Family Law Flashcards
Marriage License Requirements
Marriage valid even though license not obtained; no residence requirement; 72-hour waiting period; divorcee cannot marry 3rd party within 30 days after divorce; procedure for obtaining marriage license
Premarital counseling encouraged; void if either under 18 (parental consent no longer sufficient) unless emancipated by court order
Common Law Marriage
(1) agreement; (2) cohabitation; (3) holding out
Declare informal marriage / presumption of no agreement to be married unless action brought within 2 years after parties ceased living together
Presumption of Validity (when void? When voidable?)
State policy is to uphold validity of marriages: despite fraud, mistake, illegality in obtaining licnse and even if ceremony conducted by unauthorized
Void: Consanguinity (applies adoption or half bloods) / bigamous (becomes valid when prior marriage dissolved; if 2 alleged then most recent presumed valid) / under 18 / suit to declare marriage void
• Child of void marriage it marital child
Voidable: Alcohol or narcotics; permanent impotency; fraud, duress, or force (annulment precluded if voluntary cohabitation) / mental incapacity / concealed divorce w/in 30 days of marriage / marriage less than 72 hours after license issued / post-death action to annul (lack capacity)
Rights, Power, and Duties Arising from Marriage Relationship:
TX law applies to married persons elsewhere domiciled in TX
Duty to support other spouse = liable for necessity Ks
Criminal conversion or alienation of affection actions unauthorized
Grounds for Divorce
No-Fault for Divorce—Marriage has become unsupportable
• Only defense is reasonable expectation of reconciliation
Other grounds—cruel treatment / can maintain divorce action on behalf of incapacitated spouse
Damages can be Recovered for Intentional (not negligent) IED: Same conduct cannot be considered for tort and just and right division
No cause of action b/w spouses for injury to community estate
Residence Qualifications, Jurisdiction, Venue
Petition for Divorce:
• Durational residency requirement (TX domiciliary for 6 months; must be county resident for 90 days)
• PJ over non-resident not required
• Military or public service / suit by nonresident spouse
Suit for Annulment or to Declare Marriage Void
Long Arm juris over non-resident spouse: If TX last marital residence and suit brought within 2 years; may assert PJ over nonresident for determining parentage, child custody, and child support obligations when nonresident had intercourse in TX and child may have been conceived during that act (constitutional due to min. contacts such that PJ over D would be fair and reasonable—contacts must be purposeful, foreseeable, ad fairness of D is considered while taking into consideration the forum state’s interest)
Procedure
Pleadings – No Evidentiary Facts: Petition must state whether Protective Order for family violence is in effect
Court may order counseling (not used at trial)
Suit Affecting Parent-Child Relationship (SAPCR) Joined w/Dissolution Action
• Required only if kids are of both spouses
TROs and Temporary Injunctions
• Ex Parte TRO for unreasonable acts
• Temp injunctions after notice and hearings
Protective Orders in cases of Family Violence
• “Family Violence” broadly defined (abuse and dating violence); presume to protect child
• Venue in either county party resides
• Max duration = 2 years
60 day waiting period
ADR
Collaborative Family Law Act: Reqs for collaborative family law participation agreement; proceedings in collaborative process and pending before the court; info disclosure; emergency orders; notification of status; if collaborative law process does not settle case
Presumption of Parentage
Arises if child born during (or within 300 days after) marriage / Marriage after kid’s birth plus voluntary assertion of paternity / resided with child during first 2 years and held out kid as his own—
• May be brought by mother, child, rep authorized by law for incap person. Only by child (or guardian if incap) after turning 18
• Challenge to paternity—4 year SoL after child turns 18
• Rebuttal of presumption: genetic test results in paternity suit; acknowledgment of paternity by another man
Assisted Reproduction
4 year SoL for husband’s dispute of paternity (no time limit if no cohabitation)
Rights and Duties of Parent
custody / duty of care, upbringing, and discipline / duty of support / managing Child’s estate (sale of interestin property up to $100K without guardianship proceeding) / right to consent to med treatment and military / right to rep kid in legal actons / right to kid’s services and earnings / right to receive and disburse funds for kid’s support and benefit
• May use corporal punishment
Parental Liability for Property Damages as Result of Kid’s Misconduct
Negligent failure to exercise parental control or discipline / willful and malicious conduct by kid 10+ (liability limited to $25K/act plus court costs and attorney fees) / parental liability for theft by kid (liability limited to $5K)
Suit affecting the Parent-Kid Relationship (SAPCR)
Unitary Action Adjudicating All Issues Affecting Parent and Child
• Must be joined with dissolution action / Habeas Corpus is independent action / petition must state whether protective order for family violence is in effect
Standing: Grandparent or other person / alleged father of nonmarital kid—paternity action only / foster parents / when both parents’ rights have been terminated
SAPCR Joined with Divorce Action: Divorce venue controls
• Other cases then county where child resides / vanue can’t be modified by Parties’ agreement
Court has continuing exclusive juris: in-state transfer of SAPCR mandatory if kid resides in new county for 6 months (order on motion to transfer interlocutory – no appeal allowed) / transferee court becomes SAPCR court
Sole Managing Conservator (SMC)
Best Interest Test
Strong pref for appointment of parent (parental presumption)
Rebuttal: Appointment would impair kid’s health or emo development / parent voluntarily relinquishes possession and control of kid for 1 year (alone is insufficient; also needs to be in kid’s best interest) / 1/21 grounds for involuntary termination apply (harmful conduct to kid and termination in best interest—prove C&C evidence) / caveat—modification
Which parent appointed—other factors considered
Neither parent to be favored on account of gender or marital statue
• Past domestic violence or evidence of false child abuse report
• Modification: Best interest of kid and must be material, substantial (ex: abuse is prima facie evidence based on conviction or deferred adjudication) change of circumstances since rendition of last controlling order.
