Family Law

Question 1

is marriage a K?

Answer 1

yes, it is a K. so like any K, the parties must have the legal capacity to enter into a K.

Question 2

what are the types of marriage?

Answer 2

cermonial marriage and common law marriage (aka informal marriage)

Question 3

what are the requirements of a ceremonial marriage? (just basic building blocks..not details)

Answer 3

valid license + ceremony

Question 4

what is the basic thing you have to prove in order to get a marriage license?

what is age requirements to cosnent on your own and what can you do to get license under that age?

Answer 4

that the individuals have the legal capacity to consent to marriage.

must be 18 if you want to consent to marriage on your own.

a 16 and 17 year-old can get married only if:

1. gets emancipated; and
2. gets judicial approval (so basically the judge makes the consent decision, not parent like before)

Question 5

what are the rules re marrying a relative

Answer 5

you cannot marry: 
an ancestor or descendent
a sibling
a first cousin
a niece or nephew 
an uncle or aunt

so will not be granted license if you intend to marry one of the aforementioned

Question 6

does the prohibition against marrying parents include stepparents?

Answer 6

yes, so no woody allen shit in texas

Question 7

does the prohibition against marrying siblings include half-siblings?

Answer 7

yes

Question 8

what are rules re marrying a recently married person?

Answer 8

required that neither party has been divorced within the past 30 days UNLESS they divorced and are remarrying each other

Question 9

what happens after you get a license? how long does it last

Answer 9

you have to wait at least 72 hours before ceremony UNLESS:

1. someone is in armed forces or dept of defense
2. took premarital education course
3. waived by a court

the license lasts for 90 days

Question 10

texas does not require a premaritcal education course. T/F

Answer 10

T, but rmr can use to waive the 72 hour waiting period

Question 11

rmr for marriage you need license+ceremony. what are the requirements of the ceremony? who can conduct it?

Answer 11

texas does not require any particular type of ceremony

people who can conduct include ministers, rabbis, any officer of a religious organization who is authorized by the organization to conduct marriages, or any judge or justice of the peace

Question 12

if a non-authorized dude conducts the marriage, still valid if:

Answer 12

1. the dude had a reasonable appearance of authorit;
2. at least one of the parties acted in good faith; AND
3. and neither party is a minor whose marriage is prohibited by law or who by marrying commits bigamy

Question 13

what are the requirements of informal marriage?

Answer 13

both must be 18 or older and must first agree to marry and then live together IN TEXAS* as husband and wife and hold themselves out to others IN TEXAS as husband and wife

*no specific durational requirement

Question 14

for informal marraiges, recall that they first have to agree to marry. does this need to be written? can court decide based on conduct?

Answer 14

No, does not need to be written, can be oral agreement or written agreement. the court can infer the agreement from conduct (obviously)

Question 15

what is the alternative to duking out the informal marraige thing in court?

Answer 15

Alternatively, the parties can declare the marriage by executing and recording a declaration with the county clerk. This declaration can officially establish an informal marriage. The declaration must contain the same information as a traditional marriage license application and a statement that the elements of informal marriage are present. A person under the age of 18 may not participate in an informal marriage and may not execute such a declaration.

declaration creates a presumption of marraige, but can be rebutted

Question 16

what happens if person enters marriage while still being married

Answer 16

if a person enters into second marriage without the first marriage ending by divorce or death, the second marriage is VOID

bigamy is also a crime, so not just a family law issue

Question 17

what is a putative spouse in bigamy case. does she get any property?

Answer 17

putative spouse is a spouse who does not have knowledge of the legal impediment to the marriage. she acquired property rights in community property acquired during the marriage.

Question 18

how is a child who was born of a void marriage treated?

Answer 18

killed at the stake. jk, treated as if was born of a valid marriage

Question 19

a procedure to declare a marriage void is an in rem proceeding. T/F

Answer 19

T, so affects status of both parties

Question 20

is marriage to a minor (who is NOT emancipated+judicially approved) a void or voidable marriage?

Answer 20

void

Question 21

when is a marriage totally voidable (so not void by law, but voidable) so that you don’t even need a divorce..can just say im voiding this bitch. this is called annulment

Answer 21

THESE FIVE CANNOT BE USED TO VOID MARRIAGE IF the parties voluntarily cohabit after discovering the impediment:

1. UNDER INFLUENCE – if petitioner under influence of alcohol or narcotics during marriage and as result lacked capacity*
2. IMPOTENCE – if either party, for physical or mental reasons, was permanently impotent at time of marriage and petitioner did not know*
3. FRAUD, DURESS, OR FORCE – induced by fraud, durress, or force. this is most common reason.
4. INCAPACITY – one party was unable to consent due to mental incapacity
5. CONCEALED DIVORCE – only innocent spouse may annul if other party was divorced within 30 days preceding the marriage and s/he did not know, and a reasonably prudent person would not have known, of the concealed divorce (must bring this action within 1 year)

THESE TWO CAN BE USED EVEN IF VOLUNTARILY COHABIT AFTER DISCOVERY:

1. MINOR MARRIED UNDER OLD LAW – if married at 16 or 17 and before Sep 2017, can be anulled in some circumstances (rmr current law is that would just be void unless emancipation+judge waiver)
2. WAITING PERIOD – if marriage violated the 72-hour waiting period. but must bring this action within 30 days

AND FINALLY
1. FOREIGN MARRIAGES – generally recognized but a court can void if it violates public policy (e.g. polygamy or underrage)

Question 22

what is the duty of support?

