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BAR EXAM > Family Law - Children > Flashcards

Family Law - Children Flashcards

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1
Q

PRESUMED FATHER

A

PRESUMED FATHER

(1) Child born during the marriage, or w/in 300 days after

(2) Parties married AFTER the birth, and dad voluntarily asserted paternity:
- In a record with the Bureau of Vital Statistics
- Consenting to be named on the birth certificate

(3) Dad lived with the child during its FIRST TWO YEARS of life and represented that the child was his.

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2
Q

SAPCR

STANDING

A

SAPCR

STANDING

  • Parent
  • Child (through a rep)
  • Guardian
  • Gov’t entity, agency
  • Foster parent
  • Limited standing:
  • Alleged father can bring SAPCR to challenge paternity
  • GRANDPARENT can bring SAPCR to be appointed MC (once MC, they can intervene in another SAPCR)
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3
Q

SAPCR

VENUE

A

VENUE

  • Where the CHILD RESIDES
    • Deemed to be wherever his parents/guardians reside
  • If tied to a divorce, the divorce rules govern
  • Must TRANSFER if the child has moved to a new county and lived there for 6 MONTHS
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4
Q

SAPCR

Long-arm PJ

A

Long-arm PJ

  • Personally served in TX
  • Consent
  • Minimum contacts, e.g.
    • Resided with the child in TX
    • Acts or directives that caused the CHILD to reside in TX
    • Had sex in TX, and child may have been conceived then
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5
Q

JURY VERDICT

Entitled to a jury verdict on:

CANNOT go to the jury:

A

JURY VERDICT

Entitled to a jury verdict on:

  • Appointment of SMC, JMC
  • Who gets to decide primary residence (and/or the geographic restrictions)

CANNOT go to the jury:

  • Support
  • Specific terms of visitation
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6
Q

SOLE MANAGING CONSERVATOR

Exclusive rights:

A

SOLE MANAGING CONSERVATOR

Exclusive rights:

  • Designate primary residence
  • Make decisions about education
  • Consent to medical treatment
    • Other parent can consent in an EMERGENCY
  • Represent child in legal actions
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7
Q

SMC

Parental preference

A

Parental preference
- Parent must be appointed MC
- Rebutting the preference:
- Would SIGNIFICANTLY IMPAIR child’s health, development
OR
- One or both parents VOLUNTARILY RELINQUISHED control for ONE YEAR, some of which was in the last 90 DAYS

  • Note that voluntary relinquishment for SIX MONTHS is enough to MODIFY, but ONE YEAR is required to rebut the parental preference.
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8
Q

SMC

Agreement

Child’s wishes

A

Agreement
- Court must respect the parents’ agreement UNLESS NOT IN BEST INTEREST OF CHILD

Child’s wishes

  • On motion of EITHER PARTY, the court MUST INTERVIEW 12+yo
  • 12+yo may choose, subject to JUDICIAL VETO (best interests)
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9
Q

JOINT MANAGING CONSERVATORS

Order/agreement MUST:

A

JOINT MANAGING CONSERVATORS

Order/agreement MUST:

  • Establish PRIMARY RESIDENCE, or say who has exclusive right to determine
  • Include provisions designed to minimize disruption of child’s daily routine
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10
Q

POSSESSORY CONSERVATOR

Deny possession if __________ within the LAST ____ YEARS
- Unless:

A

POSSESSORY CONSERVATOR

Deny possession if FAMILY VIOLENCE within the LAST TWO YEARS
- Unless the court is satisfied by PREPONDERANCE of the evidence that visitation is in the child’s best interest

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11
Q

MODIFICATION OF CONSERVATORSHIP

Jurisdiction

A

MODIFICATION OF CONSERVATORSHIP

Jurisdiction
- ONLY the court of CONTINUING EXCLUSIVE JDX

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12
Q

MODIFICATION OF CONSERVATORSHIP

When can modify:

  • IF modifying with ONE YEAR, special circumstances are needed:
A

When can modify:

  • In the CHILD’S BEST INTEREST, AND one of the following:
    • Material, substantial change in circumstances
    • Child is 12+yo and expressed IN CHAMBERS a desire to switch
    • Conservator has VOLUNTARILY RELINQUISHED for SIX MONTHS (*Note that this is sufficient to modify within ONE YEAR, while the others are not)
  • IF modifying with ONE YEAR, special circumstances are needed:
  • Child is in DANGER
  • Current conservator consents
    OR
  • Conservator has VOLUNTARILY RELINQUISHED for SIX MONTHS
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13
Q

GRANDPARENTS AS POSSESSORY CONSERVATORS

Must show:

What is the STANDARD OF PROOF?

A

GRANDPARENTS AS POSSESSORY CONSERVATORS

Must show by a PREPONDERANCE OF THE EVIDENCE:

(1) At least one biological parent hasn’t had rights terminated
(2) The parent that is the grandparents’ child:
- Is dead, incapacitated
- Has been in jail for last three months
- OR
- Doesn’t have court-ordered possession of the child
AND
(3) Denial of possession would SIGNIFICANTLY IMPAIR child’s development

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14
Q

ENFORCEMENT OF CUSTODY ORDER

What options are available?

