are not recognized causes of action in Texas.
23
Q
What can a spouse seek if their spouse is seriously injured or killed?
A
May bring a claim for LOSS OF CONSORTIUM when a third party’s tortious conduct causes death or injury to a spouse and the other spouse lost the companionship and affection of the spouse harmed due to that event (usually a wrongful death action.
Loss of consortium is NOT alienation of affection.
24
Q
Are there limits to bringing an IIED claim against a spouse?
A
Yes. If brought, a plaintiff spouse CANNOT recover tort damages AND an unequal distribution of community property (this would be a double recovery). You must choose one or the other.
25
Define "severe emotional distress." Who determines what is severe enough?
Highly unpleasant mental reaction such as grief, shame, humiliation, embarrassment, anger, disappointment, or worry that is usually accompanied by a physical manifestation (headaches/sleeplessness) to an extent such that a REASONABLE PERSON COULD NOT BE EXPECTED TO ENDURE the conduct.
Reasonable person standard is a question for the jury since Texas allows jury trials in divorce cases.
26
Name the ways a marriage may be dissolved.
Death, divorce, annulment, or a suit to have the marriage declared void.
27
What type of divorce state is Texas?
No-fault.
28
Texas divorce cases are three cases in one. What are they?
1) Dissolution of the marital relationship;
2) SAPCR; AND
3) Division of the community property estate.
29
What is "in rem" jurisdiction for the dissolution of a marriage?
Court has "in rem" jurisdiction (jurisdiction over the subject matter of the case / don't confuse with subject matter jurisdiction) of a divorce case filed by one party who is a domiciliary (6 months in the state) and resident (90 days in the county filed) of Texas.
30
T/F - Both parties must be present in court for judgment to be made on the divorce.
False. Just one party.
31
What type of other jurisdiction is there besides in rem jurisdiction? When is it needed?
Personal Jurisdiction. This is NECESSARY to have over BOTH PARTIES when the court is determining child support, division of property, or paternity.
To obtain personal jurisdiction in a suit solely to determine the marital status of the parties, the other party (even if non-resident) must only be given notice and served a citation.
32
What is the no-fault ground for divorce?
Insupportability - this means that because of discord or conflict of personalities, the legitimate ends of the marital relationship have been destroyed, and there is no reasonable expectation of reconciliation.
33
What are the fault grounds for divorce? Why are they important? What is the burden of proof?
Fault grounds are important because they may be a basis for an unequal distribution of community property. These include:
1) Cruelty - can be physical OR mental (gross indifference);
2) Adultery;
3) Conviction of a felony DURING THE MARRIAGE ONLY if the convicted spouse is imprisoned for ONE YEAR OR MORE and has NOT BEEN PARDONED;
4) Abandonment - Must show intent to abandon and the abandoning spouse must remain away AT LEAST ONE YEAR;
5) Living Apart - AT LEAST THREE YEARS; AND
6) Confinement in a Mental Hospital - AT LEAST THREE YEARS AND it appears likely that the disorder is such that ADJUSTMENT IS UNLIKELY or that IF ADJUSTMENT OCCURS, RELAPSE IS PROBABLE.
A party must prove fault by a PREPONDERANCE OF THE EVIDENCE.
34
What three things must a court have to have jurisdiction?
1) Subject Matter Jurisdiction - jurisdiction over the case itself;
2) Personal Jurisdiction - jurisdiction over the parties in the case; AND
3) In Rem Jurisdiction - jurisdiction over the subject matter of the case.
35
What is the method used to obtain personal jurisdiction over an out-of-state party? How can a court obtain such jurisdiction over an out-of-state party?
LONG ARM JURISDICTION - For a nonresident, absent respondent, long arm jurisdiction is used to establish personal jurisdiction over that spouse.
The in-state spouse MUST be domiciled in the state of Texas for 6 months PRIOR TO FILING for divorce AND a resident of the county in which the case was filed for at least 90 DAYS PRIOR TO FILING.
Long Arm Jurisdiction is obtained through any basis that is consistent with the Constitution (such as serving process while the party is travelling through the state).
