Reading...
Play button
Play button
Use LEFT and RIGHT arrow keys to navigate between flashcards;
Use UP and DOWN arrow keys to flip the card;
H to show hint;
A reads text to speech;
261 Cards in this Set
- Front
- Back
|
How long is a marriage license valid for?
|
A man and woman who want to get married must get a license - valid for 30 days from issue.
|
|
|
What happens if a marriage ceremony takes place and the marriage license is not obtained?
|
A ceremonial marriage is valid even though a marriage license is not obtained, but the elements of a valid marriage must be established by independent proof.
|
|
|
What kind of license is needed to make a common law marriage valid?
|
No license is needed for a common law marriage.
|
|
|
Is a medical exam needed for a marriage license?
|
Medical exam is not needed.
|
|
|
What is the required waiting period for a marriage license?
|
There are no venue or residence req's, just a 72 hr waiting period between issuance of license and date of marriage.
|
|
|
Under what circumstances is the waiting period for a marriage license waivable?
|
Waiting period does not apply if one person is in ACTIVE DUTY armed forces, or if the applicants complete a premarital education course. Waiting period may also be waived by Court order.
|
|
|
How long must one wait for remarriage after a divorce?
|
A recently divorced person can't marry within 30 days of his divorce decree (unless court waives requirement). However, divorced parties may remarry each other at any time.
|
|
|
What is the result if a recently divorced person marries within 30 days of the divorce?
|
A marriage sooner than 30days is voidable by the innocent spouse, but only for 1 year (from knowledge) and only if the parties do not cohabit after the innocent party learns of the divorce.
|
|
|
What do children aged 16 or older need when seeking a marriage license?
|
Kids 16-17, can obtain license with consent of either parent or a court-approved guardian. The marriage application must be made within 30 days after consent
|
|
|
What do children younger than 16 need when seeking a marriage license?
|
Applicants under 16 can only marry with court approval (best interests test)
|
|
|
When must a person get parental consent to obtain a marriage license?
|
No marriage license w/o parental consent for kids under 18. However, if kids can't find someone to grant consent, a person under 18 may petition the DCt for an order granting permission to marry.
|
|
|
Are there any restrictions on the marriage ceremony?
|
No particular type of ceremony is required
|
|
|
Are there restrictions on who a JP can marry?
|
A justice of the peace cannot discriminate based on race, religion, national origin
|
|
|
What is the three part test for a valid common law marriage?
|
1. The parties agreed to be married
2. Parties lived in Texas as husband and wife 3. The parties represented to others that they were married |
|
|
What evidence supports a finding that a couple has a 'common law marriage'?
|
A single public act, such as signing a mortgage as ʺhusband and wifeʺ may support a finding of common law marriage
|
|
|
What is a declaration of Informal Marriage?
|
It is a permissible method of proving an already existing marriage. Parties can execute and record a sworn Declaration of Informal Marriage.
It is not a requirement for establishing CL marriage, nor is it an alternative to a ceremonial marriage. |
|
|
When is a common law marriage not valid?
|
If there is an impediment to marriage (bigamy).
|
|
|
How might a marriage that is not valid be subsequently converted to a valid marriage?
|
If the impediment is removed, and the couple continues to cohabit and to hold themselves out as married, a CL marriage can arise.
|
|
|
When does the presumption against common law marriage arise?
|
If an action to prove a CL marriage is not brought within 2 years after parties separate, a presumption arises that the parties did not agree to be married.
|
|
|
Is gay marriage recognized?
|
There are no recognized gay marriages or civil unions in TX, and TX doesn't recognize out of state gay unions
TX has also rejected the marriage-like doctrine. |
|
|
How do results of a sex change operation affect a person’s ability to enter a valid marriage?
|
Results of a sex change operation are not recognized for purposes of marriage
|
|
|
What is the Texas policy regarding the validity of a marriage that may be defective?
|
Texas policy is to uphold the validity of marriage. Every marriage entered into in TX is valid unless made void or voidable by statute.
Generally, validity of marriage not affected by fraud, mistake, or illegality in getting license. |
|
|
What is the effect of a marriage ceremony conducted by an unauthorized person?
|
A marriage is valid even if the ceremony was conducted by an unauthorized person, as long as the person conducting the ceremony had apparent authority and at least one putative spouse participated in the ceremony in good faith.
|
|
|
What marriages are automatically void? (CUB)
|
1. Consanguinity: No family within 2 degs (even b/t half-blood and adopted family)
2. Underage party < 16 w/o court order 3. Bigamy: If prior marriage dissolved, marriage is valid from time parties cohabited and held out as married (recent marriage presumed valid). |
|
|
How do you formally declare a marriage void?
|
Either party can bring a suit to declare the marriage void if the marriage was made in Texas.
|
|
|
What is the form of the suit to declare a marriage void?
|
Suit can be in rem and in an ex parte proceeding.
|
|
|
May a party declare a marriage void and settle property issues in the same proceeding?
|
No, property issues must be adjudicated in separate proceeding.
|
|
|
When can a voidable marriage no longer be challenged? Exception??
|
Not subject to challenge after death of either party, unless allegation is that decedent didn't have capacity to consent to marriage.
|
|
|
If a person who seeks annulment of a marriage voluntarily cohabits with the other party, may they seek annulment?
|
Aside from underage parties and marriage within 72 hour waiting period, a party cannot bring suit to annul if petitioner voluntarily cohabited with the other person.
|
|
|
Kid b/t 16-17 married w/o parental consent or court order. Voidable?
|
Annulment is at court's discretion, but no annulment if female is pregnant.
|
|
|
May a marriage be annulled due to: abuse of alcohol or narcotics; permanent impotency; fraud, duress, force used to obtain marriage?
|
Suit to annul is allowed if at time of marriage: (i) the petitioner was too drunk to consent (ii) either party is permanently impotent for mental or physical reasons (iii) the other party used fraud, duress, or force to obtain marriage.
|
|
|
Is a marriage voidable due to one party's mental incapacity?
|
Voidable if parties did not voluntarily cohabit after incapacity evident
|
|
|
Is a marriage voidable if a party concealed a divorce that happened within 30 days of the new marriage?
|
Voidable if other party did not and could not reasonably have known, but suit must be brought within 1 year
|
|
|
Is a marriage voidable if the marriage took place more than 72 hours after license issuance?
|
Voidable, but must annul w/in 30 days
|
|
|
When must an action to annul a voidable marriage be brought?
|
If decedent had no mental capacity to consent and the marriage took place w/in 3 years of his/her death then the action for annulment must be filed w/in one year of death
|
|
|
What are the rights, powers, and duties arising from marriage?
|
1. Duty of Support: support minor kids and other spouse. Each spouse is liable for other's contracts for necessaries
2. Criminal conversation or alienation of affection: not authorized |
|
|
What is the ground on which a marriage can be dissolved without fault?
|
No fault (marriage has become insupportable): most commonly used. Only defense is reasonable expectation of reconciliation.
|
|
|
Why would someone allege one of the grounds for fault in a divorce proceeding?
|
To secure an advantage for purposes of property division or child custody.
|
|
|
What are the 'fault' grounds on which a marriage can be dissolved? (She treated me like CACCA)
|
- Cruel treatment,
- Adultery, - Confinement in mental hospital for at least 3 yr, - Conviction of a felony, - Abandonment for >1 year |
|
|
What types of emotional damages can a spouse recover after a divorce?
|
Spouse can recover IIED, but no recovery is allowed for NIED.
|
|
|
How does fault in a divorce influence division of the community?
