Texas Bar Exam Essays - Family Law
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. What would you like to do?
Does a licensed minister, rabbi, judge, JP, etc. need to conduct a wedding ceremony?
- No. There must only be:
- (1) reasonable appearance of authority by that person;
- (2) at least one party must have acted in good faith and treats the marriage as valid; and
- (3) neither party to the marriage is a minor
Are future spouses required to attend a premarital education course? Is a particular form of ceremony required?
No and no.
What happens if there is no valid ceremonial marriage with a license?
You must establish the marriage with proof.
When is a purported marriage “void”?
- (1) Bigamy: one spouse already married (but marriage becomes valid if impediment removed)
- (2) Consanguinity: marriage is within a prohibited relationship
- a. Ascendants and descendants (parent, child, etc.); first-line collaterals (bros, sis, nephew, niece); uncles and aunts, step-child or former step-child; first cousins = not void, but license can’t be issued!
- (3) Either party is under 16 and no court order obtained allowing marriage
When is a marriage voidable?
- (1) underage
- (2) no cohabitation and any of the following:
- a. concealed divorce within 30 days of marriage
- b. impotency
- c. incompetency
- d. fraud/duress/force
- e. marriage under the influence of alcohol/narcotics
- (3) marriage during 72-hour waiting period after license issued, not permitted unless
- a. one of the parties in armed forces
- b. 72-hour cooling period waived by court
- c. Applicant has completed premarital education course AND suit must be brought within 30 days of marraige
How long do you have to annul a child’s marriage?
If action to annul brought by child’s next of friend, then must be filed within 90 days.
If action to annul brought by child’s parent, managing conservator, or guardian, must be filed before minor’s 18th birthday.
If a child under 18 gets parental consent to marry, when must they marry by?
Within 30 days after consent (otherwise consent is stale).
Can a child under 16 marry with their parents consent?
No – if the child is under 16, they must obtain a court order.
If the granting of an annulment mandatory in certain situations?
No – annulments are in the court’s discretion, considering all factors, including whether the female is pregnant.
What elements are required to prove an information marriage (i.e. a common law marriage?
- (1) agreed to BE married (not to marry in the future)
- (2) held themselves out as married to others in TX
- (3) cohabitation in TX
- (4) plus there must be no impediment to the marriage
When does a presumption arise in cases involving an alleged common law marriage that the parties did not agree to be married?
If action to prove common law marriage is not brought within 2 years after the parties separate AND cease living together, the rebuttable presumption arises that the parties had not agreed to be married.
What is a Declaration of Informal Marriage?
This is an alternative to establishing a common law marriage (usually to get social security, VA, or government benefits).
It (i) contains the same info as license application (18+ y/o, neither already married, not related w/in prohibited degree of consanguinity); AND (ii) 3 elements of common law marriage.
What are the different grounds for divorce?
- (1) in-supportability (the marriage has become insupportable b/c of discord or conflict of personalities that destroys the legitimate ends of the marriage relation and prevents any reasonable expectation of reconciliation
- (2) cruel treatment
- (3) adultery
- (4) felony conviction
- (5) abandonment for more than a year
- (6) living apart for 3 years
- (7) mental hospital for over 3 years
What is required in order to get divorced in Texas?
One party must meet both the following tests:
- (1) domiciled in Texas for 6 months
- (2) resident of county of filing for the previous 90 days
However, if one spouse has been a domiciliary of Texas for at least 6 months and the other spouse is domiciled in another state or nation, that spouse may file a suit for divorce in the county where the domiciliary spouse resides at time petition is filed.
What is the proper venue for divorce?
County of residence of either party (90-day residency test)
What are the requirements of the pleading for divorce?
- (1) short
- (2) no evidentiary facts
- (3) allegations of grounds MUST be in language of statute without a detailed statement of evidentiary facts and state whether protective order for family violence is in effect
- (4) If minor children of marriage, SAPCR must be joined in divorce proceeding
Can the judge over a divorce proceeding order the couple to attend counseling? If so, can evidence from this session come into evidence?
Yes – court has discretion to order parties to submit to counseling to determine whether there is a reasonable expectation of reconciliation, and can order further counseling for an additional 60 days if there is an ongoing reasonable expectation of reconciliation.