Can also be obtained IF Texas was the LAST MARITAL RESEDENCE of the two parties AND the suit is COMMENCED WITTHIN 2 YEARS AFTER they were living in that marital residence.
36
When a court obtains personal jurisdiction over both parties, it also has jurisdiction over the ___________.
SAPCR (Suit Affecting the Parent Child Relationship).
37
T/F - Without personal jurisdiction over both parties to a marriage, the court cannot make permanent decisions regarding any children or property.
True
38
Can a party waive citation and notice, thus subjecting themselves to personal jurisdiction?
Yes if signed under oath by a notary public and filed with the court and admits the following:
1) Acknowledges receipt of papers in the lawsuit;
2) Enters appearance;
3) Does not desire to appear any further; AND
4) The court may proceed without any notice of hearings.
39
What are the three types of procedural methods for a divorce?
1) Bench trial;
2) Jury trial; OR
3) Alternative Dispute Resolution
40
How must pleadings be alleged?
Grounds for divorce MUST be alleged in the LANGUAGE USED IN THE TEXAS FAMILY CODE. Specificity is not required.
Surplus language may be stricken by the court (either on other party's motion, or court's own motion).
41
When can a SAPCR be filed? What if a woman is pregnant? What if a previous SAPCR already exists?
On its own at any time, but MUST BE FILED contemporaneously with the DIVORCE PROCEEDINGS.
If a woman is expecting a child, the divorce case MUST BE DELAYED until the child is born.
If SAPCR that already exists MUST be brought under the jurisdiction of the divorce court through a MOTION TO TRANSFER.
42
Explain Default Divorces.
A court may grant a default judgment if a party fails to appear after proper service and notice. Lack of response, however, MAY NOT BE TAKEN AS AN ADMISSION. The petitioner still has to prove the grounds for divorce and other issues by a PREPONDERANCE OF THE EVIDENCE.
43
T/F - Once a divorce petition is on file, the court may grant the divorce and issue its final decree.
False. A divorce petition must be on file for 60 DAYS before it may be granted. Meaning the first day the court may grant a divorce is the 61ST DAY after the petition has been on file.
44
Explain Temporary Restraining Orders Also, how long are they valid?
May be filed EX PARTE WITHOUT NOTICE to the other party.
May be granted by a court to place prohibitions on the other party to maintain the status quo. Cannot prohibit spouse from the occupancy of the house where the spouse is living. Violation can result in CONTEMPT.
These are valid until a hearing may be held on whether to grant a TEMPORARY INJUNCTION for the duration of the proceedings.
45
Explain Protective Orders.
An order prohibiting one spouse from approaching or contacting the other spouse or children because of PAST, PROVEN FAMILY VIOLENCE.
May be sought outside of divorce court or within the divorce proceedings.
Temporary Protective Orders - May be issued for up to 20 days temporarily on a showing that FAMILY VIOLENCE HAS OCCURRED OR MAY OCCUR AGAIN.
Protective Orders - After the hearing OR at the temporary protective order hearing, a protective order may be issued for a PERIOD NOT TO EXCEED TWO YEARS OR ONE YEAR AFTER RELEASE FROM PRISON OR JAIL.
46
What are three methods for divorce under Alternative Dispute Resolution (ADR)?
1) Arbitration - Neutral third party appointed by the court makes determination for the parties. Can be made binding or non-binding on the parties. Never binding on the court. Court always has authority in an arbitrated suit to make the ultimate decision on the best interest of the child.
2) Mediation - Neutral third party works with the parties as an intermediary to help them resolve their own differences.
3) Collaborative Law Agreement - Written agreement to use best efforts to make a good faith attempt to resolve differences and reach a resolution without judicial intervention. Courts will approve an agreement and give it judicial effect. The agreement must settle all property division, conservatorship issues, and child support issues. IF THE AGREEMENT FAILS TO SUCCEED, BOTH ATTORNEYS MUST WITHDRAW AND THE PARTIES MUST EMPLOY NEW ATTORNEYS TO PROCEED TO TRIAL.
47
What is the chief vehicle from a cause of action regarding access to a child, possession/conservatorship, or child support for a child? What is the key issue?
The Suit Affecting the Parent Child Relationship (SAPCR).