|
In dividing the community estate, fault is considered, but a spouse cannot recover both tort damages and a disproportionate division of the estate based on the same conduct. There is no independent tort action between spouses for injury to community estate
|
|
|
Where is the residence of a Texas domiciliary living out of state?
|
A TX domiciliary living out of state or county while in the military is considered a resident of that state/county.
|
|
|
What is the durational residency requirement before filing a Texas divorce suit?
|
Durational residency requirement: Either party must have lived in TX for the 6 months preceding filing and been a resident of the county where suit is filed for 90 day period.
|
|
|
Where should a divorce suit be filed by a non-resident spouse?
|
Suit by non-resident spouse: if one person lives in a TX county, the non-domiciliary can sue for divorce in that county.
|
|
|
What are the requirements for a suit for annulment or to declare a marriage void?
|
A suit to annul a voidable marriage/void marriage may be maintained only if:
(i) parties were married in TX, OR (ii) either party is domiciled in TX |
|
|
How can a court court exercise personal jdx over a non-resident respondent?
|
Long-Arm Jurisdiction:
- Petitioner is a resident/domiciliary of TX, - TX is the last marital residence of the spouses, and - Suit is commenced within 2 years after the date on which marital residence ended. |
|
|
What is the secondary basis for a court's exercise of personal jdx over a non-resident?
|
Also if there is a basis consistent with the constitution of TX and USA for personal jdx,
|
|
|
What must the pleadings in a divorce proceeding contain with respect to the basis for divorce?
|
Must contain allegations of grounds relied on substantially in the language of the statute BUT must not contain a detailed statement of evidentiary facts.
|
|
|
What must every petition for dissolution of marriage contain regarding the safety of the parties?
|
Note that a petition for dissolution of marriage must state whether a protective order for domestic violence is pending or in effect.
|
|
|
When may a court order marriage counseling?
|
While divorce is pending, the court may direct parties to go to counseling.
|
|
|
What is the purpose of court ordered marriage counseling?
|
Counselor submits report on whether he thinks parties can reconcile.
|
|
|
What are the restrictions on the use of information from counseling?
|
Counselor cannot testify and none of his report, files, or records can be admitted in any other action involving parties and their kids.
|
|
|
Can a spouse obtain a divorce by default?
|
A default in a divorce suit is generally not permitted.
|
|
|
What does a party seeking divorce do if the other party does not answer the petition?
|
Even if respondent doesn't answer, petitioner retains the burden of proof to establish the grounds for divorce
|
|
|
What does SAPCR stand for?
|
Suit Affecting the Parent Child Relationship.
|
|
|
What must be included in the suit for divorce if both parents are responsible for the Custody and Support of Kids?
|
If parties are parents of minors, the suit for divorce, annulment, or to declare the marriage void must also include a suit affecting the parent child relationship. BUT ONLY required if the child is of both parents.
|
|
|
What are the restrictions on Transfers and Debts pending a divorce decree?
|
After the petition for dissolution is filed, a transfer of community property or incurrence of a community obligation is void with respect to the other spouse if there is an intent to injure the rights of the other spouse, but it is not void with respect to 3rd parties if they have no notice
|
|
|
When may a TRO issue in a divorce proceeding?
|
Ex parte TRO's may be issued to prevent harassing actions.
|
|
|
How may a TRO be converted to a temporary injunction, and what does that entail?
|
After notice and hearing, the TRO can be extended to a temporary injunction.
|
|
|
What are some examples of required evidence for temporary injunctions?
|
Temp injunctions can require sworn inventories and appraisals, can exclude one spouse from the residence, can require the support of either spouse, etc
|
|
|
What do protective orders in cases of family violence prevent?
(Russian gangsters like PASHKA) |
- Possessing firearm ,
- Attempting to talk to family, - Stalking, harassing or embarrassing, - Hitting family - Kidnapping child, - Approaching job or house. |
|
|
When may a protective order be made in a case of family violence?
|
After notice and hearing which shows that domestic violence has occurred.
|
|
|
When may the court issue an ex parte temporary protective order?
|
If Ct finds clear and present danger that spouse will commit violence, it may issue an ex parte temporary protective order. Violation of protective order is criminal offense.
|
|
|
What is the waiting period between the time a suit is filed until a divorce decree can be granted?
|
60 days must elapse between filing of suit and granting of divorce, but a decree entered in a shorter time is not subject to collateral attack.
|
|
|
When is the waiting period between filing suit and entering a divorce decree waived?
|
No waiting period required:
- For annulment or declaration marriage is void. - If respondent has been convicted of violence against petitioner or family member - If petitioner has an active protective order against respondent based on a finding of family violence |
|
|
What is required for a court to refer a divorce dispute to Alternative Dispute Resolution?
|
A Ct may refer a suit to ADR
Collaborative Family Act: Parties sign a collaborative family law participation agreement and are represented by collaborative lawyers without judicial intervention. |
|
|
When will a spouse seeking maintenance have a valid claim?
|
(i) Victim of family violence;
(ii) Unable to earn sufficient income to provide minimum reasonable needs b/c of physical or mental disability (iii) Married >10 yrs and no ability to maintain self (iv) Custodian of child with a physical disability preventing spouse from earning sufficient income to meet minimum reasonable needs |
|
|
What is the standard for dividing community property?
|
Ct ordered division of community property must be just and right.
Also applies to quasi community property imported from another state. |
|
|
When is a person a child?
|
Child: minor under 18 who is not married and has not had his disability of minority removed.
A marriage of a person under 18 removes disability. |
|
|
How may a child be emancipated?
|
A child over 16 can petition to be emancipated if it in BIOC.
|
|
|
What are the requirements for emancipation?
|
If emancipated, has adult powers:
- Must be self-supporting and manage own non-financial affairs. - If >16, must be living separate and apart from parents or managing conservator/guardian. - Petition must state reasons emancipation is sought. |
|
|
What makes a Mother a Parent?
|
Mother/Child:
(i) Woman gives birth (ii) Adjudication of maternity (iii) Adoption of child |
|
|
What makes a Father a Parent?
|
Father/Child:
(i) Unrebutted presumption of husband's paternity (ii) Acknowledgment of paternity (iii) adjudication of paternity (iv) adoption of child (v) Husband's consent to assisted reproduction by wife |
|
|
How does a presumption of paternity arise?
|
(i) child born during marriage or within 300 days after death/divorce/annulment
(ii) man married child's mom after child's birth and voluntarily asserted paternity by filing record with Bureau of Vital Statistics, being named on birth cert, or promising in a record to support child as his own (iii) during first two years of kid's life, resides with child and holds himself out as father |
|
|
When must a paternity presumption challenged?
|
Within 4yrs of child's birth, unless Ct finds:
- Presumed parents did not live together or have sex at probable time of conception, or - Presumed father precluded from commencing parentage suit due to mistaken belief, based on lies, that he was the dad. |
|
|
How can a paternity presumption be disproven?
|
Paternity can be disproven by:
(i) Genetic tests (ii) Written denial of paternity declaring another man the dad |
|
|
What rights does a father have if he is not married to the mother?
|
Unmarried father of a child is entitled to service of process in any SAPCR and can be adjudicated child's parent in a paternity suit
|
|
|
Who is the father if the child was born from artificial insemination?
|
A test tube baby is not the child of the donor, unless the donor is the mom's husband, and only if he consented to the procedure in writing. Child is not the child of the donor.
|
|
|
What are gestational agreements?
|
Surrogacy agreement: gestational mom, her husband, each egg and sperm donor, and the intended parents (married) agree that the intended parents will be the child's parents, and that no parent-child relationship will exist with respect to anyone else.
|
|
|
What are the requirements for valid gestational agreements?
|
Resulting child cannot be the result of sexual intercourse.
