The validity of a marriage is not affected by the lack of authority of the person conducting the ceremony if:
(a) There was a reasonable appearance of authority by that person;
(b) At least one party to the marriage acted in good faith and treats the marriage as valid; and
(c) Neither party to the marriage is a minor.
No marriage license necessary in these cases. Simply must prove that all the elements of ceremonial marriage were satisfied.
Generally must wait 72 hours after getting marriage license, unless:
(a) one of parties in Armed Forces
(b) period waived by court
(c) applicant completed premarital education course
Code allows to do marriages: minister, rabbi, judge, JP, retired judge, municipal judge, federal judge
Future spouses encouraged to attend premarital education course (but not required).
Void and Voidable Marriages
Marriage VOID in 3 situations:
(a) Bigamy (but marriage becomes valid if impediment removed)
(b) Consanguinity, which includes:
--(1) Ascendants and descendants
--(2) First-line collaterals (brother, sister, nephew, etc., by blood or adoption)
--(3) Uncles and aunts
--(4) Current or former step-child or step-parent
--(5) First cousins cannot be issued a marriage license, but marriages NOT VOID
(c) Either party to marriage is under 16, unless a court order is obtained (parents can't consent under 16)
--NOTE: If a child marries under age 18 with parental consent, application for license must be made within 30 days of receiving consent
Grounds for annulment:
--Underage (NOTE: annulment here within trial court's discretion, considering all the factors, including pregnancy)
--Concealed divorce within 30 days of marriage (but must be brought within 1 year of marriage)
--Fraud, duress or force
--Marriage under influence of alcohol or narcotics
BUT: There must be no cohabitation after the facts discovered, fraud or force removed, or effects of alcohol or drugs wear off.
Another ground for annulment is if marriage occurred during 72-hour waiting period after license granted (but remember exceptions for armed forces, waived by court, or premarital education course). Suit must be brought within 30 days of marriage to annul under this provision.
SOLs for underage marriage:
--If action brought by parent, MC, etc., must be filed before minor's 18th birthday
--If action brought by next friend, must be filed within 90 days
No-fault ground of unsupporability, which means that the marriage has become insupportable because of discord or conflict of personalities that destroys the legitimate ends of the marriage relation and prevents any reasonable expectation of reconciliation.
--If judge not convinced that there is no reasonable expectation of reconciliation, he can order counseling
--This will ultimately only delay the probably inevitable divorce
6 other grounds for divorce:
--Abandonment for more than a year
--Living apart for 3 years
--Mental hospital for over 3 years
Informal Marriage (CL Marriage)
Must be no impediment to marriage and must prove:
(1) Agreement to be married (not an agreement to marry in future)
(2) Holding themselves out as married in Texas
(3) Cohabitation in Texas (no statutory minimum time)
Agreement to be married must be affirmatively proven, but can be by direct or circumstantial evidence.
--If action to prove CL marriage isn't brought within 2 years after parties separated and ceased living together, presumption is that parties had not agreed to be married
Declaration of informal marriage: --Alternative means of proving CL marriage, primarily for establishing eligibility for SS, VA, or other benefits.
--Contains declaration that (a) age 18 or older, (b) neither already married, (c) not too closely related, (d) the elements of common law marriage met.
--This allows the couple to back date the effective date of the marriage
--6 month/90 day rule: Either party must have lived in TX for 6 months and in the county where they desire to file for 90 days
--County of residence of either party, subject to 90 day residency test
--Keep it short and no evidentiary facts (all evidentiary facts stricken on motion of either party or court)
--Allegation of grounds must be in language of statute
--Must state whether protective order for family violence is in effect
If minor children:
--A Suit Affecting Parent-Child Relationship ("SAPCR") must be joined in divorce proceeding
--Court may order parties to submit to counseling to determine whether reasonable expectation of reconciliation, and can order for additional 60 days if needed
--Can include consideration of the effect of divorce on minor children
--Counselor cannot testify and the report cannot come into evidence
--Court may order parties enter mediation
--Mediated settlement binding on parties if (i) provides in separate paragraph that is bold, underlined, etc., that it is no subject to revocation, (ii) signed by both parties, and (iii) signed by parties' attorneys present at the time parties signed.
