Ceremonial Marriage 

Officiant - must be one with the:

• Rznble appearance of authority AND
• At least one party acted in good faith
• Must be able to establish the marriage by independent proof

What is NOT necessary:

• A marriage license
• Any particular form of ceremony
• Attending premarital counseling
• Residence in Texas

Void marriages

• Bigamy, but marriage becomes valid if the impediment is removed
• Consanguinity (including relationship by adoption), the following are not allowed:
• Ascendant and Descendents
• First line collaterals (brothers, sisters and their kids)
• Uncles and aunts (your parents brothers and sisters)
• First cousins 
• Step-child or former stepchild
• Terminate a void marriage by a Suit to Declare Marriage Void
• For a Texas court to have jurisdiction:
• Marriage took place in Texas OR
• One party is domiciled in Texas

Voidable Marriages

Must show NO cohabitation after facts discovered, fraud or force removed, or effects of alcohol or drugs wore off if one of the following existed at the time of marriage:

• Under 18 years old - need parental consent or court approval
• Concealed divorce within 30 days of marriage - must bring the action to annul within 1 year
• Impotency (see Hull)
• Incompetency (see Blue)
• Fraud, duress, force
• Marriage under the influence of alcohol or narcotics (see Mehta)

• 72 hour waiting period after license is issued unless: (i) either party is in Armed Forces or (ii) waived by court
• this does not apply under a ceremonial marriage
• Officiant - minister, rabbi, judge, JP, retired judge, federal judge, Quaker ceremony

Annuling an underage marriage

• 90 day SoL to annul an underage marriage
• discovery rule applies for the child's parents to challenge (knew or should have known)
• The annulment is still in the court's discretion
• takes into consideration ALL relevant facts
• If a child marries under age 18 with parental consent, application for license must be made within 30 days after parental consent

Informal Marriage (common law marriage)

• No impediment to marriage (bigamy, under 18, consanguinity)
• Agreed to be married
• this must be affirmatively proven, but proof of such agmt may be proven with direct or circumstantial evidence
• Holding out to others that you are married
• Cohabitation - no minimum time

Declaration of Informal Marriage - establishing proof of common law marriage for governmental benefits.  Contains:

• Same information as is on a license application: age 18; not married; not related within improper consanguinity
• Elements of common law marriage

Grounds for Divorce

• Cruel treatment
• Adultery
• Felony conviction
• Abandonment for more than a year
• Living apart for 3 years
• Mental hospital over 3 years
• No-fault on the ground of insupportability
• only defense is rznble expectation of reconciliation 

Jurisdiction for divorce

One party must satisfy both of the following:

• 6 months domiciled in Texas AND
• 90 days in the county of residence
• temporary absence over the holidays does NOT affect these requirements

Divorce: Venue

County of residence of either party (90 days as a resident)

Divorce: Pleadings

• Short with NO evidentiary facts
• petition must state whether protective order for family violence is in effect
• allegations of grounds MUST be in language of statute w/out a detailed stmt of evidentiary facts

SAPCR & Divorce

• SAPCR (suit affecting parent child relationship) MUST be joined in a divorce proceeding if there are minor children of the marriage
• if not the divorce judgment is VOID

Divorce: Counseling

Court MAY order the parties to submit to counseling to determine if there is a rznble expectation of reconciliation and can order further counseling for an additional 60 days if they continue to believe so

Divorce: Mediation

Court MAY order the parties to enter mediation and an agmt reached is binding on the parties if:

• it provides in a separate paragraph that the agmt is not subject to revocation
• it is signed by both parties
• it is signed by the party's attnys who were present at the time the agmt is signed

Divorce: collaborative law procedures

The parties and their attnys can agree in writing to use their bests efforst to resolve their dispute without judicial intervention except for approval

- attnys must agree that if the parties do not settle, the attnys will withdraw from the case and will not serve as litigation counsel