Gestation mom's eggs cannot be used, and the gestational mom must have at least 1 successful pregnancy |
|
|
What are the rights and duties of parents, unless terminated by court order?
|
Custody;
Inherit from and through child; Representation in legal actions; Receive and disburse funds for child; Use of punishment for reasonable discipline; Support; Child's Services and earnings; Consent to marriage; Care and Upbringing; Manage child's estate; Medical treatment and service. |
|
|
What is a parent's liability for the acts of his child?
|
Unlimited liability for property damage caused neg. conduct if due to neg. failure to exercise parental control/discipline.
Willful or malicious conduct damage of child age 10+; liability limited to $25K per act plus court costs and atty fees. Also liable up to $5K for any theft committed by child |
|
|
What is a Suit Affecting Parent Child Relationship?
|
An SAPCR is a unitary action in which all of the issues affecting the parent and child can be adjudicated in a single lawsuit, including custody, visitation, child support, adoption, paternity, and termination of the parent-child relationship.
|
|
|
When must an SAPCR be joined?
|
If a couple with children are involved in dissolution suit, an SAPCR must be joined
|
|
|
Who may bring an SAPCR?
|
Parent, child, guardian, gov't entity, authorized agency, foster parent.
Grandparent may file a suit seeking appointment as managing conservator in limited circumstances (substantial Hx w/ kid). Alleged father of illegitimate child can bring paternity action, but not any other SAPCR. |
|
|
What is the venue for an SAPCR in a divorce proceeding?
|
For an SAPCR tied to divorce, the divorce venue controls.
|
|
|
What is the venue for an SAPCR in all other proceedings aside from divorce?
|
In all cases except divorce, an SAPCR is filed in the venue of child's residence.
|
|
|
How is the residence (for purposes of venue) of the child determined?
|
Child is deemed to reside where the parents, guardian, foster parents reside.
|
|
|
Can venue in an SAPCR be modified by parental agreement?
|
Venue cannot be modified by parental agreement
|
|
|
How is continuing jurisdiction in an SAPCR suit determined?
|
After final decree in SAPCR, the original Ct retains continuing exclusive jdx of all parties and matters in connection with the child.
No other court has jdx except upon transfer. |
|
|
What authority does a court with continuing jdx have in an SAPCR?
|
Continuing jdx permits the Ct to modify all aspects of the decree.
|
|
|
When is transfer of jurisdiction in an SAPCR mandatory?
|
Transfer to another county is mandatory if there is a divorce pending or if the child has resided in the new county for at least 6mos (period begins when child takes residence in new county).
|
|
|
What is the effect of a transfer of jurisdiction in an SAPCR?
|
After transfer, new Ct becomes Ct of continuing exclusive jdx.
|
|
|
How may long arm jurisdiction in an SAPCR be made valid?
|
(1) Personally served in TX
(2) Submits to TX jdx by consent, appearance, or filing response (3) Resided w/ child in TX (4) Resided in TX and provided support or parental expenses (5) Child resided in TX by acts or directives of individual (6) Child conceived in TX (7) Signed paternity acknowledgement (8) Any other const. basis for personal jdx |
|
|
What is a guardian ad litem?
|
An attorney ad litem must be appointed to look after unrepresented interests if the Texas Department of Family and Protective Services seeks appointment as managing conservator or at the Court's discretion.
|
|
|
When is appointment of a guardian ad litem mandatory?
|
Must be appointed in suit to terminate parent/child relationship; emancipation; paternity dispute actions.
|
|
|
When might the court appoint an amicus attorney?
|
Ct may appoint an amicus atty to assist Ct by providing the opinion and recommendation of an atty who is not an adversary in the proceeding.
|
|
|
When will the court appoint an attorney ad litem for a parent?
|
In a state suit to strip parental rights, Ct must appoint for any:
- Indigent parent, - Parent served citation by publication, - Alleged father who didn't sign parental registry, - Alleged father who signed parental registry but can't be served |
|
|
What can be done to promote the safety and welfare of a child?
|
The court may make a TEMPORARY ORDER for the safety and welfare of the child.
|
|
|
What temporary order can be made to provide a child with a guardian?
|
Temporary conservatorship
|
|
|
What temporary order can be made to provide a child with finances?
|
Temporary support
|
|
|
What temporary order can be made to protect a child from abduction?
|
Restraining order to prevent any party from molesting or disturbing the peace of the child or another party, or removing the child beyond a geographical area set by the court.
|
|
|
How can the court decrease the burden of a parent seeking a temporary order for the safety and welfare of a child?
|
Statute permits the court to dispense with the necessity of filing a bond.
|
|
|
What can be done to determine the fitness of a managing conservator?
|
Ct ordered Social study into the circumstances and condition of the child and of home of any person requesting managing conservatorship or possession.
|
|
|
Who conducts the inquiry into the fitness of the managing conservator?
|
Study made by any state/private agency or court appointed person.
|
|
|
When is a social study into the conservator's fitness mandatory?
|
Mandatory in adoption suits.
|
|
|
In what type of suits is there an entitlement to a jury verdict in an SAPCR?
|
(a) Appointment of a sole/joint managing conservator
(b) Which JMC has exclusive right to designate the child's primary residence (c) Whether to impose restrictions on geographic area in which JMC may designate child's residence |
|
|
In what circumstances during an SAPCR is there no entitlement to a jury verdict?
|
1. Child support (verdict is only advisory)
2. Specific terms of visitation 3. Rights or duties of JMC other than over which JMC has exclusive right to determine child's primary residence |
|
|
When is a parenting plan developed?
|
At end of SAPCR
|
|
|
What happens if no parenting plan is developed 30 days before trial?
|
If no plan at least 30 days before trial, either party may propose plan OR ask for appointment of parenting coordinator
|
|
|
What does a parenting plan detail?
|
(a) Sets rights/duties of each parent
(b) Details periods of possession/access to child (c) Determines child support (d) Promotes a close and continuing relationship for each parent |
|
|
How is a parenting plan made enforceable?
|
Ct can approve plan and incorporate it into the final decree, or can ask parties to revise.
|
|
|
When will the court appoint a parenting coordinator/facilitator?
|
Ct may appoint PC if:
(a) Case is or is likely to become high conflict (b) Appointment of PC is in BIOC. |
|
|
What is the function of a parenting coordinator?
|
- Identifying disputed issues,
- Reducing misunderstandings, - Clarifying priorities, - Exploring possibilities for problem solving, - Developing methods of collaboration in parenting, - Developing parenting plan, and - Complying with Ct order re: conservatorship & poss./access |
|
|
What rights do joint conservators have to the child?
|
Whether possessory and managing or joint managing, the Ct will specify rights and duties for each.
Each parent retains right to information on child's health, education, welfare |
|
|
What are the rights of custodial parents?
(Remember, custodial parent takes kid to MACDs) |
General rights:
- Manage child's estate created by that parent - Access to kid's medical and school records, - Consult school officials and attend school activities, - be Designated as emergency contact |
|
|
What rights are exclusively available to a Sole Managing Conservator?
|
Right to:
- Designate kid's primary residence; - Child's services and earnings; - Make decisions about kid's school; - Consent to marriage or military enlistment; - Invasive med treatment consent; - Child support receipt/disbursement to kid; - Represent kid in legal actions/decisions |
|
|
What rights does a parent have during period of possession?
|
Right to:
- Direct moral/religious training; - Duty of care/reasonable discipline; - Support child; - Provide med/dental care; - Consent to emergency med treatment |
|
|
What is the duty to provide notice of a relationship with sex offender?
|
A conservator must inform other conservator of relationship w/ a known registered sex offender if she:
- Resides with for 30 days, - Marries, or - Intends to marry. |
|
|
What are the rights, duties, and powers of a Non-Parent Conservator?
|
All rights, except the duty to manage child's estate and duty to provide medical care.
|
|
|
What is the Sole Managing Conservator Best Interests Test?
|
The BIOC is the primary consideration of the court in determining questions of managing conservatorship, possession, and support of and access to the child.
|
|
|
Who is the preferred sole managing conservator?
|
There is a strong preference for appointing a parent as sole-MC.
