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Texas Law > Family Law > Flashcards

Family Law Flashcards

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1
Q

What 3 cases comprise a divorce case?

A
  1. The divorce (dissolution of the marriage)
  2. Community property suit
  3. SAPCR
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2
Q

The court must have what kind of jurisdiction

A
  1. SMJ over the case itself
  2. PJ over the parties
  3. In rem over the subject matter
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3
Q

Grounds for Divorce

A
  1. No Fault
  2. Cruelty
  3. Adultery
  4. Conviction of a felony during the marriage (imprisoned for more than 1 year and not pardoned)
  5. Abandonment
  6. Living apart (at least 3 years)
  7. Confinement in a mental hospital (3 years)
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4
Q

How long before a default divorce may be granted?

A

Must be on file for 60 days

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5
Q

Temporary Restraining Order

A

To place prohibitions on the other party to maintain the status quo
Valid until a hearing is held

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6
Q

Protective Order

A

An order of the court prohibiting 1 spouse from approaching or contacting the other spouse or children because of past, proven, family violence

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7
Q

Duration of a Protective Order

A

May be issued for up to 20 days

After a hearing, for up to 2 years; 1 year after release from jailq

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8
Q

SAPCR =

A

Suit Affecting the Parent-Child Relationship

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9
Q

Public Policy underlying SAPCR decisions

A

Children should have frequent and continuing contact with parents who have shown the ability to act in the best interest of the child by providing a safe, stable, and non-violent environment for the child.

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10
Q

SAPCR Jurisdiction

A

A court issuing a SAPCR retains continuing, exclusive jurisdiction over the case so long as the child is under the parent’s guidance or control and is not emancipated.

May be transferred if the child has legally obtained a new county of residence for 6 months.

Reviewable periodically

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11
Q

A child =

A
  1. Under 18
  2. Not emancipated or married
  3. Not enlisted in the military
  4. Has not had the disabilities of minority removed -
  5. A person over 18, if the child suffered from a disability known before the age of 18 or the child has not graduated from high school.
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12
Q

A parent =

A
  1. Mother on proof of having given birth
  2. Man presumed to be the father
  3. Man adjudicated to be the father
  4. Man legally determined to be the father
  5. Man who acknowledges paternity
  6. An adoptive mother or father
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13
Q

Paternity presumptions

A
  1. If a man and a woman married or attempted to marry in good faith and a child is born during the marriage or within 300 days of the breakup of the marriage (overcome by clear and convincing evidence)
  2. If during the first 2 years of the child’s life, the man continuously resided with the child in the same home and acknowledged the child to be his.
  3. If the man is voluntarily named as the child’s father on the birth certificate and later married the mother or filled out a proper form and registered it.
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14
Q

Who can challenge a paternity presumption?

A

Father
Mother
Third party

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15
Q

Statute of Limitations for challenging a paternity presumption

A

4 years of child’s birth or the execution of the instrument in which the man made the acknowledgement

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16
Q

Challenge a paternity presumption by

A
  1. The adjudication of a court of some other man’s paternity
  2. Filing a denial with another man’s acknowledgement
  3. After age 4:
    a. Did not have intercourse during the time of conception
    b. without genetic testing, he was precluded from making a timely denial by misrepresentations
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17
Q

Rights of a Parent

A
  • Physical Possession
  • Direct religious training
  • Designate residence
  • Service and earnings of the child
  • Consent to marriage/enlistment
  • Consent to medical/dental/psychological care
  • Represent the child in legal actions
  • Give and receive child support
  • Inherit
  • Make decisions about education
  • Corporeal punishment for reasonable discipline
  • Any other right by law
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18
Q

Duties of a Parent

A
  1. Care
  2. Control
  3. Reasonable Discipline
  4. Support
  5. Liability for damages to property of another
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19
Q

Who may file a SAPCR?