Divorce: parent education and family stabilization course

Court MAY order the parties to attend one of these 

Tort recovery pursuant to a divorce

• NO tort recovery from a spouse for NIED 
• IS tort recovery from a spouse for IIED
• however, you can't then use this conduct as a factor in making a division of the community estate based on fault
• NO tort for fraud on the community estate for getting rid of assets, that is only taken into account in coming up with a just and right division

Protecting a Threatened Spouse before Divorce

When the petition for divorce is filed, petition for a Protective Order upon a showing that the other party has committed family or dating violence which consists of:

(a) intentional use of physical harm OR

(b) threat of physical harm

• protective order can prohibit a party from committing family violence, from communicating with family, from stalking, from going near them, removing a child, carrying a concealed weapon..
• available with dating when there was a continuing intimate relationship but not living together
• can only last for 2 years

Venue: county where applicant resides OR county where respondent resides

• Court may require respondent to complete battering intervention and prevention program or do other things to reduce likelihood of future family violence
• Hearing and notice is required for a protective order - hearing no sooner than 48 hours after notice and not longer than 20 days
• What to do while awaiting the Protective Order hearing

Protecting a Spouse who does not know the extent of the community estate

• When the petition for divorce is filed, also petition for a TRO (temporary restraining order)
• granting it ex parte if: unreasonable acts of the sort that no rznble person could think he or she could commit
• Also petition for a Temporary Injunction 
• after notice and hearing one can be granted for the unrznble acts and rznble acts which a person ordinarily could do or refrain from doing unless ordered by the court (i.e. - exclusive occupancy of residence, pmt of temporary support, restricting access to books and records of family business . . . 

Awarding temporary support

• Cannot be ordered as a part of a TRO or TPO - they are done ex parte and that is a violation of due process
• Can be ordered as a part of a temporary injunction or the protective order

Awarding attny fees to spouse seeking the above

Cannot get in a TRO, TPO or protective order

Can get as a part of the temporary injunction

Setting a sale of assets aside after divorce is filed

Cannot do this unless the buyer knew the transfer was made with the intent to defeat the non-selling spouse's rights

• remember that if the property is a homestead both spouses must join in a conveyance

Changing wife's last name after divorce

• Petition for Change of Name in the district court
• petition must contain current name, proposed name and reason for change

Paternity suit and risks therein

Genetic tests must be taken by the alleged father and the child

- if a genetic testing specimen can't be obtained from the alleged father, for good cause the court can order testing specimens be submitted by relatives of the alleged father

NO Statute of Limitations for a paternity suit

Refusing to submit to genetic testing by the alleged father gives the court the following options:

Contempt

Default judgment adjudicating paternity

Retroactive child support upon paternity finding

• Court can order the pmt of child support retroactive to child's birth, there is a statutory presumption that retroactive support NOT exceeding what would have been due under the child support guidelines for the preceding 4 years is rznble and in the child's best interests
• can be rebutted by showing that the man knew or should have known he was the father and sought to avoid establishment of support obligation
• NOT available during the paternity suit

Venue for Paternity Suits

SAPCR county not connected with a divorce: county where the child resides

Jury Trial

NEVER - there is no discretion, so what's the point

Presumption of paternity

• Child was born during or within 300 days of marriage or attempted marriage
• Parties married after child's birth and man voluntarily asserts his paternity: recorded file; OR promising in a record to support the child OR voluntarily being named on the child's birth certificate
• During first 2 years of child's life he resided with the child and represented to others that the child was his

Presumption can only be overcome with:

• Genetic test results
• Written denial of paternity by presumed father coupled with written acknowledgment of paternity by another man

Standing to bring - any man, BUT if man who is presumed father was cohabiting with the wife during the probable time of conception they must file the action within 4 years 

Paternity by Estoppel

In a paternity presumption question talk about Paternity by Estoppel - b/c of either party's conduct, the court may deny genetic testing and issue an order adjudicating the presumed father to be the father, if the court finds:

