Family Law Terms Flashcards
Termination of Parental Rights - Definition
Involuntary termination is generally based on conduct of the parent that is harmful to the child. Court must find (1) termination in child’s best interest & (2) Statutory Grounds for termination present by clear and convincing evidence
Grounds for Termination
Abandonment, Abuse, Neglect, Endangerment, Failure to support for more than 1 year.
Rebutting Parental Presumption of MC
Three ways: (1) Appointment would not be in best interest of child because significantly impair health and emotional development; (2) Voluntarily relinquishment for one year or more; & Best Interest; (3) 21 grounds for involuntary termination
Petition for Visitation
Only parties besides parents allowed to petition are grandparents and siblings. Troxel struck down statute that allowed “any person” to petition for visitation at “any time.” Troxel recognized presumption that fit parent acts in best interest when denying access.
Factors for Child Support
Needs of child; ability of parents to contribute to child support; financial resources available for support of the child; amount of possession and access to the child.
Managing Conservator
Has “custody.” Right to make major decisions and right to determine primary residence.
Possessory Conservator (PC)
Has “visitation” rights.
Habeas Corpus
Sole issue in a habeas proceeding is whether there is a custody order.
Venue is proper: county in which child found or court of continuing exclusive jurisdiction
Statutory Tort Violations
A person commits this tort when they: retain possession of a child or conceal the wearabouts of a child in violation of a court order
Contempt
Contempt is available for violations of Texas custody orders. It is quasi-criminal and therefore all criminal due process rules apply.
Continuing-Exclusive Jurisdiction
Once initial custody order is entered, the court has Continuing Exclusive Jurisdiction until one of the two occurs:
Everyone leaves; or
Neither the child or one parent have significant connection/substantial evidence
Remedies for Violations of Custody or Visitation Order
Registration - if registered then any relief available for enforcement of Texas order (including contempt)
Expedited Enforcement - hearing next day
Warrant to take immediate possession
Role of Juries in Divorce Cases
Juries cannot determine child support or possession and access
Parties have right to jury trial on conservatorship
Four Types of Fathers
Presumed
Acknowledged
Adjudicated
Alleged
Child Support - Mandatory Withholding
All final orders for periodic child support must provide for mandatory withholding
Child Support - License Suspension
A court can suspend the obligor’s driver’s license if the obligor is 3 months in arrears and has been given an opportunity but has failed to make a payment under an agreed repayment schedule
Child Support - Liens
A lien for child support careers can attach to an obligor’s non-exempt personal property and non-personal real property. No homestead attachment
Child Support - Money Judgment
Periodic Child Support payment not timely made automatically become money judgments for the amount due
Child Support - Freezing Assets
If a judgment for arrearages has been rendered, claimant can deliver a notice of levy to the financial institutions holding the obligor’s assets. Delivery of the notice freezes the assets.
Child Support - Contempt
Jail for up to 6 months or fine of a maximum of $500, or both. Only for violations of court orders
Child Support - Bankruptcy
Child support obligations are not dischargeable in bankruptcy.
Child Support - Interstate Enforcement
UIFSA - Register in Texas to trigger contempt for future violations.
Money Judgment in Nebraska
Mail income withholding order to his boss
Mal support order to AG Enforcement Divisions.
Name Change
File a petition for a name change showing the change is in the interest of petitioner and public.
Court cannot deny solely to ensure parents and kids have same last name.
Common Law Marriage
(NAWW)
Neither party is a minor
Agreement to be married
Within Texas, the couple represented to others that the were married (“holding out”)
Within Texas, the couple lived together
But presumption regarding #2. If the couple has separated and ceased living together for 2 years without filing suit, then there is a rebuttable presumption that the couple had not agreed to be married.
Couples can make a declaration of information marriage and pick the effective date.