Answer 22

each spouse has a duty to support the other spouse (super broad/generic)

if one spouse incurs a debt for necessaries (typically food, shelter, and other essentials for living) then both spouses are liable for the debt

Question 23

can spouses sue each other for negligence? how about intentional torts?

Answer 23

yes to both, duh

Question 24

T/F. tort suits cannot be joined in a divorce action

Answer 24

F, tort suits can be joined in a divorce suit

Question 25

T/F. texas recognizes both intentional infliction of emotional distress and negligent infliction of emotional distress against spouse?

Answer 25

F, texas only recognizes INTENTIONAL infliction of emotional distress

Question 26

explain inentional infliction of emotional distress

Answer 26

this is generally a gap filler when there is not a particular, specified tort

there must be EXTREME OR OUTRAGEOUS conduct that inflicts emotional distress

Question 27

what is the statute of limitations for assault?

Answer 27

generally, a 2-yr statute of limitations on bringing a physical assault tort claim

Question 28

explain tort recovery

Answer 28

the spouse can either:

1. seek damages for the tort; OR
2. seek an unequal division of the assets based on fault

cannot use assault tort to get a double recovery

Question 29

explain what no-fault grounds for divorce is?

Answer 29

the majority of divorces are brought under the insupportability statute

available if the marriage has become INSUPPORTABLE due to a DISCORD OR CONFLICT that prevents any reasonable expectation of reconciliation

Question 30

list fault-based grounds for divorce? (just list out)

Answer 30

1. cruelty
2. adultery
3. conviction of a felony
4. abandonment
5. living apart
6. confinement in a mental hospital

Question 31

fault-based grounds for divorce (cruelty): explain dat shit

Answer 31

it must render futher living together insupportabel (so pretty low bar)

can be used to support an unequal division of property

Question 32

fault-based grounds for divorce (adultery): explain dat shit

Answer 32

• sexual intercourse with someone who is not your spouse during the marriage
• can occur any time prior to the divorce decree being granted (so even after filed)
• can be used to support an unequal division of property

Question 33

fault-based grounds for divorce (conviction of felony): explain dat shit

Answer 33

must be imprisoned for at least 1 year and not be pardoned

Question 34

fault-based grounds for divorce (abandonment): explain dat shit

Answer 34

must express intent to abandon and PHYSICALLY leave for at least 1 year

Question 35

fault-based grounds for divorce (living apart): explain dat shit

Answer 35

must live apart for at least 3 yrs (irrespective of notice of abandonment)

Question 36

fault-based grounds for divorce (confinement in a mental hospital): explain dat shit

Answer 36

must be for at least 3 years AND relapse must be PROBABLE

Question 37

generally, for a divorce filing to meet jx requirements…

Answer 37

at least one spouse must domiciled in TX for at least 6 months leading up to the divorce filing. AND that spouse must be resident of the county of filing for at least 90 days OR file in the same county where other spouse resides

for recognizing the divorce, a district court does not need personal jx over the other party if one meets these requirements, but for PERSONAL liability (child support, spousal maintenance, etc) the court would need personal jx (otherwise would not be CONal)

Question 38

is there long-arm jx for divorce? explain

Answer 38

for a divorce, anulment, or to declare marraige void, court will have PERSONAL JX on a nonresident spouse if:

1. TX was the last marital residence of the petitioner and the respondent, and the suit was not filed more than 2 yrs after the marital residence ended; OR
2. there is any basis consistent with the CON of texas for the exercise of pesonal jx (for example the nonresident was served in Texas, filed an answer in Texas, or hired a lawyer in Texas)

these are same requirements for getting personal jx over nonresident respondent in a suit affecting the parent-child relationship

Question 39

explain procedure for divorce

Answer 39

suit begins by filing an original petition for divorce

divorce cannot be granted until 61 days after filing the original petition (so i.e. there is a 60 day waiting period)

if there is no answer after service of process, the court may grant a divorce by default

Question 40

how are new debts or transfers or property treated while divorce is pending?

Answer 40

they are void IF the third party has knowledge and notice of the pending divorce

Question 41

explain TROs in divorce context

Answer 41

• court can restrain a party from engaging in certain acts, typically to prevent threats, stalking, repetitive or vulgar phone calls, falsifying writings, or transferring property outside the regular course of business
• unlike other courts, a court in a divorce action can issue a TRO without sworn pleadings
• a TRO lasts 14 days and can be renewed for another 14 days
• a TRO provides opportunity to hold a temporary orders hearing which determines issues such as requiring spousal support, determining occupancy of residence or use of property, ordering discovery, providing for interim attys fees, prohibiting transfers or expendtures outside ordinary course

Question 42

what are requirements for a protective order, what is the incentive to follow them, and what kinds of conduct do they prohibit?