Counselor cannot testify and his report cannot come into evidence.
Can a court order mediation for a divorce proceeding? Is the mediation agreement binding on the parties such that they are entitled to judgment on the agreement?
- Court may order parties to enter into mediation and mediation is binding on the parties if:
- (1) it provides in a separate paragraph in a prominently displayed statement (i.e. bold, caps, and underlined) that the agreement IS NOT subject to revocation
- (2) it is signed by both parties, and
- (3) it is signed by the party’s attorney(s), if any, who were present at the time the parties signed the agreement.
Can a court order parent education and family stabilization course?
Yes – a court may order that the parties attend this court taught by a mental health professional or religious counselor.
What is collaborative law and what are its procedures?
Post-2011 CLFLA exists – parties and their attorney agree in writing to make a good faith effort to resolve dispute without judicial intervention. After signed, court must be notified and include provision for (1) suspending tribunal intervention, and (2) joint engagement of professionals/experts. Attorneys must withdraw and not act as litigation counsel, unless emergency motion filed (which then terminates collaborative process).
Parties must provide a status report 180 days after agreement signed; and get 2 years to accomplish settlement.
Can a divorce court grant recovery for NEID? IIED?
A divorce court cannot grant recovery for negligent infliction of emotional distress, but CAN do so for intentional infliction of emotional distress.
Is there a separate cause of action in divorce court for actual or constructive fraud on the community?
No – conduct can only be considered in the just and right division of the reconstituted estate (total value of community fraud had not occurred) >>> a share of the remaining estate may be ordered or money judgment or both.
When can a protective order be granted? What can a protective order accomplish?
A protective order can be granted upon a showing that other party has committed family violence or dating violence which consists of (i) an act intended to result in physical harm, bodily injury, sexual assault, or (ii) mere threat of the same.
P/O can prohibit party from committing family violence, from communicating with family members, from stalking the other party, from going near residence or place of employment, removing a child, carrying a concealed weapon, can order payment of attorney’s fees and temporary support.
Can a new girlfriend/boyfriend get a protective order for dating violence by a crzy ex-GF/BF? If so, where is venue proper? When is a hearing appropriate? How long would the order last? And what can the court order the respondent to do?
Yes – the 2001 statute provided for this, but it does not include defensive measures.
Venue is proper in county where applicant resides or county where respondent resides.
Notice and hearing is required – hearing is expedited: no sooner than 48 hours, no later than 20 days after service).
Maximum duration is 2 years (one year after ordered, can request determination for continuation).
Court may also order respondent to complete a battering intervention and prevention program, counsel with a social worker, or perform acts that court determines are appropriate to prevent or reduce the likelihood of family violence in the future.
What is a temporary PROTECTIVE order? How long can it last? What can it do? What is required for it to be issued?
If court finds Clear and Present Danger that H is likely to commit family violence again; valid for up to 20 days; and can be extended, upon motion, for another 20 days >>> can evict H from home if W files sworn affidavit describing facts supporting the TPO, and W appears in person to testify.
What is a temporary RESTRAINING order?
General test is unreasonable acts of the sort that no reasonable person could think he or she could commit: vulgar phone calls with intent to annoy and alarm, threats of bodily injury, falsifying records, removing, concealing, or transferring property, etc.
CANNOT evict H from home.
What is a Temporary Injunction? What can it do?
After notice and hearing, a TI can be granted for the above unreasonable acts (listed in TRO flashcard) and also reasonable acts which a person ordinarily could do or refrain from doing unless ordered by the court >>> awarding one spouses exclusive occupance of residence, ordering payment of temporary support, atty’s fees or other expenses, requiring a sworn inventory, requiring the production of books and records, restricting access to books and records of family business, etc.
Ex parte TRO cannot be obtained for reasonable acts.
What must a petition for name change include, how does court make a decision whether to grant or deny petition, and where should it be filed?
- Must contain:
- (1) current name
- (2) proposed name
- (3) reasons for change
Court must find good cause, but cannot deny a change of name solely to keep the last name of family members the same.
Filed in district court.
Who must submit to genetic tests in a paternity suit?