• Strong pref against split custody (but paramount is best interest test); exception: kids from another marriage
• Death of managing conservator = surviving parent entitled to possess
Joint Managing Conservators (JMC)
Does not require = possession
When established by parties’ agreement
Designation of kid’s primary residence / avoid disruption of kid’s schooling and daily routine / determine parents’ rights and duties
When established by the court—Best Interests of the Child
Phys and emo needs of kid / ability to reach shared decisions (compromise) / positive relationship between the parties (no physical abuse) / geo proximity of parties / preference of kids over 12
Disallowed if: credible evidence presented of a history or pattern of family violence or a history or pattern of past or present neglect or physical or sexual abuse by 1 parent against another parent, spouse, or kid
Can’t appoint if there is abuse—duty of support unaffected
Possessory Conservator
default if one named SMC
Standard possession order / supervised visitation / possession of or access to kid cannot be conditioned on payment of child support / make-up visitation to compensate for denial of possession / non-parent as possessory conservator
May not allow a parent to have access to kid if a history or pattern of family violence occurred during 2 years prior to filing suit is shown by POE unless: (i) court finds that awarding access will not endanger kid’s physical health or emo welfare and in kid’s best interest and (ii) enters a possession order designed to protect safety and well-being of both kid and any person who’d been a victim of family violence.
Change of Address
Each conservator must give 60 days of notice of change of address — whether kid can be moved to another state or county is fact-specific
Mod of order establishing conservatorship or possession and access
Jurisdiction / standing to modify / grounds for modification—changed circumstances; child 12+ requests change; relinquish possession of kid for at least 6 months
Military Duty and Conservatorship
Appointing designated person with exclusive right to designate primary residence of kid
Appointing designated person to exercise visitation / enforcement / additional period of possession or access
Enforcement of Custody Order
Habeas Corpus: Is there a court order awarding custody?
• Exception: serious immediate question concerning kid’s welfare / relator has relinquished possession of kid for 6 months
• Custody issue cannot be re-litigated (exception: due process concerns in prior proceeding can be raised)
Tort liability for interference w/child custody
• 30 days’ notice of intent to file suit required / actual and exemplary damages may be awarded / 3rd party who aids and abets may be liable / frivolous suits
Uniform Child Custody Juris and Enforcement Act
To avoid juris disputes and strengthen enforcement procedures
Initial custody determination:
• Primary test: home state jurisdiction
• “Home State” rule does not apply when no home state or home state declines / all other states w/juris decline / default juris
May decline juris when inconvenient forum and party’s unjustifiable conduct
Enforcement of another state’s order (registration of order; expedited enforcement of habeas-type proceeding; warrant to take physical custody of kid)
Must give full faith and credit to custody orders
Grandparents and Siblings may Petition for “Reasonable Possession or Access”
Grandparents: requisites of order granting grandparent possession or access / limit when kid has been adopted
Child Support Duty
Duty to support continues until kid reaches 18 and graduates from or ceases to attend high school
• Disabled before 18 then support obligation continues into adulthood
• Death of obligor parent—support obligation survives
Order of child support
• Support order cannot be conditioned on possession of or access to kid
• Spendthrift can be reached for support payments
• Must provide withholding from earnings
Child Support Amount
statutory guidelines (starting and usually ending point)
Payments must be made to state disbursement unit
Court must order obligor to provide health and dental
Child support obligation not dischargeable in bankruptcy
Fixed % (1 kid; 20% then up by 5% each kid until over 5 then not less than 5) of “net resources” depending on number of kids and the needs of the children
—Capped at $8,550/month / based on child’s particular needs / application of guidelines to multiple families
Net Resources—CF revenue from all sources (less deductions)
—Presumption of income / intentionally unemployed or underemployed / income of obligor’s spouse not included
—Intentionally underemployed/unemployed—court may apply child support guidelines to earning potential. Even if no proof of (intent to avoid not a controlling or necessary factor—can look at t along with all other relevant factors)
o Case-by-case determination; obligor burden first
—Review is abuse of discretion (without reference to guiding rules or acted arbitrary or unreasonable)
Child Support Arrearages
Future and retroactive support—continues for indefinite time if kid is physically or mentally disabled before turning 18 and disability requires substantial care and personal supervision and child incapable of self-support. Presume best interest to pay 4 years retro child support can be rebutted if father knew or should have known he was father
Retroactive child support cannot be filed w/in 4 years of 18th
Modifications of Support Order