The key question for the court is to determine what is in the BEST INTERESTS OF THE CHILD.
48
Explain Jurisdiction in a SAPCR.
A court has CONTINUING EXCLUSIVE JURISDICTION after issuing a SAPCR judgment.
May be transferred to a new court if the child has legally obtained a new county of residence outside the jurisdiction of the original court for a period of 6 months.
49
How long does a SAPCR last?
Until the child is no longer a child:
1) Reaches the age of 18 or graduates from high school (whichever is LATER);
2) Gets married or has been at some point;
3) Is CURRENTLY in the military; OR
4) Has had his childhood status removed by a court (may petition if 16 and has lived separately and apart from parents since then).
NOTE: A child who has a KNOWN disability before the age of 18 can continue to be a child indefinitely.
50
For SAPCR cases, who is regarded to be a parent?
1) Mother on proof of birth;
2) Presumed father;
3) Legally determined father;
4) Adjudicated father;
5) Acknowledged father (man acknowledges fatherhood); OR
6) Adoptive mother or father.
51
When does a man become a "Presumed Father?"
1) Man and woman married or attempted to marry in good faith AND a child was born during the marriage OR within 300 days of the breakup of the marriage. (may only be overcome by CLEAR AND CONVINCING evidence);
2) If during the FIRST 2 YEARS of the child's life, he CONTINUOUSLY RESIDED with the child in the same home AND ACKNOWLEDGED THE CHILD TO BE HIS;
3) If he was VOLUNTARILY NAMED as the child's father ON THE BIRTH CERTIFICATE AND LATER MARRIED THE MOTHER OR FILLED OUT THE PROPER FORM AND REGISTERED AS THE FATHER.
52
What is the statute of limitations with regard to when a man can attack a presumption of fatherhood? How can the presumption be attacked?
WITHIN THE FIRST FOUR YEARS OF THE CHILD'S BIRTH (exceptions apply).
May be done so in the following ways:
1) By the adjudication of a court of some other man's paternity; OR
2) By filing a denial of paternity WITH another man's valid acknowledgment of paternity.
EXCEPTIONS TO THE FOUR YEAR SOL:
1) May prove that he and the mother did not live together or have intercourse during the time of conception; OR
2) Without obtaining genetic testing, he was precluded from making a timely denial because of misrepresentations that led to his mistaken belief that he was the child's genetic father ("he has your eyes").
53
Name the rights of parents.
1) Physical Possession
2) Direct religious training
3) Designate Residence
4) Service and earning
5) Consent to marriage/enlistment in armed forces
6) Consent to medical/dental/psychological care
7) Right to represent the child in legal actions
8) Right to give and receive payment for child support
9) To inherit
10) To make decisions about education
11) Any other legal right
12) REASONABLE DISCIPLINE. This right extends to those who have duty of control (such as grandparents)
54
What are the duties of parents?
1) Care
2) Control
3) Reasonable discipline
4) Support (medical, education, child support)
55
Is a parent ever liable for their child's torts?
Yes
If the child is between 10 and 18, parents may be liable for the willful and malicious acts of their children UP TO $25,000.
There is no limit to NEGLIGENCE liability for a child's negligent conduct IF it is reasonably attributable to the parent's own negligent conduct in failing to supervise the child.
56
In a proceeding to determine conservatorship over a child, is there a presumption favoring one parent over the other?
Generally, no. Cannot give weight to the gender of the parent OR that the parent is in a relationship.
Exception: One parent may be presumed NOT to be a proper conservator based on A HISTORY OF FAMILY VIOLENCE.
57
What is the presumption for conservatorships in Texas? What are the details of that presumption?
Joint Managing Conservators is presumed to be in the best interests of the child in Texas.
Here, one parent will be the JMC with the right to determine primary residence and domicile. The other JMC will have visitation rights and a duty to pay child support.
58
If a Joint Managing Conservatorship is not granted, what is the alternative?
One parent will be the Sole Managing Conservator, and the other will be a Possessory Conservator who has the right to visitation and duty to pay child support.
59
Who may file a SAPCR?
