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)

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

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

MODIFICATION OF CONSERVATORSHIP When can modify: IF modifying with ONE YEAR, special circumstances are needed:

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

Family Law - Children Flashcards by Russell Welch

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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SAPCR

STANDING

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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SAPCR

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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SAPCR

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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JURY VERDICT

Entitled to a jury verdict on:

CANNOT go to the jury:

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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SOLE MANAGING CONSERVATOR

Exclusive rights:

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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SMC

Parental preference

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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SMC

Agreement

Child’s wishes

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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JOINT MANAGING CONSERVATORS

Order/agreement MUST:

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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POSSESSORY CONSERVATOR

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

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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MODIFICATION OF CONSERVATORSHIP

Jurisdiction

MODIFICATION OF CONSERVATORSHIP

Jurisdiction
- ONLY the court of CONTINUING EXCLUSIVE JDX

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MODIFICATION OF CONSERVATORSHIP

When can modify:

IF modifying with ONE YEAR, special circumstances are needed:

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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GRANDPARENTS AS POSSESSORY CONSERVATORS

Must show:

What is the STANDARD OF PROOF?

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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ENFORCEMENT OF CUSTODY ORDER

What options are available?

ENFORCEMENT OF CUSTODY ORDER

Habeas corpus

Tort liability (“kidnapping”)

Contempt

Criminal liability for taking a kid OUT OF TEXAS

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ENFORCEMENT OF CUSTODY ORDER

Habeas corpus

Tort liability (“kidnapping”)

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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ENFORCEMENT OF CUSTODY ORDER

Contempt

Criminal liability for taking a kid OUT OF TEXAS

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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

UNIFORM CHILD CUSTODY JURISDICTION AND ENFORCEMENT ACT

Home state jurisdiction

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

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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

UNIFORM CHILD CUSTODY JURISDICTION AND ENFORCEMENT ACT

IF not home state jdx, must show:

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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

UNIFORM CHILD CUSTODY JURISDICTION AND ENFORCEMENT ACT

CCEJdx can be overridden ONLY IF:

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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

TERMINATION OF PARENTAL RIGHTS

Involuntary:

Voluntary
- Petition may be filed any time after _____________

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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

ADOPTION

MOTHER’S AFFIDAVIT

FATHER’S AFFIDAVIT

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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

ADOPTION

Involuntarily terminating father’s rights

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Involuntarily terminating father’s rights

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

PATERNITY SUIT STANDING

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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

PATERNITY SUIT

Jury trial?

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PATERNITY SUIT SOL

SOL 4 years, after child’s birth * BUT NO SOL if there is no presumed father

GENETIC TESTING Effect of refusal to submit to testing

GENETIC TESTING Effect of refusal to submit to testing - Contempt, max fine of $500 - Render DEFAULT JUDGMENT against alleged father

PATERNITY BY ESTOPPEL

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

CHALLENGING ACKNOWLEDGED PATERNITY Can rescind up to ____ DAYS later After that, have to show:

CHALLENGING ACKNOWLEDGED PATERNITY Can rescind up to 60 DAYS later After that, have to show FRAUD, DURESS, or MATERIAL MISTAKE OF FACT

CHILD SUPPORT AMOUNT Statutory guideline: Net resources - Capped at $_________ - GENERAL RULE: net resources =

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

RETROACTIVE CHILD SUPPORT

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

MODIFICATION OF CHILD SUPPORT

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

ENFORCEMENT OF CHILD SUPPORT | What are the SIX options?

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

TERMINATION OF PARENTAL RIGHTS Statutory grounds:

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)

JOINT MANAGING CONSERVATORS Presumption favor of JMC is subject to determination of CHILD'S BEST INTEREST. * Factors:

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

JOINT MANAGING CONSERVATORS Standard shared custody VISITATION order

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

CHILD SUPPORT AMOUNT If obligor re-marries, is new spouse's income subject to child support? What about her share of CP?

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

TEMPORARY PROTECTIVE ORDER * Protects against what? * Lasts for ______ DAYS Special findings for KICK-OUT ORDER:

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

PROTECTIVE ORDER * Protects against what? Duration: Required findings: NOTICE and a HEARING: - Must be WITHIN: What kind of relief, generally?

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

Family Law - Children Flashcards

(38 cards)