Genetic tests must be taken by the alleged father and the child.
Relatives of the alleged father can be ordered to submit genetic specimens for good cause and under circumstances the court considers just if for some reason a specimen is not available from the alleged father.
Typically, the mother also submits genetic testing specimens, but this is not required.
Is there a penalty for altering genetic tests in a paternity suit?
It is a 3rd degree felony to alter, destroy, conceal, fabricate, or falsify genetic evidence.
What happens if the alleged father refuses to take a genetic test as ordered?
Court can use contempt, or render default judgment adjudicating paternity.
What is required in genetic tests to adjudicate paternity?
If results establish at least a 99% probability that the alleged man is the father, based on a paternity index of at least 100 to 1, the court SHALL enter an order that the man is the father AND if the results establish the man is not the father, or another man is the father, the court SHALL enter order that man is not father >>> only rebuttable by other genetic tests reaching contrary conclusions.
What is the statute of limitations for a paternity suit? Are there any exceptions?
No SOL is child has no presumed, acknowledged, or adjudicated father.
If there is a presumed father, then there is a 4-year SOL.
Exception – such an action can be maintained at anytime if: (1) presumed father/mother didn’t live together or engage in sexual intercourse during the probable time of conception; or (2) presumed father was precluded from bringing adjudication of parentage because of mistaken belief he was the biological father based on misrepresentations.
Are retroactive child support payments permissible?
Statutory presumption that retroactive support not exceeding what would have been due under the child support guidelines for the preceding 4 years prior to filing of petition is reasonable and in child’s best interest.
What is the proper venue for paternity actions and are jury demands permitted?
Venue is where the child resides, and neither party can demand a jury.
Can a court order temporary child support?
No, not during the pending allegation of paternity. But once genetic tests show 99% probability of paternity, then court can order parternity.
When is there a presumption of paternity? How can the presumption be defeated?
- Presumption of paternity established if:
- (1) child born during (or w/in 300 days after) marriage or attempted (but void or voidable) marriage;
- (2) he married (or attempted to marry) the mother after the child’s birth AND (i) acknowledged paternity in a record filed with Bureau of Vital Statistics, or (ii) promised in a record to support the child; or (iii) voluntarily named the father on the child’s birth certificate
- (3) during first 2 years of child’s life he resided with child and represented to others that the child was his (only presumption that does not involve marriage).
- Presumption can only be defeated by:
- (1) genetic test results; or
- (2) written denial of paternity by presumed father and written acknowledgment of paternity by another man.
What is paternity by estoppel? When does it apply? What are the factors the court considers?
Paternity by estoppel only applies to married person challenging presumption of paternity.
B/c of either party’s conduct, court may deny genetic tests and issue an order adjudicating the presumed father to be father if the court finds that (1) conduct of the mother or presumed father estops the party fromdenying parentage, and (2) it would be against the child’s best interest to disprove the father-child relationship.
- (1) length of time between date paternity action filed and date presumed father was put on notice that he might not be the father
- (2) length of time presumed father had assumed role of father
- (3) facts surrounding presumed father’s discovery of his possible non-paternity
- (4) child’s age
- (5) nature of relationship between the child and the presumed father
- (6) harm that may result to the child if presumed paternity is disproved
In a proceeding involving paternity by estoppel, is the child represented?
Yes – a minor or incapacitated child must be represented by a Guardian Ad Litem.
When may a child be adopted? What reports are necessary before adoption can be finalized?
A child may be adopted if:
- (1) the parent-child relationship as to each living parent has been terminated or a suit for termination is joined with the adoption;
- (2) both parents have died;
- (3) second marriage situation – stepparent wants to adopt child;
- (4) child is at least 2, the parent-child relationship has been terminated with respect to one parent and (i) a managing conservator or a person who has had actual care, possession, and control of the child for 6 months preceding the adoption or is the child’s former step-parent, and the non-terminated parent consents to the adoption or (ii) a former stepparent who had been a managing conservator or had possession of the child for a period of 1 year preceding the adoption.
- (5) Child must reside with adoptive family for 6 months before the final decree of adoption can be entered, unless trial court finds waiver of 6 months in child’s best interest.
