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Family Law and Community Property > Family Law > Flashcards

Family Law Flashcards

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1
Q

Who CANNOT Get Married? Think: ABCS

A

These marriages are VOID:

(1) Age (either party under 16YO)
- exception: court order (NOT just parental consent)
(2) Bigamy
- if impediment is removed, then 2nd marriage becomes valid
(3) Consanguinity
- parent/child
- brother, sister, nephew, niece
- uncles and aunts
- current and former step-parent/children
(4) Same-sex marriage

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2
Q

How to Get Married

A
  • Get a marriage license
  • Find person to perform ceremony (can be valid if there was a reasonable appearance of authority, at least 1 party acted in good faith, and no one is a minor)
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3
Q

Informal (CL) Marriage

A

Requirements:

(1) neither party is a minor
(2) agreement to be married (presumed negated if couple has separated and ceased living together for 2 years without filing)
(3) in TX, couple represented to others they’re married
(4) in TX, couple lived together

Can file declaration of informal marriage and backdate the marriage (pick date!)

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4
Q

Getting Out of Marriage: Annulment

A

Grounds for Annulment

  • *Age 16 or 17, and w/out parental consent and without court order (if suit brought by paren/guardian before 18YO or brought by friend within 90 days)
  • Divorced less than 30 days before marriage and concealed this fact (if spouse discovers/files within 1 year)
  • Impotency
  • Incompetency
  • Fraud, duress, or force (includes marrying someone for citizenship)
  • Under influence of alcohol/narcotics
  • *Marriage took place within 72-hour waiting period after marriage license was obtained and spouse files within 30 days (exceptions for: 1 party on active duty in armed forces; court waiver; spouses did premarital education course within 1 year)

BUT no annulment (for all but 1st and last) if couple cohabited after relevant facts were discovered

Granting of annulment is DISCRETIONARY (so court might deny it if W is pregnant)

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5
Q

Divorce

A

To file in TX, 1 party must have been domiciled in TX for 6 mo.

Venue = county where 1 spouse has resided for 90 days OR, if filing spouse is NOT a TX domiciliary, she can file where other spouse resides (if he meets 6-mo. req.)

Petition MUST

  • state whether FV protective order is in effect
  • join a SAPCR if there are minor children of the marriage

Court’s options

  • Grant divorce
  • Order counseling to determine whether there is a reasonable expectation of reconciliation
  • Order a parental education and family stabilization course
  • Order mediation (binding if: stated in bold, caps, or underline that it is NOT subject to revocation; signed by both spouses and attorneys present… but court may decline to enter judgment on MSA if FV impaired ability to make decisions and is not in child’s best interests)
  • CANNOT refuse to enter judgment on MSA SOLELY because not in child’s best interest (must find it endangers the child)
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6
Q

Child Custody: Court Considerations

A

Standard = best interest of the child

TX policy favors:

  • ensuring frequent contact with parents who act in child’s best interests
  • provide safe, stable and nonviolent home environment
  • encourage parents to share the rights and duties of parenthood

Holley Factors:

  • desires of children
  • emotional/physical needs of children, both now and in future
  • emotional/physical danger to children, now and future
  • parent abilities of each person seeking custody
  • plans for children
  • stability of home
  • acts/omissions of parents indicating improper parent-chid relationship
  • any excuse re: those acts/omissions

Court MUST consider:

  • FV (re: possession and access)
  • false reports of child abuse
  • intentional use of force w/in 2 years against spouse, child’s parent, or any child
  • whether protective order has been issued w/in past 2 years
  • non-jury trial = MUST interview child 12 or older, MAY interview under 12

CANNOT consider:

  • sex (gender)
  • marital status
  • race
  • religion (except for immoral, illegal, or HARMFUL religious beliefs)
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7
Q

Joint Managing Conservators

A

JMCs = each party will have legal rights to make important decisions for the child… but does NOT require equal or nearly equal possession/access

Presumption = JMC is in the best interests of the child… but factors to consider include:

  • whether parents can reach shared decisions
  • whether parents can encourage and accept positive relationship b/t child and other parent
  • whether both parents participate din the child-rearing before suit was filed
  • geographic proximity of parents’ homes

1 JMC MAY be given EXCLUSIVE rights to:

  • give permission to marry
  • make educational decisions

1 JMC MUST be given EXCLUSIVE right to determine child’s primary residence

JMCs may NOT be appointed if there is credible evidence of history or pattern of past/present child neglect, physical or sexual abuse