• That conduct of the mother or presumed father estops the party from denying parentage AND
• It would be against the child's best interest to disprove the father child relationship

Factors to consider:

• length of time b/t date paternity action is filed and the date presumed father was ut on notice that he might not be the father
• length of time presumed father assumed the role of father
• facts surrounding presumed father's discovery of his possible nonpaternity 
• child's age, and nature of relationship b/t the child and the presumed father
• harm that may result to the child if presumed paternity is disproved

Child MUST be represented by a guardian ad litem

ONLY applies to married persons - not men who were cohabitating

When may a child be adopted

• Both parents have died
• The parent-child relationship as to each living parent has been terminated
• Second marriage situation - stepparent wants to adopt the child
• Child is at least 2, the P/C relationship has been termianted with respect to 1 parent, and a former stepparent who has been a managing conservator or had possession of the child for a specified period wants to adopt the child

A single person

• A single person can adopt a child; no requirement that adopting parent be married
• It can be filed after 1st trimester
• Hearing cannot be held until at least 5 days after child's birth
• Affidavit of status of child signed by mother after 1st trimester
• This is to (1) show that mom is not married and (2) provide information as to dad to meet DP concerns 
• Affidavit of Relinquishment of Parental Rights signed by mother after 1st trimester
• Lays predicate for consent decree terminating P/C relationship
• Minor CAN sign
• Cannot be signed until 48 hours after birth
• Affidavit of Waiver of Interest in the Child signed by the male

Alleged Father's Rights

Bring a paternity suit (but upon filing the petition - the court can order him to pay temporary child support)

Terminating alleged father's rights so that adoption can proceed

Dad can sign an affidavit of waiver of interest in the child.

If dad does NOT sign the waiver - his rights can be INVOLUNTARILY terminated

1.  If, after being served, he does not respond by either admitting paternity or filing a counterclaim for paternity or voluntary legitimation
2.  By failing to file with the paternity registry within 30 days after the child's birth or
3.  By proof of culpable acts that are grounds for termination of the P/C relationship

What reports must be completed before an adoption can be finalized?

• Pre Adoption Home Screening = a report by a social worker into circumstances and conditions of home environment
• Post Placement Adoption Report = another report by social worker into circumstances of child in home environment
• Report showing the adopting parents criminal history record, and
• SHEG Report = Social, Health, Educational, and Genetic History report
• Report must also include any history of abuse suffered by the child

Notes about the time before the adoption is final

• Do both spouses have to join in the petition for adoption? YES
• Does the adoption proceeding abate if adopting parents divorce? YES
• Does the adoption proceeding abate if one of them dies before the adoption is final? NO
• Must the child reside with the adopting parents before the final decree of adoption can be entered?  YES - for 6 months unless waiver is in BIOC
• Must the child give written consent to the adoption?  Not unless the child is 12 or older

Family Code Provisions to Insure Confidentiality

• When the adopted child becomes an adult he is NOT entitled to receive a copy of the entire SHEG report
• Entire report can only be released if both sides are looking

Adult Adoption

Texas DOES recognize adoption of one adult by another if both sides consent

Inheritance rights from biological mom

After termination of the P/C relationship as to the birth mother, the child DOES have inheritance rights from and through the birth mother UNLESS decree terminating the P/C relationship expressly terminates inheritance rights

Foster Parent Adoption

• Once the foster parents have had possession of the child for 12 months - they have standing to file petition to adopt the child, given that they are not related to child and are not managing conservators
• Note: For persons OTHER than foster parents - the test is 6 months
• The managing conservator's consent to file petition to adopt IS required UNLESS the consent is withheld without good cause 

Setting Aside An Adoption

Validity of an adoption is not subject to direct or collateral attack more than 6 after the adoption decree is entered

Second Marriage Adoption - The first thing that must occur is termination of the P/C relationship as to the biological dad

If biological father IS willing to cooperate: Voluntary Termination Proceeding by signing Affidavit of Relinquishment of Parental Rights.