Absent special circs, Ct must appoint a parent, or as joint managing conservator w/ other parent unless: (i) Appointment of parent would impair kid's health or emotional development (ii) One or both parents voluntarily relinquish possession and control of child for >1 yr, a portion of which period within 90 days preceding commencement of the action to be appointed MC. |
|
|
What evidence is considered when determining who will be a child's sole-managing-conservator?
|
Evidence of past abuse.
|
|
|
What is the effect of a party agreement on who will be the managing conservator?
|
If parties agree on who should be the MC, the court must appoint that person unless it finds that it would not be in the BIOC.
|
|
|
What information is not relevant to determining who will be the sole-managing-conservator?
|
Statute requires neither party be favored b/c of marital status or sex.
|
|
|
What preference comes into play when parents of multiple kids seek divorce?
|
Kids from same marriage should not be split unless there are clear and compelling reasons.
Paramount test is BIOC. |
|
|
When does a child have the right to choose his primary custodian?
|
A child >12 may choose the person who gets primary custody, subject to judicial veto.
Court may also interview child in chambers to ascertain the child's preference. On motion of either party, Ct must interview a child >12 unless it is a jury trial, where court can't interview kid. |
|
|
What is the effect of the death of the managing conservator?
|
Terminates the Ct's conservatorship order, but does not terminate the SAPCR Ct's continuing jdx over child.
Surviving parent has superior right to custody in the absence of evidence of imminent danger that would outweigh that right. |
|
|
On what factors will the court base its decision to order that a child be subject to a joint managing conservator?
|
Ct can order JMC, or parties can agree to it if it's in BIOC. Ct will consider:
- Kid's physical, psych, or emo needs; - Parents demonstrated ability to reach consensus; - Parents participation in child rearing before suit; - Geographic proximity of parties; - Preference of child >12 |
|
|
When is the presumption for joint managing conservatorships overcome?
|
Unless there is family violence, presumption is that appointing JMC is in BIOC.
|
|
|
Must joint managing conservators have equal possession rights to the child?
|
Appointment of JMC's does not require equal or nearly equal periods of physical possession of the child.
Ordinarily the home of one JMC is designated the child's primary residence. Exclusive power to make certain decisions may be given to one JMC. |
|
|
What is required in an agreement or order for joint managing conservatorship?
|
Agreement of order must:
(i) Designate conservator w/ exclusive right to designate child's primary residence (ii) Establish child's residence or specify that conservator will (iii) Include provisions designed to minimize disruption of the schooling, daily routine, and friendships (iv) Set out rights and duties held exclusively by one JMC, and those to be exercised jointly |
|
|
How does appointment of a JMC affect the duty of child support?
|
Appointment of JMCs does not limit the court's authority to order child support, including payments by one JMC
|
|
|
When may a grandparent or other relative bring an SAPCR?
|
A grandparent or other relative may seek MC appointment if
(i) Child's present circumstances significantly impair health or emotional development, (ii) Parents, surviving parent, or MC consents, or (iii) Both parents dead |
|
|
What is a Possessory Conservator?
|
A noncustodial parent with visitation rights.
|
|
|
What is the default visitation plan?
|
Typically, if child is 3 or more y.o. and parents live w/in 100 miles, the default plan is that parents get alternating weekends, Thursday evenings during school yr, and 30 days in summer.
|
|
|
When can a parent be denied access to a child?
What is the exception? |
If there is a history of violence during two years preceding the filing of the suit.
But not if Ct (i) Finds that awarding access will not endanger child and is in BIOC (ii) Enters a possession order designed to protect child and any other person who was a victim |
|
|
What is the general custodial rule on rights to possession with respect to nonpayment of support?
|
Possession or access cannot be conditioned on nonpayment of support
|
|
|
When can the allotment of time for possession of a child be increased?
|
Court may order additional periods of possession or access to a child to compensate for the denial of court ordered possession or action.
|
|
|
What are the restrictions on electronic communication with a child by its Possessory Conservator?
|
The Ct may award a PC reasonable email and phone calls with kid to supplement the conservator's period of possession.
Court must consider whether: (i) Communication is in BIOC (ii) Necessary equipment is reasonably available to all parties (iii) Any other factor Ct considers appropriate. Availability of electronic equipment is not a factor in determining the amount of child support and is not intended to be substitute for physical access |
|
|
How much notice of address change is required?
|
Conservators must give each other 60-days written notice of COA.
|
|
|
How are suits regarding the relocation of a managing conservator handled?
|
Whether MC can move to another state or country is a fact specific issue and each relocation case must be evaluated on its own unique facts.
|
|
|
What court has jurisdiction to modify an order establishing conservatorship?
|
Court appointed conservatorship can be modified only by filing a motion in the court of continuing jdx under the SAPCR.
|
|
|
When is transfer of an SAPCR to a new county mandatory?
|
If child has moved to a new county and resided there for at least 6 mos, upon motion by either party, transfer of SAPCR to new county is mandatory.
|
|
|
What are the grounds for modification of a conservatorship order?
|
A Ct can modify if in BIOC and one of the following is met:
(i) Circumstances of child, conservator, or other affected party have materially and substantially changed (ii) Child is >12 y.o. and has expressed in Ct chambers the parent it prefers to live with (iii) Conservator w/ right to establish child's primary residence has voluntarily relinquished the primary care and possession of the child for at least 6 mos. |
|
|
Why is there a time limit before a conservatorship order may be modified?
|
To discourage repeated litigation of the custody issue, if a motion to modify a managing conservatorship is filed w/in one year of the order to be modified, a person filing the motion must execute and attach an affidavit.
|
|
|
What is required to be filed with a motion to modify a conservatorship order that is less than 1 year old?
|
An affidavit alleging one of the following:
(i) Child's present environment may endanger the physical health or impair emotional development, (ii) Person w/ right to designate child's primary residence consents to modification and it is in BIOC, (iii) Person w/ right to designate primary residence has voluntarily relinquished primary care and possession of child for >6 mos and modification is in BIOC. |
|
|
When may a court modify an order on conviction for Child Abuse or Family Violence?
|
If there is a material and substantial change of circumstances that justify modification of an order relating to the:
- Appointment of a conservator, - Terms and conditions of a conservatorship, or - Possession or access to kid |
|
|
What is the effect of the deployment of a possessory conservator in the Army?
|
Overseas deployment of possessory conservator or joint managing conservator is a change in circumstances sufficient to justify modification of an order governing possession of and access to kid.
|
|
|
What can a conservator do before deploying with the military to ensure his child will maintain ties to his side of the family?
|
The deploying conservator may designate a person to exercise limited possession of kid during the period of overseas deployment.
|
|
|
What are the limitations of temporary orders?
|
While a suit for modification is pending, a Ct may not enter a temp order changing the designation of the person w/ right to determine the kid's primary residence unless one of following 3 tests met:
(i) Temporary order necessary b/c present environment is dangerous (ii) Person designated in order to be modified has voluntarily relinquished primary care and possession of child for >6 mos and modification is in BIOC (iii) child is at least 12 and tells Ct who he wants to live with primarily |
|
|
What is the effect of increased visitation expenses due to a change of residence?
|
The court may allocate the increased expenses on a fair and equitable basis.