--Mediated agreement entitled to judgment on the agreement
Parent education and family stabilization course:
--Court may order
--Taught by mental health professional or religious counselor
Collaborative law procedures:
--Parties and attorneys can agree in writing to use best efforts and make good faith attempt to resolve dispute without judicial intervention, except to have court approve settlement agreement
--Attorneys agree to withdraw from case and not act as litigation counsel if don't settle
--Parties have 2 years to come to agreement
--If one spouse has lived in TX for 6 months, a spouse domiciled in other state can file in county in which other resides (no 90 day rule)
--No action in TX for negligent infliction of emotional distress
--Can file for IIED, but if granted, same conduct cannot be considered in making a just and right division of the property (no "double dipping")
--No separate cause of action for fraud on the community (can only be considered in the just and right division)
Protective Orders, Etc.
Can file for protective order upon a showing that other party has committed family violence (i.e., an act or threat intended to result in physical harm, bodily injury, assault or sexual assault)
Can be issued in connection with divorce or can be independent cause of action
Can prohibit party from committing family violence, communicating with family members, stalking, going near residence or job, removing child, carrying weapon, etc.
Can order payment of attorneys' fees
Can also be issued for dating violence (for continuing, intimate relationships)
Venue: County where applicant or respondent resides
Maximum duration: 2 years (but 1 year after issuance subject can request determination whether there is continuing need)
Court may also order battering intervention program, counsel with social worker, or to perform acts that court determines are appropriate to prevent or reduce likelihood of family violence in future.
Notice and hearing required no sooner than 48 hours or later than 20 days from service.
Pending hearing on application for protective order, can issue Temporary Protective Order (ex parte, no personal notice) if the court finds a clear and present danger of family violence.
--Valid for 20 days
--Can be extended for another 20 days on motion
--TPO can evict from family home if W files sworn affidavit giving description of facts surrounding TPO and W appears in person to testify
When petition for divorce is filed, can file for Temporary Restraining Order
General test for grounds for TRO ex parte: 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, removing, concealing or transferring property, etc.
Can also petition for Temporary Injunction at the same time.
--After notice and hearing, temporary injunction can cover the same unreasonable acts
--But can also cover reasonable acts a person ordinarily could do, such as awarding exclusive occupany of residency, payment of temporary support, payment of attorneys' fees, restricting access to books of family business, etc.
TRO = unreasonable acts
--Can't impose payment because ex parte (no PJ over D)
TI = unreasonable + reasonable acts
--Can be ordered as part of a protective order
--Can be ordered as part of a temporary injunction
Change of Name
Must petition in district court and should contain current name, proposed name, and reasons for change.
Court must find good cause.
Usually part of the divorce decree, so no need to go to district court.
Always involve genetic testing of father, or for good cause and under circumstances the court considers just, from relatives of the alleged father.
--Mother might be tested too, but not required
Failure to submit to genetic test:
1. Hold father in contempt
2. Enter a default judgment adjudicating paternity
If 99% probability, based on paternity index of 100 to 1, court must enter order that man is the father.
--If tests establish that man is not father or another man is father, court must enter an order that man is not father
The only evidence that can rebut genetic testing is other genetic testing.
S.O.L. on Paternity:
--No SOL if child has no presumed, acknowledged, or adjudicated father.
--If there is a presumed father, 4 year SOL
Court can order back child payment to child's birth, but there is a statutory presumption that past 4 years is reasonable and in BIC.
--Can be rebutted on showing that man knew or should have known he was father and sought to avoid establishment of support obligation
Venue for paternity suit: County where child resides
Cannot demand jury trial because based on lab results.
Presumption as to paternity--Man is presumed to be father of child if:
(a) Born during or within 300 days after marriage or attempted marriage;
(b) 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,
--(ii) promised in a record to support the child, or
--(iii) was voluntarily named the father on birth certificate
(c) During first 2 years of child's life he resided with child and represented to others that child was his (does not involve marriage)
Only evidence to rebut presumption:
--Genetic test results, or
--Written denial of paternity by presumed father and written acknowledgement of paternity by another man
Paternity by Estoppel
If challenging presumption of paternity, should always discuss.