Answer 42

requires a showing that physical violence or threat of violence has occured, and is LIKELY to occur again. if granted, it should be tailored to deal with the particular circumstances

there can be criminal ramifications for violating a protective order, even if the act itself is not a crime

protective orders prohibit conduct such as: communicating, stalking, additional fam violence, being within a certain distance

Question 43

what is a temporary protective order, including “kick out” order, what does it require, and how long does it last?

Answer 43

a temporary protective order is just temporary version of protective order. can be granted without hearing, just petition. can also be used to evict (i.e. kick out order) a spouse if the victim spouse files sworn affidavit and appears to testify in court.

requires a showing of family violence and a CLEAR AND PRESENT danger that it will continue (so higher standard than the “likely” threashold for normal protective orders)

it lasts up to 20 days and upon motion and court approval can be extended for periods up to 20 days

Question 44

list 4 methods of dissolution by agreement

Answer 44

1. binding arbitration or mediation
2. Collaborative Family Law Act
3. informal settlement conferences
4. mediated settlement agreement

Question 45

dissolution by agreement (binding arbitration or mediation): explain dat shit

Answer 45

parties can agree in writing in a premartical agreement, a partition and exchange agreement, or other agreement during the divorce case, to refer the divorce to arbittration. a court can hold a hearing to whether the arbitration agreement is a binding agreement, but this must be done before sent to arbitration/mediation

also, most courts in Texas require that parties go to mediation prior to trial or even prior to a temporary orders hearing

Question 46

dissolution by agreement (Collaborative Family Law Act): explain dat shit

Answer 46

allows parties to voluntarily, by contract, elect out of formal proceedings system

parties agree to work together in producing documents, providing information in good faith, having meetings to resolve disputes, etc

DEFINING ELEMENT: if a settlement is not reached, both of the attorneys representing each party must withdraw from the case

CFLA participation agreement must be:

i) In a record;
ii) Signed by the parties;
iii) State the parties’ intent to resolve a collaborative family law matter;
iv) Identify the collaborative lawyer who represents each party in the collaborative family law process; and
v) Contain a statement by each collaborative lawyer confirming the lawyer’s representation of a party in the process.

Question 47

dissolution by agreement (informal settlement conference): explain dat shit

Answer 47

this results in a binding settlement agreement

a binding settlement agreement is not subject to revocation and a party is entitled to judgment on the agreement AS IT PERTAINS TO PROPERTY DIVISION. the agreemnt IS revocable with regard to children because the court determines what is in the children’s best interst (unlike a valid mediated settlement agreement which is irrevocable)

informal settlement conference agreement must PROMINENTLY STATE IT IS NOT SUBJECT TO REVOCATION and SIGNED by both parties (and attorneys if present at signing)

Question 48

dissolution by agreement (mediated settlement agreement): explain dat shit

Answer 48

a mediated settlement agreement that is not subjects to revocation requires the judge to enter a judgement consistent with the agreement without challenge by either party

courts do not have discretion to overturn a mediated settlement agreement that meets statutory requirements

for a meditation settlement to be binding:

i) The parties must agree that the settlement is not revocable;
ii) Each party must sign the agreement; and
iii) Each party’s attorney, if any, who is present at the settlement must sign the agreement.

If the mediated settlement agreement meets these requirements, a party is entitled to a judgment on the agreement.The court must enter a judgment consistent with the mediated agreement, even if the agreement decides issues related to a parent-child relationship

Question 49

what is legal definition of “child”

Answer 49

A “child” is a person younger than 18 who is not and has not been married or who has not had the disabilities of minority removed. A person over the age of 18 is a child if a parent must pay child support for that person. § 101.003.

Once a child reaches the age of 16, becomes self-supporting, and is living separate from his parents, conservator, or guardian, he may petition the district court to have his disability removed. Upon having his disability removed, he will have all the legal rights and responsibilities of an adult.

Question 50

what is legal definition of “parent”

Answer 50

A “parent means the mother [on proof of giving birth], a man presumed to be the father, a man legally determined to be the father, a man who has been adjudicated to be the father by a court of competent jurisdiction, a man who has acknowledged his paternity under applicable law, or an adoptive mother or father.” § 101.024. “The parent-child relationship extends equally to every child regardless of the marital status of the parents.” § 160.202

Question 51

a man is presumed to be the father if:

how can you rebut the presumption

what is the statute of limitations

Answer 51

i) The child was born during a marriage, or within 300 days of a marriage that ends by death, divorce, or annulment (even if the marriage was void or voidable);
ii) After the child’s birth, a man married to the child’s mother voluntarily asserts paternity in a record filed with the Bureau of Vital Statistics, was voluntarily named as the child’s father on the birth certificate, or promises in a written record such as email to support the child; or
iii) During the first two years of the child’s life, a man lives in the child’s residence and holds himself out to others as the child’s father.

To rebut a paternity presumption, genetic test results must exclude a man as a father or there must be an acknowledgement of paternity by another man. § 160.204.

Generally, there is a four-year statute of limitations on challenges to a presumption of paternity. However, when a court determines that the mother and presumed father did not cohabit or engage in sexual intercourse and the presumed father did not hold himself out to others as the child’s father, then there is no statute of limitations. §160.607. See § III.G. Paternity, infra.

