FAMILY LAW QUESTIONS

After the removal, the state must provide a hearing for the parents (or other managing conservator) to review the grounds for removal, the need for continuing state custody, and the state's plan (e.g., a plan for reunification of the family or for termination). When must this hearing happen?

a.Within two weeks of the removal.

Mother is sole managerial parent for Child. She rejects medical intervention in favor of prayer. A school nurse noticed that a serious infection on Child's arm was getting worse and had not been treated for several days. Can the state intervene by a SAPCR to gain temporary managing conservatorship for medical decision-making for Child?

a.Yes, for purposes of medical examination and, if the infection risks significant injury, treatment too.

John proposed to Jane. Jane accepted and John handed her a $15,000 diamond ring. On Valentine's Day a month before the planned wedding, John gave Jane a $8,000 pair of earrings. With these earrings, Jane had enough resalable assets to pay off her debts. She broke up with John and cancelled the wedding. Can John recover the earrings and ring as "conditional gifts" in contemplation of marriage?

"Yes" as to the ring, "no" as to the earrings.

Husband assumed he was Child's genetic father. Wife believed he mightbe and never suggested otherwise. A divorce order required Father to pay child support until Child reached 18. One day Child became disabled. Mother petitioned the court to order Father to pay lifetime support. Father then obtained a DNA test and learned he was not Child's genetic father. Can he counterclaim for a declaration that he is not the father and owes no support?

.Only if a court finds Mother misrepresented his paternity and that he learned new facts causing him to doubt paternity in the last year.

Al Cohol is married to Ethyl. Money in their joint savings account is mainly from Ethyl's earnings. Al obtained a loan in his name only from a car dealer to buy a car. He had an accident while driving the car, resulting in another driver's death Q: If the dealer sues and wins judgment on Al's debt to dealer, can it seize the funds in the joint savings account? Q: If the dealer sues and wins judgment on Al's debt to dealer, can it seize the funds in the joint savings account? Q: If the plaintiffs obtain judgment against Al, can they seize funds in Ethyl's other bank account holding only her income?

1. Can sue Al but not Ethel 2. Yes because it is community property joint management and control 3. Yes, because this is a tort judgement. (check on this one)

1.Mother has right to designate primary residence. Father's employer transferred him to a distant location, impeding his ability to visit child. What should Father do? 2. Court granted Mother a right to designate primary residence.Then Father married Teacher while Mother remained single, working full time and relying on day care during work time. Father has now petitioned to modify to grant him the right to designate residence. Discuss the merits.

1. Even PC move can trigger modification, need for a new schedule 2. is it best interest of child?

1. Mother often takes Child to visit Boyfriend's house. Boyfriend uses obscene language and verbally abuses Child. Has mother subjected child to "abuse?" Has Boyfriend committed abuse? 2. Mother and Boyfriend use marijuana in presence of Child. While Mother leaves the room to go to the bathroom, Boyfriend hands a marijuana cigarette to Child and encourages him to smoke. Is Boyfriend guilty of abuse? Mother? 3. Mother has an accident while driving under influence of drugs, and Child is injured. Is Mother guilty of abuse?

1. Has bf? no, unless would need to show mental or emotional injury that is observable- a professional is most likely needed to show it was material and observable impact. Has mother? would need to show that mom knew conduct was happening then she can be held liable for bf abuse? 2.Bf? yes, bc marijuana is illegal and in state where it is legal, age is still not legal. mom? no if she was unaware 3. using drugs is not enough to constitute abuse but the child was injured so it is abuse

is it a family? 1. Suppose the child in question was a deceased neighbor's child as to whom "grandma" had assumed responsibility without any formal court order or appointment. 2. Suppose the cohabitants are a group of students: The Owner's son and his girlfriend, and some fellow students who signed one-year leases and who each pay rent. 3. Suppose the challengers are two people living together as unmarried domestic partners.

1. It is a functional equivalent of a family. In situation like this the neighbor needs to get a formal court order. 2. No. Belle Terre case old case never overturned) says that state can really regulate who is living in a home if unrelated 3. Yes. Functional family equivalent (Brashi)

Paternity Registration: 1. In Baby Girl the father and his attorney contacted the adoption agency after the termination order but before the adoption order. Did the agency or adoptive parents owe a duty to inform the court of the father's identity? 2. Aside from registering, what might the father have done to secure a right to recognition of his paternity? 3. Would the father's filing in registry, intervention in the termination/adoption case or filing of his own paternity suit necessarily have prevented his "termination" as a parent?

1. No. because did not register in time 2. File SAPCR suit to declare paternity 3. No.

Denial of order for DNA test 1. How might estoppel against a court-ordered test affect litigation strategy for someone in Mr. Hausman's position? 2. In a case like Hausman, might a private test result be evidence for any reason other than to rebut paternity? 3. If the result of a court-ordered test is negative, and the Code compels the court to declare the examinee "not the father," is there any other remedy for the examinee? See rights of non-parents, infra.