A
  1. Parent
  2. Child
  3. Any managing conservator
  4. Guardian
  5. Licensed child placing agency
  6. Foster parents who have had custody for 12 months
  7. Others with custody for 6 Months (e.g., grandparents)
  8. Siblings who have been separated by DFPS, regardless of age
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20
Q

Venue for SAPCR

A

The county where the child resides, unless joined in divorce proceedings

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21
Q

Jurisdiction for SAPCR

A

Once a court acquires jurisdiction, it retains continuing, exclusive jurisdiction with regard to the child until the child turns 18 or

a. parents remarry each other
b. otherwise has disabilities removed
c. child moves and resides in another place for 6 months

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22
Q

Long-arm jurisdiction for SAPCR

A
  1. Personal service of Citation and Notice in TX
  2. Waiver or other consent
  3. Filing a responsive pleading
  4. Resided previously with the child in TX
  5. From a sexual relationship in TX
  6. Alleged father registered with the paternity registry
  7. Any other constitutionally permissible basis
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23
Q

Child Representation

A
  1. Guardian ad litem
  2. Attorney ad litem
  3. Amicus attorney
24
Q

Minimum Child Support Tables

A

No. of Children Percentage of Net Income
1 child 20%
2 children 25%
3 children 30%
4 children 35%
Max 50%

25
Q

Minimum Child Support is applicable to what?

A

The first $8,550 of net resources per month

26
Q

Grounds for modification of child support

A
  1. The circumstances of the child, or someone affected by the child support order must have been materially and substantially changed
  2. It has been 3 years since the order was last modified and the monthly amount differs by either 20% of what it was before, or $100 from the guidelines
27
Q

When does amount in arrears become a money judgment?

A

Automatically

28
Q

When can they suspend an obligor’s license?

A

When the obligor fails to pay 90 days’ worth of child support and has been given the opportunity to catch up

Must be given 60 days notice

29
Q

Defenses to Enforcement of Child Support Order

A
  1. Inability to pay

2. Lawful possession of the child for the period of time when support went into arrears

30
Q

Joint Managing Conservator

A

Parents share responsibilities wrt the child, but one will have the superior right to determine the residence of the child.

31
Q

Sole Managing Conservator

A

One parent has primary responsibilities, duties, and rights wrt the child including the right to designate the child’s primary residence

32
Q

Possessory Conservator

A

The other parent when one parent is awarded sole managing conservatorship; will have a scheduled right to the child’s physical presence through visitation, and have a duty to pay child support.

33
Q

Parent with primary possession

A

Sole Managing Conservator, or

Joint Managing Conservator with power to determine residence of the child

34
Q

Parent awarded visitation

A

Possessory Conservator, or

Joint Managing Conservator with visitation

35
Q

Rebuttable Presumption with respect to Conservatorship

A

A parent will always be a conservator of some type unless you overcome the presumption that they are fit to be so by clear and convincing evidence

36
Q

Court will honor a parenting agreement if it determines that it is in the best interest of the child based on:

A
  1. Physical, psychological, and emotional needs of the child
  2. Whether the parents were able to reach an agreement with each other on day-to-day issues
  3. Whether parents had or have honored responsibilities prior to separation or since
  4. Preference of child if 12 years or older
  5. Proximity of parties’ homes
  6. Any other factor the courts can use
37
Q

Rights & Duties of parents who are appointed conservators when there is possession:

A
  1. Duty of care, control, and reasonable discipline during the times the child is in their possession
  2. Duty to support
  3. Right to consent to emergency medical care (involving immediate danger to the child)
  4. Right to direct moral and religious training

Each of these rights may be limited by the court

38
Q

Rights & Duties of Parent whether in possession or not

A
  1. May receive information from the other conservator concerning health
  2. May confer with other parent in making decisions about the child
  3. May consult with doctors of the child
  4. May consult with school officials
  5. May attend school activities (unless limited)

The court will act in the best interest of the child and may make any limitations that the court may support with evidence in writing.