Question 52

a parent of a child has the following rights and duties

Answer 52

i) The right to have physical possession of the child, to direct the child’s moral and religious training, and to designate the child’s residence;
ii) The duty of care, control, protection, and reasonable discipline of the child;
iii) The duty to support the child, including providing the child with clothing, food, shelter, medical and dental care, and education;
iv) The duty, except when a guardian of the child’s estate has been appointed, to manage the child’s estate;
v) The right to the child’s services and earnings;
vi) The right to consent to the child’s marriage, enlistment in the U.S. armed forces, medical and dental care, and psychiatric, psychological, and surgical treatment;
vii) The right to represent the child in legal action and to make other decisions of substantial legal significance concerning the child;
viii) The right to receive and give receipt for payments for the support of the child and to hold or disburse funds for the benefit of the child;
ix) The right to inherit from and through the child;
x) The right to make decisions concerning the child’s education; and
xi) Any other right or duty existing between a parent and child by virtue of law.

Question 53

how long do the rights and duties of a parent last?

Answer 53

The duty of a parent to support his or her child exists while the child is an unemancipated minor and continues as long as the child is fully enrolled in a secondary school in a program leading toward a high school diploma and complies with attendance requirements. A parent who fails to discharge the duty of support is liable to a person who provides necessaries to the child. § 151.001.

Question 54

can parents use corporeal punishment?

Answer 54

parents may use corporal punishment for the reasonable discipline of children. The right to corporal punishment also extends to grandparents, stepparents, or guardians who have the duty of control and reasonable discipline.

Question 55

who can be held liable for property damage caused by a shit child?

Answer 55

anyone with the duty of control and reasonable discipline of a child

Question 56

what in basic terms is a SAPCR and what does it often establish

Answer 56

SAPCR stands for suit affecting the parent-child relationship. seeks to establish many issues related to children, whether part of a divorce action or not.

often establishes: the parent with the right of primary possession, the child’s primary residence, periods of posession, health insurance issues, child support, educational issues, and the right to make medical decisions.

Question 57

who has stnading to file a SAPCR?

Answer 57

1. parent
2. child, through a representative
3. sibling of a child separated by a state department
4. managing or posessory conservator
5. guardian appointed by a probate court
6. governmental entities
7. a man alleging himself to be the father of the child
8. a prospective adoptive parent
9. grandparents can ONLY intervene in court (i.e. potentially disrupt the actual parent’s rights) if they can show SUBSTANTIAL PAST CONTACT with the child AND that is would SIGNIFICANTLY IMPAIR the health or emotional development of the child if the grandparent were not given access

Question 58

how do you determine venue for a SAPCR?

Answer 58

if it is joined with a divorce action, then same value as the divorce action

if not joined with a divorce action, then in the county where the child resides. a child resides wherever the parent or guardian who has the right to establish the child’s primary residence resides–if this is a tie, then venue is wherever child predominantly lives

Question 59

in SAPCR, what is continuing exclusive jx?

Answer 59

The court that enters the final decree in a SAPCR retains exclusive jurisdiction over all parties and further matters involving the child, except if a parent seeks a transfer due to a change of the child’s residence. § 155.001(a). Any modifications, including managing custody, visitation, child support, possession, and access must be adjudicated by the same court entering the decree. § 155.003(a).

A SAPCR transfer is mandatory if a child has moved to a new county and resides there for at least a six-month period. One of the parties must raise the transfer, however. §§ 155.201(b), 155.204.

EXAM NOTE: The Texas Bar Examiners have frequently tested the six-month transfer rule. Note that a losing party cannot appeal because a transfer order is an interlocutory decree. Therefore, the examinee should state that the losing party should petition for a writ of mandamus (rather than file an appeal) to grant or bar transfer in the event the court has improperly denied transfer.

Question 60

for SAPCR, how can court obtain long-arm jx over nonresident?

Answer 60

A court may obtain personal jurisdiction over a nonresident if one of the following conditions is met:

i) The person is personally served with citation in Texas;
ii) The person submits to the jurisdiction of Texas by consent, by entering a general appearance, or by filing a responsive document having the effect of waiving any contest to personal jurisdiction;
iii) The child resides in Texas because of the acts or directives of the person;
iv) The person resided with the child in Texas;
v) The person resided in Texas and provided prenatal expenses or support for the child;
vi) The person engaged in sexual intercourse in Texas and the child may have been conceived by that act of intercourse;
vii) The person registered with the paternity registry or signed an acknowledgement of paternity of a child born in this state; or
viii) There is any basis consistent with the constitutions of Texas and the United States for the exercise of the personal jurisdiction.

NOTE: often tested!

Question 61

A SAPCR final order tied to a dissolution proceeding must provide a parenting plan that establishes the parents’ rights and duties. explain how dat shit works IN A LOW CONFLICT scenario

Answer 61

In low conflict cases, parents are encouraged to develop a plan that addresses:

i) Rights and duties of each parent as they relate to the child;
ii) Child support;
iii) Possession of and access to child; and
iv) Optimal development of a close and continuing relationship between each parent and the child.