1. if he wants to challenge paternity and if so there will be a DNA test court ordered and it will be binding. if mother is denying fathers paternity, the moment you see that it is challenged you need to schedule a hearing immediately to establish estoppel of the DNA test incase it comet negative which would be binding. 2. use the test to prove adultery for a fault based divorce 3. Estoppel, (

Separate v. Community Property 1. Husband and wife receive a set of silverware as a wedding gift at their wedding. What is the characterization? 2. Husband had 1000 shares of VBC stock at time of the wedding. What is the characterization? 3. After wedding, Uncle Rich gives Husband another 1000 VBC shares. What is the characterization of these shares? 4. After wedding, Husband uses funds from his current income to purchase a third batch of 1000 VBC shares. What is the characterization of these shares? 5. In each case, would it make any difference if the married couple moved to a "common law" state before divorce? 6. The first 1000 shares (acquired before marriage) pay dividends of $100. What is the characterization? 7. The first 1000 shares (acquired before marriage) double in value during the course of the marriage. What is the characterization of this additional value? 8. VBC declares a stock "split" (issuing one new share for each pre-existing share). What is the characterization of these shares? 9. Husband sells the first batch of shares and buys one car for himself, and another for his wife. What is the characterization of each car?

1. separate bc third parties cannot create community property. when they received it, does not matter. to ensure make sure to write to: daughter. 2. separate. acquired before marriage 3. separate bc gift 4. community 5. the rules change from each CL state 6. community because it is income, even though it came from separate property, dividends are income which will be community property. 8. transmutation, seperate 9. first batch is separate, but if bought car for wife it becomes a gift and is her separate property

1. Mother's employer required her to work on July 4, but the usual day care was closed that day. Mother left three-year old Child home with her dog Rascal. Rascal bit and injured Child. 2. Mother was called to work on Saturday but the day care center was closed. Mother dropped nine-year old Child off at the zoo with money for lunch, telling him she would return at 6 p.m. Child was injured after climbing and falling out of a tree. Has mother neglected Child? 3. Mother is unemployed. She and Child shared an apartment with Sister but all were evicted when a developer bought the building. Mother and Child are homeless again and living under a bridge. Has mother neglected Child?

1. yes neglect 2. family code doesn't tell us what age children are mature enough to be left alone, depends on the age of the child 3. failing to provide basic needs but bc of parents finical inability to support may not be guilty but need proof why she's under bridge

Sixteen year old Amanda ran away from her parents, who are members and residents of a Christian community that refuses to send their children to school and who instruct children in their own church school with a curriculum based exclusively on the Bible. Amanda sometimes questions the faith and can be stubbornly rebellious, which has led to "spiritual intervention," involving a forced "laying of hands" on Amanda by members of the church and forced solitary confinement in a "meditation" room for eight hours at a time. Amanda has run away to the home of Aunt Apostate, a former member of the same religion who had abandoned the religion and moved to a nearby city. Amanda told Apostate she wants to attend a "regular" school. Apostate wants to help. She came to your office to ask for advice.

1.Emancipation by judicial order? -Sixteen, living apart, self-supporting, managing own finances? -In best interests? -See also § 31.001: general emancipation (an "adult") v. specific emancipation (right to make particular decision granted by court). 2.Seek non-parent joint or sole MC? a.General standing—perhaps possession, care, control for six mos.? b.Special standing? −A significant risk? Relative w/in 3 degrees? Seeking MC? 3.Can Apostate rebut the parental presumption? −Relinquishment? Family violence? Impairment?

Applying Section 153.004Evidence of Abuse or Neglect

1.Six months ago, Father pushed Mother during an argument, causing her to fall and she was injured. Court must consider the evidence; but even if evidence is "credible" it is not enough to establish a pattern. JMC not barred. No presumption against Father's SMC. 2.The above happened three years before the petition. Court need not consider the incident at all. 3."Credible" evidence shows Mother has pattern of slapping children and has left them unattended for too long in several incidents, but Father has history of abusing drugs. Credible evidence of Mother's pattern of abuse or neglect bars joint JMC. Presumption against Mother for SMC might still be rebuttedby Father's drug use.

Mother is suffering a debilitating disease and she worries who will take care of Child when she dies or becomes seriously disabled. Father is not a capable or interested parent, and Mother has no close relatives who are able or interested in taking care of Child. However, Mother's best friend, Friend, has volunteered to parent Child when the need arises. What should Mother do?

1.move in together for 6mo and parent dies then has general standing 2. put them in will 3. marriage and adoption 4. have cps initiate SAPCR suit

For what matter involving a particular child might a court be unable to gain jurisdiction, despite the fact that the court has home state jurisdiction?