1) A Parent;
2) The child - through a representative authorized by the court;
3) Any managing conservator;
4) A guardian;
5) A Licensed Child Placing Agency (CPS, etc.);
6) Foster Parents who have had custody for MORE THAN 12 MONTHS;
7) Anyone else who has custody for at least 6 MONTHS; AND
8) Sometimes grandparents
60
What is the proper venue and jurisdiction for a SAPCR?
Venue - County where the child resides UNLESS it has been joined to a divorce proceeding.
Jurisdiction - The court of continuing exclusive jurisdiction.
61
Can a court in a SAPCR lose jurisdiction?
Yes:
1) Parents remarry;
2) Child's disabilities are removed; or
3) Child moves to another place and resides there lawfully for 6 MONTHS OR MORE.
Court can deny jurisdiction if it determines that no parties remain in the state and all substantial ties (evidence) with the state are cut.
62
How can long arm jurisdiction be obtained in a SAPCR?
Again, a court must have personal jurisdiction over all parties in a SAPCR.
This can be accomplished over nonresident parties with the state's long arm statute by:
1) Personal Service of Citation and Notice IN TEXAS;
2) Get a waiver;
3) Nonresident files a responsive pleading;
4) Nonresident parent resided previously with the child in Texas;
5) By showing a sexual relationship existed in Texas by which the child MAY have been conceived;
6) The alleged father registered with the state paternity registry; OR
7) Any basis that comports with the U.S. and State Constitutions.
63
Who represents the child in a SAPCR? Is the child a necessary party to the suit?
An attorney OR an attorney ad litem or guardian ad litem appointed by the court. The child is NOT a necessary party to the suit.
Guardian Ad Litem - Does not have to be an attorney. This person speaks for and handles the estate of the child.
Attorney Ad Litem - Attorney appointed by the court to represent the child. He or she MUST TAKE DIRECTION FROM THE CHILD, even if the attorney does not agree that what the child wants is in their best interests.
Amicus Attorney - Appointed by the court to proved the court with information on the best interests of the child. MAY NOT COMMUNICATE WITH THE COURT EX PARTE.
64
Explain how child support works in Texas. How long does it last?
It is based on a PERCENTAGE OF NET INCOME CAPPED AT $8,550 per month (may be higher if proven that there are needs of the child that require an additional amount (special medication, special learning needs, private education, lifestyle child was accustomed to, etc.)).
The duty to pay child support lasts until the child turns 18 OR graduates high school (whichever is LATER). May last indefinitely if child has a disability known before the age of 18.
The PERCENTAGE is based on the tables in the guidelines provided by the Texas Family Code. These percentages are PRESUMED to be in the BEST INTERESTS OF THE CHILD. 1st child = 20% and increases by 5% per child NOT TO EVER EXCEED 50% of the obligor's net income.
65
How does a later marriage affect child support?
No effect. Cannot include new spouse's income in the net resources of the obligor. Obligee's new spouse does not provide any offset to what an obligor owes.
66
Does the birth of additional children to the obligor spouse on child support affect the obligation?
Yes, additional children of the obligor MAY affect a child support obligation.
67
Explain how a child support obligation may be modified?
Where: Must be brought within the court of continuing exclusive jurisdiction which issued the original support order.
Grounds: Circumstances have been materially and substantially changed, OR it has been 3 YEARS since the original order or last modification AND the monthly amount differs by either 20% or 100 dollars from the guidelines.
68
How is a child support order be enforced in the case of non-payment?
1) ALL FINAL OR NON-TEMPORARY CHILD SUPPORT ORDERS MUST PROVIDE FOR MANDATORY WITHHOLDING ORDERS (this forces the obligor's employer to withhold income for payment of the child support).
2) In the case of a SELF-EMPLOYED obligor, he may be ordered to POST A BOND that will be forfeited upon failure to pay.
3) Money Judgment - ALL child support that is 30 DAYS OVERDUE becomes a final judgment at law. Parties have up to 10 YEARS after the child support terminates to reduce past due child support to money judgments.
4) Suspension of license - If 90 DAYS worth of child support has not been paid AND the obligor has been given an opportunity to catch up, the court may suspend ANY STATE-ISSUED LICENSE required for occupation (law license), driving, or pleasure (hunting). THE OBLIGOR MUST BE GIVEN 60 DAYS NOTICE OF THE STATE'S INTENT TO SUSPEND.
