Family Law Flashcards
Who can’t get married?
A: Age (minors need parental consent our court order)
B: Bigamy (spouses already married)
C: Consanguinity (blood relatives) (cousins marriage ok if not from Texas)
What are the marriage requirements?
Marriage license and ceremony
Someone authorized to marry you
72 hour waiting period after issuance of license
What is the presumption of validity?
Presumption in favor of validity. But statutes can make void or voidable. Generally, validity unaffected by fraud, mistake, illegality
How long is license valid from issuance and what type of ceremony is required?
30 days. No particular ceremony is required. Valid even if performed by unauthorized person if he had apparent authority and a party to the marriage had a good faith belief the marriage was valid.
Common Law Marriage (Informal Marriage)
Neither party is a minor.
A: Agreement to marry (2-year separation raises presumption no agreement)
H: Holding out. Representing to others one is married
C: Cohabitation
Declaration of informal marriage will open up certain government benefits. Presumption is against common law marriage.
How are void marriages terminated?
Via an in rem proceeding brought by either party. May be brought ex parte. At least one party must be domiciled in Texas. No marital property rights would have arisen. Kids of void marriage are marital kids for all purposes.
When may void marriages not be voided?
If petitioner voluntarily cohabited with the other party after situation discovered.
Same-Sex Marriages
Valid since 2015. Clery and clerks need not participate if it violates sincerely held religious belief, and they can delegate task to another authorized and willing individual.
Voidable Marriages. What marriages are voidable?
72 AIDFUL. 72 hours after issuance of license Alcohol/Narcotics Duress/Force Underage Impotency Fraud Lack of Capacity
When can marriage be challenged after one spouse dies?
Marriage took place within 3 year of death and filed within 1 year after death.
What rights, duties, and tort liabilities arise from marriage?
Spousal privilege, duty of support, may recover for intentional but not negligent infliction of emotional distress.
How are marriage terminated.
SAD: Settlement, Annulment, Divorce
What are annulment grounds?
Underage spouse lacked parental/court consent
Spouse concealed a divorce w/i 30 days
Marriage for citizenship.
Marriage within 72 hours of getting the license
It’s in the courts discretion
Divorce Grounds
Texas has fault and no-fault divorce. For no-fault, a spouse must claim the marriage is insupportable. Courts can order counseling, but counselor cannot testify in later proceeding.
What are fault grounds?
Cruel treatment, adultery, abandonment for a year, living apart for 3 years, felony conviction
When are spouses eligible for support?
Married for 10 years (unless there’s a family violence conviction, Spouse lacks enough property to provide for minimum reasonable needs, and must be disabled, custodian of a disable kid, or lack job skills.
The amount of spousal maintenance the judge orders a spouse to pay involuntarily cannot be more than $5000 per month or 20% of the paying spouse’s average monthly gross income, whichever is lower.
Award can be modified downward if circumstances materially or substantially change and will be terminated if either party dies, remarries, or cohabits.
Name change
If not included in divorce degree, petition for change of name in a district court. When there is good cause for it. Cannot deny just to retain name of family members
What is a temporary restraining order TRO?
Issued to prevent unreasonable harrassing acts for 20 days. Meant to holdover for the protective order.
To protect people, property and parenting (possession and access to kids)
Cant compel spousal support, attorney fees, or counseling
Venue is proper in the county where either party resides, or where SAPCR (suit to modify parent child relationship) was filed.
What is the kickout order?
It’s a TRO provision that removes D from family home. Applicant must appear in person for a sworn affidavit. Applicant must have resided on premises in the last 30 days.
What is a temporary injunction?
prohibits a party from an action until trial. Can exclude spouse from residence or require spousal support.
Alternative Dispute Resolution
What are collaborative law procedures?
Written agreement for good faith attempt to resolve dispute outside court.
Attorneys must withdraw if parties don’t settle.
Divorce: Just and Right Division
Allows court to split the assets unevenly
Factors: Whether a party wasted community assets Disparities (income, age, health) Relative opportunities and debts Size of separate estate Length of marriage
Who is a minor child? Who is parent?
Anyone under 18. Biological or adopted mom and presumed or adjudicated father.
How is minority removed?
At 16, minor petitions court to remove minority. Court grants it if in the best interest of the child (BIC)
How is the mother-child relationship established?
How is the father-child relationship established?