39
Q

Rights & Duties of Non-parent Managing Conservator

A
  1. Designate primary residence
  2. Make decisions regarding education
  3. In some instances, consent to the child’s adoption
40
Q

Rights & Duties of Sole Managing Conservator or Joint Managing Conservator with right to determine residence

A
  1. Designate primary residence of the child
  2. Consent to medically invasive procedures and psychiatric care and treatment
  3. Receive child support payment
  4. Represent the child in legal actions
  5. Consent to the marriage or the military enlistment of the child
  6. Act as child’s agent
41
Q

Presumption with respect to Grandparents’ rights

A

A parent will act in the best interest of the child and the parent has the fundamental right to determine who has access to the child

42
Q

A grandparent seeking access must prove:

A
  1. Parental rights of one of the child’s biological parents haven’t been terminated
  2. The child’s physical health or emotional well-being would be significantly impaired
  3. Grandparent is the parent of the child’s parent
  4. One of the following is true about that parent:
    a. Incarcerated for at least 1 year when case is filed
    b. Declared judicially incompetent
    c. Dead
    d. Does not have actual or court ordered possession
  5. Substantial past conduct with child
43
Q

How to modify visitation or conservatorship?

A

File a Petition for Modification under existing SAPCR in the court of continuing jurisdiction

44
Q

Grounds for Modification:

A

A material and substantial chance in the circumstances affecting the child or either party

45
Q

Enforcement of Custody Order

A
  1. Habeas Corpus Action
  2. Tort Action
  3. Contempt
  4. Uniform Child Custody Jurisdiction and Enforcement Act
46
Q

Effect of Termination of the Parent Child relationship

A

Ends all legal rights and responsibilities between the parent and the child

47
Q

Involuntary Termination when

A

Clear and convincing evidence is found that termination is in the best interest of the child and one of the situations listed in the TX Family Code has occurred.

48
Q

Examples of Situations for Involuntary Termination

A
  1. Leaving the child with non-parent with the express intent not to return
  2. Knowingly and voluntarily leaving a child in an hazardous 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 1 year ending within 6 months of date of hearing.
  6. Knowingly engaging in criminal conduct + conviction or imprisonment
  7. Refusing to submit to a court ordered investigation of child abuse or neglect
49
Q

Voluntary Termination of the Parent-Child Relationship

A

Father may terminate anytime after first trimester

Mother may terminate by witnesses, notarized, signed affidavit 48 hours after birth

50
Q

Standing to bring paternity suit

A 
Child Adoption Agency
Mother
Man alleged to be the father
Person related to the mother by consanguinity
Intended parent
51
Q

Parentage by Estoppel

A

Married persons involve in a situation where either party has detrimentally relied on the alleged father’s presumed parentage and it would not be in the best interest of the child to allow either parent to deny paternity.

52
Q

TX Adoption Regime based

A

termination of parental rights of the natural parents

53
Q

When can adoptive parents officially adopt?

A

After the child had been residing in their home for at least 6 months

54
Q

Effect of Adoption

A

Creates a parent-child relationship between the adopting parent and the child

55
Q

Current Stepparent Adoption

A

One parent of the child is the spouse of the stepparent and joins the suit

Other parent may voluntarily give up rights or adopting party may seek an involuntary termination

56
Q

Former Stepparent Adoption

A

May adopt a child who is at least 2 years old if -

  1. Parent-child relationship has been terminated as to one parent
  2. Stepparent has been managing conservator for at least 6 months
  3. Non-terminated parent consents
  4. If no consent, managing conservator for 1 year before adoption
57
Q

Physicians may not perform abortions on un-emancipated minors unless

A
  1. Parental notification
  2. Court authorizes without parental notification; guardian ad litem must be appointed
  3. Immediate abortion necessary to prevent death of the minor

Texas Law (11 decks)

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