Family Law Flashcards
The following marriages are void
Age (either party under 16, unless court order)
Bigamy (one spouse already married, but becomes valid if impediment removed)
Consanguinity
Same sex marriage
Ceremonial Marriage
- Marriage license
2. Authorized person to perform ceremony (minister, rabbi, judge, Quaker community)
Attempted but Defective Ceremonial Marriage
Marriage is valid as long as:
- There was a reasonable appearance of authority
- At least one party acted in good faith
- Neither party to the marriage is a minor
Marriage: First Cousins
First cousins cannot obtain a marriage license
However, they are not void if entered into:
- Before the 2005 amendment to TX law
- In another state
Marriage: Minors Aged 16 and 17
Obtaining a marriage license requires parental consent within 30 days of applying for a marriage license
Informal Marriage
- Neither party a minor
- Agreement to be married
- Within TX, represented to others they’re married
- Within TX, couple lived together
Presumption: if the couple has separated and ceased living together for 2 years without filing suit, then there is a rebuttable presumption that the couple had not agreed to be married
Declaration of Informal Marriage
Fill out form at courthouse admitting the couple meets the requirements of informal marriage
Couple can pick the effective date of the marriage
Annulment
- Age 16 or 17, no parental consent, no court order (SOL for parent/guardian is anytime before 18; 90 days for next friend)
- Divorced fewer than 30 days before marriage and concealed this fact (SOL 1 year)
- Impotency
- Incompetency
- Fraud, duress, force (includes claiming to love someone but only marrying them for citizenship)
- Under influence of drugs/alcohol
- Marriage took place within 72 hour waiting period after marriage license obtained (EXCEPTIONS: active duty; waiting period waived by court; premarital education course; SOL 30 days)
NOTE: cannot get an annulment if couple cohabitated after the relevant facts were discovered (except first and seventh)
Divorce: Venue
A spouse can bring suit in a county where one spouse has resided for 90 days
Venue Exception: if the filing spouse is not a TX domiciliary, she can file where the other spouse resides as long as her spouse meets the 6 month domiciliary requirement
NOTE: to file for divorce in TX, one party must have been domiciled in TX for 6 months
Contents of Divorce Filing
Petition must state where a protective order for family violence is in effect.
If there are minor children, parties must join a SAPCR (suit affecting parent/child relationship)
Grounds for Divorce
No-Fault: marriage has become insupportable because of discord or conflict of personalities that destroys the legitimate ends of the marriage relation and prevents any reasonable expectation of reconciliation
Fault Grounds: cruel treatment, adultery, felony conviction, abandonment for more than a year, living apart for 3 years, confinement within mental hospital for 3 years
A mediation agreement is binding if…
- It states clearly that it is not subject to revocation (bold, caps, etc.)
- Signed by both spouses and parties’ attorneys who were present
NOTE: not itself a judgment, but gives parties right to judgment on its terms
EXCEPTION: a court may decline to enter a judgment on a mediated settlement agreement if family violence impaired the party’s ability to make decisions and the agreement is not in the child’s best interests
Collaborative Family Law Act
Parties and their attorneys can agree in writing to use their best efforts and make a good faith attempt to resolve their dispute.
Attorneys must agree to withdraw if no agreement is reached.
EXCEPTION: emergency orders
Parties have 2 years to come to a settlement
Custody
Primary Consideration: best interests of the child
Can also take in account public policy to:
- Ensure frequent contact with parents who act in the child’s best interests
- Provide a safe, stable, and nonviolent home environment
- Encourage parents to share the rights and duties of parenthood
Holley Factors: Best Interests of the Child
- The desires of the children
- The emotional and physical needs of the children, both now and in the future
- The emotional and physical danger to the children, both now and in the future
- The parental abilities of each individual seeking custody
- The plans for the children
- The stability of the home
- The acts or omissions of the parents which may indicate that the existing parent-child relationship is not a proper one
- Any excuse for those acts or omissions
In addition to the Holley factors, the court SHALL consider:
- Family violence
- False reports of child abuse
- Intentional use of force within 2 years against spouse, child’s parent, or any child
- Whether a protective order has been issued within the past 2 years
In determining the best interests of the child, the court may NOT consider:
- sex/gender
- marital status
- race
- religion
EXCEPTION: immoral, illegal, or harmful religious beliefs not ok
Joint Managing Conservators
Each party will have legal rights to make important decisions for the child
Does NOT require equal or nearly equal physical possession of the child
One of the JMCs can be given exclusive rights to give permission for child to marry and make educational decisions
Geographical Restrictions on Primary Residence of Child
The court must establish the geographical area of the primary residence or specify that the HMC who has the right to determine the child’s primary residence (the primary JMC) can do so without any geographical significance
Presumption of JMC
There is a rebuttable presumption that a JMC is in the best interests of the child.