Court may deny genetic testing and issue order adjudicating presumed father to be the father if court finds:
(1) Conduct of the mother or presumed father estops the party from denying parentage, and
(2) It would be against BIC to disprove the father-child relationship.
--H knew he might not be father but accepted the role and mother relied on that acceptance
--H relied on W's acceptance of him as the father, in which case mother is estopped to challenge
Factors to consider:
(a) Length of time between filing and date presumed father put on notice he might not be father
(b) Length of time presumed father had assumed the role of father
(c) Facts surrounding presumed father's discovery of his possible nonpaternity
(d) Child's age and nature of relationship between child and presumed father
(e) Harm that may result to the child if presumed paternity is disproved
Minor must be represented by guardian ad litem.
ONLY APPLIES to married persons!
A child may be adopted and a person may adopt, 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);
(4) Child is at least 2 years old, the P/C relationship has been terminated with respect to one parent, and
--(a) The person seeking adoption has been a managing conservator or 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 adoption, OR
--(b) Person seeking adoption is the former stepparent and has been a managing conservator or has had actual care, possession and control of child for 1 year preceding the adoption
A single person can adopt in TX.
Termination of P/C relationship is prerequisite to an infant adoption--can be only one set of parents.
Steps for Adoption of Infant:
1. Mother files Suit to Terminate Parent-Child Relationship (can be filed after first trimester of pregnancy)
2. Files Affidavit of Relinquishment of Parental Rights (can sign even though underage)
3. Signs a Consent Decree terminating P/C relationship (does not require appearing in court)
--Cannot be signed until 48 hours after the child's birth, giving mom time to change her mind
4. As to father, must sign Affidavit of Waiver of Interest in the child (or if later in life, Affidavit of Relinquishment of Parental Rights)
--BUT, alleged father can bring a paternity suit seeking to establish he is the father and deserves custody, in which case the court can order temporary child support in the meantime
Involuntarily terminating father's rights:
1. If, after being served, does not respond by eitiher admitting paternity or filing a counterclaim for paternity
2. By failing to file with the paternity registry within 30 days of birth, or
3. Proof of culpable acts that are grounds for termination of P/C relationship (e.g., abandonment of mother during pregnancy)
Procedures to follow for couple wanting to adopt:
1. Pre-adoption social study
2. Post-placement social study
3. Report showing adopting parties' criminal history
4. Social, Health, Education and Genetic history of the child (SHEG)
5. Include in reports any history of abuse of child
--Both spouses have to join (divorce abates process but death does not)
--Child must reside with family before final decree of adoption entered (must reside 6 months before final decree, unless waived by court)
--Child not required to give written consent unless 12 or older
--Adopted child not authorized to get full SHEG, only a report summary / redacted version (unless both sides are looking for it to get back together)
--Child maintains inheritance rights through birth mother (unless decree expressly terminates rights or it's an adult adoption)
--For adult adoption, no BIC, adoptee must consent, loses inheritance rights
In order to have standing to seek adoption, foster parents must have had possession of child for 12 months.
--For persons other than foster parents, just 6 months
Managing Conservator's consent to adoption required (sometimes Family and Protective Services), but can be waived if withholding consent without good cause
--Validity of adoption not subject to direct or collateral attack more than 6 months after final adoption decree entered
Involuntary termination proceedings (20 grounds):
--Endangering the child
--Imprisonment for more than 2 years
--Culpable acts toward any child
--Failure to support for one year
--Use of controlled substance
--NOTE: Must show one of these grounds PLUS BIC
----Must establish by clear and convincing evidence
--Also NOTE: Termination of parental rights will terminate the obligation of support (but if TDFPS is appointed managing conservator, court may order support after P/C relationship terminated)
Custody: Managing & Possessory Conservators
Managing Conservator (MC): Primary custody
Possessory Conservator (PC): Visitation rights
When parents seek initial custody, on equal footing
--There can be no discrimination on gender or marital status
--Evidence of past domestic violence is considered
--Evidence of false report of child abuse considered
Court developed BIC factor test:
--Desires of child
--Child's physical and emotional needs
--Stability of home environment
--Opportunities for the child
--Excuses for acts/omissions
Negative factors to consider:
--Intentional use of force against spouse, child's other parent, or any child in past 2 years
--Acts or omissions showing that one parent is less fit than the other
Can get jury trial on MC issue.