It must take into account the expenses' cause and BIOC. Payment of increased expenses by party whose residence changed is rebuttably presumed to be in BIOC. |
|
|
How are custody orders enforced?
|
Habeas Corpus: return possession of child to entitled person.
Habeas must be ordered unless: (i) Finding of an immediate serious question concerning child's welfare (ii) Relator (the person filing for the writ) has by consent or acquiescence relinquished possession of child for at least 6 months immediately preceding HC petition filing. Custody questions are not relitigated, except where due process concerns in prior proceedings can be raised. Parent asserting possession may bring HC proceeding against a nonparent even w/o a custody order. |
|
|
What is the nature of tort liability for interference with child custody?
|
TX provides for civil liability if a noncustodial parent kidnaps child or if the custodial parent withholds or conceals the child from a possessory conservator w/ visitation rights.
|
|
|
How much notice should be given before bringing a civil liability claim for kidnapping, and what is the purpose of the notice?
|
Thirty days' notice of intent to file suit must be given to defendants, including aiding and abetting 3rd-parties who may be liable for damages.
The purpose is to put defendants on notice, and perhaps recover the child without litigation. |
|
|
What damages are available for tort liability with respect to enforcing a custody order?
|
Actual damages may be awarded to plaintiff, including costs of locating child, court costs, atty fees, and mental suffering and anguish.
Exemplary damages may be awarded if defendant acted w/ malice or intent to cause harm to the person whose possession was interfered with. A party who aids or assists in conduct covered by statute may be held jointly and severally liable. Frivolous suits: Defendant is entitled to Ct and Atty costs if action is dismissed or judgment is awarded to the D and the Ct finds claim for damages frivolous or unfounded. |
|
|
What is the criminal liability for failing to follow the terms of a custody order?
|
It is a third degree felony for a person to take possession of a child outside of Texas in contravention of a custody order.
|
|
|
What is the penalty for being held in contempt for violation of a custody order?
|
Court ordering regarding custody is enforceable by contempt.
It is punishable by confinement in court jail for up to 6 mos and or a fine up to $500. An MC may be held in contempt. |
|
|
What is an affirmative defense to contempt?
|
Relinquishment of possession of child by the managing conservator is an affirmative defense to contempt.
|
|
|
What remedy is available when one parent repeatedly violates a custody order?
|
If a party fails to grant the other party court ordered possession or access to the child on two or more occasions, the court may order the party to furnish bond or other security conditioned on compliance with the custody order.
|
|
|
What are the purposes of the Uniform Child Custody Jurisdiction and Enforcement Act?
|
Purposes of UCCJEA:
Avoid jurisdictional disputes with courts of other states in child custody and visitation matters, Promote interstate cooperation, and Facilitate the interstate enforcement of custody and visitation orders. |
|
|
Under the UCCJEA, which state may make the initial custody determination?
|
Primary test: Home State Jdx:
Ct has jdx to initially enter or modify a custody or visitation order if it is the proper court of the state of the: (i) Child's home state (ii) Was child's home state within past 6 mos and child is absent from the state, but parent or person acting as parent continues to live in state. |
|
|
How is a child's home state determined?
|
A child's home state is the state in which it lived with a parent (or a person acting as parent) for at least six consecutive months immediately before commencement of the proceeding, disregarding temporary absences.
|
|
|
What are the exceptions to the home state rule under the UCCJEA?
|
A Ct has jdx to enter a child custody or visitation order if no other state has or accepts home state jdxn and
(i) Child and at least one parent have a significant connection with the state and (ii) Substantial evidence concerning the child is available in the state. In addition, a Ct has jdx to enter a child custody or visitation order if no other state has jdx under another test. |
|
|
What court has continuing exclusive jurisdiction under the UCCJEA?
When can this be changed? |
The Ct that made the initial child custody or visitation determination has continuing exclusive jdx over the matter until the Ct determines that:
(i) None of the parties resides in the state, or (ii) Child no longer has a significant connection with the state and substantial evidence relating to the matter is no longer available in the state. |
|
|
When may a court decline jurisdiction under the UCCJEA?
|
A court w/ jdx may decline to exercise it if it determines it is an inconvenient forum under circumstances and that a Ct in another state is a better forum.
Additionally, a Ct may decline to exercise jdx if party seeking to invoke the Ct's jxn has engaged in unjustifiable conduct. |
|
|
When may a court exercise temporary emergency jurisdiction under the UCCJEA?
|
A court has temporary emergency jdx if:
- Child has been abandoned, or - It is necessary in an emergency to protect the child b/c the child, her sibling, or parent is subjected to or threatened with abuse. |
|
|
How is the UCCJEA used to enforce another state's order?
|
A custody or visitation order of another state can be registered in TX and enforced in the same manner as a TX order.
In addition, the Ct can order the respondent to appear in person and award immediate physical possession of the child to the petitioner. The Ct may issue a warranty to take possession of the kid if she is likely to be harmed or taken to another state. A prosecutor or other public official may take action to find the kid and return her, or enforce the custody order if it seems violated. |
|
|
What is the relationship of the UCCJEA to the Parental Kidnapping Prevention Act?
|
As a general rule, full faith and credit must be given only to final orders entered by the courts of another state.
Child custody orders do not meet the final order test b/c they are subject to modification. To address this concern, Congress in the PKPA mandated that full faith and credit be given to child custody determinations of another state if the Act's jurisdictional standards (substantially borrowed from the UCCJEA) are met. |
|
|
How and when may grandparents petition for reasonable possession or access to a grandchild?
|
Grandparents have a COA to obtain and enforce access rights under a SAPCR if at least one biological parent's rights hasn't been terminated and the parent who is a child of grandparent is:
(i) Dead (ii) Incapacitated (iii) Jailed 3+ mo (iv) Does not have actual or court ordered possession of child. Need for order only arises if parent has denied grandparent access. Grandparent must also prove parent is unfit or denying grandparent access would significantly hurt kid. |
|
|
How long do parents have a duty to pay child support?
What happens when a parent owing child support dies? |
Each parent has duty to support kid until 18 or until kid graduates HS. Duty of support ends when kid gets married, dies, enlists in army, or end of disability.
Obligation does not terminate upon obligor parent's death. Remaining unpaid balance of child support is accelerated and amount due is discounted to present value and becomes a claim against estate. |
|
|
Which parent is responsible for the support of a disabled child?
|
Each parent has a duty to support a disabled kid.
|
|
|
What are some of the general rules on child support?
What can be done if a parent owing child support is the beneficiary of a spendthrift trust? Can child support obligations be discharged in bankruptcy? |
Ct may order either or both parents to pay child support.
Payments made through a local child support registry or the atty general. If the child is disabled, a parent can be ordered to pay support after the child becomes an adult. A parent's spendthrift trust can be reached for support payments. A child support obligation is not dischargeable in bankruptcy proceedings. |
|
|
How is the amount of child support determined?
|
Whether child born in wedlock is irrelevant.
Unless otherwise agreed: - 1 child: 20% of obligor's net resources - 2: 25% - 3: 30% - 4: 35% - 5: 40% Must consider statutory guidelines, needs of child, ability of parents, financial resources available for kids, amount of possession of kid. |
|
|
What is the cap on net resources designated for child support?
What is the exception? |
Guidelines cap child support to $7500 of net monthly resources.
If obligor's net resources exceed that, Ct may order additional support only if child has special needs, but never for more than proven needs of the child. |
|
|
What is the effect of special needs of a child on child support?