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8
Q

Managing Conservator

A

MC has “custody” of the child

MC has the right to make MAJOR decisions for the child and the right to determine child’s primary residence

Upon filing SAPCR, parent must (presumptively) be appointed MC, or both parents JMCs, unless court finds it 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 has voluntarily relinquished actual care, control, and possession to a non-parent for 1 year (portion of which was 90 days before filing suit); AND
  • appointment of non-parent is in child’s best interest
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9
Q

Possessory Conservator

A

PC has “visitation” rights

Standard Possession Order (SPO) is presumed in child’s best interests for parents living within 100 miles of each other:

  • 1st, 3rd, and 5th Fridays 6PM to Sunday 6PM
  • Thurs. nights 6-8PM during school year
  • 30 days over the summer
  • Alternating spring breaks
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10
Q

Parenting Plan

A

Final order in a SAPCR tied to divorce MUST incorporate parenting plan that:

  • sets out rights and duties of each party
  • provides for periods of possession and access
  • provides for CS
  • optimizes development of close and continuing relationship b/t child and each parent

If no plan agreed on 30 days before trial, either party may file proposed plan for court’s consideration

High conflict cases: court may appoint

  • parenting coordinator (impartial TP who assists parties in resolving parenting issues)
  • parenting facilitator (who can serve same function but ALSO monitor compliance with court orders)
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11
Q

Modifying Conservatorship and Possession and Access

A

Standard = modification is in the best interest of the child AND

(1) circumstances have SUBSTANTIALLY and MATERIALLY CHANGED since date of order, OR
- FV, moving frequently, kid wants to go to band camp instead of spending 30 days of summer with dad
- primary JMC remarries = courts are split
(2) a child age 12 or older has expressed to court in chambers the parent she wants to have power to determine primary residence, OR
(3) conservator w/ exclusive right to designate primary residence has voluntarily relinquished primary care/possession to another person for at least 6 mo. (does NOT apply to military duty)

Modification within 1 year + it seeks to change parent with exclusive right to determine primary residence = MORE requirements:

(1) child’s present environment may ENDANGER child’s physical health or SIGNIFICANTLY IMPAIR child’s emotional development; OR
(2) person w/ exclusive right has voluntarily relinquished primary care/possession for at least 6 mo. and modification is in best interest of the child

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12
Q

Grandparents

A

Grandparent can obtain VISITATION rights (by filing pet. and affidavit) if:

(1) Child’s physical health or emotional well-being will be significantly impaired if grandparent is denied possession/access, AND
(2) at least 1 of the child’s parents has not had their parental rights terminated, AND
(3) grandparent is the bio or adoptive grandparent, AND
(4) grandparent’s son or daughter: (i) has been incarcerated for 3 mo. before filing, or (ii) is incompetent, or (iii) is dead, or (iv) does not have actual or court-ordered possession, AND
(5) child’s remaining parent intends to COMPLETELY DENY grandparent possession/access

Grandparent can have STANDING to bring a SAPCR to be appointed MC if:

(1) both parents are dead, OR
(2) both parents or surviving parent consents, OR
(3) grandparent provides satisfactory proof that present circumstances significantly impair child’s physical health or emotional development

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13
Q

Enforcing Custody: Overview

A

Texas court acquires CONTINUING EXCLUSIVE JURISDICTION in parent-child matters when a final order is rendered (except: dismissal of SAPCR, order in parentage suit finding alleged father is NOT the father; and a final order of adoption)

INTERstate enforcement:

(1) Habeas corpus
(2) Statutory tort liability
(3) UCCJEA

INTRAstate (TX) enforcement:

(1) Habeas corpus
(2) Statutory tort liability
(3) Contempt

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14
Q

Enforcement: Habeas Corpus

A

Sole issue = whether there is a custody order

Can be brought even WITHOUT a final child custody order when a parent, relying on entitlement to possession simply because she’s a parent, brings a case against a NON-PARENT

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15
Q

Enforcement: Tortious Interference with Child Custody

A

Retaining possession of a child or concealing the whereabouts of a child in violation of court order

Applies to

  • non-custodial parents who kidnap, and
  • custodial parents who withhold visitation
  • a TP who aides or assists the interference
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16
Q

Enforcement: Contempt (in TX)

A

Possible jail time for violations of TX custody orders

Requires criminal due process, right to counsel if indigent, right to appear at trial, BARD standard of evidence