- (6) Child must give written consent to adoption if he is 12+ y/o (unless waived by court)
- Necessary reports:
- (1) pre-adoptive social study – social worker report on circumstances/conditions of home environment
- (2) post-placement social study – social worker report into circumstances of child in home environment
- (3) report showing the adopting parties’ criminal history record; and
- (4) social, health, educational, and genetic history report – called a SHEG report (must include any history of abuse)
When can a petition for suit to terminate the parent-child relationship be filed? When can a hearing be held?
Petition to terminate the parent-child relationship can be filed after the first trimester, but hearing cannot be held until at least after the affidavit for relinquishment has been signed.
What is an Affidavit for Relinquishment of Parental Rights? Can a minor sign one?
If signed by mother it lays a predicate for consent-decree terminating parent-child relationship and eliminates the trauma of court appearance.
A minor can sign, BUT affidavit cannot be signed until 48 hours after child’s birth (gives mother a chance to change her mind)
What is an Affidavit of Waiver of Interest in the child? What are the alternatives to this affidavit?
Signed by father (= only right he has, no other SAPCR)
Upon filing petition, court can order father to pay temporary child support.
- If alleged father does not sign, alternative includes involuntarily terminating his rights
- (1) if after being served, he does not respond by either admitting paternity or filing a counterclaim for paternity
- (2) by failing to file with the paternity registry w/in 30 days after the child’s birth, or
- (3) by proof of culpable acts that are grounds for termination of parent-child relationship (like abandoning mother and filing to support child)
What are the requirements if a married couple tries to adopt? What is the result of death or divorce of one of the spouses during an adoption proceeding?
Both spouses must join in the petition for adoption.
Adoption proceedings will abate if adoptive parents divorce, unless petition is amended.
Adoption does not abate if one of the spouses dies before adoption is final.
When can an adopted child receive the reports that were necessary before his/her adoption was finalized?
When adopted child becomes an adult, he is entitled to receive only the report summary (edited to protect confidentiality of birth parents and their family). Entire report available if BOTH sides, parent and child, are looking and both file a request for the full report.
How does adoption affect a child’s inheritance rights?
Following termination of the parent-child relationship, child retains inheritance rights from and through former parents, unless decree terminating parent-child relationship expressly terminates inheritance rights.
What test is used in an adult adoption? How does an adult adoption affect inheritance rights?
There is no best-interest test. Adoptee must consent. Adoptee loses inheritance rights from birth parents.
When do foster parents have standing to sue for adoption?
In order to have standing, foster parents must have had possession of child for at least 12 months.
For persons other than forster parents, the test = 6 months.
Goal is to reunite child with family.
For how long can an adoption decree be attacked?
Validity of adoption is not subject to direct or collateral attack more than 6 months after the adoption decree is entered.
Key = best interest of child.
What are the grounds for involuntary termination of parental rights? What is the proper evidentiary standard?
- (1) abandonment
- (2) abuse
- (3) neglect
- (4) imprisonment for over 2 years
- (5) endangering child
- (6) culpable acts toward the child or another child
- (7) failure to support child for one year
- (8) use of controlled substance
Must be proved by clear and convincing evidence as to both grounds and best interest in involuntary termination proceeding.
Is a parent entitled to representation in an involuntary parental termination proceeding against him/her?
Yes – judge will appoint an Attorney Ad Litem
What is the consequence of terminating parental rights as it relates to the parent’s duty to support the child?
Termination of parental rights will also terminate the obligation of child support, EXCEPT if the TDFPS is appointed managing conservator, court may order support after parent-child relationship is terminated.
Policy: State shouldn’t have to pay if the parent is financially able.
When can the court order Joint Managing Conservators?
- Court can order JMCs if it finds that:
- (1) JMCs are in child’s best interest (this is the rebuttable presumption), AND
- (2) Child’s physical,, psychological, or emotional needs will benefit
- (3) Parents have shown ability to reach shared decisions; parent can encourage and accept positive relationship between child and other parent
- (4) Both parents participated in child rearing before suit was filed
- (5) Geographic proximity of homes of the parties is not a problem
- (6) Child’s preference (if any)
- (7) No evidence of history or pattern of physical or sexual abuse
What is the Managing Conservator? What is the Possessory Conservator?