What are examples that are not considered child support expenses? |
Special needs may warrant deviation from guidelines.
Items such as school lunches, allowance, clothing, haircuts, electric and heating bills, will not justify an award in excess of the statutory guidelines, as the award amount is assumed to cover these. |
|
|
How is the child support award influenced when the obligor has multiple families?
|
If the obligor parent has kids in more than 1 household, that fact is taken into account in applying child support guidelines
|
|
|
What is included in the calculation of a parent's net resources for the purposes of child support?
|
1. Passive income (dividends, interest, royalties, net rental income)
2. Other income (SS, unemployment, disability, WC, pension, trust income, cap gains) 3. Earned income (salary, wages, commission, tips, bonus) NOT INCLUDED: Return of principal or capital, accts receivable, benefits paid in accordance with temporary assistance for needy families, or payments for foster care of a child. |
|
|
What changed circumstances might affect the calculation of an obligor parent's net resources?
|
- If obligor remarries, new spouse's earnings/separate income are not included in computing obligor's net resources.
- If obligor is intentionally unemployed or underemployed, child support guidelines are applied to amount court determines obligor could earn if employed consistent w/ his skills and earning potential. |
|
|
What deductions are allowed in the calculation of an obligor parent's net resources?
|
In computing net resources, deductions are limited to FICA, union dues, children's health insurance, state income tax, federal income tax withholding allowed for a single person claiming 1 personal and one standard deduction.
|
|
|
How can a support order be modified?
|
A support order can be modified ONLY by filing a motion in the court of continuing jdx under SAPCR.
Court can modify if (i) Circumstances of the child or an affected party have materially and substantially changed (ii) Three years have elapsed since the order was entered or last modified, and the amount of support differs from the statutory guidelines by either 20% or $100. Ct may modify support order even if parties agreed to no future increase in support. Parties can't modify court ordered support without court approval. |
|
|
Must the court order the obligor to provide health insurance?
|
If it is available through the obligor's employment or membership in union, the court will order obligor to include kid in coverage.
If health insurance at a reasonable cost is available only through the obligee (custodial parent) the obligor must pay additional support to cover the cost. If health insurance is not available at a reasonable cost through either parent but is available from another source, the Ct will order the obligor to provide it |
|
|
Are child support obligations dischargeable in bankruptcy?
|
Neither an obligation to furnish future child support, nor child support arrearages are dischargeable in bankruptcy.
|
|
|
Must a child support order provide for mandatory withholding from earnings?
|
A final (but not temporary) order for periodic child support must provide for withholding from earnings except where good cause is shown or the parties agree otherwise.
|
|
|
What is the max withholding from an obligor's disposable earnings?
|
Max withholding is 50% of disposable earnings.
Disposable earnings are gross earnings less federal income tax, SS, union dues, nondiscretionary retirement contributions, and medical and disability insurance coverage. Child support withholding has priority over other claims against obligor's earnings |
|
|
Can child support arrearages be withheld?
To what extent? |
In addition to withholding for current support, the Ct can order obligor's income be withheld for liquidation of child support arrearages.
Additional withholding can be 20% over the current monthly withholding or the amount needed to liquidate the arrearages in two years, whichever is less. There is no statute of limitations applicable to the income withholding remedy, it continues until all current and past due support, plus interest, has been paid. |
|
|
How may child support be enforced against obligors that are self-employed?
|
Self employed people and others not subject to withholding may be required to give a bond or other security.
|
|
|
How does the contempt proceeding for failure to pay child support work?
|
After notice and a hearing, Ct ordered child support may be enforced by contempt, punishable by up to 6 months confinement in the county jail, $500 fine, or both.
Ct may suspend the order of commitment and place the party found to be in contempt on community supervision for up to 10 years. Support arrearages are not subject to modification in a contempt proceeding, but Ct may allow a counterclaim or offset |
|
|
What are the defenses to an allegation of contempt for failure to pay child support?
|
Inability to pay is an affirmative defense.
Also, if the managing conservator has voluntarily relinquished possession of the child to the obligor, actual support provided by obligor is a defense. |
|
|
What are the due process requirements in a contempt proceeding?
|
Contempt order cannot be entered in abstentia, the contemptor must be brought into court.
Evidentiary standard in a contempt proceeding is beyond a reasonable doubt. Contemptor must be informed of (and have) a right to counsel if indigent. |
|
|
Are interstate judgments of contempt enforceable under the full faith and credit clause?
What is the exception? |
No.
TX Cts will issue a contempt citation only for contempt of a TX order, and not for an order rendered by the Cts of another state. Exception: it is possible to enforce another state's support order through contempt by registering a certified copy of the order with a TX Ct under the Uniform Family Support Act. Once a foreign support decree is registered, it has the same effect as a TX support order |
|
|
What licenses are subject to suspension for violations of child support?
What are the requirements? |
A ct will issue an order suspending drivers, hunting, fishing, professional, and business licenses (including attorneys), if the obligor
(i) Is three months in arrears, and (ii) Had an opportunity to make arrearage payments, and (iii) Failed to comply with repayment structure. Licenses are restored when arrearages are paid. Delinquent obligor or his biz cannot obtain state loans, grants, Ks. |
|
|
How are child support arrearages converted to final judgments?
What is the statute of limitations for enforcing delinquent child support? |
Delinquent child support payments automatically constitute a final judgment for the amount due and owing.
After notice and hearing at which the amount due and owing is confirmed, the Ct shall enter an order against the obligor for amount determined, plus atty's fees, ct costs, and interest at 6%. Judgment may be enforced by any means available for enforcement of judgments and debts. There is a 10 yr SOL applicable to delinquent child support, running from the date the child becomes an adult OR the date of termination of support. Support arrearages are not subject to modification. |
|
|
How does a Child Support Lien arise?
To what property does it attach? |
A statutory lien arises by operation of law for all amounts of overdue support, even if the arrearages have not been reduced to a judgment.
The lien attaches to: - All real property (not homestead), - All personal property not exempt from creditor's claims under TX Constitution, - Future acquired property, and - Claims for negligence or personal injury by obligor |
|
|
How are liens perfected?
|
A lien can be secured by:
(i) Filing an abstract of judgment with appropriate authority, or (ii) If arrearages have not been reduced to judgment, by filing a child support lien notice that identifies the case, the obligor, the obligee, the amount of arrearages, and gives the name and address of party to whom support should be paid. |
|
|
What is the effect of filing a lien?
|
Filing abstract or lien notice gives record notice.
Property subject to lien cannot be sold, transferred, or encumbered unless the claimant signs a release of lien, or the Ct orders release because no arrearages exist. After the lien attaches and after proper notice to the obligor, a hearing is held. If the ct determines an arrearage exists, the property is sold by judicial sale. |
|
|
How can one protect the interests of an obligor's spouse from undue hardship due to sale of jointly owned property?
|
If the obligor remarries, the obligor's spouse may petition the Ct to release from lien any property either solely owned by the spouse, or jointly owned by the spouse and obligor, if a sale of the obligor's interest would result in unreasonable hardship on the spouse.
|
|
|
How does an obligee execute a judgment against the obligor's financial institution?
What is the effect of this process? What can the obligor do to stop it? What is the timeline the financial institution must follow to pay (or not pay) the amount due? |
If a judgment or administrative determination of arrearages has been rendered, the claimant may deliver a notice of levy to any financial institution holding assets owned by the obligor.