The court will consider:
- Whether parents have the ability to reach shared decisions
- Whether parents can encourage and accept a positive relationship between the child and other parent
- Whether both parents participated in the child-rearing before the suit was filed
- Geographic proximity of the parents’ homes
The court may NOT appoint JMCs if…
credible evidence is presented of a history or pattern of past or present child neglect, or physical or sexual abuse by one parent directed against the other parent, a spouse, or a child.
Also creates a presumption against appointing the perpetrator as managing conservator.
Managing Conservator
Has custody of he child; has the right to make major decisions for the child and the right to determine the child’s primary residence
Possessory Conservator
Has “visitation” rights
Parental Preference
A parent must be appointed MC, or both parents must be appointed JMCs, unless the court finds that this would not be in the best interests of the child because it would significantly impair the child’s physical health or emotional development.
REBUTTED if:
- Parent voluntarily relinquished actual care, control, and possession to a nonparent for 1 year
- Parental preference does not apply to modification proceedings
Standard Possession Order
Non custodial parent gets possession:
- 6pm Fri-6pm Sunday every other week
- 6-8pm Thursday nights during school year
- 30 days over summer
- Alternating spring breaks
Parenting Plan
Must:
- Set out the rights and duties of each party
- Provide for periods of possession and access with the child
- Provide for child support
- Optimize the development of a close and continuing relationship between the child and each parent
Modification of Conservatorship and Possession and Access
Can modify if:
In the best interests of the child and
- Circumstances have materially and substantially changed since the date of rendition or signing of a mediated settlement agreement; or
- A child age 12+ has expressed in chambers the name of the parent they want to stay with
- Conservator who has exclusive right to designate primary residence of child has voluntarily relinquished the primary care and possession of the child to another person for at least 6 months
Venue: Court of continuing exclusive jurisdiction
Different requirements if spouse seeks modification within 1 year and seeks to change which parent has the exclusive right to determine the child’s primary residence:
- Child’s present environment may endanger the child’s physical health or significantly impair the child’s emotional development; or
- the person who has the exclusive right to designate the primary residence of the child is the person seeking or consenting to the modification and the modification is in the best interests of the child; or
- the person who has the exclusive right to designate the primary residence of the child has voluntarily relinquished the primary care and possession of the child for at least 6 months and the modification is in the best interests of the child
Grandparent Visitation Rights
Grandparent can obtain visitation rights if:
- The child’s physical health or emotional well-being will be significantly impaired if the grandparent is denied possession or access; and
- at least one of the child’s parents has not had their parental rights terminated; and
- the grandparent is the biological/adoptive parent (not a step-parent) of one of the child’s parents; and
- the grandparent’s son or daughter:
- has not been incarcerated for 3 months before the petition is filed
- is incompetent
- is dead
- does not have actual or court-ordered possession of the child, and - child’s remaining parent intends to completely deny the grandparent possession and access
When does a grandparent have standing to bring a SAPCR requesting to be appointed MC?