5) Lien Attached to Property - Equal to the amount of support owed. Attaches to any non-exempt real estate. Lien attaches even when past due support has not been reduced to a money judgment. They can be perfected by filing an abstract of judgment for past due support or a lien notice WITH THE COUNTY CLERK. Can lead to foreclosure of all financial assets not subject to exemption (homestead).
6) Contempt - You may face 6 MONTHS IN JAIL AND/OR A $500 FINE FOR EACH OFFENSE.
7) Probation - Can face UP TO 10 YEARS of community supervision.
69
Are there any defenses to failure to pay child support?
Yes. The inability to pay is a great defense to paying child support. Another defense exists when an obligor had lawful possession of the child for the period of time when the support went into arrears.
70
Who has jurisdiction in an action to enforce or modify interstate child support orders? Does Texas recognize orders in other states?
INTERSTATE ENFORCEMENT - The Uniform Interstate Family Support Act (UIFSA) states that Non-Texas orders can be enforced in Texas through the act by registering the out-of-state order with the appropriate authority in Texas.
INTERSTATE MODIFICATIONS - If all parties are in Texas, a Texas court can render judgment. If judgment was rendered in another state and one party or child still lives there, then the state court with continuing jurisdiction there controls any modification actions.
FULL FAITH AND CREDIT - All judgments are given full faith and credit provided that the original court issuing the same had jurisdiction over the subject matter and the parties involved in the case AND the parties in that case were given notice of the suit and an opportunity to be heard (whether they appeared or not).
71
T/F - JMCs share responsibilities with regard to the child, but one has the superior right to determine the primary residence of the child.
True
72
T/F - An SMC has primary responsibilities, duties, and rights with regard to the child, including the right to designate the child's primary residence.
True
73
What are the rights and duties of a Possessory Conservator?
Scheduled rights to the child's pysical presence through visitation. The PC has the duty to pay child support.
74
T/F - Despite the presumption that maintaining a relationship with both parents is in the best interests of the child, either or both parents can be held not fit to be a conservator by a showing of a preponderance of the evidence.
False. A parent will always be a conservator of some type absent a showing of a need otherwise by CLEAR AND CONVINCING EVIDENCE.
75
Can parties reach a written agreement about the conservatorship of the child? If so, how?
Yes. Parties may reach a parenting agreement and present it to the court for approval. Court will honor such agreements if the court also determines that it is in the BEST INTERESTS OF THE CHILD.
The court bases their decision on the following factors:
1) Physical, psychological, and emotional needs of the child;
2) The parents' ability to reach an agreement with each other on day-to-day issues of the child;
3) Whether the parents had and have honored responsibilities prior to separation or since separation; AND
4) Any preference of a child that is 12 YEARS OR OLDER.
NOTE: Child preference cannot be in writing. Must be done so orally in chambers at a hearing or a non-jury trial ONLY.
76
How is a best interests decision by the court attacked on appeal?
ABUSE OF DISCRETION.
77
T/F - There is a preference by courts to keep siblings together.
True
78
T/F - No preference can be given to the parents due to their gender OR prior or current relationships.
True
79
T/F - A single episode of family violence when proved by clear and convincing evidence can affect the decision regarding conservatorship of the children.
False. A HISTORY OF VIOLENCE proven by a PREPONDERANCE OF THE EVIDENCE can affect the decision regarding conservatorship of the children.
80
What are the rights and duties of the different conservators (parent and non-parent)? Can these be limited?
JMC Parent While in Possession - Duties of care, control, support, reasonable discipline. Rights to consent to emergency medical care. Right to direct moral and religious training. CAN'T BE LIMITED.
JMC Parent While in Possession or Not - Right to information, confer about decisions, confer about medical/educational records, consult with doctors and school officials, and attend school activities. CAN BE LIMITED by the court acting in the BEST INTERESTS OF THE CHILD.
SMC OR JMC with right to determine residence - Right to designate residence, consent to medically invasive procedures or psychiatric care, receive child support, represent the child in legal actions, consent to marriage, and act as the child's agent.