--Court will look at BIC
--Court cannot contravene jury on appointment of sole MC, JMC, etc. (unless there is absolutely no evidence to uphold verdict)
--Jury can listen to child testify
In non-jury trial, court shall interview a child 12 or older (and may choose to interview a younger child)
--Child used to be able to choose MC in writing
Cannot deny visitation rights absent a showing of danger to the child's physical and emotional health
Courts frown on split custody of children between parents.
A parent must be appointed sole MC (or both as JMC) unless court finds that appointment of a parent would not be BIC because it would substantially impair child's physical health or emotional development
The foregoing parental preference for MC can be rebutted if:
(a) Parent has relinquished actual care and possession to nonparent for a year, portion of which was 90 days preceding intervention of filing of suit; and
(b) Appointment of nonparent BIC
Custody: Joint Managing Conservatorship
Rebuttable presumption that JMC is in BIC. A trial court can order JMC if it minds that JMCs are BIC, and:
(a) Child's physical, psychological or emotional needs will benefit,
(b) Parents have shown ability to reach shared decisions,
(c) Parent can encourage and accept positive relationship between child and other parent,
(d) Both parents participated in child rearing before suit filed,
(e) Geographical proximity of homes not a problem,
(f) Child's preference, if any, and
(g) No evidence of history or pattern of physical or sexual abuse
Appointment of JMCs does not require equal or nearly equal periods of physical possession
Exclusive power to make certain decisions can be given to one JMC ("primary JMC")
A court order of JMC must designate the conservator with the exclusive right to determine child's primary residence and must
(i) establish geographic area of primary residence, or
(ii) specify conservator who can determine primary residence without regard to geographic location
An agreed JMC must comport with the above, or can simply provide that the child's primary residence shall be within a specified geographic area (more lenient if parties come to an agreement)
Either JMC can be ordered to pay child support
A final order in SAPCR tied to a dissolution proceeding must incorporate a "parenting plan" that:
(a) sets rights and duties of each parent,
(b) provides for periods of possession to and access to child,
(c) provides for child support, and
(d) optimizes the development of a close and continuing relationship between each parent and the child.
Parties encouraged to enter an agreed parenting plan.
--If can't agree, at least 30 days before date set for trial, either party can file a proposed plan with court
In high conflict cases, court can appoint parenting coordinator to assist parties in resolving parenting issues (help in identifying disputed issues, reducing misunderstandings, etc.)
In higher conflict cases, can appoint parenting facilitator that can also monitor compliance with court orders.
Scope of Child Support Obligations
Court-ordered support must terminate at age 18 or graduation from high school, whichever is later (except for children disabled before 18--can get support for an indefinite period).
There is a rebuttable presumption that the "standard possession order" provides the reasonable minimum possession of a child for PC.
--Standard possession order = PC gets 6pm to 8pm Thursdays during school, 6pm Friday to 6pm Sunday the 1st, 3rd and 5th weekends, plus 30 days during summer (unless parties agree different or court determines unworkable)
--Different rules if parents live more than 100 miles apart
Cannot stop paying child support if not given visitation, and vice versa.
Support obligation does not terminate on death--can bring a claim against obligor's estate for amount due (discounted to present value).