17
Q

Enforcement: UCCJEA (interstate cases only)

A

Ugh…

18
Q

Child Support: Statutory Guidelines

A

Statutory Guidelines apply to first $8,550/mo.:

  • 1 child = 20% of obligor’s net resources
  • 2 children = 25%
  • 3 children = 30%
  • 4 children = 35%
  • 5 children = 40%
  • Over 5 = not less than amount for 5…
  • More income = guidelines are presumptively applied and additional support is limited to proven needs of child

Net resources include all cash revenues (wages, interest, dividends, royalties, self-employment income, rental income,s everance pay, capital gains, social security, unemployment benefits, worker’s comp, spousal maintenance, gifts, etc.) - taxes and health ins. payments for his children

Presumption = statutory guideline is in child’s best interest

  • Can deviate for any relevant factor
  • If court deviates, the order MUST:
    (1) state why guideline amount is unjust or inappropriate
    (2) provide net resource of both parents
    (3) provide percentage applied to obligor’s net resources
    (4) provide specific reasons for varying from guidelines
19
Q

Child Support: Under/Unemployment and Duration

A

Intentional unemployment = court MAY determine CS by looking to earning POTENTIAL rather than actual earnings IF obligor is earning significantly less than he could (even if lack of proof of intent to avoid CS)

Support lasts until LATER of:

(1) child turns 18
(2) child graduations from or ceases to attend HS
- Also terminates if child dies, marries, or is emancipated

Exception for disabled children who are not capable of self-support = indefinite period as long as child is disabled before age 18

If obligor dies, estate must pay CS!

20
Q

Child Support: Modification

A

Parents CANNOT agree to modify CS!

Court MAY (does not have to) modify CS if:

  • circumstances of child or parent have materially and substantially changed since order (i.e., child is now a teenager), OR
  • 3 years have elapsed and current CS deviates from guidelines by greater of $100 or 20%

Parents MAY, in settlement agreement, mandate or adjust EXTRA CS
- (i.e., provide for CS until age 21 and that amount b/t high school graduation and age 21 cannot be modified)

21
Q

CS Enforcement

A

(1) Mandatory withholding from employer wages
- may be provided for in final order, for arrearages and current obligations) = max 50%
(2) License suspension
- DL for 3 mo. past due + failed to take opportunity to make payment
- professional licenses, hunting, fishing, etc.
- 30 days delinquent = can’t obtain state grants, loans, or Ks
(3) Liens
- can attach to non-exempt personal property and non-homestead real property
- if obligor remarries, spouse can petition to release any CP or jointly owned property from lien if sale would result in unreasonable hardship on 2nd family)
(4) Money judgment
- delinquent payments are automatically reduced to judgment including 6% interest
- court just confirms amount
- only defense = actual payment
- 10-year SOL after later of child becoming adult or CS terminating
(5) Freezing of assets
- can deliver notice of levy to financial institution’s holding obligor’s assets
- obligor has 10 days to pay in full, enter a payment schedule, or file suit to contest
- if no contest, financial institution MUST pay no sooner than 15 days and no later than 21 days after delivery of notice
(6) Contempt (for violations of TX court orders)
- jail up to 6 mo.
- max $500 fine
- or both!
- order community supervision up to 10 years!

22
Q

Family Violence

A

(1) an act intended to result in physical harm, bodily injury, assault, sexual assault or
(2) a threat that reasonably places the V in fear of imminent physical harm, bodily injury, assault, or sexual assault

Protects members of perp’s family, household and their children; includes dating violence

23
Q

Temporary ex Parte Orders (TPO)

A

Requires clear and present danger of FV and sworn affidavit

Duration = 20 days (but court can extent for additional 20-day periods)

Relief can include protecting people, property, and parenting (providing for possession/access)

MANDATORY: perp cannot posses firearms or ammunition

Special findings for ex parte KICKOUT order:

(1) applicant appears in person and files sworn affidavit
(2) applicant resides on premises within past 30 days
(3) excluded person committed FV against a member of the household within the past 30 days
(4) applicant at least jointly owns or leases the residence or excluded person has obligation to support applicant or her child

CANNOT GRANT:

  • payment of CS
  • attorney’s fees
  • requiring perp. to attend counseling
24
Q

Protective Order

A

Requires notice and hearing and FV occurred and is likely to occur in the future OR D violated a previous protective order

Hearing takes place b/t 48 hours and 14 days after application is filed unless prosecutor requests later hearing (within 20 days)

