Parent-Child Relationship Flashcards
Child or Minor
a person under 18 who is not and has not been married or has not had his disability of minority removed
A person at least 16 years of age can petition district court to remove the disability of his minority and the court will grant the petition if it is in the child’s interest
to have the disability removed, the minor must be self-supporting and managing her own financial affairs and must be living separate and apart from parents
Parent
means the mother, a man presumed or adjudicated to be the father, or an adoptive mother or father
Mother-child Relationship
Established by: 1) the woman giving birth to the child, 2) an adjudication of the woman’s maternity, 3) adoption of the child
Father-Child Relationship
Established by: 1) Ann unrequited presumption of the man’s paternity, 2) an acknowledgment of paternity, 3) an adjudication of paternity, 4) adoption of the child, or 5) the man’s consenting to assisted reproduction by his wife, which resulted in birth of child
*Presumption of Paternity
A man is presumed to be the father if:
1) the child is born during the marriage of the man and child’s mother or within 300 days after the marriage is terminated by death, divorce, or annulment
2) the man married (or attempted to marry) the child’s mother after the child’s birth and he voluntarily asserted his paternity by filing a record with the vital statistics unit being named on the child’s birth certificate, or promising in a record to support the child as his own
3) during the first two years of the Child’s life, the man resided in the household with the child and represented to others that the child was his child
*Challenge to Rebut Presumption of Paternity
-Generally, must be brought within 4 years of the Child’s birth
Presumed father paternity can be disproved in two ways:
1) by genetic test results (99% probability or higher = father)
2) by a written denial of paternity in conjunction with the written acknowledgment of paternity by another man
Rights of father if other is not married
The father of a non marital child is entitled to service of process in any SAPCR and can be adjudicated the child’s parents in a paternity suit
Rights and Duties of Parents
Right of custody; duty of care of upbringing; duty to support; duty to manage the child’s estate; right to consent to medical treatment; right to represent the child in a legal action; right to inherit from and through the child; and right to use corporal punishment for reasonable discipline
Unless paternal rights have been terminated
Parental liability
A parent is liable for property damage caused by a child’s negligent conduct if reasonably attributable to negligent failure to exercise parental control or discipline
Guardian Ad Litem or Attorney ad Litem
Appointment is in the court’s discretion
A guardian MUST be appointed for the child in suits to terminate the parent-child relationship or to remove the disability of a minor
Jury verdict
Either party is entitled to a jury trial
Can decide:
(i) appointment of sole managing conservator or joint managing conservator
(ii) which joint managing conservator has exclusive right to determine’s child’s primary residence
(iii) whether to impose a geographic restriction on the area in which the joint managing conservator may designate the child’s primary residence
(iv) what the geographic area may be
Jury cannot decide on 1) support, 2) the specific terms of visitation, 3) the rights and duties of a joint managing conservator
Parenting Plan Required
When final order in a SAPCR is tied to a dissolution of a marriage
Agreed Parenting Plan
When parents agree to: the rights and duties of each parents in regards to the child, possession of the child, support of the child, and all other related issues
If the court finds that the agreed parenting plan is IN THE CHILD’S BEST INTEREST, the order will incorporate the terms of the plan
If rejected by the court, the court can come up with its own plan that would be in the child’s best interest or require the parents to submit an revised plan
Parenting Coordinator and Parenting Facilitator
Court can order a 3P to act in these roles if case likely to be high conflict or it would be in the child’s best interest to appoint one
Rights of a Parents that is a Conservator
Has the right of access to the child’s medical, dental, physiological, and educational records; the right to consult with school official and to attend school activities, the right to be the emergency contact, the right to manage the child’s estate
Rights and Power Exclusive to Sole Managing Conservator
Will have the exclusive right to: designate the child’s primary residence; the right to child’s services and earning; the right to make decisions about the child’s education; the right to consent o child’s marriage; the right to consent to medical or dental treatment; the right to child support and disburse for the child’s benefit; and the right to represent he child in legal action and make other legal decisions concerning the child
During period of possession
The conservator parent has the right to direct the child’s moral and religious training; the duty of care, control, and reasonable discipline, the duty to support the child; the duty to provide medical and dental care; and the power to consent to medical,, dental, and surgical treatment during an emergency
Rights, Duties, and power of non parent managing conservator
Will have all the same duties as a parent conservator except the duty to manage the child’s estate and the duty to provide medical care
*Strong Preference for Appointment of Parent
Absent special circumstances the court must appoint a parent as either a Sole managing conservator or as joint managing conservators
Neither party can be disfavor because of gender or marital status, but court can take into account previous abuse, or whether child will be adversely effected
*Best Interest Test
The best interest of the child is the primary consideration of the court in determining questions of managing conservatorship, possession, and support of and acmes to the child
Parents can Agree who will be the Sole Managing Conservator
Will be appointed by the court unless they find it is not in the best interest of the child
Strong Preference against Split Custody
If two or more children from the same parents, they should not be split up unless there is a clear and compelling reason
*Child 12 or older right to choose
A child 12 or older has the right to choose the person who is to have the exclusive right to designate the child’s residence, subject to a judicial veto
Death of Managing Conservator
The death of the MC termites the court’s conservatorship order, but does not terminate the SAPCR court continuing exclusive jurisdiction over the child
*Grandparents may petition for reasonable access
Grandparent shave an independent cause of action to obtain and enforce their rights under SAPCR if at least one biological or adoptive parent’s rights have not been terminated and the parent who who is a child of the grandparent is:
1) dead
2) incapacitated
3) has been jailed for at least 3 months
4) does not have actual or court-ordered possession of or access to the child
Order only needed if parent has denied grand parent access
The Grandparent must also prove by a preponderance of the evidence either that the parent is unfit or that denial of possession or access would significantly impair the child’s physical or emotional well-being
Right does not apply if the child has been adopted by a new family
*Siblings may petition for reasonable possession or access
the siblings of a child may file suit requesting access to the child if the sibling is at least 18
If siblings separated by TDFPS a sibling under 18 can request access
Court will grant if in the best interest of the child
- Can court require a party to submit to genetic testing?
upon institution of a paternity suit, an alleged father may be ordered to submit to genetic testing.
the Family Code provides that an
alleged father refusing to submit to genetic testing can be held in contempt.
An even more crucial consequence of refusing to submit to genetic testing is a default judgment rendering the alleged father to be deemed the father of the child the subject of the suit.