If biological father is NOT willing to cooperate: Involuntary Termination Proceeding

• Grounds: Abandonment, abuse, neglect, imprisonment for over 2 years, culpable acts toward the child or another child, failure to support child for 1 year, use of controlled substance
• Statutory test: Best interest of child
• Evidentiary standard in involuntary termination proceeding, as to both grounds AND best interest test:  Clear and convincing evidence
• What if biological father is 11 months in arrears on child support?  Wait 1 month till you have a statutory ground for termination
• What if the child is over 12?  Then child must give written consent to adoption

Custody: Managing Conservator - Definitions

Managing conservator = parent with custody of child

Possessory conservator = parent with visitation rights

Factors the court will consider in deciding who should be MC

• Stautory test = Best Interest of Child 
• No discrimination b/c of gender or marital status
• Evidence of past domestic violence IS considered
• Evidence of false report of child abuse is considered
• Court devloped factors: desires of child, child's needs, parental ability, stability of home, parent's plans/opportunities for child.
• Negative factor: Acts and omissions showing 1 parent less fit than the other

Custody - Jury trial?

On MC issue: Yes

On custody issue: Jury verdict is binding on court (no JNOV)

Custody - Role of Child's Preference?

• If child is 12 or older - they can choose MC in writing filed with court (unless court vetoes)
• If some of the kids in a family are over 12 and some aren't - then the court will frown on splitting the kids up.  There is a strong preference to keep the family together.  

How does 1 parent presuade the court to deny the other parent's visitation rights

There must be clear and convincing grounds for abuse (Ex: Dad engaged in conduct that has endangered the child's physical and emotional health)

Involuntary termination of one parent's rights

• It may not be advisable for mom to pursue an involuntary termination b/c child support would end.  
• Rather, mom should file a motion to terminate or restrict visitation

Custody - Rebuttable Presumption

There is a rebuttable presumption that  JMCs are in the child's best interest 

Custody - Key Points (JMC)

• Appointment of JMCs does NOT require equal or nearly equal periods of physical possession of child.  
• Exclusive power to make certain decisions can be given to one JMC
• Court order MUST 

(1) establish the child's residence or designate which JMC shall have the exclusive right to determine child's primary residence; 
(2) include provisions designed to minimize disruption of child's schooling, daily routine, and association with friends; and

(3) set out rights and duties to be exercised solely by one JMC, and those to be exercised jointly

• One party can be ordered to pay child support

What if someone other than parent seeks to be appointed JMC?

Rule: A parent MUST be appointed sold MC (or both parents must be appointed JMCs) unless court finds that appointment of a parent would not be in the BIOC b/c it would substantially impair the child's physical health or emotional development

Standard Possession Order

Visitation order must be a standard possession order unless parties agree otherwise: If parents live within 100 miles of eachother --> noncustodial parent gets possession  

• From 6-8pm every Thursday  
• From 6 pm on Friday to 6 pm on Sunday the 1st, 3d, and 5th weekends each month
• 30 days in the summer

Note:  More flexible or different rules apply if kid is under 3 or parents live more than 100 miles apart

Note:  The possessory conservator must pay for travel expenses related to visitation if he has adequate resources to do so. 