If the parents do not have a plan at least 30 days before trial, they may file a proposed parenting plan with the court. Still, the court ultimately determines whether a plan is in the best interest of the child. If the court determines that a plan is not satisfactory, it may order the parents to revise the plan. If the revision does not satisfy the court, the court may create its own parenting plan that it believes is in the best interest of child.

Question 62

A SAPCR final order tied to a dissolution proceeding must provide a parenting plan that establishes the parents’ rights and duties. explain how dat shit works IN A HIGH CONFLICT scenario

Answer 62

If the parents have trouble agreeing to a plan, they may request a parenting coordinator. Further, a court may appoint a parenting coordinator when a court feels a case is, or is likely to become, a high conflict case. A court may also appoint a parenting coordinator when it feels it is in the child’s best interest. § 153.605. A high conflict SAPCR case is one in which the parties demonstrate an unusual degree of repetitious litigation, anger, distrust, and difficulty communicating and cooperating in the care of their children. § 153.601(2).

In addition, a court may appoint a parent facilitator. The parents may also agree to the appointment of a facilitator. Facilitators are distinguishable from a parenting coordinator in that facilitators operate in a non-confidential capacity. In order to appoint a parenting facilitator, the court, after notice and hearing, must make a specific finding that:

i) The case is a high-conflict case or there is good cause shown for the appointment of a parenting facilitator and the appointment is in the best interest of any minor child in the suit; and
ii) The person appointed has the minimum qualifications.

These qualifications include:

i) Holding a license to practice in this state as a social worker, licensed professional counselor, licensed marriage and family therapist, psychologist, or attorney; and
ii) Having completed at least eight hours of family violence dynamics training provided by a family violence service provider, 40 classroom hours of training in dispute resolution techniques in a course conducted by an alternative dispute resolution system or other dispute resolution organization approved by the court, 24 classroom hours of training in the fields of family dynamics, child development, and family law, and 16 hours of training in the laws governing parenting coordination and parenting facilitation, and the multiple styles and procedures used in different models of service.

Question 63

A parent has a duty to support a child until the child is 18 or…

Answer 63

graduates high school, WHICEVER IS LATER (so could continue after 18)

Question 64

how do child support guidelines work? what are the guidlines

Answer 64

if net monthly income is $9,200 or less, then court presumptively applies the following schedule:

1 child – 20% of Obligor’s Net Resources
2 children – 25% of Obligor’s Net Resources
3 children – 30% of Obligor’s Net Resources
4 children – 35% of Obligor’s Net Resources
5 children – 40% of Obligor’s Net Resources
6+ children – Not less than the amount for 5 children

if net monthly income is higher, then a court may deviate from the guidelines based on the proven needs of the children

Question 65

can court order support for dsiabled children past 18?

Answer 65

yes. if a child requires special care and personal supervision beyond age 18 due to physical or mental disaiity AND the need is known before age 18, then court may order support indefinitely, based on the needs of the child and the ability of the parents to pay (so not necessarily the guidelines)

Question 66

child support does/does not end upon the death of the obliger

Answer 66

does not

Question 67

child support is/is not dischargeable upon bankruptcy

Answer 67

is not

Question 68

an obliger of child support is/is not required to provide heath insurance

Answer 68

is required only if can obtain it at a reasonable cost. but if med costs arise that are not covered by insurance, then costs will be split between parents based on a court order or party agreement

Question 69

when can a court modify a child supoort order?

Answer 69

a court with CONTINUING JX can modify a child support order if:

1. there has been a material and substantial change in circumstances*; OR
2. is has been 3 years since the date of the order and the modification being sought differs by at least 20% (either direction) or $100/month (either direction)

• E.g., has someone started making much more or less? has needs of the child changed? do they now like to shove diamonds up their ass??

Question 70

list 5 ways to enforce child support orders

Answer 70

1. mandatory wage withholding
2. money judgement
3. suspension of licenses
4. child support liens
5. motion for contempt of court

Question 71

ways to enforce child support orders (mandatory wage witholding): explain dat shit

Answer 71

it is actually MANDATORY that some sort of mandatory wage witholding scheme be in the final child support order. it can be waived or deferred but must be there at least as a fallback in cases of noncompliance/default (e.g. waived at first but then automatically withheld after a delinquency of 30 or more days).

cannot exceed 50% of the obliger’s disposable income (defined as take-home pay)

in paying arrearages (money owed and showed have been paid earleir), a court can order an additional 20% witheld (but not to exceed the 50% cap)

the employer has a statutory obligation to withhold the court ordered amount OR ELSE they owe the child support themselves

Question 72

ways to enforce child support orders (money judgement): explain dat shit

Answer 72

obligee can file a motion requesting money judgment for child support

the amount in arrears automatically becomes a money judgment

Question 73

ways to enforce child support orders (suspension of licenses): explain dat shit

Answer 73

used for delinquent obligors. can include supending: license to possess a handgun, driver’s license, hunting and fishing license, and even occupational and professional licenses

suspends license(s) until arrearages are paid

Question 74

ways to enforce child support orders (child support liens): explain dat shit

Answer 74

can reach almost anything..the only property that is exempt from this is the obligor’s residential homestead

the obliger’s personal property even within their house is not exempt from child support lien

Question 75

ways to enforce child support orders (motion for contempt of court): explain dat shit

Answer 75

this is the most popular way to force payment

it is really a constructive contempt bc not done in the presence of the court

remedies can be 6 months in jail and/or $500 fine for each count of contempt

the obliger can assert an affirmative defense that s/he is unable to pay the obligation despite efforts (so basically an impossibility defense)

Question 76

how does texas treat child support orders/judgments from other states?

