Suits of Conservationship Flashcards
Standing
- Before you can bring a SAPCR suit for conservatorship, possession or access, (Texas Family Code, Title 5) the party must have standing.
- Tex. Fam. Code §102 et. seq.
-General Standing §102.001 new categories added in 2019
-Grandparent or Other Person §102.004
-Sibling **§102.0045 **
-Termination and Adoption §102.005
-Can confer standing - Other SAPCR actions may have their own standing requirements that differ from the above general standings.*
Service
The following are required to be served with CITATION of a SAPCR filing.
* Respondent
* Managing/Possessory Conservator
* Person with possession of child pursuant to court order
* Person with duty to support child pursuant to law or court order
* Guardian/Representative of the person of child
* Guardian/Representative of child’s estate
* Each parent, absent termination of parental rights
* Alleged father
* Person with filed intent to claim paternity
* The Department of Family and Protective Services, if petition requests department to be appointed as managing conservator of child
* Title IV-D agency, if petition requests termination of parent-child relationship and support rights have been assigned to Title IV-D agency under Chapter 231
* Prospective Adoptive Parents
* Managing conservator under affidavit of relinquishment
* Not sure about intended parents—standing granted by legislature, you would assume service would have been too.
Standards to Apply in Conservatorship Cases
- Original
-Parents– Best Interest.
-Non-parents—Parental Presumption. - Modification Grounds
-Circumstances of child, conservator or other party have materially and substantially changed since last order;
-Child is at least 12 and prefers to live with other parent; or
-Conservator with exclusive right has voluntarily relinquished care and possession to another for at least 6 months. - Guiding principle—Best Interest of the Child Tex. Fam. Code 153.002
Continuing Exclusive Jurisdiction
- A final order in a SAPCR will trigger a court of continuing exclusive jurisdiction.
-Acquiring CEJ, **Tex. Fam. Code §155.001 ** - Retaining CEJ, **Tex. Fam. Code §155.002 **
- Effect of filing suit in non-CEJ court, Tex. Fam. Code § 155.102
- Some children will be the subject of a child support order and then years later the parents will divorce—always run parties names before filing for divorce.
Best Interest of Child
- Court must consider the child’s best interest.
- It is presumed that parents provide the child with best care and opportunities as well as the best atmosphere for the child’s mental, moral and emotional development.
- Court can take anything and everything into account when determining the best interest of the child.
- Specifically, court will look to the Holley factors, statutory factors and case law.
Holley Factors
(A) the desires of the child;
(B ) the emotional and physical needs of the child now and in the future;
(C) the emotional and physical danger to the child now and in the future;
(D) the parental abilities (read: skills) of the individuals seeking custody;
(E) the programs available to assist these individuals to promote the best interest of the child;
(F) the plans for the child by these individuals or by the agency seeking custody;
(G) the stability of the home or proposed placement;
(H) the acts or omissions of the parent which may indicate that the existing parent child relationship is not a proper one; and
(I) any excuse for the acts or omissions of the parent.
Holley v. Adams, 544 S.W.2d 367, 371–72 (Tex. 1976)
Court Can Also Consider
§153.134 (a)
- Whether the physical, psychological or emotional needs and development of the child will benefit from the appointment of JMCs;
- The ability of the parents to give first priority to the welfare of the child and reach shared decisions in the child’s best interest;
- Whether each parent can encourage and accept a positive relationship between the child and the other parent;
- Whether both parents participated in child rearing before the filing of the suit;
- The geographical proximity of the parents’ residences;
- If the child is 12 years of age or older, the child’s preference regarding exclusive residence; and
- Any other relevant factor (here’s the court’s catch-all). E.g., effect of separating child from other siblings; one parent’s false reporting of child abuse.
Parental Fitness
- In determining best interest under §153.134 (a)(7), court may also consider each parent’s:
- present fitness and recent past conduct—if parent is presently suitable as conservator , the fact the parent wasn’t suitable in the past isn’t controlling In re M.W., 959 S.W.2d 661 (Tex.App.—Tyler 1997, writ den’d)…except, court can consider recent past conduct as a reasonable predictor of future behavior/fitness, In re De la Pena, 999 S.W.2d 521 (Tex.App.—El Paso 1999, no pet.);
- In re Walters, 39 S.W.3d 280 (Tex. App.—Texarkana 2001, no pet.); and
- Sexual conduct—if the child was exposed to it or had access to evidence of the conduct. Sharp v. Sharp, 710 S.W.2d 696
Court Cannot Consider
- A party’s marital status, Tex. Fam. Code §153.003 (although can consider marital stability, In re Marriage of Jameson);
- A party’s gender (nor the child’s gender) Tex. Fam Code §153.003;
- A party’s race Palmore v. Sidoti, 466 U.S. 429 (1984); and
- A party’s religion or religious beliefs “…a court cannot prefer the religious beliefs of one party over another simply because one party’s beliefs tend to be more ‘normal’ or are more in line with majority beliefs,” In re Marriage of Knighton, 723 S.W.2d 274 (Tex.App.—Amarillo 1987, no writ).
-Exception for illegal immoral or harmful religious beliefs—to be determined by community standards, Alaniz v. Alaniz, 867 S.W.2d 54 (Tex.App.—San Antonio 1961, no writ).
Factors to Indicate whether parents can provide a safe enviroment - Mainly used in Government Termination Cases
(1) the child’s age and physical and mental vulnerabilities;
(2) the frequency and nature of out-of-home placements;
(3) the magnitude, frequency, and circumstances of the harm to the child;
(4) whether the child has been the victim of repeated harm after the initial report and intervention by the department;
(5) whether the child is fearful of living in or returning to the child’s home;
(6) the results of psychiatric, psychological, or developmental evaluations of the child, the child’s parents, other family members, or others who have access to the child’s home;
7) whether there is a history of abusive or assaultive conduct by the child’s family or others who have access to the child’s home;
8) whether there is a history of substance abuse by the child’s family or others who have access to the child’s home;
(9)whether the perpetrator of the harm to the child is identified;
(10)the willingness and ability of the child’s family to seek out, accept, and complete counseling services and to cooperate with and facilitate an appropriate agency’s close supervision;
(11)the willingness and ability of the child’s family to effect positive environmental and personal changes within a reasonable period of time;
(12)whether the child’s family demonstrates adequate parenting skills; . . . and
(13)whether an adequate social support system consisting of an extended family and friends is available to the child