?

texas generally requires that a person must be eighteen to marry. Why is marriage by a minor still a possibility in Texas?

A child and his or her prospective spouse might marry by traveling to another state that allows child marriage, return to Texas and live in a putative marriage that has the effect of marriage unless and until annulled or declared void by legal action. A couple that lawfully married in some other jurisdiction when one spouse was very young might move to Texas and take up residence in Texas, creating some question whether Texas law validates such a marriage or whether it can do so retroactively or only prospectively. A 16 or 17 year old child might be judicially emancipated, and a parent might facilitate emancipation by supporting the petition for emancipation if they wish their minor child to marry.

What is one advantage of alleging a "tort" in a divorce proceeding, as compared with alleging the same conduct only as a "fault" ground for divorce?

A court can award punitive damages for a tort claim. In contrast, a court cannot award punitive damages in an equitable division of property even if the divorce is fault-based. Tort damages can exceed the value of the torfeasor's share of community property, and are collectable from separate property or even future income. Alleging fault in a divorce only affects the division of community property, if any. In a tort case, either party has a right to a jury. There is no right to a jury in an equitable division of property even in a fault based divorce. All of the above.

What is the difference between a liberty interest protected by substantive due process and equal protection?

A liberty interest requires identification of an important personal right, like the right to use birth control. Equal protection requires identification of the way a law "discriminates" between two classifications (e.g., men versus women, or poor versus rich).

Which of the following is the presumed father of a child?

A man who has represented to others that he is the father, but only if he also lived with the mother and child for two years after the child's birth, or has some other basis for a presumption. Yes, this makes a man a presumed father. That man or someone else might still challenge his paternity if they do so within the period of limitations.

In the modern world, which of the following is most likely to successfully invoke the spousal duty to support in a lawsuit for collection of a debt incurred for the purpose of an alleged "necessary" in modern day Texas?

A medical services provider, such as a hospital.

An important aspect of the right to nurture a child includes the parent's right to manage the child's education. Which of the following is true about this right?

A parent has right to choose between public school and some alternative formal education (e.g., a religious private school).

Which of the following has standing to petition for managing conservatorship of a child if another party, such as the State of Texas, has filed a SAPCR with respect to that child?

A person with a significant relationship with the child.

What is a "parenting plan" as that term is used in the Family Code?

A plan negotiated between the parents for the schedule of possession, with other possible agreements about education and medical care or other major matters, subject to approval by the court. Yes, the parenting plan can take the place of a "trial" for the court to decide the details of the schedule or other management matters potentially in dispute. Failing to reach a parenting plan might lead the court to chose a sole managing conservator instead of joint managing conservators.

Which of the following has standing to petition for managing conservatorship if a child's circumstances present a significant risk of impairment (assuming the parents do not consent)?

A relative within 3 degrees of consanguinity with the child.

Mr. Polygamy married A in 2001, he married B in 2002, and he married C in 2003. Assuming A, B and C are all still alive and none of these parties has "divorced," who is a legal wife of Mr. Polygamy? Assume each marriage satisfied all rules of marriage except the rule against polygamy.

A, but not B or C. the first marriage remained valid. It was not undone by subsequent marriages, which are void

Texas law requires applicants for a wedding license to answer a question under oath: Is either party currently in arrears with respect to a court-ordered child support obligation? a. What is the effect if an applicant answers "yes?" b. What might be the Legislature's purpose?

A. Nothing, but must be disclosed. B. To document but also to let the soon to be spouse know if they don't already know.

A. What are some rights one or both parties might forgo by living together without marriage? B. Do you foresee any potential ethical problems in counseling these parties?

A. · Marital property rights (also achievable by private contract) · Rights of inheritance (somewhat achievable by estate planning). · Spousal/child homestead rights. · Standing to sue for consortium or wrongful death of a "spouse." · Public welfare benefits (SS). · Private employer welfare benefits · Income taxes: Joint tax return, pooling of deductions;gift and estate tax exemptions. · FLMA spousal care leave. · Presumed surrogate decision-making in case of incapacity. · Husband's presumed paternity. · Easier eligibility for adoption. · Testimonial spousal privilege; marital confidences rule. · Immigration status for "spouse" of citizen or resident B. Yes. It's possible that parties will eventually become adverse.

Wife owned 100 shares of stock worth $1,000 the day before the wedding. During the marriage, the shares paid $1,000 in dividends, and she placed this money in the couple's joint checking account where both spouses deposited their income. At the divorce, the stock had doubled in value and was worth $2,000. Assume Wife could prove the $1,000 in dividends is still in the checking account. What is the property characterization of the 100 shares of stock and the $1,000 in dividends?

All of the value of the stock ($2,000) is Wife's separate property. The dividends are joint management community property. Yes, separate property retains its character as to all growth in value. The dividends were community property because they were income during the marriage. They might have been Wife's sole management community property, but they became joint management property when commingled in a joint checking account subject to the control of both parties.

