Family Law Flashcards
Modifying Managing Conservatorship
Under the Texas Family Code, modifying a managing conservatorship requires the modification be in the best interest of the child and that there be a material and substantial change of circumstances since rendition of the last, controlling order.
Modification due to Abuse
The court must consider intentional use of abusive physical force by a party against a child in appointing a managing conservator.
In modifications, abuse can be deemed a prima facie material and substantial change in circumstances if there is a conviction or an order of deferred adjudication with regard to the offending conservator for an offense of abuse of a child or family violence.
Child Support Guidelines
Under child support guidelines, one child warrants 20% of the obligor’s net resources, increasing in 5% percent intervals by child count.
There is a rebuttable presumption that a support order tied to the guidelines is reasonable and in the best interest of the child.
Grounds for Modification
The court can modify an order if the modification would be in the best interest of the child, and: (i) the circumstances of the child, a conservator, or other party affected by the order have materially and substantially changed since the date the order was granted; (ii) the child is at least 12 years old and has express the name of the person whom the child prefers to have the exclusive right to determine his residence; or (iii) the current conservator has voluntarily relinquished the primary care and possession of the child for at least 6 months.
Child Support Guidelines - $8,550
The guidelines apply to the obligor’s first $8,550 of net monthly resources. If the obligor’s net resources exceed that amount, the court may order additional support not to exceed the proven needs of the child.
Modification of a Support Order
A support order can be modified only by filing a motion in the court of continuing jurisdiction under the SAPCR.
The court may modify if: (i) the circumstances of the child or an affected party have materially and substantially changed, or (ii) three years have elapsed since the order was entered or last modified, and the amount of support differs from the statutory guidelines by either 20% or $100.
Application of the Guidelines
In determining whether application of the guidelines would be unjust or inappropriate under the circumstances, the court considers evidence of all relevant factors, including: (i) the age and needs of the child; (ii) the ability of the parents to support the child; (iii) financial resources; and (iv) any other reason consistent with the best interest of the child, taking into consideration the circumstances of the parents.
Issue Findings of Fact in Variance
In rendering an order of child support, the court shall make the findings required by the Texas Family Code if the amount of child support varies from the guidelines.
The court must state whether the application of the guideline would be unjust or inappropriate, and in the support order itself, the court should state: (i) the monthly net resources of the mother; (ii) the monthly net resources of the father; (iii) the percentage the court actually did apply to the obligor’s net resources; and (iv) the specific reasons the amount of child support ordered by the court varied from the amount computed by applying the guidelines.
Enforcement of Child Support: Mandatory Withholding from Earnings
The maximum withholding is 50% of disposable earnings. In additional to withholding for current support, the court can order the income be withheld for the liquidation of any child support arrearages, which can be 20% over the current monthly withholding, or the amount needed to liquidate the arrearages in two years.
Enforcement of Child Support: Contempt
After notice and a hearing, a court order for child support may be enforced by contempt, punishable by up to 6 months’ confinement in county jail, a $500 fine, or both.
Enforcement of Child Support: License Suspension
A court will order an order suspending the licenses of the child support obligor if the obligor: (i) is three months in arrears; (ii) has been provided an opportunity to make arrearage payments under a repayment schedule; and (iii) has failed to comply with the payment schedule.
Enforcement of Child Support: Money Judgment for Arrearages
Delinquent child support payments automatically constitute a final judgment for the amount owing. After notice and a hearing at which the amount due and owing is confirmed, the court shall enter an order against the obligor for the amount determined, plus attorneys’ fees, court costs, and interests at 6%.
Enforcement of Child Support: Lien for Arrearages
A statutory lien arises by operations f law for amounts of overdue support, even if the arrearages have not been reduced to judgment. The lien attaches to all real property (other than homestead) and all personal property that is not exempt from creditors’ claims.
Enforcement of Child Support: Notice of Levy
If a judgment for arrears has been rendered, spouse can deliver a notice of levy to financial institutions holding obligor’s assets. Delivery of the notice freezes the assets subject to a possible suit to contest.
Appointing Parent as SMC - Presumption
There is a presumption that the best interest of the child is served by appointing a parent sole or joint managing conservatorship. This parental presumption is based upon the natural affection usually flowing between parent and child.
This presumption may be rebutted in one of three different ways: (1) if the court finds that the appointment of a parent would not be in the best interest of the child as the appointment would significantly impair the child’s physical health or emotional well-being; (2) if the natural parent voluntarily relinquishes actual care, control, and possession of the child to a non parent for one year or more and the appointment of a non parent as MC is in the best interest of the child; or (3) if one of the 21 grounds for involuntary termination of parental rights applies.