- Both parents are dead; or
- both parents or surviving parent consents; or
- grandparent provides satisfactory proof that the child’s present circumstances significantly impair the child’s physical health or emotional development
Satisfactory Proof:
(1) myst prove by POE significant impairment to have standing
(2) must show genuine fact issue re: significant impairment
Enforcing custody – parent takes children and refuses to return
Interstate context: discuss (1) habeas corpus (2) statutory tort liability (3) Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA)
Intrastate context: discus (1) habeas corpus (2) statutory tort liability (3) Contempt
Habeas Corpus
Sole issue: whether there’s a custody order
May be brought without a final child custody order when a parent, relying on her entitlement to possession simply due to the fact that she is a parent, brings a habeas case against a non-parent
Venue: county in which the child is found or court of continuing exclusive jurisdiction
Statutory Tort Liability – Interference with Child Custody
Tort committed when person retains possession of a child or conceals the whereabouts of a child in violation of a court order
Applies to non-custodial parents who kidnap a child and custodial parents who withhold visitation. Also available against a third party who aids/assists in the interference
Contempt
NOTE: within TX only
Available for violation of TX custody orders.
Can result in jail time (quasi-criminal); criminal due process rules apply
Uniform Child Custody Jurisdiction and Enforcement Act
NOTE: interstate cases only
UCCJEA: Jurisdiction
Jurisdiction to issue an initial custody order lies:
- In the state with home jurisdiction (home state of child/formerly home state of child but parent lives there)
- State with significant connection/substantial evidence (child has no home state/home state declined jdx & child + at least 1 parent has significant connection w/TX other than physical presence & substantial evidence available in TX)
- All other states with jurisdiction decline (inconvenient forum)
- Default jurisdiction (if no other state has jdx, TX can have jdx)
Continuing Exclusive Jurisdiction
Once the initial custody order is entered, the court has continuing exclusive jurisdiction until one of 2 events occurs:
- Everyone leaves (child/parents do not presently reside in the state)
- Court determines that neither the child nor 1 parent have a significant connection with the state & substantial evidence no longer available
UCCJEA: Expedited Enforcement
Similar to habeas; court issues an order directing the respondent to appear in person at a hearing held the next judicial day after service of the order. Possession of child awarded to petitioner unless custody or visitation order has been stayed/vacated
UCCJEA: Warrant to Take Immediate Possession
On filing a petition seeking to enforce a custody or visitation order, petitioner may file a warrant to take possession of the child if that child is imminently likely to suffer serious bodily harm or be removed from the state
Amount of Child Support
3 children –> 30% of net resources*
+/- 5% for each # of children
*Subtract income tax, union dues, and health insurance payments for obligor’s children.
Courts may deviate from this guidelines if they:
a. state why the guidelines amount is unjust/inappropriate
b. provide the net resources of the obligor and obligee
c. provide the percentage applied to the obligor’s net resources
d. provide specific reasons for varying from the guidelines
Only applies to the first $8,550/month
Child Support & Intentional Unemployment
A court may determine child support by looking to the obligor’s earning potential rather than her actual earnings if the obligor is earning significantly less than what the obligor could learn because of intentional un/underemployment
Court can use obligor’s earning potential even if no proof obligor is underemployed for purpose of avoiding child support
Duration of Child Support
Must terminate at the later of two dates:
- Child turns 18
- Child graduates from/ceases to attend high school
EXCEPTION: disabled children who are not capable of self support can be awarded support indefinitely as long as they became disabled before 18
Modifying Child Support
A court may modify a child support order when:
- circumstances of the child or parent have materially and substantially changed since the date of rendition or signing of a mediated settlement agreement; or
- 3 years have elapsed and current child support deviates from guidelines by greater of $100 or 20%
A modification can only apply retroactively from the earlier of the date the obligor was served or appeared in the suit to modify
Child Support: Mandatory Withholding
All final orders for periodic child support must provide for mandatory withholding
Court may provide that order withholding income need not be delivered to employer until violation of child support has occurred
Limited to 50% of disposable earnings
Child Support: License Suspension
Court can suspend obligor’s driver’s license if 3 months in arrears on child support. Other licenses can also be suspended.
Child Support: Liens
A lien for child support arrears can attach to an obligor’s non-exempt personal property and non-homestead real property.
Lien is filed in the county where the obligor resides or the county containing the obligor’s non-exempt property or in the court of continuing exclusive jurisdiction
Child Support: Second Spouse Rule
If the obligor remarries, the spouse can petition to release any CP or joint owned property from the lien, if sale of that property would result in unreasonable hardship upon the second spouse or family
Child Support: Money Judgment
Periodic child supports not made timely automatically become money judgments for the amount due
Can add 6% interest. Court’s only function is to confirm the amount. Only defense is actual payment.