During a high school basketball game, Punch became angry and punched Fall in the face, causing serious injury to Fall. Which rules of liability might apply to Punch's parents?

Common law liability requiring proof of the parents' fault

Husband threatened to kill Wife and Wife is reasonably in fear of her life and safety but cannot afford to relocate to a separate residence. What is her most immediate and effective remedy?

An immediate protective order under Chaps. 71- 81 of the Family Code, ex parte if necessary, to exclude Husband from the home.

Jack and Jill were common law married in 2010. In 2011, Jill left their home and the parties no longer cohabited or represented that they were married. In 2020, Jill met Mike. After a few months Jill and Mike got a license and had a wedding. What is Jill's status?

Married to jack

When can the state remove a child without an ex parte hearing and without a warrant?

a.The situation is a "greater" emergency in which the risk of death or injury is imminent.

Assume Neighbor recovered a negligence-based judgment against Father but not Mother. If the insurance is not enough to cover the amount of the judgment, what property can Neighbor seize to collect the judgment, if necessary, assuming a claim under the relevant Family Code provision is a "tort."

Any community property and Father's separate property. Yes, because this is a tort, the judgment creditor can reach any community property, even if that property was earned by the innocent spouse/parent.

What burden of proof is commanded by the Constitution (and by statute in Texas) for the State when it seeks to prove parental failure (e.g., abuse, neglect or incapacity) as grounds for termination of the parent-child relationship?

By clear and convincing evidence. Yes, this is somewhere between the preponderance standard of civil proceedings and the "beyond a reasonable doubt" standard of criminal proceedings.

Which of the following is a decision a sole managing conservator cannot make alone against the wishes of a possessory conservator? Child's education (e.g., which school). Child's religion. Major medical decisions (e.g., which doctor, or a choice between alternative legitimate medical treatments). Consent to marry (e.g., by joining in a petition for emancipation for the purpose of marriage).

Childs religion Yes, today the law favors allowing each parent to practice religion during possession of the child. This means the child could have a mixed religious upbringing. The sole managing conservator cannot decide the child's religion. She or he can only decide what religion will be practiced when the child is with that parent.

Felon was on trial when the prosecution called Wife, Felon's wife, as a voluntary witness. Prosecutor asked Wife, "what did Felon whisper to you when you found the body in the trunk of your car?" Felon objected: "she's my wife now, and she was my common law wife at that time, and I have a back-dated declaration of common law marriage to prove it! I assert all applicable privileges!" What should the judge do?

Conduct a hearing to determine the validity of the declaration. Testimonial privilege and confidences, privilege belongs to witness but either spouse can assert for confidences depends on whether convo happened when married, if not the confidences cannot be applied

In which of the following types of abuse is "harm" or a threat of harm presumed without the state's proof of physical harm, a threat of physical harm, or an observable impairment, for purposes of state intervention?

Conduct constituting sexual abuse or causing a child's unlawful use of a controlled substance. Yes, under these circumstances we presume harm. The danger of emotional harm is so severe and so obvious that we treat these forms of abuse the way we treat a threat of physical abuse.

Mother, who has never married, sued Alleged for child support on behalf of Child. She swore that she and Alleged had sexual intercourse nine months before Child's birth. A court ordered a DNA test. Alleged refused to provide a DNA sample. What will the court do?

Declare Alleged the father. Yes. You want to challenge prima facie evidence of paternity? Take the test

Which of the following is an essential element for purposes of invoking the "donor" rule of the Uniform Parentage Act (as enacted in Texas)?

Delivery of the donated egg, sperm or embryo to a doctor. . Did the parties rely on the help of a nurse? A neighbor who happens to be a medical student? Are the donor and donee do-it-your-selfers? If they did not use a "doctor" they are BOTH parents.

What is one reason why the Supreme Court is unlikely to extend Dobbs v. Jackson (overruling Roe v. Wade) to overrule its recent decisions on same sex marriage and mixed race marriage?

Dobbs overruled Roe's substantive due process analysis, but the other decisions were based on or included equal protection.

Officer was parked across the street when Tenant motioned for Officer to come to the house where Host was standing. Tenant told Officer that Cotenant was hoarding unlicensed guns in the house. What is the single most important thing for Officer to find out before entering the House to search?

Does tenant live there?

How are equal protection analysis and substantive due process analysis alike?

Each requires identification of an affected right or freedom, an analysis of the severity of the impact of a challenged law, comparison with the importance of the state's reason for its law, and analysis of the tailoring of the law (is it effective in accomplishing the state's goal without needless or overbroad restriction of a right?)