With JMCs, one parent is appointed the managing conservator. This parent has exclusive power to make certain decisions (such as the exclusive right to determine the child’s residence), and is the parent awarded custody of the child.
The possessory conservator is the spouse awarded visitation rights.
What must a court order (i.e. parenting plan) include for a SAPCR case?
- (1) establish child’s residence (or designate which JMC shall have the exclusive right to determine child’s primary residence
- (2) include provisions designated to minimize disruption of schooling, daily routine, and association with friends,
- (3) set out rights to be exercised solely by one JMC, and those exercised jointly
- (4) child support
- (5) rights and duties of each parent
- (6) provides for periods of possession of and access to child
- (7) optimizes the development of a close and continuing relationship between each parent and child
Can a parent file a proposed parenting plan?
Yes – if the parties have not reached an agreement on a parenting plan at least 30 days before trial, either party may file a proposed parenting plan for the court’s consideration.
When can a court incorporate the use of a parenting coordinator?
In high conflict cases, the court may assist parenting coordinator to assist parents in resolving parenting issues and problem solving; or parenting facilitator – same duties, plus monitor compliance with court orders.
Can a child over 12 y/o express their parental preference to the court in writing?
No – a child over 12 y/o can not choose managing conservator in writing filed with the court.
Is it mandatory that a court interview a child is a custody suit?
Mandatory – if child over 12 and application filed or court makes its own motion.
Permitted – if child under 12
What is the test used to determine custody issues and conservatorship issues?
The Best Interest of the Child.
- (1) desires of child
- (2) substantially impair child’s physical and emotional needs
- (3) parental ability
- (4) stability of home environment
- (5) parent’s plans
- (6) opportunities for the child
- (7) excuses for any acts/omissions
- (8) evidence of past domestic violence
- (9) evidence of false report of child abuse
- (10) intentional use of force against spouse, child’s other parent, or any child within preceding 2 years
- (11) acts/omissions showing one parent less fit than other.
What factors cannot be considered in determining the best interest of the child?
No discrimination based on gender or marital status.
Is a jury allowed to determine the best interest issue?
Yes – Texas is the only state that allows jury trials to determine the best interest issue.
What is the court’s preference for split-custody of siblings?
Not to allow it. Courts frown upon split-custody of siblings. Strong preference for the family unit.
When will visitation rights be denied?
Visitation rights will be denied only if there is proof of physical danger to child’s health.
Rebutted if: the court finds that (i) parent has relinquished actual care, possession to non-parent for a year, portion of which was 90 days preceding intervention or filing suit; AND (ii) the appointment of the non-parent is in the child’s best interest.
When is it appropriate for a grandparent to be appointed managing conservator?
- (1) both parents deceased
- (2) both parents or surviving parent gives consent
- (3) present circumstances substantially impair child’s physical health or emotional development
- (4) Grandparent can be a JMC if paired with a parent.
What is the standard possession order?
Unless the parties agree otherwise, visitation order must be a standard possession order.
If parent live w/in 100 miles of each other, noncustodial parent gets possession 6pm – 8pm every Thursday during the school year and from 6pm Friday to 6pm Sunday, the 1st, 3rd, and 5th weekends each month, plus 30 days in the summer (more flexible if child is under age 3).
Different rules apply if parents live more than 100 miles apart.
When must child support terminate? Are there any exceptions? Does the child support obligation terminate on the obligor’s death?
Court ordered support must terminate by age 18 or graduation from high school, whichever is later, but must graduate by age 21 or support cut off.
Exception: Court may order child support for disabled child for an indefinite period, as long as child physically/mentally disabled BEFORE attaining 18 y/o.
Support obligation does not terminate on obligor-parent’s death; it is accelerated, discounted to present value and is a claim against the obligor-parent’s estate. To secure payment of such amount, the court in the dissolution proceeding may require the obligor to acquire decreasing term life insurance coverage.
Who must pay for health insurance for a child?
Court must order the child-support obligor to provide health insurance for child.
Can a jury make determinations as to support and visitation?
No – jury submission as to support as visitation is precluded by statute. Only judge can make these decisions.
Can visitation be conditioned on child support (and vice versa)?