A

ENFORCEMENT OF CUSTODY ORDER

Habeas corpus

Tort liability (“kidnapping”)

Contempt

Criminal liability for taking a kid OUT OF TEXAS

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15
Q

ENFORCEMENT OF CUSTODY ORDER

Habeas corpus

Tort liability (“kidnapping”)

A

ENFORCEMENT OF CUSTODY ORDER

Habeas corpus

  • SOLE PURPOSE is to determine who is ENTITLED TO POSSESSION
  • Effect is IMMEDIATE—child goes to possessory parent

Tort liability (“kidnapping”)

  • 30 DAYS NOTICE is required before filing
  • Includes aiders and abettors
  • Atty fees charged for FRIVOLOUS filings
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16
Q

ENFORCEMENT OF CUSTODY ORDER

Contempt

Criminal liability for taking a kid OUT OF TEXAS

A

ENFORCEMENT OF CUSTODY ORDER

Contempt

  • Jail up to 6 MONTHS
  • Fine up to $500

Criminal liability for taking a kid OUT OF TEXAS
- Third-degree felony to violate a custody order

17
Q

UNIFORM CHILD CUSTODY JURISDICTION AND ENFORCEMENT ACT

Home state jurisdiction

  • Home state =
  • Non-home state can still have “home state” jurisdiction IF:
A

Home state jurisdiction

  • Home state =
    • Child lived there for LAST SIX MONTHS
  • Non-home state can still have “home state” jurisdiction IF:
    • It was the home state within LAST SIX MONTHS,
    • AND
    • The child is no longer there, but the parent still is
18
Q

UNIFORM CHILD CUSTODY JURISDICTION AND ENFORCEMENT ACT

IF not home state jdx, must show:

A

IF not home state jdx, must show:
- NO OTHER STATE HAS home-state jurisdiction
- Child and at least one parent has a SIGNIFICANT CONNECTION with the state
AND
- SUBSTANTIAL EVIDENCE concerning the case is found in that state

19
Q

UNIFORM CHILD CUSTODY JURISDICTION AND ENFORCEMENT ACT

CCEJdx can be overridden ONLY IF:

A

CCEJdx can be overridden ONLY IF:
- NO ONE lives in that state anymore
AND
- SUBSTANTIAL EVIDENCE concerning the case is found in the new state

20
Q

TERMINATION OF PARENTAL RIGHTS

Involuntary:

Voluntary
- Petition may be filed any time after _____________

A

TERMINATION OF PARENTAL RIGHTS

Involuntary 
CLEAR AND CONVINCING EVIDENCE of:
(1) ANY ONE statutory ground 
AND
(2) CHILD’S BEST INTEREST
See special rules for ADOPTION, terminating father’s rights

Voluntary
- Petition may be filed any time after FIRST TRIMESTER

21
Q

ADOPTION

MOTHER’S AFFIDAVIT

FATHER’S AFFIDAVIT

A

ADOPTION

File Voluntary Termination petition

MOTHER’S AFFIDAVIT of relinquishment of parental rights

  • Can be verified (notarized) during pregancy
  • BUT can only be EXECUTED 48 HOURS AFTER BIRTH
  • REVOCABLE until 10 DAYS later
  • Include medical history report

FATHER’S AFFIDAVIT, waiver of interest in the child

  • Disclaims interest in the child
  • DOES NOT acknowledge paternity—can’t be used against him later in a suit for paternity
22
Q

ADOPTION

Involuntarily terminating father’s rights

A

Involuntarily terminating father’s rights

  • Culpable acts (grounds for terminating parental rights)
  • Failure to respond to citation
  • Failure to file with Paternity Registry
23
Q

PATERNITY SUIT STANDING

A

STANDING

  • Child (after 18, ONLY the child has standing, or through legal guardian if disabled)
  • Mother
    • Relative of mother, if deceased
  • Alleged father
  • Gov’t agency
24
Q

PATERNITY SUIT

Jury trial?

A

NO

25
Q

PATERNITY SUIT SOL

A

SOL

4 years, after child’s birth

  • BUT NO SOL if there is no presumed father
26
Q

GENETIC TESTING

Effect of refusal to submit to testing

A

GENETIC TESTING

Effect of refusal to submit to testing

  • Contempt, max fine of $500
  • Render DEFAULT JUDGMENT against alleged father
27
Q

PATERNITY BY ESTOPPEL

A

PATERNITY BY ESTOPPEL

Conduct of the mother or presumed father estops them from denying paternity
AND
It’s in the CHILD’S BEST INTEREST

28
Q

CHALLENGING ACKNOWLEDGED PATERNITY

Can rescind up to ____ DAYS later

After that, have to show:

A

CHALLENGING ACKNOWLEDGED PATERNITY

Can rescind up to 60 DAYS later

After that, have to show FRAUD, DURESS, or MATERIAL MISTAKE OF FACT

29
Q

CHILD SUPPORT AMOUNT

Statutory guideline:

Net resources

  • Capped at $_________
  • GENERAL RULE: net resources =
A

AMOUNT

Statutory guideline

  • 20% of NET RESOURCES, plus 5% for each add’l child
  • There is a PRESUMPTION that a within-guidelines amount is reasonable
    • TC MUST make SPECIFIC FINDINGS in order to deviate from these guidelines. Not doing so is REVERSIBLE ERROR.