SOL: 10 years after later of (1) child becomes adult or (2) date on which child support obligation terminates
Child Support: Freezing Assets
If a judgment for arrearages has been rendered, claimant can deliver a notice of levy to the financial institutions holding the obligor’s assets. Delivery of the notice freezes the assets.
Obligor has 10 days to either pay in full, enter into a satisfactory payment schedule, or file suit to contest.
If obligor does not contest, financial institution must pay amount identified 15021 days after delivery of notice.
Child Support: Contempt
Court can hold obligor in contempt if behind on child support.
Can jail for up to 6 months and/or fine $500
Child Support: Community Supervision
Court can order community supervision up to 10 years.
Can be extended until the earlier of: (1) all arrearages and interests paid in full; and (2) 2 years after if the community supervision exceeds 10 years
Child Support: Bankruptcy
Child support obligations and arrearages are not dischargeable in bankruptcy
Can a jury determine child support or possession and access?
No
Do parties have a right to a jury trial on the issue of conservatorship?
Yes
Family Violence
- an act intended to result in physical harm, bodily injury, sexual assault
- threat that reasonably places the victim in fear of imminent physical harm, bodily injury, assault, or sexual assault
Does NOT count:
- defensive measures
- corporal punishment for the reasonable discipline of a child
The following people are protected:
- Members of perpetrator’s family, household, or children
- Family violence includes dating violence, which can be committed against someone with whom the perpetrator had a dating relationship or someone who is targeted because of the victim’s marriage/dating relationship
Temporary Ex Parte Orders (TPO)
Requirements: clear and present danger of family violence and sworn affidavit containing relevant facts
Duration: 20 days (can be extended for additional 20 day periods)
Venue: county where either party resides
Relief: protecting people, property, and parenting. MANDATORY relief – perpetrator cannot possess firearms or ammunition
CANNOT grant payment of support, attorneys’ fees, or require counseling
TPO Kick-Out Order Findings
- Applicant must appear in person and file sworn affidavit
- Applicant resided on premises within past 30 days
- Excluded person committed family violence against member of household within past 30 days
- Applicant at least jointly owns or leases residence, or excluded person has obligation to support applicant/child
Protective Order
Requirements:
- Notice and hearing
- Family violence occurred and is likely to occur in the future; or
- Respondent had a previous protective order
Hearing must be 2-14 days after application is filed, unless prosecution requests later hearing (20 days)
Duration: not to exceed 2 years.
EXCEPTION: subject of protective order caused SBI or was subject of 2+ previous protective orders rendered on behalf of same applicant
Venue:
- county where either party resides
- County in which violence occurred
- If SAPCR filed, can file with that court
Relief: may order perpetrator to perform acts appropriate to prevent or reduce likelihood of family violence (same as TPO + support, attorneys’ fees, order for counseling)
MANDATORY: cannot possess firearms or ammunition
When can someone file for a temporary injunction and temporary restraining order?
When they have a pending SAPCR or suit for dissolution of marriage
Temporary Restraining Order (TRO)
Duration: 14 days
Protecting People (no unreasonable acts)
Protecting Property
Protecting Parenting
CANNOT get:
- support or attorney fees
- Prohibit reasonable and necessary acts
- Kick out order
Temporary Injunction
Duration: until a final judgment is entered in the trial
Relief: Same as TRO, plus
- Attorney’s fees and support
- Can prohibit reasonable/necessary acts
- Allows exclusive residence of home
Child Abuse
Professional must report within 48 hours.
TX Department of Family and Protective Services can take possession of child w/o court order if they receive information that would lead a person with ordinary prudence and caution to believe that child was the victim of sexual abuse or is in immediate danger, and there is no time to obtain a TRO.
Need a hearing within 14 days; must file for hearing within 1 day.