Answer 76

a support order registered under UIFSA allows texas to give full faith and credit to orders from other states as long as:

1. that court had subject matter and personal jx; and
2. th parties were given reasonable notice and the opportunity to be heard

Question 77

the court can/cannot require the obliger to pay reasonable attorneys fees to the obligee in an action to enforce a child support order

Answer 77

can

Question 78

what are the terms for different conservators (custody)

Answer 78

A parent awarded primary possession of a child is called the sole managing conservator (“MC”)

a parent awarded only visitation rights is called a possessory conservator.

If the parents are awarded joint possession, they are called joint managing conservators (“JMC”). However, one of the JMC’s homes will usually be designated as the child’s primary residence; JMC does not require equal possession.

Question 79

parents are/are not entitled to a jury trial on conservatorship issues

Answer 79

The parents are entitled to a jury trial on the conservatorship issue and the jury’s verdict is binding on a court.

Question 80

how does court determine conservatorship

Answer 80

the court’s primary consideration is the best interests of the child. here are some other shits/presumptions, but ultimate test is best interests of the child:

1. parents r gud choices - there is presumption that parent will be appointed managing conservator(s). rebuttable presumption is that both parents as JMC is in best inerests of the child. court MUST appoint parent(s) unless doing so would SIGNIFICANTLY IMPAIR child’s physical health or emotional development
2. written agreements for MC - if parents enter into a written agreement for MC, court must appoint the designated MC unless not in child’s best interests
3. siblings r gud - strong pref to keep children of same marriages togayder

if no written MC agreement, court can appoint JCMs after considering these factors:

i) Physical, psychological, and emotional needs of the child;
ii) Ability to reach shared decisions;
iii) Whether it would encourage a positive relationship and whether each parent previously held responsibility in the child rearing;
iv) Preference of a child over the age of 12; and
v) Proximity of the parties’ homes.

other factors to determine overall child’s best interests:

i) The child’s desires;
ii) The parental abilities of the individuals seeking custody;
iii) The child’s present and future emotional and physical needs;
iv) The emotional and physical danger to the child now and in the future;
v) The stability of the proposed home environment;
vi) The programs available to assist the individuals seeking custody to promote the best interest of the child;
vii) The individual’s plans and opportunities for the child; and
vii) Acts or omissions by a parent showing he is less fit than the other parent, and any excuses for those acts and/or omissions of the parent.

Question 81

in deciding MC, cannot discriminate by gender or marital status. was gonna make this T/F but it’s so obvious just learn it, you dumbass.

Answer 81

you dumbass

Question 82

what are rights of a SOLE managing conservator? (so the other bastard can’t do these things) and what are the rights of joint managing conservators?

Answer 82

Sole*:

1. designate the child’s primary residence
2. consent to medical, dental, and surgical treatment involving invasive procedures (*non-invasive can be handled by either parent)
3. psychological and psychiatric treatment
4. receive child support
5. represent the child in legal issues
6. consent to marriage or enlistment in the armed forces
7. decide the child’s education

Joint:
joint is presumed to be best plan for children. parents can basically share or split up the rights of the sole MC or can require consent for certain decisions

Question 83

what da hayyyol is daaaa possessory conservatorship?

Answer 83

provides the right to manage the child while the child is in the parent’s possession, such as consent to medical treatment in an emergency and the right to be consulted

typically provides fewer rights than MC

Question 84

in possessory conservatorship context, discuss requirement for electronic communication

Answer 84

a court order can include a requirement for electronic communication if:

1. it is in the best interest of the child; and
2. it is reasonably available

Question 85

to modify conservatorship, must show…

Answer 85

a MATERIAL AND SUBSTANTIAL CHANGE in circumstances* UNLESS:

• child is over 12 and expresses preferences to judge in chambers;
• possession of child has been primarily relinquished for a period of at least 6 months; or
• conservator is ordered to military deployment (in which case can get temp order without showing of material and substantial change in circumstances)

*e.g. can consider remarrige, having anothe child, advancement in a job, moving away, etc.

overlaying all of this (so must always show this) is that modifcation must be in the best interest of the child

Question 86

what are the special rules for modification of primary possession within __ yr of the last order. why is it a higher bar?