Termination of court ordered support

• Must terminate when kid is 18 or graduates from high school - whichever is later UNLESS child is physically or mentally disabled BEFORE attaining 18.  An action to enforce the support obligation can be brought after child has attained age 18, as long as child was disabled before her 18th birthday
• Support obligation also terminates on child's marriage, obligor parent's death - BUT court can order support payments from deceased obligor's estate after his death

Health insurance

Court MUST order obligor to provide health insurance for child

Visitation rights

Payment of child support cannot be conditioned on granting visitation rights

Jury trial

• No JNOV allowed as to custody on who picks primary residence
• The trial court CAN grant a MNT on custody issue
• It is NOT error for trial court to refuse to supmit the issue as to support to the jury b/c it is precluded by statute

Statutory Guidelines

Apply unless parties agree on (and the court approves) some other amount of support

The guidelines can be increased or decreased taking into account the following factors if the court order contains written explanation justifying departure from statutory guidelines:

1.  Special needs of the child
 - we're not talking about food, bills, etc - rather we are talking about severe asthma and allergies which require shots and medicine.  Learning disability and required educaitonal service ARE special needs
2.  Ability of parents to contribute support
3.  Financial resources avaiable for support of child
4.  Amt of possession and access to child

Parents resources in excess of statutory guidelines

• The guidelines apply to the first $6000/month of net resources.
• If the obligor parent's net resources EXCEED $6000/month - the court MAY order additional support ONLY if it is shown that needs of the child warrant a greater award.  Income, great wealth, and family lifestyle are NOT to be considered.  In no event may the obligor be required to pay child support that exceeds the proven needs of the child.  

Net resources

Net resources = CASH FLOW REVENUE FROM ALL SOURCES: Earned income, investment income, all other income minus DEDUCTIONS for FICA, union dues, health insurance, and income tax withholding for single person claiming one personal exemption and a standard deduction.

Where to pay 

Unless the parties agree otherwise, child support pmts must be made to local child support registry or attorney general

Decreased income of obligor parent

If the obligor has no income and seeks a reduction in child support pmts - it should NOT be reduced

Rule: If the obligor's actual income is significantly lower b/c of unemployment or underemployment - guidelines apply to obligor's earning potential

Enforcement - 1.  Mandatory withholding from wages

All FINAL orders for periodic child support MUST provide for mandatory withholdings

The max amount subject to mandatory withholding is 50% of disposable earnings (take home pay)

STEP 1 - Determine amt of child support (based on net resources) pursuant to guidelines

STEP 2 - Determine amt of mandatory withholding based on disposable income (take home pay)

Note: Mandatory withholding is available for arrearages as well as current support obligations 

Note: Mandatory withholdings do NOT apply to investment income

Note: If obligor is self employed - he can be ordered to post bond which is forfeited if he defaults

Enforcement - 2.  Suspension of License - drivers, hunting, fishing, engage in a professional activity or business

• Obligor is 90 days in arrears and 
• Has been given an opportunity but has failed to make pmt under an agreed schedule
• Obligor must be served with notice advising that license will expire in 60 days unless he pays or gets a repayment schedule.
• License may be restored when the obligor pays off the arrearages
• THE POINT - On motion, court issues Order Suspending License if obligor is 90 days in arrears and gets 60 days notice

Enforcement - 3.  Child support lien

• Lien against the obligor's real ppty (not homestead) and non-exempt personal ppty
• Lien is secured by filing child support lien notice in cty in which obligor is believed to own nonexempt ppty or in wich obligor resides
• Second Spouse Rule: If obligor remarries - spouse can petition to release from the lien any CP, if sale would result in unrzbl hardship upon spouse or obligor's family

Enforecement - 4.  Levy and Execution on Obligor's Financial Assets

• If a jmt for arrearages has been rendered - claimant can deliver a notice of levy to financial institutions holding assets owned by obligor
• Obligor has 10 days to pay in full, enter into a payment schedule, or file suit to contest
• The financial institution must pay the amt identified in the notice no sooner than 15 days and no later than 21 days after delivery of the notice, unless obligor contests the levy

Enforcement - 5.  Contempt

• Up to 6 months in jail or $500 fine or both
• Probation for up to 5 years
• An agmt to pay support contained in parties' settlement agmt but NOT incorporated into the divorce decree is NOT enforceable by contempt b/c it is not a violation of court order