Non-Parent Conservators - Rights to designate primary residence, make education decisions, and consent to adoption of the child (under the right circumstances),
81
Do Grandparents have any rights with regard to a child? What is the presumption? When do they have rights?
Few, if any. There is a presumption that a parent will act in the best interests of the child and the parent has the FUNDAMENTAL RIGHT TO DETERMINE WHO HAS ACCESS TO THE CHILD (this includes whether the grandparents have access). THIS IS VERY DIFFICULT TO OVERCOME.
A grandparent seeking possession or access and that has standing to do so must prove:
1) Parental rights of one of the child's biological parents have NOT been terminated;
2) The child's physical health or emotional well-being would be SIGNIFICANTLY IMPAIRED if the grandparent were to be denied access;
3) The grandparent is a parent of the child's parent AND ONE OF THE FOLLOWING is true about THAT PARENT: (a) incarcerated for at least THREE MONTHS when the case is filed; (b) declared judicially incompetent; (c) is dead; OR (d) doesn't have actual or court ordered possession of or access to the child.
82
Can a grandparent become a managing conservator?
Yes, this is common when a grandparent already had actual control, care, and possession of the child for at least six months before filing the suit. Also occurs where the child's current circumstances significantly impair the child's physical health or emotional development.
83
Explain a Possessory Conservator's Visitation rights.
Courts use the standard visitation order laid out in the Texas Family Code. It is presumed to be in the best interests of the child. The rights vary depending on the distance between the child (WHO IS THREE OR OLDER) and the parent:
1) Within 100 miles - Friday 6pm - Sunday 6pm on 1st, 3rd, and 5th weekends of each month; alternating spring vacations; alternating holidays; and 30 days in the summer.
2) Outside 100 miles - Friday 6pm - Sunday 6pm on 1st, 3rd, and 5th weekend OR weekend of their choice; EACH spring vacation; alternating holidays; and 42 days in the summer.
84
Can courts vary from the guidelines laid out in the Texas Family Code with regard to the standard visitation order?
Yes, BUT the party moving for variance must establish the need for and the COURT MUST MAKE A SPECIAL FINDING for varying from the guidelines. Absent explanation from the court, there will be an abuse of discretion.
85
Can parents agree to different terms regarding visitation that the terms set out in the TFC's standard guideline?
Yes
86
T/F - Either parent changing their address MUST tell the other parent within a stated period of time.
Yes
87
Can visitation orders be modified? If so, when?
Yes, this is very similar to modifying child support.
Filing - Must do so in the court of continuing exclusive jurisdiction under the existing SAPCR cause number. Must also provide NOTICE and SERVICE to ALL PARTIES.
Grounds - Substantial and material change in circumstances affecting the child or either party. Modification must be in the BEST INTERESTS OF THE CHILD.
When - Should NOT be within 1 year from the date of the original order. IF WITHIN 1 YEAR, need to show current environment of the child may endanger the child's physical health or emotional development OR you must have consent of the present manager. MUST ALWAYS BE IN THE BEST INTERESTS OF THE CHILD.
88
Can a child request to live with a different parent?
Yes if 12 years or older. Must do so at a hearing or in a non-jury trial only.
89
Can conservators move to modify who has the exclusive right to designate the primary residence of a child?
Yes, IF a person has given up that right to the moving party for at least SIX MONTHS AND the change would be in the BEST INTERESTS OF THE CHILD.
90
What are the methods of enforcing a child custody order?
1) Habeas Corpus Action - Used when the party with visitation retains the child and does not return the child to the parent with possession. CANNOT BE USED TO MODIFY AN ORDER.
2) Tort Action - Interference with child custody. May seek damages of actual costs and expenses, including attorney's fees, mental suffering and anguish, and possibly exemplary damages.
3) Contempt - Ordinary way to enforce orders. Each act of failure to comply with a court order is a separate act punishable by up to SIX MONTHS IN JAIL AND A FINE OF $500.
4) Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA) - Used ONLY when parents reside in DIFFERENT STATES. Key question is "what is the home state of the child?" Answer is wherever an original SAPCR was filed OR wherever the child lives or has lawfully been for six months prior to filing the action. COURT MAY DECLINE JURISDICTION IF THE FORUM IS INCONVENIENT AND MAY TRANSFER TO ANOTHER STATE WILLING TO TAKE THE CASE.