Answer 86

within 1 year of last order, modification requires a higher bar because legislature wanted to prevent too many legal fights

must show:

1. child’s present environment may endanger the child’s physical health or significantly impair the child’s emotional development; or
2. the person with primary possession consents and it is in the best interest of the child; or
3. there has been a voluntary relinquishment of priary possession for at least 6 months and it is in the best interest of the child

Question 87

list the main methods of enforcing custody (so typical scenario is a parent doesn’t bring the child back

Answer 87

1. writ of habeus corpus
2. tort for intentional interference with child custody
3. contempt
4. criminal liability

Question 88

enforcing custody (writ of habeus corpus): explain dat shit

Answer 88

Habeas corpus is a legal remedy that can be used to recover the immediate possession of a child whose possession is being withheld in violation of a valid court order of custody.

a. Generally

If a possessory conservator is withholding possession of a child in violation of a custody order, the MC can file a petition for a writ of habeas corpus. The only issue in a habeas corpus proceeding is whether there is a valid court order awarding custody—even if it is a non-Texas order. If there is a valid court order, the habeas court will compel the return of the child

Exceptions
1) Relator relinquished possession – If the relator has relinquished actual possession and control of the child for at lease six months before filing for habeas corpus, a court has the discretion to either compel or refuse to order return of the child. In addition, a court may disregard brief periods of possession and control by the relator during the six-month period.

2) Welfare of child – A court may deny habeus and instead issue a temporary order regarding custody if it finds there is a serious immediate question concerning the child’s welfare.
3) No re-litigation unless due process concerns in prior proceeding – A child custody matter cannot be re-litigated using a habeas proceeding. However, a court can consider whether an order awarding custody is valid, based on whether the contestant had reasonable notice and an opportunity to be heard..
4) If no custody order, parent may bring habeas against non-parent – If a non-parent is withholding possession, a parent may bring a habeas corpus proceeding even though there is no custody order involved.

Jurisdiction
May file the habeas petition in the county where the child is found or in a court of continuing, exclusive jurisdiction under the SAPCR.

Question 89

enforcing custody (tort for intentional interference with child custody): explain dat shit

Answer 89

occurs if a person takes or retains possession of a child in violation of an order

can recover: actual damages for locating and recovering the child, attorney’s fees, and damages for mental anguish and suffering

CAN sue third parties who aid or assist a parent to commit the kidnapping

Question 90

enforcing custody (contempt): explain dat shit

Answer 90

if the child is not returned according to the order, it is a violation of the order

criminal contempt: can be fined $500 for each instance and can be incarcerated for up to 6 months

civil contempt: can be incarcerated until the child is returned

if child was voluntarily relinquished to the person, that is an affirmative defense to contempt

Question 91

enforcing custody (criminal liability): explain dat shit

Answer 91

rarely applied

typically applies in kidnapping situations

can claim an impossibility defense (e.g. child absolutely refuses, locks him/herself in room, etc)

Question 92

what is the UCCJEA designed to do and when on tests should i cite it?

Answer 92

Uniform Child Custody Jurisdiction and Enforcement Act (“UCCJEA”)
The UCCJEA is designed to prevent jurisdictional disputes between states and to facilitate interstate enforcement of custody and visitation orders; it applies when parents are residents of different states.

EXAM NOTE: The Texas Bar Examiners have repeatedly tested UCCJEA jurisdiction issues. Examinees should discuss UCCJEA in any question that involves state jurisdiction over a child custody or visitation matter.

Question 93

under the UCCJEA, a texas court has jx to make the INITIAL custody determinations in the following situations:

Answer 93

i) Texas is the home state where the child has lived for the last six months at the time the suit is first filed;
ii) Texas was the home state of the child within six months before the suit was filed and the child is absent from the state, but a parent or person acting as such is still a Texas resident;
iii) No other state has jurisdiction, or a court of the child’s home state has declined to exercise jurisdiction on the ground that Texas is the more appropriate forum; and
a) The child and at least one parent have a significant connection with Texas other than mere physical presence; and
b) Substantial evidence is available in Texas concerning the child’s care, protection, training, and personal relationships;
iv) All courts having jurisdiction under (i), (ii), or (iii) have declined to exercise jurisdiction on the ground that a Texas court is the more appropriate forum to determine the child’s custody; or
iv) No court of any other state would have jurisdiction under the criteria specified in (i), (ii), (iii), or (iv).

Question 94

under the UCCJEA, a court that made the initial custody determination has continuing, exclusive jx until…

Answer 94

A court that made the initial child custody determination has continuing, exclusive jurisdiction until:

i) A court determines that neither the child nor the parents (or persons acting as parents) have a significant connection with this state and that substantial evidence is no longer available in this state concerning the child’s care, protection, training, and personal relationships; or
ii) A court determines that neither the child nor the child’s parents (or persons acting as parents) still reside in this state.

Question 95

under UCCJEA, a court may assume temporary emergency jx in cases of abuse. T/F

Answer 95

T

Question 96

texas will/will not recognize custody orders from other states

Answer 96

will, as long as order registered by sending a copy to the appropriate texas court, then will give full faith and credit

Question 97

A court may terminate the parent-child relationship if it finds..