--To secure payments, court may require term life insurance coverage
Obligor must also provide health insurance for the child
Don't have to submit this issue for jury
Amount of Child Support
Statutory Guidelines (unless parties agree otherwise and court approves):
--1 child = 20% of net resources
--2 = 25%
--3 = 30%
--4 = 35%
--5 = 40%
--Over 5 = not less than amount for 5
Net resources = cash flow revenue from all sources (wages, SS, etc.), but subtract FICA, union dues, health insurance for children, and income tax withholding, standard deduction, and state taxes
--Resources do not include return of principal or capital, accounts receivable, temporary assistance to needy families, funds from federal public assistance, payments for foster care of child
Statute gives dollar amount as starting point, but can be modified based on factors:
--Special needs of child
--Ability of the parents to contribute to support
--Any financial resources available for support of the child, or
--Amount of possession and access to child
For court to deviate from guidelines, the court order must:
(1) State whether the application of guidelines would be unjust or inappropriate,
(2) Provide the net resources of the obligor and the obligee,
(3) The percentage applied to obligor's net resources, and
(4) The specific reasons for deviating from guidelines
Guidelines apply to first $7500 per month ($90k per year).
--For one child, maximum monthly support award is $1500, unless needs are shown to exceed this amount
--Obligor parent's income (even great wealth) and family lifestyle not to be considered
--Despicable conduct does not warrant deviation
--In determining special needs, look to learning disability, medical needs, and even things such as private school, camps, activites, etc. (if have they have been done over time) (but lifestyle is not a need)
Payments made to state dispursement unit
Cannot seek reduction if obligor's actual income is significantly lower because of intentional unemployment or under-employment
--Guidelines apply to earning potential
Enforcement of Child Support
RULE: Mandatory withholding from wages. All final orders must provide for mandatory withholding.
--Maximum amount subject to mandatory withholding is 50% of disposable earning (take-home pay)
--Mandatory withholding available for arrearages as well
--Does not apply to investment income--just earned income
--If self-employed, can be ordered to post bond or other security, which is forfeited if falls in arrears
Suspension of Licesnse:
--Can order that any license be suspended if 3 months in arrears and given opportunity to make payments under agreed repayment schedule
--Must be served with notice that license will be suspended 60 days after service unless pays all arrearages or enters into reasonable repayment schedule
Child support lien for arrearages against obligor's real property (except homestead) and non-exempt personal property
--Lien attaches to tort claims
--Lien secured by filing child support lien notice in county in which obligor is believed to own non-exempt property or county in which he resides
--Second spouse rule: If obligor remarries, new spouse can petition to release from the lien any CP of spouse and obligor, if sale would result in unreasonable hardship upon spouse or obligor's family
Levy and Execution of Obligor's Financial Assets:
--If judgment for arrearages rendered, can deliver notice of levy to financial institutions holding assets
--Delivery of notice freezes assets
--Obligor has 10 days to pay or enter into satisfactory payment schedule, or file suit to contest
--Financial institution must pay amount identified no sooner than 15 days or later than 21 days after delivery, UNLESS obligor contests the levy
--Up to 6 months in jail or $500 fine, or both
--Community supervision for up to 10 years, which can be extended 2 years or until all support is paid (whichever earlier)
--Agreement to pay support contained in parties' settlement but not incorporated into divorce decree cannot be enforced by contempt (not violation of a TX order, which contempt requires)
--Arrearages automatically become money judgment for amount due
--In action to reduce arrearages to judgment, plus interest at 6%, court's only function is to confirm the amount of unpaid support
--Judgment enforced by means generally available for enforcement of judgments for debts
--SOL for money judgment for arrearages = 10 years after child becomes adult
--Child support obligations not dischargeable in bankruptcy
Interstate Enforcement of Support Order
Make an out-of-state order a TX order under the Uniform Interstate Family Support Act (UIFSA)
--Send 2 copies of out-of-state support order (one of which is a certified copy) to TX court, together with sworn statement showing name and address of spouse not paying (and, if known, name and address of employer)
--Upon registration under UIFSA, order becomes a TX order and is enforceable by contempt
Contempt is not available for arrearages, just what is not paid in the future
Other avenues to enforce out-of-state support order:
1. Reduce arrearages to money judgment and bring to TX, which is entitled to full faith and credit
2. BEST: Mail copy of income-withholding order to TX employer. Under UIFSA, this automatically triggers income withholding unless contests validity.