In a divorce action, Wife disputed Husband's paternity of three-year old Child. The court ordered DNA testing. Husband worries the test will show he is not the father. Assuming Husband wants to retain maximum parental rights with respect to Child, what should Husband do?

File a motion to delay testing until the court decides whether it should decline to order a test based on Wife's conduct. Yes. You can make DNA irrelevant. But you should assert this "estoppel" argument quickly and get a ruling on it before the court-ordered DNA test.

Father is not aware that he is the father of Child. Neither he nor any other man is a presumed father of Child. At what point will Father's child support liability for Child begin to accrue?

From the date Child was born Yes, this is the day on which Child begins to have living expenses apart from Mother's living expenses.

Breach of promise to marry is still a viable cause of action in Texas, see Moore v. Bramlett, supra. Such a promise is probably not subject to the Statute of Frauds (see next slide). If Plaintiff sues and prevails in such a claim against Defendant, what remedies are appropriate for the court to grant? Note: After Moore, Texas adopted "no fault" divorce on unilateral demand either party.

GO FIND

John and Jane Cousins are cousins living in Arizona. They married in Virginia during a visit to Virginia, where cousins may lawfully marry. Then they returned to Arizona, where cousin marriage is void. As they passed through Texas, John was killed because of Defendant's negligent driving. Is Jane a surviving spouse who can sue Defendant under Texas law? Choose the best answer (perhaps the only one that is not obviously wrong).

GO FIND

Property acquired during marriage might be marital property as to which each spouse shares a property interest. Mr. and Mrs. Cousin became married in 1990 in a state that approved cousin marriage at that time. In 2000, Mr. Cousin used income he earned during marriage to buy a house. The house would be "marital" property if they were married. But in 2010 State declared marriage between cousins void. Still, Mr. and Mrs. Cousin continued to live as "husband and wife." In 2020, Husband used his income to buy a second house. In 2021, he sued to dissolve the relationship. Does Mrs. Cousin have a property interest in either house?

GO FIND

Wanda believed she might be married to Will because she believed cohabitation created marriage in Texas (she would not have been completely wrong 100 years ago). In a gathering with friends she expressed her belief that she and Will were married. When friends turned to Will, he said "no comment." But Wanda and Will continued to live together for another year with Wanda regularly describing herself as Will's "common law wife." Will often overheard such statements but never objected. Have Wanda and Will tacitly agreed that they are married?

GO FIND

Mother, who has never married, sued Alleged for child support on behalf of Child. A court ordered a DNA test. Alleged tested positive, and Mother moved for summary judgment to establish Alleged as the father. Alleged opposed summary judgment and submitted an affidavit swearing under oath he did not have sexual intercourse with Mother. What will the court do?

Grant summary judgment declaring Alleged the father. Yes, DNA test results are incontrovertible except by evidence of another DNA test (Alleged's own negative result from another test, or a positive test result for another man).

Wife signed a purchase agreement for a house in 1992, paid the down payment, and then made monthly mortgage payments with the the mortgage company holding the title to the property pending complete payment of the 30 year mortgage. In 1993 Wife married Husband. They made monthly payments on the house for the next 30 years from a joint checking account funded by their respective paychecks. Wife filed for divorce the day after the last payment on the house. What is the property characterization of the house?

Her separate property. Yes, based on the inception of title rule. Her "right" to the property originated in the pre-marital purchase agreement. This is true even if the mortgage payments were made substantially from Husband's income. There might be a remedy for Husband in the doctrine of "contribution," but that is a problem for anothr day.

Jack and Jill informally married in 2010. In 2015, Jill decided to leave the relationship. The parties no longer cohabited. Neither party formally asserted their marriage in any judicial or administrative proceeding during the next five years. Then in 2020, Jill denied she was married in an application for a wedding license, and she formally married Danny Duo. What is Jill's status?

Married to jack and committed bigamy

Texas courts sometimes use the phrase "community debt." What meaning of that phrase is most consistent with what the Texas Supreme Court has held?

If one spouse incurred personal debt solely in his or her name to obtain household necessaries, the court may require the other spouse to compensate for that debt in a dissolution proceeding, such as by an allocation of community property or a money judgment against the non-debtor spouse.

If one spouse files a fault-based divorce against the other in a Texas court, how might the fault allegation affect the court's division of property?

If the court finds the fault allegation true, it may consider or ignore fault in its discretion and grant a compensatory but not punitive share of community property.

Mother and Father agree they should both contribute to Child's higher education (job training, college, graduate or professional school). What difference does it make whether they make a private contract between the two of them or ask the court to include provisions for higher education in the child support order?

If the parties include the higher education provisions in the child support order, enforcement will be the same as for other aspects of child support, including enforcement by contempt and other powerful collection remedies. If they make higher education strictly a matter of private contract, enforcement remedies will be the same as for other contracts. Yes, if you are looking for the fastest and most powerful means of enforcement, put the higher education provisions in the order.