[long list, but most things are common sense]

Answer 97

A court may terminate the parent-child relationship if it finds by clear and convincing evidence that doing so is in the child’s best interest and that the parent has done one of the following:

i) Voluntarily left the child alone or in a non-parent’s possession and expressed an intent not to return;
ii) Voluntarily left the child alone or in a non-parent’s possession without expressing an intent to return, without providing for the child’s adequate support, and remained away for a period of at least three months;
iii) Voluntarily left the child alone or in another’s possession without providing for the child’s adequate support and remained away for a period of at least six months;
iv) Knowingly placed or knowingly allowed the child to remain in conditions or surroundings that endangered the child’s physical or emotional well-being;
v) Engaged in conduct or knowingly placed the child with persons who engaged in conduct that endangers the child’s physical or emotional well-being;
vi) Failed to support the child in accordance with the parent’s ability during a period of one year ending within six months of the filing of the petition;
vii) Abandoned the child without identifying the child or furnishing means of identification, and the child’s identity cannot be ascertained by the exercise of reasonable diligence;
viii) Voluntarily, and with knowledge of the pregnancy, abandoned the child’s mother beginning during her pregnancy and continuing through the birth, failed to provide the mother adequate support or medical care during the abandonment period before the child’s birth, and remained apart from the child or failed to support the child since the birth;
ix) Refused to submit to a reasonable and lawful order of a court regarding an investigation of child abuse or neglect;
x) Been the major cause of the child’s failure to be enrolled in school or the child’s absence from home without the consent of the parents or guardian for a substantial length of time or without the intent to return;
xi) Relinquished his parental rights;
xii) Been convicted or has been placed on community supervision, including deferred adjudication community supervision, for being criminally responsible for a child’s death or serious injury under various sections of the Penal Code;
xiii) Had her parent-child relationship terminated with another child based on a finding that she knowingly placed the child with persons who engaged in conduct that endangers the child’s physical or emotional well-being;
xiv) Used a controlled substance in a manner that endangered the child’s health or safety;
xv) Been the cause of the child being born addicted to alcohol or a controlled substance, other than a controlled substance legally obtained by prescription;
xvi) Voluntarily delivered the child to a designated emergency infant care provider without expressing an intent to return for the child;
xvii) Been convicted of the murder or sexual assault of the child’s other parent, or placed on community supervision for being criminally responsible for the sexual assault of the child’s other parent;
xviii) Constructively abandoned the child who has been in the permanent or temporary managing conservatorship of the Department of Family and Protective Services or an authorized agency for not less than six months, and: a) The Department or authorized agency has made reasonable efforts to return the child to the parent; b) The parent has not regularly visited or maintained significant contact with the child; and c) The parent has demonstrated an inability to provide the child with a safe environment;
xix) Failed to comply with the provisions of a court order that specifically established the actions necessary for the parent to obtain the return of the child who has been in the permanent or temporary managing conservatorship of the Department of Family and Protective Services for not less than nine months as a result of the child’s removal from the parent under Chapter 262 for the abuse or neglect of the child; or
xx) Knowingly engaged in criminal conduct that has resulted in the parent’s conviction of an offense and confinement or imprisonment.

Question 98

in a SAPCR, a guardian ad litem must generally be appointed (T/F)

Answer 98

T

Question 99

if a child-parent relationship is terminated, can child still inherit? can child still receive child support?

Answer 99

inherit: yes.

child support: no, only what was owed prior to termination

Question 100

venue or a paternity case is..

Answer 100

where the child resides, and if child does not reside in texas, then where the respondent resides

Question 101

in addition to a mother or a potential father, a paternity suit can also be brought by a child. T/F

Answer 101

T, and also by certain agencies

Question 102

a man is presumed to be the father if:

this presumption can be rebutted by…

Answer 102

1. he is married to a woman who gives birth to a child
2. he was married, the parents the parties divorced, and a child is born within 300 days of when the marriage ended
3. he married the child’s mother and after the child’s birth voluntary asserts paternity, AND (a) files a record with the Bureau of Vital Statistics, (b) was named on the birth cert, OR (c) promises in a written record to support the child

can be rebutted by a valid denial of paternity in conjunction with another’s valid acknowledgement of paternity OR genetic testing*

*if genetic testing, a man is identified as father if test shows a 99% probability of paternity. can also be excluded as father through genetic testing

Question 103

what is paternity by estoppel

Answer 103

a court may DENY genetic testing if:

1. the conduct of the mother or alleged father estops that party from later denying parentage; AND
2. it would be inequitable to disprove the father-child relationship

this typically is for when a father is good father and all that and then later soemthing happens in the relationship with the mother and he’s like fuck this, you know what, i aint the father!

Question 104

what is the SoL for paternity suits

Answer 104

if there is no presumed father, there is not statute of limitations.

if there is a presumed father, then a suit to adjudicate paternity must be brought within 4 yrs of the child’s birth unless court finds presumed father and mom did not live or have sex at appropriate time needed for the child to be born OR presumed dad did not adjudicate before bc of a mistaken belief (then there would be no SoL)

Question 105

what is paternity acknowledgment

Answer 105

it is a way that mother and presumed father may file at Bureau of Vital Statistics before or after the child’s birth to acknowledge paternity.. it is equivalent to a judicial determination of paternity, but if estbalished without genetic and it was mistaken, then there are ways to reverse the acknowledgement

Question 106

attorneys have a DUTY to report child abuse within ____ of learning of it

Answer 106

48 hrs

psychologists, psychiatrists, social workers, and doctors also have this duty