Delivery of the notice of levy has the effect of freezing the assets of the obligor, who has 10 days in which to either pay the full amount of arrearages, make arrangements with obligee for payment schedule, or file suit to contest. The financial institution must pay the amount identified in the notice of levy no sooner than 15 days and no later than 21 days after delivery of the notice unless obligor timely contests levy. |
|
|
How are interstate support judgments enforced under the Uniform Interstate Family Support Act?
|
An income withholding order may be mailed directly to obligor's out of state employer. This automatically triggers a withholding unless obligor contests the order.
Alternatively, a support or income withholding order can be mailed to an out of state support enforcement agency, which would then seek administrative enforcement of the order. If the out of state support order is registered with a TX court (or if a TX order is registered in another state), it becomes an order of that Ct and is enforceable as such. |
|
|
How can support orders be modified under the Uniform Interstate Family Support Act?
|
The Ct that issued the support order has continuing, exclusive jdx over the order as long as that state remains the residence of the obligor, obligee, and child.
An out of state support can be modified in TX if: (i) All parties reside in TX (ii) Issuing court no longer has continuing, exclusive jdx, petitioner is nonresident, and respondent is subject to personal jxn in TX (iii) Child resides in TX, or a party is subject to personal jdx of TX Ct and all parties consent in a record to TX Ct's assertion of jdx |
|
|
What is the Full Faith and Credit for Child Support Orders Act?
|
The Full Faith And Credit For Child Support Orders Act, requires that full faith and credit be given to another court's child support orders.
|
|
|
How can the involuntary termination of the child/parent relationship occur?
|
Involuntary termination is authorized by statute if:
(i) One of the grounds for termination is established, AND (ii) Termination is in BIOC. |
|
|
What are the grounds for involuntary termination?
(NMAnDIFO......Not Mom And Dad It's F’ing Over!) |
Neglect: knowingly endangering child.
Misconduct: ignores Ct order, keeps kid from school, contributed to kid's long-term absence from home w/o consent/intent to return. Abuse: Engaged in, or knowingly putting kid in abusive situation. Drugs/drinking: Used in manner that hurts or endangers kids, or failing to complete drug test, or causing child to be crack baby. Imprisonment: for more than two years. Failure to support: for one year (generally used by one parent against the other after Ct order has been ignored). Other grounds: - Abandonment - Abandons pregnant mother - Rape causing pregnancy - Criminally responsible for death or injury of a child - Convicted of murder of other parent - Mental or emotional illness renders inability to provide for kid's needs |
|
|
When must a guardian ad litem be appointed in a termination of parent child relationship suit?
|
A guardian ad litem must be appointed for kid unless
(i) Child is petitioner (ii) Atty ad litem has been appointed by Ct (iii) Child's interest is adequately represented by a party to suit. In all other SAPCRs, the court may appoint a guardian ad litem. An atty ad litem must be appointed for the child in any suit brought by a government agency to terminate the parent child relationship or to be named conservator, and must be appointed for the parent if either parent opposed to the termination is indigent |
|
|
When will federal courts under the UCCJEA and Texas Courts both have jdx in suits for Involuntary Termination of Parental Rights?
|
Texas Cts also have jdx if parents are legal residents of the US, even if they are Mexican nationals.
|
|
|
What type of proceeding does the Uniform Child Custody Jurisdiction and Enforcement Act cover?
|
A suit for the involuntary termination of parental rights is a custody proceeding covered by the UCCJEA.
|
|
|
Whose rules apply to suits for involuntary terminations of parental rights?
|
The UCCJEA's jurisdiction rules apply to such an action.
|
|
|
What are the involuntary termination of rights of an alleged father?
|
Equal to mother: Standing to challenge adoption.
Is a procedural obstacle in adoption if dad is unknown or has no interest. Statute provides mechanism for termination of dad's rights so adoption can proceed. |
|
|
What are the grounds for terminating rights of father who has not signed affidavit of waiver of interest?
|
1. Culpable acts
2. Failure to respond to citation, by filing a written acknowledgment of paternity or counterclaim for paternity 3. Failure to file with paternity registry |
|
|
When must an attorney ad litem be appointed for the father of a child in adoption?
|
If suit is filed by gov't agency, Ct must appoint an atty ad litem to interests of alleged dad if
(i) Failed to register with registry and his location unknown (ii) Registered, but can't be served |
|
|
When may a voluntary termination petition be filed?
|
To facilitate placement of non-marital kids for adoption right after birth, the petition to terminate the parent-child relationship (and rights of father) may be filed at any time after the first trimester.
|
|
|
What is the purpose of an affidavit of relinquishment of parental rights?
|
Saves mother from hassle of court appearance.
|
|
|
How is an affidavit of relinquishment of parental rights executed?
|
By a witnessed affidavit verified before a notary.
|
|
|
What must the relinquishing parent of child provide with an affidavit of relinquishment?
|
Medical Hx report must be completed by parent who signs affidavit.
|
|
|
When may an affidavit of relinquishment of parental rights be executed?
|
Not until 48 hours after birth, but may be signed by a minor parent.
|
|
|
How long is an affidavit of relinquishment of parental rights revocable?
|
Revocable within 10 days of signing, unless specifically stated otherwise.
|
|
|
What is a pre-requisite to adoption of a non-marital child?
|
If a non-marital child is put up for adoption, rights of putative dad must be terminated by proceeding.
|
|
|
What is an Affidavit of Waiver of Interest In Child?
|
Affidavit is used by putative non-marital father to disclaim interest in child, without acknowledging paternity, and waives notice or service of citation in any SAPCR affecting kid. Irrevocable after signed.
|
|
|
What are the restrictions on the use of an Affidavit of Waiver of Interest in Child?
|
Affidavit cannot be used against the man in a later proceeding to establish paternity.
|
|
|
What is the effect of a decree terminating the parent child relationship?
|
It is a final judgment, and absent an appeal or motion for new trial, cannot be modified.
|
|
|
What rights are retained by the parties in a terminated parent child relationship?
|
Decree divests all legal rights and duties, except child may inherit from natural parents even if subsequently adopted unless decree waives right.
|
|
|
What liabilities are retained by the parties in a terminated parent child relationship?
|
Former parent remains liable for support arrearages accrued before termination. Ct may order parent to continue support until adoption or child reaches majority.
|
|
|
Who can adopt? What is the primary concern?
|
Any adult can adopt, single or married resident or nonresident, as long as adoption is in the BIOC.
|
|
|
What is required for an adoption by married parents?
|
If petitioner is married, both spouses must join.
|
|
|
What factors may the court not consider in determining BIOC for adoption?
|
Race or ethnicity of the child or prospective adoptive parents
|
|
|
When is a child eligible for adoption?
|
1. Both Parents'-child relationship terminated
2. Stepparent adoption 3. Adoption by former stepparent |
|
|
When may a step-parent adopt?
|
(i) Child is older than 2
(ii) Parent-child relationship terminated with one parent (iii) Former stepparent has been child's managing conservator or has had actual care, possession, and control of kid for the last 6 mos. (if non-terminated parent consents to adoption) or 1 yr (if non-terminated parent does not consent) |
|
|
What are the required steps in the adoption screening process?
|
Social study by TDFPS into the circumstances and condition of the child and the adoptive home.
Prospective parent must furnish Ct with Criminal Hx. Ct ordered Post placement adoptive report, before final adoption decree. |
|
|
When can the screening process for adoption be streamlined?
|
For a stepparent adoption, the pre-adoption home screening and post-placement adoptive report may be combined.
|
|
|
When must the child consent to its adoption?
|
A child over 12 must consent to adoption in Ct or in writing, but the ct may waive this requirement.
|
|
|
Aside from a child who must consent, who else must consent to an adoption?
|
A court appointed managing conservator must also give consent, but this too may be waived by ct
|
|
|
Child must reside with petitioner (adopter) for 6 mo
|
Must reside for 6 mo unless requirement is waived (ct finds waiver to be in best interest of kid)
|
|
|
What is the proper venue for an adoption proceeding?
|
General rule is that unless SAPCR is tied to divorce action, SAPCR venue lies in the county where the kid resides.