In what way is annulment the same as a divorce?

In either proceeding, the court may engage in a "just and right division" of property acquired during the marriage On the other hand, in the rare case that there is much to divide in an annulment (the marriage was likely very short), "equity" might result in a division of property in an annulment that is very different from the division a court would ordinarily grant in a divorce.

A week before a very big and expensive wedding, Groom informed Bride that he could not marry without a premarital agreement. Groom presented an agreement without a list of his assets because "you already know what I have." Bride signed the agreement to avoid the embarrassment of canceling the wedding and because of all the expenses she and others had incurred. However, she remained angry about the agreement and the last-minute presentation. A year into the marriage she petitioned for divorce. What is her best defense against the premarital agreement?

Involuntary assent caused by durress listing assets would preclude the allegation that something is unconsible Problems with duress: equivalent of gun to head but here this could be economic duress but judges have not decided where they stand on this

Which of the following is not true about a recorded declaration of informal marriage?

It can be revoked by either party to dissolve the marriage without a judicial divorce, subject to later judicial proceedings to resolve property, children and maintenance issues. Revoking a declaration, if you succeed (don't take it for granted that you will succeed) does not "dissolve" the marriage. It will however require any a proponent of the marriage (e.g., the other "spouse") to prove the marriage without the benefit of the declaration. True: It creates a public record and easy way to prove a marriage. It can be "back dated" to provide proof that the marriage began at some earlier date. It is a "public act" under the Full Faith & Credit clause, and thus there is a constitutional ground for requiring another state to respect the declaration

What is the effect of successful assertion of the putative spouse doctrine?

It entitles the claimant to compensation to be taken from the partner's property, but there is no equitable division of "community property" as in a divorce because there is no marriage and no marital property. Yes, this is the best answer because it recognizes that a putative marriage is not a marriage, although it can lead to a compensatory award.

A court in a dissolution proceeding has conducted a hearing on the issue whether it should allocate possession of a marital couple's home to one spouse to the exclusion of the other. How does the characterization of the home (separate versus some form of community property) limit the court's order?

It is not a limit. The court can even allocate possession of one spouse's separate property to the other spouse. because one spouse might be obliged to use its separate property to support the other.

What is the presumed model for two parents' management and possession of a child, if a court must issue an order of appointments (e.g., because of a divorce or paternity action)?

JMC

What is the presumed allocation of child management and possession rights in a dispute between parents?

Joint managing conservatorship, with one of the conservators to designate primary residence. Yes, that's it. However, the presumption for this arrangement is subject to rebuttal or judicially supervised agreement to a different arrangement.

Army has been called to active duty in the armed services and must find a caretaker for Child while she is away. Which of the following would be the easiest appropriate solution?

Make a written and signed authorization agreement with a relative within the third degree of consanguinity, appointing the relative temporary managing conservator. Yes, this is the fastest and simplest route in an emergency. It avoids the trouble of a court action. But the designated temporary managing conservator must be a relative within the third degree

Alleged filed in the paternity registry. In what way does Texas law treat him differently from Mother for purposes of Child's adoption assuming both Mother and Father are alive and there are no grounds for involuntary termination of either of Mother or Father?

Mother cannot relinquish for adoption until 48 hours after birth. Father can relinquish before a child's birth. because women experience pregnancy and labor in a way men do not

The order a divorce court entered for Father and Mother granted Mother the right to designate primary residence in Harris County or any contiguous county. Mother has just accepted a much higher paying job in Dallas and is preparing to move to a new home in Dallas with Child. Which of the following is true?

Mother must move to modify the order to change the geographic limit in a way that would allow the relocation of Child's primary residence to Dallas. Yes, the judge will need to approve relocating Child's primary residence and modify the order to reflect the new situation. The burden of seeking judicial approval and modification of the order is on Mother. The court will also need to change the schedule of possession

A custody order has no geographic restriction for designation of Child's residence. If Mother has authority to designate residence and relocates 500 miles away, which is true?

Mother need not move for authorization. If the other parent wants new terms of possession that parent must move to modify

Suppose Scott was in the bedroom sleeping-off a drug or alcohol binge when the police arrived. Janet invited the police in to search the premises, telling them to be "quiet" because Scott was asleep. Are the police required to wake Scott for his consent before searching the house?

No

Jack filed for divorce from Jill. While the divorce was pending, Jack moved to a separate apartment with girlfriend Amanda. Are Jack and Amanda violating Texas law against bigamy/polygamy?

No unless they intend and hold out that they are married.

Parent home-schools Child in Texas. A truancy officer determined that Parent has not provided an effective education. Can the State of Texas intervene by charging Parent with failing to provide an education, so that the State can assume management of the child's education?

No, Texas could regulate home schools without violating the constitution, but it has failed to do so. Correct, Supreme Court precedent a century old upholds the authority of the states to compel education for minors and to regulate education in public and private schools within limits.