Duration = 2 years max (unless D caused serious bodily injury or was subject of 2 or more previous protective orders rendered on behalf of the same V)

Broad relief allowed… includes same as ex parte order + CS payments, attorneys fees, order BIPP

Mandatory = no firearms or ammunition

25
Q

Temporary Injunctions and Temporary Restraining Orders

A

For people with pending SAPCR/divorce

TRO (ex parte)

  • Duration = 14 days
  • Can protect people, property, parenting
  • CANNOT grant payment of CS or attorney’s fees, prohibit reasonable and necessary acts, or kick out D

Temporary Injunction

  • Duration = until final judgment is entered in the case
  • Relief is same as TRO + attorneys fees and CS
  • CAN prohibit reasonable acts
  • CAN grant exclusive possession of residence (kickout)
26
Q

Child Abuse

A

Professional w/ reason to believe child is abused or neglected must report within 48 hours

Duty cannot be delegated

Immune from liability if acted in good faith

TDFPS can take possession of child WITHOUT COURT ORDER if they get information that would lead a person of ordinary prudence and caution to believe child is V of sex abuse or is in immediate danger

  • must file SAPCR and get ex parte hearing within 1 working day
  • full adversary hearing must be held within 14 days
27
Q

Paternity: 4 types of Fathers

A

(1) presumed fathers
- child born within 300 days of marriage or void marriage, OR
- mom and dad married after child’s birth, AND
(i) acknowledged paternity with Bureau of Vital Statistics, or
(ii) promised in a record to support the child, or
(iii) was voluntarily named on the birth certificate, OR
- during first 2 years of child’s life, dad (i) resided wit child, AND (ii) represented to others the child was his
(2) acknowledged fathers
- mom and dad can sign and file acknowledgment of paternity
(3) adjudicated fathers
- when court determines parentage in a paternity suit
(4) alleged fathers
- can be ordered to pay temporary if he files suit

Paternity is determined by genetic evidence, can only be rebutted by results of another genetic test

If test is refused, court can (1) hold him in contempt, or (2) default judgment (you’re the dad!)

Presumption retroactive CS for 4 years max is in best interest of the child… can be rebutted by showing (1) actual father should’ve known he was the father, and (2) he sought to avoid CS

28
Q

Adoption

A

May be adopted if:

  • both parents have died
  • parent-child relationships of each living parent has been terminated or a suit for termination is joined with adoption
  • a step-parent wants to adopt a stepchild
  • child is at least 2YO and parent-child relationship has been terminated w/ 1 parent AND

(i) person seeking adoption has adoption has been a MC or has had actual care/possession/control for 6 mo. prior, AND (ii) non-terminated parent consents, OR
(i) former step-parent is seeking adoption and (s)he has been MC or had actual care/possession/control for 1 year

Child 12 or older must given written consent to adoption (unless waived by court)

Before finalizing, must do:

  • pre-adoption social study
  • post-placement social study
  • report showing adoptive parents’ criminal records
  • SHEG (social, health, education, genetic history) about the child

When child becomes adult, she’s entitled to SHEG report for both parents; retains inheritance rights (unless decree expressly terminates them)

29
Q

Bio Parents: Voluntary Termination

A
  • Mom can sign affidavit of relinquishment after 48 hours (after giving birth)… revocable (UOA) for 10 days after signing
  • Dad can sign waiver of interest in the child (this does NOT admit paternity; merely waives potential rights and is irrevocable once signed)
  • Dad can sign affidavit of relinquishment of parental rights (like mom above) and file a voluntary terminating proceeding

Adoption cannot be attacked more than 6 mo. after decree is entered

30
Q

Involuntary Termination

A

Requirements:

(1) after being served, he does not respond by either admitting paternity or filing a counterclaim for paternity, or
(2) he failed to file with TX’s paternity registry, or
(3) there is proof he committed culpable acts that would be grounds for terminating a parent-child relationship:
- Neglect
- Abuse
- Parental misconduct (e.g., major cause of child’s failure to enroll in school)
- Use of controlled substance in manner that endangers child
- Failure to support 1 year (indigence is a defense)
- Imprisonment (go to prison) for 2 years or more
- Abandoning mother/failing to provide support knowing she’s pregnant
- Committing sexual assault
- Criminally responsible for death or SBI to a child
- Convicted of murdering the other parent
- Mental or emotionally illness that renders him unable to provide for child

Family Law and Community Property (2 decks)

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