Enforcement - 6.  Money Judgment

• Periodic child payment not timely made automatically becomes money judgment for amount due. 
• In action to reduce arrearages to jmt, plus interest at 6%, court's ONLY function is to confirm amt of unpaid support, subject only to defense of actual pmt. 
• No SOL for money jmt for arrearages
• Arrearages are NOT subject to discharge in bankruptcy

Interstate Enforcement of Support Order

• H & W were divorced in Oklahoma in 1999.  W was awarded custody of the couple's child C, and H was ordered to pay child support, and an income-withholding order was served on H's employer in Tulsa.  H moved to Texas in 2003, and has paid no child support since the move.  What procedure must W follow in Texas to enforce the Oklahoma child support obligation by contempt?
• Because a Texas court will NOT cite H for contempt of a Nebraska order, W should:
• Make the Oklahoma order a Texas order under the Uniform Interstate Family Support Act (UIFSA).  To register an order under UIFSA, W should send 2 copies of the Oklahoma support order (one of which is a certified copy) to a Texas court, together with a sworn statement by W showing the name and address of H (and, if known, the name and address of his employer).  Upon registration under UIFSA, the order becomes a Texas order, and thereafter will be enforceable in Texas by contempt.  (note:  contempt is NOT available for arrearages b/c those offenses were in violation of the Oklahoma order)
• Other avenues W might pursue to enforce the Oklahoma support order:
• Reduce the arrearages to a money judgment in the Oklahoma courts - the money judgment then would be entitled to Full Faith and Credit in Texas
• W could mail a copy of the income-witholding order to H's Texas employer.  Under UIFSA, this automatically triggers income withholding unless H contests the validity of the order.  Alternatively, W can mail the support order, or income-withholding order, or both, to the Texas Attorney General's Child Support Enforcement division, which would seek administrative enforcement of the order. 
• Note:  If the couple was divorced in Texas, and then H moved to another state, W would follow the same steps in the other state where H moved

Enforcement - Habeas Corpus

If the question involves a parent withholding possession of a child in violation of a custody order…you MUST discuss habeas corpus

Sole issue:  Is there a valid court order awarding custody?

The fact that the custody order is from another state does not matter (unlike contempt)

The parent violating the custody order may NOT cross-file and relitigate custody

Exceptions (most likely will NOT be tested):

Court can consider whether custody order is valid based on a denial of due process

Temporary custody may be issued if court finds there is an emmediate concern for the child's welfare

If child has not been in the relator's (plaintiff's) possession at any time within the past 6 months, court may consider motion or cross-motion to modify custody

Venue for habeas corpus proceeding:

County in which child is found, or

Court of continuing jurisdiction under SAPCR

Note:  There is one situation where habeas corpus may be brought even though there is no court order:  Parent, relying on entitlement to possession as parent, can bring habeas corpus against non-parent (e.g. aunt) who withholds custody 

Statutory Tort Liability

• A question involving a parent withholding possession of a child in violation of a custody (managing conservator) order, also may call for a discussion of statutory tort liability for interference with with child custody
• This action is available if a person takes a retains possession of a child or conceals child's whereabouts in violation of a court order.  Available against noncustodial parent who kidnaps child and against a custodial parent who withholds child in violation of visitation rights
• Actual and exemplary damages can be awarded!!!
• Cause of action also available against a 3rd party who aids and abets
• Must give notice by registered or certified mail of intent to file tort suit in 30 days unless custody order is complied with (policy:  to cathc his or her attention)

Contempt

• If the question involves an intrastate violation, you should also discuss contempt
• Since a finding of contempt involves jail time, it is quasi-criminal in nature.  Accordingly, all criminal due process rules apply to the proceeding:  right to be present at the trial, right to appointed counsel if indigent; evidentiary standard is beyond a rznbl doubt
• May be punished with up to 5 years of probation

Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA)

Purpose of the UCCJEA is to avoid jurisdictional disputes and facilitate interstate enforcement of custody and visitation orders