Wife has just filed a petition for divorce. Is the divorce petition grounds for a court to immediately allocate possession of the family home to her, excluding Husband from the home?

No, a divorce in itself is not grounds for such an emergency order. However, if there is a threat of family violence, the court might be justified in issuing a Chapter 71 protective order. Chapter 71 is where you would look for emergency action, but that Chapter is limited to prevention of family violence.

Jack and Jill are first cousins domiciled in Victoria, which prohibits cousin marriage and declares any putative marriage between cousins void. They traveled to Cousinia, which allows marriage between first cousins, and they had a wedding. They returned to their home in Victoria where they continued to live. Assuming neither of these states has any statute changing the usual (common law/Restatement) choice of law rules, are Jack an Jill married?

No, because Victoria appears to have a strong policy against cousin marriage, and it has the greater interest in determining validity of the marriage. The place where a couple are domiciled at the time of the wedding will likely have a greater "interest" in the marriage, and the domicile's important policies (i.e., not merely technical rules, such as answering all questions on a license application) trump the law of the place of the wedding. Incest rules are more than technical.

Father is sole managing conservator of Child. Father's religion discourages the use of anti-biotics because anti-biotics are designed to kill living organisms (bacteria). Child has a serious infected wound on his arm. Left untreated by anti-biotics, the infection will likely grow and require amputation of the arm. Father refuses to authorize a doctor to administer anti-biotics. Can Doctor overrule Father?

No, but Doctor can report the matter to the State, and the State will seek temporary possession and managing conservatorship for the purpose of approving anti-biotics. Yes, and the State should prevail if denial of treatment is outside the range of reasonable medical options based on available, objective medical knowledge.

Lender sued and won a judgement against Wife for her indebtedness based on a credit card account solely in her name. Can Lender collect the judgment by seizing a stock brokerage account built entirely from Husband's income and solely in Husband's name?

No, even if the account is community property, Wife has neither sole nor joint management and control over the account. Correct, this is a non-tort-based indebtedness, so Lender cannot reach community property that is under Husband's sole management and control.

Wife was badly injured in an automobile accident caused by Tort. Tort's insurance company offered a settlement with Wife in exchange for $500,000, and Wife signed the settlement agreement. The agreement applied to all claims by Wife or Husband against Tort arising out of the accident. After Wife had cashed her check, Husband sued for $500,000 for loss of consortium. Should the court grant Tort's motion to dismiss this claim?

No, if Husband did not sign the settlement agreement, because the loss of consortium claim belongs to Husband and Husband is not bound by Wife's agreement. Husband is a separate person and the consortium claim belongs to him.

Mother (same Mother as in preceding question) moved to modify the custody order in view of her plans to relocate from Houston to Dallas with Child, and Father opposed the order. Is a relocation from Houston to Dallas necessarily grounds for modification of the order?

No, it is possible that Mother's move from Houston to Dallas with Child has little effect on Father's exercise of his right to scheduled visitation. Correct. Suppose Father moved to California or London some time ago. Or suppose Father doesn't use his scheduled possession. Sometimes, even a move very far away from the original family home has no practical impact on the non-cohabiting parent or that parent's relationship with the child.

Husband borrowed from Bank solely in his name to buy a car. He had an accident causing a total loss of the car. His insurer refused to pay for the accident because it occurred during use of the car to earn extra money making deliveries. Husband defaulted on the car loan. Can Bank sue Wife for the balance due?

No, not based on these facts

Jack and Jill lived together in Texas. During a week in Cancun, they agreed "we are hereby married." They returned home. A few weeks later filed a joint tax return. Eventually they moved to Ohio (strong public policy against common law marriage) and became domiciled there. Jack just died. Can Jill obtain Social Security survivor benefits as his former spouse?

No, the SSA will apply Ohio law, which won't recognize the marriage.

Jack and Jill lived together in Texas. During a weekend in Cancun in 2015, they agreed "we are hereby married." They returned to Texas, continued to cohabit, and filed joint tax returns. In 2020 they moved to and domiciled in Ohio (public policy against common law marriage). Jack died in 2021. Can Jill obtain Social Security benefits as a surviving spouse?

No, the SSA will apply Ohio law, which won't recognize the marriage.

Father's resources exceed the amount on which a presumed support obigation should be based (i.e. Father has a very high income). Can a court calculating Father's child support obligation consider the "lifestyle" of Father, Mother, or Child in making an upward adjustment to the presumed amount of the obligor's child support obligation?

No, the court can consider only the needs of the child, which might include a need to maintain a pre-separation lifestyle, but the court should not otherwise consider the lifestyles of any of the other parties. this appears to be the best interpretation of the Legislature's repeal of the old rule and failure to adopt a new rule for the courts. But lifestyle must be a child's "need" under this approach.