Mom: Giving birth, adjudication, or adoption
Dad: Unrebutted presumption of paternity, acknowledgement of paternity, assisted reproduction, adjudication, adoption
Suit Affecting Parent-Child Relationship (SAPCR) & Divorce Filiings
If parties are parents of a MINOR child, suit for divorce, annulment, or to declare the marriage void must include a separate SAPCR
*ONLY required IF children are of BOTH spouses
Long Arm Divorce JDX
- TX last marital residence; filed w/in 2 YRS of end of marital residence
- Any basis w/in TX/US Constitutions (served in TX, files an answer, hires TX lawyer)
* **Court ALSO gets jdx over SAPCR (Suit Affecting Parent/Child Relationships) if it gets long arm for divorce
Divorce Pleadings
- state grounds in statutory language
- any TRO/prot order?
- any kids?
- Must join SAPCR
* **Must state if a protective order for domestic violence is pending/in effect
Divorce Waiting Period
Must wait 60 DAYS after filing
Divorce & community property
Transfers to injure other spouse void after filing divorce
Temporary Restraining Order (TRO)
Ex parte TRO possible if other party:
- Harasses, alarms, annoys
- TROs can be extended to Temp. Injunction
Temporary Injunction
Can require:
Sworn inventories; appraisals, exclude spouses from residences, require support, etc
Divorce Injunction
Provide sworn inventory, spousal support, exclusive occupancy over residence, produce accounting, one spouse pay attorney’s fees, no spending beyond necesarries.
Protection Order
Showing of family violence & LIKELY TO OCCUR AGAIN; Can order no more violence, stalking, communication, being a certain distance, having a gun, harming an animals
Temporary Protection Order
Up to 20 days, possible additional 20 days; can use to evict spouse.
*Req’d to suspend handgun license; Child’s statement is admissible
Presumed Father
Parent
mother on proof of giving birth, a man presumed to be father, adjudicated to be father, that has acknowledged parterntiy, or adoptive mother or father.
Presumed Father
- born during marriage or w/in 300 DAYS after marriage
- man asserts paternity to Bureau of Vital Statistics, was named on birth certificate, or promises to support child in a record
- during first 2 years a man lives w/ child and holds himself out
* **Need CLEAR & CONVINCING EVIDENCE to rebut
SOL For Paterntity
4 yrs; unless ct.
*No stat if father and mother did not have sexual relations, father did not hold himself out
Suit excused from 4 yr. SOL if…
- Ct. determines the man didn’t bring suit because the man & woman didn’t live together/engage in sex during probable time of child’s birth
- Man’s mistaken belief due to misrepresentations
Male’s denial of Paternity
- Genetic test results
2. Written denial of paternity w/written acknowledgment by another man
Rights and Duties of Parent
- physical posession, direct moral and religious training, designate residence
- care, protection, control, discipline
- support
- manage estate
- services and earnings
- consent to marriage, enlistment in armed forces, health care
- represent child in legal actions
- receive / give / disburse funds to benefit child
- inherit through child
- educational decisions
- others created by law
Tort liabiity for child
- Those with duty to control liable for up to $25k if child is 10-18 yrs. old and actions were willful/malicious
- $5k for theft by the child
Delegation of Parental Duties
Possible; not valid if SAPCR pending. Include consenting to medical care (including surgical procedures), enrolling the child in school, obtaining health insurance, consenting to extracurricular activities, and authorizing the child to obtain a learner’s permit or driver’s license
Suit Affecting Parent-Child Relationship (SAPCR)
A unitary action where all issues affecting parent/child takes place in a SINGLE lawsuit
Standing for SAPCR
- parent
- child
- managing or posessory conservator
- guardian
- government entity
- child-placing agency
- man alleging to be father
- man named as prospective father
- foster parents for over 12 months
10 others who have had custody for 6 months - grandparents if significant contact and proof that appointment as managing conservator (MC) would not be harmful to child’s physical health or emotional development
***Alleged father can only prove his paternity
SAPCR issues includes…
Custody, visitation, child support, adoption, paternity, and termination of parent/child relationship
Venue for SAPCR
County where child resides;
- UNLESS joined w/divorce, then venue is where divorce filed.
- Venue CANNOT be modified by a separate agreement
Continuing Exclusive JDX (CEJ) of SAPCR
Court that enters final decree has CEJ
SAPCR Transfer
Mandatory if child moves to a new county and resides there for 6 months
SAPCR Long Arm JDX Over Non-residents
- Served in Texas
- Submits to jurisdiction (appearance, file a pleading)
- Child resides in Texas because of person’s acts
- Person resided with child in Texas
- Person might have conceived child in Texas
- Person resided in Texas and provided parental expenses
- Person registered with paternity registry or signed acknowledgment of paternity
- OR any other basis in TX or US Constitutions
Guardian Ad Litem Attny. Ad Litem for Child
*Appt. of guardian ad litem for child or attny ad. litem is in ct’s discretion.