Grounds for mod—material and substantial change in circum (military duty) / deviation from statutory guidelines (court must make findings required by the Code if child support varies from guidelines)
Motion to mod filed in court of continuing juris under SAPCR
• Contractual provision that parties will not seek increase in child support it unenforceable
• Parties’ agreement to mod child support or settle arrearages claim is unenforceable
Enforcement of Support Order
(1) Mandatory withholding from earnings for child support (max is 50% of disposable income); no SoL for income withholding; Obligor not subject to withholding may be required to give bond or other security
• Investment income not subject to withholding
• Child support has priority over all other claims
(2) Contempt Order
• Community supervision / support arrearages not subject to mod in contempt proceeding
• Inability to pay is an affirmative defense / actual support provided by obligor is a defense
• Due process: (1) right to be present at trial; (2) right to counsel (beyond a reasonable doubt)
• No interstate enforcement via contempt (unless registered under UIFSA)
• Confinement in county jail for up to 6 months, $500 fine or both
(3) Suspension of licenses (drivers, hunting, fishing, occupational, or professional) reinstated when obligations paid or denial of license renewal
• If obligor is 3 months in arrears and has been given opportunity but has failed to make a payment under agreed payment schedule
(4) Money judgment for arrearages
• 10 year SoL / not subject to mod / actual support provided offset against arrearages / can reduce to money judgment incl 6% interest—only defense is actual payment
(5) Child support lien for arrearages
• Perfection: Abstract of judgment for arrearages and notice
• Effect: Foreclosure
• Arises by operation of law for all amounts of overdue support, even if not reduced to a judgment. Lien auto-attaches to non-exempt personal and non-homestead real property
(6) Obligor must pay court costs, movant’s attorneys’ fees
(7) Freeze assets: if judgment in arrearages ordered, can deliver notice of levy to financial institutions holding asssets. Delivery of notice freezes assets subject to possible suit to contest
Termination of Parent-Child Relationship
C&C evidence required
- Neglect (parent “knowingly” places or allows kids to remain in conditions or surroundings which endangered their physical or emotional well-being);
- Previous termination;
- Abuse (parent has engaged in conduct or knowingly placed kid with persons who engaged in conduct which endangered kid’s physical or emotional well-being);
- Conviction of crime like indecency with child, sexual assault, or injury to a child
- Sexual Assault even if it resulted in V becoming pregnant. Exception: if married or cohabitated for 2 years after birth then must show by C&C evidence that (1) termination was in child’s best interest; (2) child was born of sexual assault; (3) parent convicted of sexual assault
- Parental misconduct;
- Use of controlled substance in manner that endangers child;
- Alcohol or controlled substance use during pregnancy;
- Fail to support for 1 year;
- Imprisonment for more than 2 years;
- Abandonment (C&C evidence of intent to abandon)
Voluntary Termination
Petition may be filed after 1st trimester of pregnancy
Affidavit of relinquishment of parental rights: cannot be signed until 48 hours after kid’s birth; affidavit irrevocable after 10 days
Medical history report must be completed
Effect of terminating parent-child relationship
Does not eliminate liability for child support arrearages
Duty to support may be continued by court order
Adoption
Any adult (single or married) can adopt; no discrim on race or ethnicity
Criminal history must be furnished
Consent to adopt required when: kid over 12 or managing conservator
Must have resided with petitioner for 6 months
Adoption Procedure
Venue is county where kid or petitioner resides
Jury trial not available
Court attendance by adopting parents and kid 12+
No direct or collateral attacks after 6 months
Social, Health, Educational, and Genetic (and abuse) (SHEG) Report
Edited report given to adopted parents unless identity of parents known
• Child entitled to see report when an adult (procedure for adoptee and birth parents meeting each other)
Paternity (Suit; Genetic Testing; Effect of Adjudication; Acknowledgment of Paternity)
Suit: PJ required—default judgment may be entered upon failure to respond to service of process / jury trial n/a / no SoL
Genetic Testing: Court may refuse when child presumed to have father and conduct of 1 party stops denial of parentage and would be inequitable to deny parentage
• May test: person other than alleged father / mother / deceased
• Legal Test: At least 99% probability of paternity and 100 to 1 paternity index; accredited lab meeting basic reqs of genetic testing
• Can rebut with other genetic tests; cant dismiss case if inconclusive
• If refuse then can hold in contempt or default judgment
Effect of adjudication of Paternity
• Retroactive child support rebuttably limited to 4 years
• Evidence that rebuts presumption
Acknowledgment of Paternity
• Presumed father must sign denial
• Legal determination of paternity
• Challenges: (1) rescission of acknowledgment within 60 days SoL (2) challenge after expiration of period (3) suit for termination of acknowledged father’s parent-child relationship
Duty to Report Child Abuse and Immunities for Good Faith Reporting
General duty; professional must report suspected child abuse regardless of privilege / protection of identity and immunity from liability