5) Expedited Enforcement - Must prove the home state of the child and register the order in a separate state (where the child is). The court in that separate state must find that the child is imminently likely to suffer physical harm to expedite the action.
91
Generally, what are the two ways in which parental rights may be terminated?
Voluntarily and Involuntarily
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What is the effect of an involuntary termination of parental rights?
The child is completely removed from the life of the parent and vice verse.
Exception - Court may continue to require the parent to pay child support, such as in a case of a parent convicted and incarcerated for abusing his/her children.
93
How does a court go about involuntarily terminating parental rights? What two questions must be answered?
Courts can do so by finding by CLEAR AND CONVINCING EVIDENCE that it would be in the CHILD'S BEST INTEREST (may require a jury trial).
One of the following situations listed in the Texas Family Code must be present:
1) Leaving the child with a non-parent with the express intent not to return;
2) Knowingly and voluntarily leaving a child in an unsafe environment;
3) Using a controlled substance in a way that harms the child;
4) Committing a heinous act or intentional harm to the child;
5) Failing to pay child support for a period of ONE YEAR ENDING WITHIN SIX MONTHS of the DATE OF THE HEARING.
TWO QUESTIONS:
1) Did the parent engage in any of the above alleged conduct?
2) If yes, is the termination in the BEST INTERESTS OF THE CHILD?
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Is there an additional ground for involuntary termination of parental rights that maybe isn't due to the fault of the parent?
Yes
If the parent is unable to take care of the child due to the parent's mental or emotional disability rendering the parent unfit to provide for the needs of the child, AND:
1) Child services has had temporary or SMC for 6 months because of the parent's inability to care for the child;
2) The inability is likely to continue in the future under the child is 18;
3) The termination is in the BEST INTERESTS OF THE CHILD; AND
4) All of these allegations are proven by CLEAR AND CONVINCING EVIDENCE.
95
How is jurisdiction established in a paternity action?
Must be filed where the child resides OR where the respondent (alleged father) resides if the child does not live in Texas.
96
Who has standing to bring a paternity action?
1) Child
2) Adoption Agency
3) Mother
4) Man
5) Person related to the mother by consanguinity (sister); and
6) Intended Parent
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How may a person voluntarily terminate their relationship with a child?
1) For unborn children, an ALLEGED FATHER may file a voluntary termination ANY TIME AFTER THE FIRST TRIMESTER.
2) The mother may terminate her rights by a WITNESSED, NOTARIZED, SIGNED AFFIDAVIT 48 HOURS AFTER THE BIRTH OF THE CHILD. If within the first 48 hours, the affidavit is invalid.
3) For any non-marital children, an ALLEGED FATHER may disclaim all interest without acknowledging paternity by a WITNESSED, NOTARIZED, and SIGNED AFFIDAVIT of disclaimer.
98
What is the effect of termination on the rights of the parents and child?
Ends ALL legal rights and responsibilities between the parent and child EXCEPT:
1) Child may inherit through the natural parents UNLESS the final judgment expressly prohibits such right to inherit.
2) Does not eliminate the duty to pay child support ARREARAGES due before termination.
3) Also, remember a parent who has committed abuse (or some other harmful contact) towards the child may be force to pay child support into the future as well.
99
What is the presumptive attack on paternity?
If genetic test results of AT LEAST 99% accuracy show that the man is not the father, the court SHALL legally declare him to not be the father.
If the tests say he is the father, the court SHALL ADJUDICATE him as the father.
100
Can genetic tests be over come in a paternity suit?
Yes BY ANOTHER GENETIC TEST.
101
What is Parentage by Estoppel? Does Texas accept this approach?
Married persons involved in a situation where either party has detrimentally relied on the alleged father's presumed parentage and it would not be in the best interests of the child to allow either parent to deny paternity.
This can be crucial because it can allow a court to deny a motion for genetic testing if the conduct estops the party from denying parentage and it would be inequitable to deny the father's paternity.
Texas has yet to affirmatively accept this.