--Alternatively, can mail income-withholding order or support order (or both) to Texas AG Child Support Enforcement Division, which would seek administrative enforcement of order
3. These methods work backswards if parties move out of TX to another state
Enforcement of Custody Orders--Habeas Corpus
Any issue of a parent withholding possession of a child in violation of custody order brings up habeas corpus.
Sole issue: Is there a valid court order awarding custody?
--Cannot relitigate custody issue in habeas proceeding, with 3 exceptions:
(1) Court can consider whether custody order is a valid court order (issued with due process, reasonable notice, personal jurisdiction, etc.)
(2) Temporary order can be issued if court finds that there is a serious immediate question concerning child's welfare
(3) If child has not been in relator's (mother's) posseession at any time within past 6 months, court may consider motion or cross-action to modify custody
--County in which child is found, or
--Court of continuing jurisdiction
----A TX court acquires continuing exclusive jurisdiction in parent/child matters when a final order is rendered (except courts that simply dismiss a SAPCR, determine nonparentage of presumed father, and final order of adoption)
Can bring habeas with no court order where parent, relying on entitlement to possession as parent, goes against non-parent who withholds custody
Statutory Tort Liability--Interference with Child Custody
--Has actual and exemplary damages
--Available if person takes or retains possession of child or conceals whereabouts of child in violation of court order
--Available against non-custodial parent who "kidnaps" kids
--Available against custodial parent who withholds visitation
--Available against third party who aids and abets
--Procedural point: Must give notice by registered or certified mail of intent to file tort suit in 30 days unless the other party complies with custody order
For INTRASTATE, discuss: CONTEMPT
--Quasi-criminal in nature so need criminal due process rights
--Right to counsel, etc.
For INTERSTATE, discuss: UCCJEA
--Uniform Child Custody Jurisdiction & Enforcement Act
--Jurisdiction to initially enter a custody order lies in the state with (in descending order):
(1) Home state jurisdiction--child lived for last 6 months with parent or person acting as parent (or less than 6 months if infant)
(2) No home state or home state declines: Significant Connection/Substantial Evidence--(a) Child and at least one parent have significant connection with the state, more than just mere presence, and (b) substantial evidence in the state concerning child's care, protection, training, etc.
(3) All other states with jurisdiction decline
(4) Default jurisdiction--no other states has jurisdiction based on above grounds
Once entered, the issuing court has continuing, exclusive jurisdiction so long as at least one party continues to reside in that state.
Remedies under UCCJEA:
--Registration of order--register two copies (one certified) of order; TX court can then grant any relief available, including contempt
--Expedited enforcement in habeas-type proceeding--procedure similar to habeas (but called something else)
----Court issues order directing respondent to appear in person at hearing the next judicial day after service of the order (or first judicial day possible). Possession of child awarded to petitioner unless the custody or visitation order has been stayed or vacated.
--Warrant to take immediate possession of child--On filing petition seeking to enforce custody, can file warrant for immediate possession of child if imminently likely to suffer serious physical harm or be removed from state
Modifications of Child Support or Custody Order
RULE: Must file modification in SAPCR court (the court of continuing exclusive jurisdiction) but transfer is mandatory from that court if child has resided in new county for at least 6 months
--Thus, if moved, filed motion to modify support in SAPCR court and a simultaneous motion to transfer
--If judge denies or improperly grants, cannot appeal but must file a Petition for Writ of Mandamus
Parties cannot set venue in an agreement, nor can an agreement say that you can't seek modifications.
--BUT, as far as paying support for someone after 18 or high school graduation, guidelines do not apply and agreement not to modify is valid (enforced as K).
TEST for modification of support:
(a) Circumstances of child or an affected party have materially or substantially changed, since the date of rendition or signing the settlement agreement, OR
(b) 3 years have elapsed, and support deviates from guidelines by greater of 20% or $100
--Include adopting a child or having a new child with a new wife
--New spouse's salary and investment income do not constitute changed circumstances
TEST for modification of custody order:
Must be in the BIC, AND
(1) Circumstances have materially and substantially changed since the date of rendition or signing of settlement agreement, or
(2) 12-year-old child has expressed desire for modification, or
(3) Conservator with exclusive right to designate primary residence has relinquished primary care and possession for 6 months.