Jurisdiction to enter a custody order lies in the state with (in descending order):

• Home state jurisdiction - the child's home state (where the child has lived for the last 6 months)
• Temporary emergency jurisdiction (where child has been abandoned or abused)
• No other state has jurisdiction and (1) the child and one parent have a significant connection with the state, and (2) substantial evidence is available in the state
• Inconvenient forum - even if one of the above tests are met, the court may decline jurisdicition if it is an inconvenient forum

Note: once the custody order is entered, under the UCCJEA, the issuing court has continuing, exclusive jurisdiction as long as at least one party continues to reside in that state

Remedies Under UCCJEA

• Registration of order:  register two copies or order (one certified); Texas court can then grant any relief available for enforcement of registered order, including contempt
• Expedited Enforcement:  court issues order directing repsondent to appear in person at hearing held the next judicial day after service of the order or (if that date is impossible) the first judicial day possible.  Possession of child is awarded to petitioner unless the custody or visitation order has been stayed or vacated.
• Warrant to take immediate possession of child:  On filing petition sekking to enforce custody or visitation order, petitioner may file for a warrant to take possession of the child on a finding that the child is imminently likely to suffer serious physical harm or be removed from the state.

Modification of Child Support or Custody Order (1)

• H & W divorce.  They agree that all matters related to the divorce and the children will be forever handled in Dallas County.  They further agree that the amount of child support will never be modified.  W, who was awarded custody the their child, moves to Harris County.  Thereafter, H receives a series of promotions.  W wants to increase the amount of child support provided by H.  What steps should she take and where?
• File a Motion to Modify Support Order in court having initial jurisdiction (Dallas SAPCR court) May be modiefied despite the fact that H & W agreed to never modify the amount of support (such an agreement is against public policy because it usurps the court's power to determine what is in the child's best interest)
• Simultaneously file a Motion to Transfer to Harris County (transfer is mandatory if child has resided in new county for at least 6 months) This is so even though H & W agreed that venue would always lie in Dallas County (Family Code venue rules are mandatory and cannot be changed by agreement) (If a judge erroneously refuses to transfer venue, the ruling is NOT appealable b/c interlocutory...must seek a writ of mandamus)

Note:  if H agreed to pay child support until child reached age 21, the guidelines would NOT apply and the support could NOT be modified unless the agreement provided for modifications

Modification of Child Support or Custody Order (2)

An agreement can be modified if:

• Circumstances of child or an affected party have materially and substantially changed (parent has more or less income OR child has more or less need), or
• 3 years have elapsed and support deviates from guidelines by greater of 20% or $100

Reservist or member of National Guard who is called to active duty for at least 30 days resulting in decresed net resources is a changed circumstance that warrants modification

If H adopts or has kids with a second wife, this IS a changed circumstance that might warrant modification

Modifying Conservatorship

• Motion for Modification of managing Conservator (or possessory conservator) Order must be filed in SAPCR court
• To prevent frustration of visitation by a surprise move, each conservator must give the other party notice of intent to move at least 60 days before the move

• To modify any type of conservatorship, two-pronged test:
• Modification is in the best interest of the child, AND
• Changed circumstances (material and substantial)

Note:  If another motion to modify conservatorship is filed within 1 year from the last motion to modify conservatorship, unless the MC consents to the modification, the petitioner must also show danger to the kid's physical or emotional health

Multistate Problems

H & W were divorced in Texas 2 years ago.  W was named MC of the couples child, and H was ordered to pay $500 a month in child support.  One year ago, W and child moved to Florida and are now living there with W's boyfriend.  H wants to be appointed MC and to reduce child support.  

Proceeding to modify custody: 

Relevant law is the UCCJEA under which the court that issued the custody order has continuing, exclusive jurisdiction as long as one party still resides in Texas

If W seeks to move proceeding to Florida, she must persuade the TEXAS court that it is an inconvenient forum: 

(1) neither the child nor W have a significant connection with the state, and

(2) substantial evidence relating to the matter is no longer available in the state.