102
What is the statute of limitations for a paternity suit if there is no presumed father?
There is NO Statute of Limitations here.
103
Can a man be ordered to pay child support during a parentage suit?
YES, in any of the following situations:
1) If there is a presumed father;
2) If there is a petition to have the paternity adjudicated;
3) If an alleged father declines to go to genetic testing; OR
4) If any person who CLEARLY AND CONVINCINGLY can be shown to be the father or the mother may be ordered to pay.
104
Can child support be ordered retroactively?
Yes.
1) If there was no previous order, you can get a child support order for support dating back as far as FOUR YEARS.
2) If the alleged father KNEW OR SHOULD HAVE KNOWN that he was the father, then you can get support dating back to the birth of the child.
105
How does parental acknowledgment work?
The mother and father can file an acknowledgment before or after the child's birth.
If the mother declares that she is married to a man other than the father of her child, it must be accompanied by a declaration from the presumed father (her husband) that he is not the father, and from the other man (biological father) that he is the father.
106
Can an acknowledgment or denial of parenthood be rescinded?
Rescission of the denial/acknowledgment can be made after it is filed with the court IF it was based on fraud, duress, or material mistake of fact (belief that you are the father).
107
Does Texas have consensual adoption?
No. There must be a termination of the parental rights of the natural parents, or the natural parents must be deceased.
Exception: When a parent's spouse is adopting within the marital relationship.
108
How does a stepparent go about adopting a child?
1) Natural parent OF THE SAME GENDER may voluntarily give up their rights, or you may seek an involuntary termination.
2) If there is no consent, then the stepparent must have been a managing conservator and in a parent-child relationship with the child.
3) Court must find that it is in the BEST INTERESTS OF THE CHILD.
Remember: Must replace the natural parent of the same gender.
109
Can you adopt an adult in Texas? What are the consequences?
Yes as long as it is consensual by both adults. If you do so, however, the ability of the adopted adult to inherit from their natural parents is destroyed.
110
What is the finalization process of an adoption?
Pre and post adoption social studies to give a picture of the conditions of the child.
Report of the adoptive parent's criminal history.
Social, educational, and genetic history report in all cases where it is not a stepparent adoption.
111
What is the effect of an adoption?
Creates a parent-child relationship between the adopting parent and the child.
112
T/F - In a stepparent adoption, the natural parent (the spouse) must join the petition.
True.
This is the only way that two adults can join consensually in the adoption of a child AND prevents one party of a same sex couple from adopting the child of a partner.
113
T/F - Courts are able to remove children from a home based on abuse and neglect.
True.
114
T/F - All persons with knowledge (even children) of past, present, or possible child abuse MUST report that to the proper authorities.
True.
115
T/F - Attorneys may be compelled to testify against their clients in addition to having a duty to report their child abuse.
False. They CANNOT be compelled to testify. They still have to report though.
116
Can physicians perform an abortion on an unemancipated minor?
Yes, in these few situations::
1) There is parental notification;
2) The court authorizes it without notification to the parents (requires a guardian ad litem to be appointed; OR
3) An immediate abortion is necessary to prevent the minor's death OR to avoid substantial and irreversible impairment of a major bodily function.
117
Can a stepparent adopt the child of a deceased spouse?
Yes if either of the following are met:
1) The child has been living under the care and control of the stepparent for 6 MONTHS, with CONSENT of the other natural parent; OR
2) The child has been living under the care and control of the stepparent for 1 YEAR, even WITHOUT CONSENT of the other natural parent.
MUST ALWAYS BE IN THE BEST INTERESTS OF THE CHILD FOR THE COURT TO GRANT THE ADOPTION.
118
Is there a living requirement for an adoption? Any exceptions?
Yes, before ANY adoption, the child MUST have resided in the home with the adoptive parent for AT LEAST 6 MONTHS.
Exception: In some cases of INFANT ADOPTIONS, this requirement may be waived.
119
Does the child ever have a say in an adoption?
Yes. If the child to be adopted is 12 YEARS OR OLDER, the child MUST CONSENT AND APPEAR IN COURT. That consent and appearance MAY BE WAIVED FOR GOOD CAUSE.