What is the proper amount of court-ordered child support?
- 1 child – 20% of obligor’s Net Resources (upto $7,500/mo (i.e. $90K/year)
- 2 children – 25%
- 3 children – 30%
- 4 children – 35%
- 5+ children – 40%
How are the child support obligor’s Net Resources determined?
- Net Resources Includes: Cash flow revenue from all source (includes, but not limited to: 100% wage and salary income; interest; dividends; royalties; self-employment income; net rental income; severance pay; capital gains; social security; unemployment benefits; disability; worker’s comp)
- Subject to deductions of: social security taxes; union dues; health insurance for obligor’s children; state income taxes; and income tax withholding for single person claiming personal exemption.
Net Resources DOES NOT include: return of principal or capital; accounts receivable; temporary assistance to needy families; funds from federal public assistance; payments for foster care of a child.
Can the statutory child support amount be increased or reduced?
Yes – statutory amount is a starting point and can be increased or reduced taking into account (1) special needs of child; (2) ability of parents to contribute to support; (3) any financial resources available for support of the child; (4) amount of possession and access to child. BUT, court order MUST contain written explanation justifying any deviation from statutory guidelines.
What should not be considered in determining a child support amount?
- CANNOT consider:
- (1) great wealth and family lifestyles
- (2) despicable conduct
- (3) In no event may obligor be required to pay for support that exceeds the proven needs of the child.
- CAN consider:
- (1) illness and medications
- (2) learning disabilities
- (3) private schooling
- (4) extra curricular activities
- (5) pets
- (6) birthday gifts
- (7) etc.
Who are child support payments made to?
Child support payments made to the State Disbursement Unit
What is Support based on “Earning Potential”?
No reduction of an obligor’s actual income is significantly lower because of intentional unemployment or underemployment. Support can be based on earning potential even though there is no proof that the unemployment/underemployment is for the purpose of or intended to avoid the support obligation.
What are the different ways to enforce payment of child support obligations?
- (1) Mandatory withholding from wages
- a. Must be included in order; max amount subject to mandatory withholding is 50% of disposable earnings (take-home pay)
- b. If obligor is self-employed, he can be ordered to post bond or other security, which is forfeited is he falls in arrears
- (2) Suspension of license
- a. If more than 3 mos in arrears and given opportunity to make payment under agreed repayment schedule
- b. Must be given 60+ days notice
- c. Also, delinquent obligor cannot obtain state grants, loans, or contracts
- (3) Child support lien for arrearages
- a. real property other than homestead
- b. non-exempt personal property
- c. claims for negligence, personal injury, worker comp held by obligor ON OR AFTER date on which lien attaches
- d. file child support lien notice in county in which obligor is believed to own nonexempt property or in which obligor resides
- (4) Levy and execution on obligor’s financial assets
- a. Delivery of notice of levy freezes assts for 10 days (during which time obligor can pay arrearages in full, enter into satisfactory payment schedule, or file suit to contest)
- b. Financial institution must pay amount identified in notice no sooner than 15 days and no later than 21 days after delivery of notice (unless obligor contests levy)
- (5) Contempt
- a. Must be based on court order divorce decree. Can get
- i. Up to 6 mos in jail, $500 fine, both; and
- ii. Community supervision upto 10 years
- iii. SOL = 2 years from child becoming adult or obligation terminating
- (6) Money judgment
- a. Payments not timely made automatically becomes money judgment for amount due plus 6% interest
- b. The court’s only function is to confirm the unpaid amount
- c. SOL = 10 years from child becoming adult
Are child support arrearages discharged in bankruptcy?
How can Texas enforce child support orders from another state?
Contempt is NOT available for arrearages (since they were in violation of another’s state’s order).
- Out of state orders cannot be enforce in Texas, so make it a Texas order under the Uniform Interstate Family Support Act – all W has to do is:
- (1) send two copies of the out of state support order to a Texas court, together with a sworn statement by W showing the name and address of H (and employer if known).
- (2) Upon registration under UIFSA, the order becomes a Texas order, and then will be enforceable in Texas by contempt.
- Other ways to enforce out of state order?