Proceeding to modify child support:

Relevant law is UIFSA which says that the motion must be filed in SAPCR court b/c one party still lives in Texas

Under both UCCJEA anf UIFSA, if H has moved to a new county in Texas, on motion the court shall transfer the proceeding to the new county

If all parties have moved from state where support order was issued, motion tp modify support must be filed in state where obligor resides, after registering support order in that state under UIFSA procedures

Grandparent's Petition for Rznbl Access

A grandparent may petition for reasonable access for grandparent

To be granted reasonable access, the parental rights of at least one parent must not have been terminated, and the grandparent must meet one of the following:

• The child's parents are divorced or have lived apart for at least 3 months, or
• The child lived with the grandparent for at least 6 months during the past 2 years, or
• The parent who is the grandparent's child is deceased, had his parental rights terminated, is in prision or is incapacitated, or
• The child has been abused or neglected

Note:  if the child has been adopted by a new family, NO rznbl access for grandparent

Removal of Disability of Minority

For a 16 year-old, disability (legal incapacity) of minority may be removed if the child is:

• Financially independent, and
• Living apart from parents

For a 17 year-old, these requirements do NOT apply…the only test is best interest if the child

Child Abuse; Sexual Abuse

The Texas Department of Family and Protective Services (TDFPS) can take possession of a child without court order upon information that would lead a person or ordinary prudence and caution to believe that child was the victim of child abuse or sexual abuse, and there is no time to obtain a TRO

TDFPS must file a SAPCR (with appointment of attorney ad litem for the child) and obtain an ex parte hearing within 3 working days after child was taken into possession.  

Parents must be given notice prior to ex parte hearing:

Reasons they took possession of child, and

Summary of the parent's rights

A full adversary hearing must be held within 14 days.  If either the ex parte hearing or full adversary hearing is not held within the specified time, the child must be returned to the parents.

To retain the child, the TDFPS must prevent sufficient evidence to satisfy a person or ordinary prudence and caution that:

There is a continuing danger to the child's physical health or safety caused by the parent's acts or failure to act, and

There is a reasonable liklihood that the child will be a victim of abuse in the future

Child Abuse; Sexual Abuse 1995 Statute

• A professional must report suspected child abuse.  An attorney, doctor, minister, psychologist, social worker, etc., having reason to belive that a child is being subjected to abuse or beglect must report the information within 48 hours. 
• The duty to make a report cannot be delegated. 
• Failure to make such a report is a misdemeanor. 
• The identity of the reporting individual is confidential, and can be disclosed only on court order or to a law enforcement officer for purposes of criminal investigation. 
• A person who in good faith reports alleged child abuse or neglect, or who testifies in a judicial proceeding, is immune from civil or criminal liability. 
• A person who acts in bad faith or with malicious purpose is NOT immune from civil or criminal liability

Parental Notification of Abortion

Before an abortion may be performed on a minor:

• 48 hours notice must be given to a parent, guardian, or managing conservator, or
• Court approval obtained where the minor does not want parental notification, or
• Doctor determines that because of minor's physical condition, abortion is necessary to avoid serious risk of substantial and irreversible impairment of a major bodily function

Parental Liability for Child's Tortious Conduct

NEGLIGENCE:  parent is liable for property damage caused by a child's negligent conduct (regardless of child's age) if consuct is attributable to parent's negligent failure to exercise duty of control and rznbl discipline of child (no dollar limit on liability) (Note that 2 acts of negligence are required:  child and parent)

THEFT:  parental liability for theft by child under age 18 limited to $5,000

INTENTIONAL TORT:  parental liability for property damage caused by willful and malicious conduct of child age 10 to 18 (plus court costs and attorney's fees) (limited to $25,000 per act…NO need to show parental neglect)