Net resources

  • Capped at $8,550/month
  • GENERAL RULE: net resources = all CASH-FLOW revenue
    • Earned income
    • Passive income (dividends, interest, royalties)
    • Other income (SS, unemployment)
  • Does NOT include new spouse’s income if obligor re-marries
30
Q

RETROACTIVE CHILD SUPPORT

A

RETROACTIVE CHILD SUPPORT

Past FOUR YEARS max

  • This is PRESUMED to be in child’s best interests
  • Can be REBUTTED if evidence shows that he SHOULD HAVE KNOWN he was the father and SOUGHT TO AVOID his child support obligations
31
Q

MODIFICATION OF CHILD SUPPORT

A

MODIFICATION

(1) Circumstances have MATERIALLY AND SUBSTANTIALLY changed
OR
(2) THREE YEARS have passed and amount differs from guidelines by either 20% or $100

32
Q

ENFORCEMENT OF CHILD SUPPORT

What are the SIX options?

A

Withhold earnings
- MAX 50% of disposable earnings

Contempt

  • After NOTICE AND HEARING
  • Jail 6 months
  • Fine $500

Lien for arrearages

Freezing assets
- File notice of lien with financial institution

Obtain a money judgment with interest

Suspend licenses
- IF 3 months behind

33
Q

TERMINATION OF PARENTAL RIGHTS

Statutory grounds:

A

Statutory grounds:

* Failure to pay SUPPORT FOR ONE YEAR
- Neglect
- Abuse, family violence 
- Parental misconduct (disobeying court orders)
- Use of controlled substance, endangers child
- Imprisonment 2+ years
- Conviction is sexual assault with unrelated minor
- Abandonment (intent required)
34
Q

JOINT MANAGING CONSERVATORS

Presumption favor of JMC is subject to determination of CHILD’S BEST INTEREST.
* Factors:

A

Presumption favor of JMC is subject to determination of CHILD’S BEST INTEREST.

  • Factors:
  • Geographic proximity
  • Physical, psychological, emotional needs of the child
  • Ability of the parents to reach SHARED DECISIONS re child
  • Each parent’s ability to accept and encourage a positive relationship b/w the child and the other parent
  • Whether both parents had raised the child before
  • Child’s preference, if 12+yo
  • ANY OTHER RELEVANT FACTOR
35
Q

JOINT MANAGING CONSERVATORS

Standard shared custody VISITATION order

A

Standard shared custody VISITATION order

  • Need SPECIFIC FINDINGS to depart from this
  • Applies ONLY IF parents within 100 MILES of each other—
    • During school: Thursdays, 6-8pm; every other weekend
    • One month during summer
36
Q

CHILD SUPPORT AMOUNT

If obligor re-marries, is new spouse’s income subject to child support?

What about her share of CP?

A

If obligor re-marries

  • New spouse’s income NOT subject to child support
  • New spouse’s SMCP and SP are NOT subject to child support
  • Obligor’s SP and all CP he MANAGES are subject to child support
37
Q

TEMPORARY PROTECTIVE ORDER

  • Protects against what?
  • Lasts for ______ DAYS

Special findings for KICK-OUT ORDER:

A

TEMPORARY PROTECTIVE ORDER

  • CLEAR AND PRESENT DANGER of FAMILY VIOLENCE
  • Lasts for 20 DAYS

Protects people, property, parenting

Special findings for KICK-OUT ORDER
- Applicant files SWORN AFFIDAVIT
- Applicant resided on the premises for last 30 DAYS
- FAMILY VIOLENCE against a member of the household in last 30 DAYS
AND
- Person to be kicked out either lives there, or has a support obligation to someone there

38
Q

PROTECTIVE ORDER

  • Protects against what?

Duration:

Required findings:

NOTICE and a HEARING:
- Must be WITHIN:

What kind of relief, generally?

A

PROTECTIVE ORDER

  • Based on FAMILY VIOLENCE

Duration

  • 2 years
  • UNLESS serious bodily injury has occurred, or this person has already been the subject of TWO MORE protective orders in the past

Required findings:
(1) FV occurred or will occur
OR
(2) Person has already violated a previous protective order

NOTICE and a HEARING
- Must be WITHIN 48 hours, OR atty can allow up to 20-day extension

Very BROAD protective relief, including more long-term relief: e.g. child support, counseling

BAR EXAM (25 decks)

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