- (1) reduce arrearages to money judgment in other state courts, and bring to Texas to be entitled to Full Faith and Credit
- (2) Make copy of income-withholding order to obligor’s employer or Texas AG’s child support enforcement division.
How can you enforce a custody order?
- (1) Habeas corpus
- (2) Statutory Tort Liability
- (3) Contempt (Intrastate: all Texas setting)
- (4) UCCJEA
- (5) Modification of Child Support or Custody Order
How can you enforce a custody order based on habeas corpus?
- (1) Habeas corpus
- a. If valid court order awarding custody.
- b. Exceptions –
- i. Custody order issued w/o due process
- ii. Temporary orders excluding possession based on serious question about child’s welfare
- iii. If child not in mom’s possession at any time within past 6 mos, court may consider motion or cross action to modify custody
- c. Venue – where child is or court w/ continuing, exclusive jurisdiction (no continuing, exclusive jurisdiction if SAPCR dismissed, order that alleged father not the fathers, and final order of adoption).
How can you enforce a custody order using a statutory tort claim?
- (6) Statutory Tort Liability
- a. Retains or conceals child in violation of court order
- b. Can get actual and exemplary damages
- c. Must give notice of intent to file tort suit in 30 days unless there is compliance w/ custody order
How can you enforce a custody order based on contempt?
- (7) Contempt (Intrastate: all Texas setting)
- a. Probation upto 5 years
- b. Quasi-criminal so D has right to be present at trial, right to appointed cousel
- c. Evidentiary standard = beyond a reasonable doubt
How does UCCJEA affect SAPCR cases?
- (8) UCCJEA
- a. Once continuing, exclusive jurisdiction established, court has it as long as at least one party continues to reside in that state.
- b. Jurisdiction priority (descending order)
- i. Home state jurisdiction (child’s birth state or lived for last 6 months)
- ii. No home state or home state declines, then significant connection/substantial evidence – Texas more appropriate forum or due to reason of conduct and (i) child and one parent has significant connection with the satate and (ii) substantial evidence is available in this state concerning child’s care, training and personal relationship
- iii. All other states with jurisdiction decline – on ground that this state is more appropriate forum to determine custody of child – then that state has jurisdiction
- iv. Default jurisdiction – no other state has jurisdiction under any of above grounds
- v. Note: Court may decline jurisdiction if it’s inconvenient
How can you enforce a custody order using the UCCJEA?
- c. Remedies:
- i. Register 2 copies of order – Texas court can then grant any relief available for enforcement of registered order, including contempt
- ii. Expedited enforcement in habeas proceeding – court order directs respondent to appear in person at hearing held next judicial day after service of the order (first judicial day possible). Possession of child is awarded to petition unless custody or visitation order has been stayed or vacated
- iii. Warrant to take immediate possession of child – on finding that child is imminently likely to suffer serious physical harm or be removed from the state.
How can you enforce a custody or child support order by filing a modification suit?
- Modification of Child Support or Custody Order
- d. Circumstances of child or affected party have materially and substantially changed since date of court announcement or mediated settlement agreement signing (not date of filing modification) (a parent has greater or lesser income or child’s needs are greater or lesser) OR (2) 3 years have elapsed and support deviates from guidelines by greater of 20% or $100
- e. File in court w/ continuing exclusive jurisdiction
- f. Must give notice at least 60 days before the move
- g. Must inform the other if he resides with for 30 days, marries, or intends to marry a registered sex offender.
Note: Parties cannot agree that a custody order will not be subject to modification. Transfer of venue is mandatory if child has resided in new county for at least 6 mos (but this is not basis for interlocutory appeal).
When may a court modify an order that provides for the appointment of a conservator, the terms and conditions of conservatorship, or possession and access to a child?
- (1) modification is in child’s best interest, AND
- a. circumstances have materially or substantially changed since date of rendition, OR
- b. 12 y/o child has expressed desire for modification
- Note: if modification is sought w/in 1 year, the petitioner must include an affidavit with their petition that presents facts that: (i) the child’s present environment may endanger physical health or impair emotional development, or (ii) there is consent, or (iii) six month relinquishment of primary care and possession.