When must Guardian Ad Litem Attny be appointed for the child?
In suits to terminate parent/child relationship, to remove disability of a minor, and in paternity action where paternity by estoppel is alleged
Amicus attorney
Can be appointed to provide an opinion on Best Interests of Child (BIC); not an adversary to the proceeding
Parenting Plan
Parents submit in low conflict:
- Rights and Duties
- Child Support
- Possession and access to child
- Optimal development of a close rlship b/w family and child
* **Court determines if in BIC;
* **Either party can file a proposed plan if none w/in 30 days of trial
Parenting Coordinator
Coordinator helps create a plan for care of the child
High conflict SAPCR
An unusual degree of repititious litigation, anger, distrust, and difficulty communicating/cooperating
Parenting facilitator
Non-confidential; must be appointed by court when there is a high conflict case; facilitator must be qualified
Test for Conservatorship
Best interests of child
Rights & Duties of Conservator At all times:
- receive info from others about child
- confer with the other before making decisions
- access to health records
- consult with child’s doctors
- consult school officials re: child’s welfare
- attend school activities
- designated as person to be contacted if emergency
- Consent to medical treatment
- Manage child’s estate
Rights and Duties of Conservator when in possession of child
- Duty of care, control, protection, reasonable discipline
- duty to support
- right to consent for health care
- right to direct religious training
* **Nonparent Managing Conservator (MC) has these rights, PLUS right to consent to adoption
Sole Managing Conservator
Exclusive rights:
- designate residence
- consent to medical procedures
- consent to psychological/psychiatric treatment
- right to receive child support, disburse
- represent child in legal action
- consent to marriage / enlistment
- make decisions re: child’s education
- right to child’s services and earnings
- act as agent re: child’s estate
Presumption for Parents
Parents presumed to be conservators, unless doing so would significantly impair the child’s physical or emotional development; rebuttable presumption that both parents as JMC is in the best interest of child. However, not if there has been a history of family violence by one of the parents.
Presumption for siblings
Strong presumption to keep siblings together
Child Age 12 - Designation of Primary Residence
- May choose person who has exclusive right (subject to ct. decision)
- Ct. can interview child/or interview on motion by parties
- NO interview during a jury trial
Factors considered for Joint Managing Conservators (JMC)
- Physical, psychological, and emotional needs of child
- Ability to reach shared decisions
- Encourage a positive relationship with child
- Preference of a child over 12
- Proximity of homes
Court developed factors for JMC
- child’s desires
- parental abilities
- child’s present and future emotional and physical needs
- emotional and physical danger to child now and in future
- stability of home environment
- programs to assist individuals seeking custody to promote BIC
- individual’s plans and opportunities for child
8 acts or omissions by a parent showing she is less than fit
Joint Managing Conservator Plan
- who has right to establish residence
- specifies duties of each MC
- minimize disruption of daily routine
- allocates rights and duties of parents
- is voluntary
- is in BIC
* **Equal possession NOT REQUIRED
Possessory Conservator (PC)
Has visitation rights: *w/in 100 miles 1. 6 pm to 6 pm 1, 3, 5th weekend 2. 6 - 8 pm every Thursday evenings of school 3. 30 DAYS in summer *Even numbered school years. Different if over 100 miles
History of family violence or sexual abuse Preventing custody
parent cannot be allowed access if parent has history or pattern of committing family violence.
Modification of Custody Test (HEAVILY TESTED)
Court may modify if it allowed in order or it is in the best interest of child and:
- Circumstances of child, conservator, or other party have materially and substantially changed.
- Child is at least 12 years old and has expressed to court the name of person wants to live with.
- Conservator with right to designate residence has voluntarily relinquished control for six months.
Modification of right to determine primary residence
HEAVILY TESTED
If within ONE YEAR of original order, must show:
- Present environment might endanger child’s physical health or impair emotional development
- Person has exclusive right is seeking modification and its in the best interest of child.