HOWEVER, if seeking modification within 1 year, petitioner must include affidavit that presents facts that:
(1) Child's present environment may endanger the child's physical health or impair emotional development, or
(2) There is consent, or
(3) 6-month relinquishment of primary care and possession.
Each conservator must give the other party notice of intent to move at least 60 days before the move.
--Also must inform other if lives, marries, etc., a registered sex offender
Under UCCJEA, the court that issued custody order has continuing exclusive jurisdiction as long as one party still resides in that state.
To move proceeding to another state, must persuade TX that it is an inconvenient forum, that:
(1) Neither the child nor parent has a significant connection with the state, and
(2) Substantial evidence to the matter is no longer available in the state.
In a proceeding to modify child support, relevant law is UIPSA which says that modification must be in SAPCR court, so long as one party still resides in that jurisdiction.
If party moves to a new county in the same state, court must transfer to that county on motion.
If all parties have moved from state where support order was issued, motion to modify must be filed in state where obligor resides (to get PJ), after registering support order under UIFSA procedures.
UIFSA = Child support
UCCJEA = Custody
Grandparent's Petition for Reasonable Access
Can file Petition for Reasonable Access for Grandparent
RULE: For biological or adoptive grandparent (not step grandparent) to be granted reasonable access, the parental rights of at least one parent must not have been terminated, and the parent who is the grandparent's child:
(i) is dead,
(ii) is incompetent,
(iii) has been in jail during preceding 3 months, or
(iv) does not have actual or court ordered access to child.
If child has been adopted by new family, no reasonable access for Granny.
RULE (PART 2): Grandparent must overcome presumption that a fit parent acts in the BIC in denying access, by proving by a preponderance of the evidence that denial of possession or access would significantly impair the child's physical health or emotional wellbeing.
--A child being sad for not seeing Granny is not enough
When grandparent can be appointed MC:
--Both parents deceased
--Both parents or surviving parent gives consent
--Present circumstances substantially impair child's physical health or emotional development
NOTE: Granparent can be a JMC if paired with a parent.
Removal of Disability of Minority
For a 16- or 17-year-old, disability (legal incapacity) of minority may be removed if the minor is financially independent and managing her own financial affairs.
For 16-year-old, there is an additional requirement that she be living apart from parents, MC, or guardian.
Court must find removal of disability in BIC.
Texas Deparment of Family and Protective Services (TDFPS) can take possession of child without court order upon information that would lead a person of ordinary prudence and caution to believe that child was victim of child abuse or sexual abuse, and there is no time to obtain a TRO.
TDFPS must file a SAPCR (and appoint attorney ad litem) and obtain an ex parte hearing within 3 working days after child taken into possession.
--Parents must be given proper written notice prior to ex parte hearing:
(1) Reasons why they took possession of child, and
(2) Summary of parents' legal rights.
A full adversary hearing must be held within 14 days. If either hearing not held in specified time, must return child to parents.
To retain child, TDFPS must present sufficient evidence to satisfy an person of ordinary prudence and caution that:
(a) There is a continuing danger to the child's physical health/safety caused by the parents' act or failure to act, and
(b) There is a reasonable likelihood that child will be a victim of abuse in the future.
A professional must report suspected child abuse if has reason to believe that child is subjected to abuse or neglect.
--Must report within 48 hours
--Can't delegate duty to report (to secretary, for example)
--Failure to report is misdemeanor
--Identity is confidential, except on court order or to law enforcement for purposes of criminal investigation
--If done in good faith, is immune from civil and criminal liability
Parental Liability for Child's Tortious Conduct
Negligence: Parent is liable for property damage caused by child's negligent conduct (regardless of child's age) if conduct is attributable to parents' negligent failure to exercise duty of control and reasonable discipline.
--No dollar limit on liability
--Must be two acts of negligence (one on child and one on parent)
Intentional tort: Parents liable for property damage caused by willful and malicious conduct of child age 10 to 18.
--Damages limited to $25,000 per act, plus court costs and attorneys' fees
Theft: Parental liability for theft by child under age 18
--Limited to $5,000
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