However, a suit for adoption may be brought in the county where the child resides or in county where the petitioner resides. |
|
|
Is a jury trial available in an adoption proceeding?
|
A party may not demand a jury trial in adoption suit.
|
|
|
Who must appear in court during an adoption proceeding?
|
Adopting parents and child must appear in court at adoption hearing.
|
|
|
What is the effect of death or divorce on adoption?
|
Adoption proceeding abates on death of petitioner. If only one of two petitioners dies, the proceeding continues.
The proceeding abates upon petitioners' divorce unless the petition is amended to request adoption by one of the original petitioners. |
|
|
What is the time limit for direct or collateral attacks on adoption decrees?
|
No direct or collateral attack on validity of adoption decree is allowed more than 6 mo after an adoption decree is entered.
|
|
|
When is a Social, Health, Educational, and Genetic History Report required?
|
It is required before an adoption can be granted.
|
|
|
What is the purpose of a Social, Health, Educational, and Genetic History Report?
|
Purpose is to make it possible for an adopted child, upon reaching adulthood, to see a report summary edited to protect confidentiality of birth parents and their families.
|
|
|
How long must a Social, Health, Educational, and Genetic History report be kept on file?
|
Report must be kept on record for 99 years by TDFPS.
Adoptive parents get a copy of the child's health history. Child is entitled to see the summary at adulthood. Subject to foregoing, adoption records are sealed. TDFPS maintains a registry where child, parents, or siblings can locate each other, but only if both parties desire. |
|
|
What is the effect of adult adoption on inheritance rights?
|
The adult adoptee can inherit from and through the adopting parents, but may not inherit from or through his biological parents (and bio parents can't inherit from adopted adult).
|
|
|
What is required for an adult adoption to be valid?
|
Adoption of an adult is allowed in TX if the adopted person consents in writing.
|
|
|
What law governs paternity suits?
|
Paternity suits are governed by the Uniform Parentage Act.
|
|
|
Who may bring a paternity suit?
|
Suit may be brought by kid, mom, relative of mom, alleged dad, or authorized gov’t entity. Alleged dad is usually respondent, and purpose is virtually always to obtain a support order.
|
|
|
What are the jurisdictional requirements for a paternity suit?
|
Personal jdx over alleged dad is required and can be derived under the long arm statute.
|
|
|
Is a jury available in a Paternity suit?
|
A jury is not available in a paternity suit
|
|
|
What is the statute of limitations in a paternity suit?
|
No SOL for paternity suit regarding a child without a presumed dad. An action challenging the paternity of a presumed dad must be brought within 4 years of birth.
|
|
|
What evidence is used to establish paternity through genetic testing?
|
Ct will order dad, kid, and mom to do genetic testing.
A specimen used in genetic testing may consist of one or more samples of blood, cells, bone, hair, or other body tissue or fluid. Specimen used in the testing is not required to be of the same kind for each individual undergoing genetic testing. |
|
|
What is the test legal standard for establishing paternity through genetic testing?
How can the presumption be rebutted? |
Legal test: Rebuttably presumed Dad if there is at least 99% probability of paternity based on a paternity index of at least 100 to 1.
Test results can be rebutted only by other genetic test results that reach a contrary conclusion. If Ct finds genetic testing does not identify or exclude a man as dad of kid, Ct may not dismiss proceeding, other evidence will be introduced. |
|
|
What is the effect of refusal to submit to testing?
|
Court may:
(i) Hold individual in contempt with max fine of $500 (ii) Render a default judgment against the alleged father refused to get tested. |
|
|
What is the classification of crime for falsification of a genetic testing specimen?
What is the effect on the decree? |
Felony in the third degree to alter, destroy, conceal, fabricate, or falsify genetic evidence, including inducing another person to provide a specimen with the intent to affect the outcome of the proceeding.
An order excluding a man as the biological father based on altered, fabricated, or falsified evidence is void and unenforceable. |
|
|
What is paternity by estoppel?
|
If a man is in a marital relationship, the court may deny genetic testing and issue an order adjudicating the presumed dad to be the father of the child if:
(i) the court determines mom's conduct or presumed dad estops denial of parentage, or (ii) it would be inequitable and against BIOC to disprove of father-child relationship |
|
|
When can a temporary order for child support be entered?
|
The court can render a temporary order for support if the individual ordered to pay
(i) Is presumed dad of child (ii) Is petitioning to have his paternity adjudicated (iii) Identified as father by genetic testing (iv) Declined to submit to genetic testing (v) Is shown by clear and convincing evidence to be the dad. |
|
|
What is the effect of adjudication of paternity?
|
A decree designating a man as kid's dad establishes a parent-child relationship for all purposes.
Ct may provide for a managing and possessory conservatorship as in any SAPCR, order support for kid, and order payment of costs and atty's fees. Ct may order dad to pay an equitable portion of all prenatal and postnatal health care expenses. Rebuttable presumption that retro support not exceeding amount that would have been due under CS guidelines for proceeding 4 years is reasonable and in BIOC. |
|
|
What is an Acknowledgment of Paternity?
|
Child's mom and putative dad may execute an acknowledgment of paternity, which is a legal finding of paternity equivalent to a judicial determination.
Acknowledgment must be in writing and signed by both before or after kid's birth. Acknowledgment can be signed by a minor. If child has a presumed dad (mother is married to another man), the acknowledgment must be accompanied by a denial of paternity by presumed dad. |
|
|
How can an acknowledgment of paternity be challenged?
|
A person who signs acknowledgment of paternity may rescind no later than 60 days after the date of acknowledgment filed with Bureau of Vital Statistics.
A suit to contest an acknowledgment of paternity not filed w/in the 60 day period may be filed only on the basis of fraud, duress, or material mistake of fact and may be commenced at any time before the issuance of an order affecting the child in the acknowledgment, including an order relating to support of kid. Party contesting acknowledgment has BOP. |
|
|
What is the statute of limitations for a paternity suit by another man when the child has a presumed dad?
|
A man claiming to be the dad may bring a paternity action to contest the presumed paternity of mom's husband, but the action is subject to a four year SOL if the mom and presumed dad were living together during the probable time of conception.
|
|
|
What are the obligations of a professional who believes there has been parental child abuse?
What protections are afforded to the person who makes the report? |
A professional (including one whose communications are otherwise privileged) who believes a child has been physically abused or neglected must report info within 48 hrs.
Duty cannot be delegated. Identity of the person making the report is confidential, and a person who in good faith reports the abuse or neglect, or testifies in a judicial proceeding about it, is immune from civil or criminal liability. |
|
|
What can be done to prevent international child abduction by a parent?
|
If the Ct determines there is a risk of international abduction by a parent, it may take measures to prevent.
If Ct finds credible risk, it may also consider parent's citizenship or immigration status and whether foreign country 's laws pose a risk to kid or to other parent's access to kid |
|
|
How does a court determine whether there is a risk of international child abduction by a parent?
|
To determine risk, Ct considers factors such as whether parent:
- Has withheld or concealed child or threatened to do so, - Is unemployed or has a job overseas, - Appears to be planning a move outside the country, or - Has strong ties to another county. |
|
|
What is the key finding in a divorce suit on 'No Fault' grounds?
MEMORIZE THIS |
Marriage is insupportable because of discord or conflict of personalities that destroys the legitimate ends of the marital relationship
|