- person who has exclusive control has relinquished
Habeas Corpus Exceptions
- Finding of IMMEDIATE serious question of child’s welfare
2. If the relator has relinquished possession for 6 MO. plus before filing of habeas
Interference With Child Custody (HEAVILY TESTED)
- Damages against noncustodial parent that takes or retains possession of child or conceals child’s whereabouts (actual costs of getting child, attorney’s fees, mental suffering)
- 30 DAYS notice of intent to file suit MUST be given to ∆
- Damages against third party if the third party knew of the order and had cause to believe the actions would violate the order.
Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA) - (HEAVILY TESTED)
TX has jdx if:
- Home state where child has lived in last 6 months
- Texas, if no other state has jdx, or the home state declines jdx on grounds that TX is more appropriate, child and at least one parents have significant connections besides mere presence, and substantial evidence available re care, protection, training, and personal rships
- Texas, if all courts having jdx decline to exercise b/c texas is more approrpirate,
- Texas, if no other state has jdx under these criteria
Enforcement of UCCJEA - Petitioner gets possession immediately UNLESS…
- Custody order never registered and
a. court lacked jdx
b. order stayed, modified, vacated or
c. insufficient notice to respondent - Order was registered, but stayed, vacated, or modified
Continuing Jurisdiction
A court that makes initial custody determination has jdx until neither the child nor parents have connection with the state and there is no substantial evidence re: child’s care, protection, training, and rships in the state
or
a court determines that neither the child nor the parents still reside in the state
Declining Jurisdiction
Court can decline if there are more appropriate forums.
Will consider:
- Length of time outside texas
- Any domestic violence
- Distance between courts
- Nature and location of evidence
- Financial circumstances of parties.
Can also decline if unjustifiable conduct.
Temporary emergency jdx
in case of abuse or abandonment
Criminal Penalty for Violating Custody Order
Defense to prosecution if child is returned w/in 3 days
Grandparent
- Can be appointed as MC
- Can file a suit for access to a child, but only if denial would impair the child’s physical health or emotional well being.
- Court must give access to grandparents if
a. denial would impair child’s health or well being,
b. one biological parent still has rights, c. the parent, is in jail, incompetent, dead, or lacks access to child
Child Support Stat Guidelines
- 20% Net Resources
- 25
- 30
- 35
- 40
- not less than 40
* **ONLY to first $8850 of net resources; rest can go higher; never more than child’s needs
Net Resources
*Wage and salary, interest, dividents, royalty income, self employment income, net rental income,
and
- All other benefits (everance pay, retirement benefits, pensions, trust income, annuities, capital gains, social security benefits, V.A. disability benefits other than non-service-related disability pension benefits, unemployment benefits, disability and workers’ compensation benefits, interest income from notes regardless of the source, gifts and prizes, spousal maintenance, and alimony)
- Earnings from a new spouse does not count.
- Deductions for obligor children’s health insurance, union dues, FICA, tax withholding for a single person (standard deduction). Non discretionary retirement plan contributes if they do not pay FICA.
Modification of child support
- circumstnaces of child or person affected by order materially or substantially change
- 3 yrs since order last rendered or modified and amount has changed by 20% or $100 from stat guidelines
Support for disabled child
Court can order both to support indefinitely if:
- substantial care and personal supervision needed
- the disability exists or is known b/f 18th bday
Factors for support of disabled child
- existing and future needs related to disaiblity
- does the parent pay for care or supervision or provide care
- financial reasources available to parents
- financial resources availalbe to help child
Death of child support obligor
Accelerated, paid from estate
Bankruptcy
Does not discharge child support obligation
Health Insurance
Might need to provide if obligor can get for a reasonable cost
Enforcement of child support
HEAVILY TESTED
- Mandatory withholding from paycheck
- Extra withholding for arrearages (20% above current withholding)
- Bond for self employed
- Money judgment - automatically accrues; motion can be filed 10 years after child’s 18th bday, 10 years after child oblig terminates
- Suspension of licenses (no payment for 3 months, give opportunity to pay, must be given 60 day notice)..
- Statutory lien automatically attaches to non-exempt personal property and non-homestead real property
- Notice of levy on bank account (freezing assets)
- Contempt - risk 6 months in jail, $500 fine or community service
- No loans, grants, state contracts if 30 days overdue
- Attorney fees can be withheld from paycheck as well.
Interstate Enforcement
Non Texas order is enforceable by registering.