Must return child if hearing not held within proper time
To retain a child in a child abuse case, the TX Department of Family and Protective Services must show…
With sufficient evidence to satisfy a person of ordinary and prudence and caution that:
There was a danger to the physical health and safety of the child caused by the parent and reasonable efforts were made to prevent the need for removal, and despite reasonable efforts, there is a substantial risk of continuing danger if the child is returned home.
Presumed Fathers
A man is presumed to be the father of a child if:
- Child born within 300 days of marriage
- Married mother after birth AND acknowledged paternity w/gov, promised in record to support child, or voluntarily named on birth certificate
- During first 2 years of child’s life, resided w/child and represented to others child was his
Acknowledged Fathers
Mother and alleged fathers can sign and file an acknowledgement of paternity
Same effect as judicial determination that alleged father is the father
Adjudicated Father
Court has determined a man’s parentage in a paternity suit
Paternity
Standing: child, mother, father, alleged father, and support agency (or mother’s relatives if she’s deceased)
Venue: where child is
Ultimately determined by genetic evidence (99% match). If father refuses to be tested, can hold in contempt or enter default judgment. Can also order relative to give sample.
New Dads: Retroactive Child Support
Statutory presumption it’s in the best interests of the child to provide at most 4 years of retroactive child support
Rebutted if:
- actual father should have known he was the father
- sought to avoid support obligations
Paternity by Estoppel
May deny testing & order adjudicated father if:
- conduct of mother and father estops them from denying paternity
- not in child’s best interests to deprive child of father/child relationship
Factors:
- Time elapsed since father put on notice he might not be father
- other facts re: discovery of non-paternity
- Length of time he assumed role of father
- Child’s age & nature of relationship
- Harm resulting to child
Ousting Presumed Fathers
Uncontested: can eliminate parental rights w/written denial of paternity & acknowledgement of paternity signed by real father and mother
Contested: SOL is 4 years, unless:
- Presumed father and mother did not live together or have sex during time of conception
- Presumed father mistakenly believed he was the father based on misrepresentations
Ousting Acknowledged Fathers
Acknowledged father or mother making challenge: can be rescinded before 60 days after signing acknowledgement; can sue challenging paternity based on fraud, duress, or material mistake of fact, but must do so before court issues order affecting child
Acknowledged father: can terminate parentage if:
- under mistaken belief he was father due to misrepresentations
- not bio father
- brings suit w/in 2 years after he becomes aware
Does not affect past due child support, but eliminates future child support and post judgment interest on past due child support
Adoption
Can adopt if:
- both parents died
- parent/child relationship terminated w/each living parent
- stepparent wants to adopt
- child 2+ years old, parent relationship terminated with 1 parent, and person seeking adoption has had control of child for 6 months and parent consents OR former step parent seeking adoption and has had custody of child for 1 year
Process for giving up child for adoption
Mother: Sign affidavit of relinquishment (must be signed at least 48 hours after birth)
Father:
Voluntary waiver – waiver of father’s parental rights
Involuntary waiver – abandoned mother during pregnancy; does not respond re: paternity
An adoption is not subject to attack after 6 months
Process for adopting
Reports:
- pre adoption social study
- post placement social study
- criminal record
- SHEG report (social, health, education, genetic)
Adopted child
If 12+, must give written consent to adoption unless court waives
Child entitled to SHEG report (redacted) when adult, unless both sides file for the report together.
Does not lose inheritance rights through birth mother unless decree expressly terminates them.
Removal of Disability of Minor
17 year olds: (1) minor self supporting and managing own financial affairs and (2) in minor’s best interests
16 year olds: same rules, and (3) minor must be living separate and apart from parents
Parental Liability for Child’s Tortious Conduct
Negligence: liable for property damage (regardless of child’s age) due to parent’s failure to exercise control and reasonable discipline; no limit on liability
Intentional: liable for property damage caused by willful and malicious acts of children 10+; $25,000 cap
Theft: liability for child under 18 limited to $5000
Neglect
Neglect occurs when a parent knowingly places or allows the child to remain in conditions or surroundings that endanger the child’s physical or emotional well-being. This implies a passive fault of the parent by way of omission, such as failure to feed, clothe, or house the child properly
NOTE: failure to enroll kid in school is parental misconduct, but not neglect