Note: the motion to modify custody or designation of person who has the right to determine child’s primary residence must be filed within 1 year from the order to be modified, undless the MC consents to the modification and PC (spouse now wanting custody) shows a danger to child’s emotional or physical health is at issue.
If all parties have moved from state where support order was issued, where should a motion to modify support be filed?
It should be filed in state where obligor resides (to get personal jurisdiction over obligor); after registering support order in that state under UIFSA procedures.
If H and W were divorced in Texas and since then Wife (who is also MC) moved to FL permanently with child and H wants to bring an action to be appointed MC and to reduce child support, which state is the proper forum?
Texas still has continuing, exclusive jurisdiction as long as one party resides in the state.
Only way to move proceeding to FL would be to show that TX is an inconvenient forum: (i) that neither child nor W have a significant connection in Texas and (ii) substantial evidence relating to the matter is no longer available in TX.
When can grandparents petition for reasonable access to a child?
Biological or adoptive grandparent (but not step-grandparents) can have reasonable access granted if the parental rights of at least one parent have not been terminated and the parent who is the grandparent’s child is (1) dead, (2) incompetent, (3) has been in jail or prison during the preceding three months, or (4) does not have actual court ordered access to the child.
What must be proved for grandparents access over a parent’s objection?
- An order granting possession/access to a child by grandparent is rendered over a parent’s objection must tracj proof that is necessary to obtain such and must state, with specificity that:
- (1) at the time relief requested, at least one biological or adoptive parent have NOT had parental rights terminated
- (2) Requesting granny has overcome presumption that parent acts in child’s best interest by proving by a preponderance of the evidence that denial of possession/access would significantly impair child’s physical health or emotional well being (>>>child’s sadness is NOT enough); AND
- (3) Requesting granny is a parent of the child and that parent of the child: (i) incarcerated during three month period preceding filing of petition, (ii) incompetent, (iii) is dead, or (iv) does not have actual court-ordered possession or access to the child.
What are the requirements for the removal of disability of minority?
- (1) For 16 or 17 y/o, disability (legal incapacity) may be removed if the minor is financially independent and managing own financial affairs
- (2) For 16 y/o additional requirement = minor must be living apart from parents, MC, or guardian.
- (3) Court must find removal in the best interest of the child.
What happens if a child is the suspected victim of abuse or sexual abuse? What must be filed?
TXDFPS can take possession of a child without a court order upon info that would lead a person of ordinary prudence and caution to believe that child was a victim of abuse and there is no time to obtain a TRO.
TXDFPS must file a SAPCR (w/ appointment of ad litem for child) and obtain an ex parte hearing within 3 working days and parents must be given written notice prior to ex parte hearing explaining why children were removed and summary of parent’s legal rights.
When a child is removed due to suspected abuse, when must there be a hearing on the matter?
Obtain ex parte hearing within 3 days.
Obtain full adversary hearing w/in 14 days (otherwise child must be returned)
What must TXDFPS prove in order to remove a child based on abuse?
- To retain child, TDFPS must present sufficient evidence to satisfy a person of ordinary prudence and caution that:
- (1) there is a continuing danger to the child’s physical healthy or safety cause by the parent’s act or failure to act, and
- (2) there is a reasonable likelihood that the child will be a victim of abuse in the future.
Do professionals have a duty to report suspected child abuse?
Yes – professionals must report suspected child abuse within 48 hours of obtaining information and the duty to report cannot be delegated; failure to make such a report is a misdemeanor.
What is the consequence of making a false report of child abuse or neglect?
A person who in good faith reports alleged child abuse or neglect, or testifies in judicial proceeding is immune from civil or criminal liability.
But, if done in bad faith, not immune.
What is the Parental Liability for Child’s Tortious Conduct in cases of negligence, intentional torts, and theft?
- (1) Negligence – parent is liable for property damage cause by child’s negligent conduct if conduct is attributable to parent’s negligent failure to exercise duty of control and reasonable discipline of child >>> no money limit on liability AND two acts of negligence are required: child and parent.
- (2) Intentional Tort – parents are liable for property damage caused by willful and malicious conduct of child age 10-18 >>> damages limited to $25K per act (no need to show parental neglect).
- (3) Theft – parents are liable for theft by child under age 18 and $5K is max.
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