Involuntary Termination of parental rights (HEAVILY TESTED)
- left child alone or w/ non parent and expressed intent not to return
- left child alone or w/ non parent and w/o expressing intent to return, didn’t provide for support, at least for three months
- left child alone or with another w/o support for 6 months
- knowingly put child in dangerous surroundings health or emotional well-being
- engaged in conduct or put child with persons that endangered child’s physical or emotional well being
- failed to support according to ability for one year ending w/in 6 months of filing
7 abandoned child w/o giving means of identity - abandoned child’s mother knowing about pregnancy, and during that time fialed to support, and failed to support child since birth
- refused to submit to court order re: abuse or neglect
- been major cause of child not being enrolled in school
- convicted for being responsible for a child’s death or serious injury
- had another rship termianted based onfinding that she put child in conditions or with persons that endangered health or emotinoal well being
14 controlled substance that endangered child’s health or safety - was the cause of child being burn addicted to alcohol or other subtance not obtained by legal prescription
- delivered child to emergency infant provide without intnet to return
- convicted of murder of child’s other parent
- constructively abandoend child who has been in conservatorship of dept of family and prot services for more than six months and the dept made reasonable efforts to return child, parent not reguraly visited or maintained sig contact, parent has demonstrated inaiblity to provide or care for the child
- failed to comply with court order that provided a way to get the child back from dept of family and prot servs for not less than 9 months
- engaged in criminal conduct that results in parent’s conviction and imprisonment
Troxel v. Granville (Petition for visitation rights)
Supreme Court struck down stat. allowing “any person” to petition for visitation rights at “any time.” The court held that this statute was “breathtakingly broad” and an unconstitutional infringement on on a parent’s fundamental right to make child-rearing decisions w/o unwarranted interference from the state. The Court stated that a grandparent must overcome the presumption that a fit parent acts in the child’s best interest in denying access. The TX stat. was amended to provide that ONLY grandparents can demonstrate that denial or possession or access significantly impaired child’s health or well-being.
Guardian ad litem in termination proceedings
must be appointed for child in an involutnary termination unless:
- party in suit will rep child’s interests
- attorney ad litem appointed to serve dual role
- child is petitioner
Voluntary termination
Hearing cannot be held till 5 days after birth;
Mother can relinquish 48 horus after birth;
Father can disclaim waiver of interest
Effect of Termination
Child can still inherit from parents;
Parent must still pay arrearages
PArent might have to pay support until child is adopted
If child is disabled, parent might not get out
Paternity venue
County were child resides, or respondent resides if child not in texas
Standing for paternity suit
- Child
- Child mother
- A man whose paternity is to be adjudicated
- The government
- A representative for someone that would have standing
- Someone w/in second degree of consanguinity of mother
- Adoptive Agency
8 person that is an intended parent
Rebuttal of Fatherhood Presumptions
- Denial with another man’s acknowledgement of paternity
2. genetic tests
Paternity by estoppel
Applies where there has been detrimental reliance on a father’s presumed parentage.
Court will consider: whether the conduct estops, and it will be inequitable to disporve rship.
For equity, consider:
- time father has presumed parentage
- tiem b/w suit filed and notice for presumed father
- facts leading to presumed father challenging
- harm to child if disprved
- child’s age and rship with presumed father
- any other factors
SoL for Paternity actions
If no presumed father, no SOL
If presumed father, w/in 4 yrs unless: father and mother didn’t live together and no intercourse and father never represented that he was a father.
Temporary Child Support during Paternity Proceeding
- presumed father
- petitioning to have paternity adjudicated
- identified as father through testing
- alleged father that declined testing
- person shown to be father by clear and convincing evid
- mother
Retroactive Child Support
Possible if:
- mother tried to notify father
- obligor probably knew
- no undue fin hardship
- whether obligor has provided support before
Mistaken Paternity
A father that signed an acknowledgment can termiante if
- they are not the gentic father
- they were misled
When is adoption possible?
- both living parents have had parent-child rlship terminated
- suit for termination is joined with suit for adoption
- parent whose rights has been terminated is petition’r spouse and stepparent adoption
Stepparent adoption
Former step-parent can adopt if the parent-chld rlship has been terminated and stepparent has been managing conservator and had control for 6 MO. and non-terminated parent consents.
Spousal Maintenance
A temporary rehabilitative measure for a spouse whose ability for self-support is lacking or has deteriorated through the passage of time while the spouse was engaged in homemaking activites
Spousal Maintenance Req.
. Marriage last 10+ yrs
- Spouse seeking maintenance lacks sufficient property, including prop. distributed to spouse upon divorce, to provide for her minimum rznble needs
- Unable to support herself through appropriate employment because of an incapacitating phys. or mental disability; is custodian of a disabled child from the marriage; or lacks employment skills adequate to provide for her minimum rznble needs