Father and Mother conceived Child eight years ago, and Mother gave birth to Child nine months later. However, Mother never told Father she was pregnant or that she had given birth to Child. Child has no presumed father. Just now, the State Attorney General's Office has sued Father to establish paternity and for reimbursement of years of welfare benefits paid because of Child, including Medicaid medical care expenses. Can Father assert any defense based on mother's failure to inform him of his paternity or to seek his support?

No, there is no defense against his liability to the state, but if Mother sues too he might be entitled to a limited reduction of his liability to Mother based on her concealment of his paternity. Yes, with respect to Mother's claim, liability might be shortened to four years (or some greater amount) of unpaid child support, based on the parties' conduct.

Single Mother asked Aunt to take care of Child while Mother attended school in another state saying "I'll come back to take care of Child when I finish school." Aunt has never liked Mother and believes she is a "bad" mother, but Aunt agreed to Mother's request. Mother visited Child only during short school and job breaks during the next two years and Mother did not send any money to support Child during this time. Can Aunt sue to involuntarily terminate Mother's parentage and to adopt Child?

No, these facts do not show any nonsupport or abandonment by Mother because Mother provided for Child's care by making an arrangement with another party, and the facts do not support any other ground for termination. Yes, this arrangement fulfills Mother's duty to provide support and care, and there are no facts to indicate an express or implied intent to abandon Child.

Boyfriend learned that Girlfriend had a child 8 months old ("Child"). Boyfriend had not registered in the paternity registry. Boyfriend had grown lonely and wished he had a family. He approached Girlfriend to see if he was really the father of Child, but Girlfriend refused to talk with him and stopped answering his calls. In fact, she had just married, and her new husband had filed for step-parent adoption. Must she and her husband serve Boyfriend with notice of the termination/adoption proceeding?

No. To have absolute right must file in paternity registry. and baby is less than 1 year old so no obligation to notify

which of the following is true about the putative spouse doctrine?

an award of property for the putative spouse is likely to affect property intrestsof the lawful innocent spouse

Father and Mother believe Public School is teaching "critical race theory" because the history class teaches lessons about slavery in early America and about the Civil War. They asked Public School to excuse Child from the history class. Public School denied this request and warned that if Child did not attend the class she would fail history and could not graduate until she passed history. Do Father and Mother have a Constitutional right to compel Public School to excuse Child from history class based on the parent's belief system?

No. The family's option is to withdraw Child entirely from Public School Correct. Parents have several options if they object to a public school's curriculum. Political action (seeking to replace elected school officials) has been one possibility. Transferring a child to a private school is another. Home schooling is a third option. However, a family cannot remain in a public school and dictate the school's curriculum as long as the curriculum is lawful. The Constitution might require some "tailoring" to accommodate religious and liberty rights, but allowing every parent to excuse any child from select classes, topics, or courses is likely to be unmanageable

Can one spouse sue the other for outrageous behavior causing the infliction of emotional distress?

Only if the tortfeasor spouse acted with intent.

A divorce court appointed Father joint managing conservator with the right to designate residence, and it required Mother to pay child support. Father moved to his parent's community in a small town to take advantage of their offer to help raise Child. Mother continued to work in a big city bank for a couple of years but eventually decided to move to Father's small town community to be closer to Child. She earned substantially less in her new small town job. Is she entitled to a reduction in her child support if her lower net resources indicate a lesser obligation?

Not necessarily. She is intentionally "underemployed" and her obligation might be based on her "deemed income," which is what she would earn if she had kept her high paying job. However, the court might allow some reduction in her obligation if she took a lower paying job to be able to contribute more in raising Child. Correct. The underemployment rule in Texas is quite strict. However, the Texas Supreme Court has suggested that a court might make a downward adjustment in deemed income if the underemployment is for a worthy family-based reason, such as to spend more constructive time with Child.

When might a parent's child support obligation be radically different for one child from the same parent's obligation to another child?

One child has an "unmet need," including that child's pre-separation lifestyle, and the other child does not have that need

Under what circumstances can a Texas court order regular (e.g., monthly) support payments between two parties to a real or alleged marriage?

Only if the parties are in any kind of dissolution proceeding or as part of any kind of dissolution order, for qualified reasons (e.g., a 10 year marriage, disability, or family violence). Yes, this answer accounts for the rare possibility that a court would award "maintenance" in an annulment or action to declare a marriage void, and it accounts for the range of grounds for maintenance.

If a relinquishment for adoption or a statute allows a limited time limit for revocation, but that time limit has expired, when might the parent still be able to obtain an order to set the relinquishment aside?

Only if the relinquishment is voidable for cause Yes, once the time for "at will" revocation has passed (if the relinquishment or a statute granted such a time), the relinquishment is binding unless it was invalid on some particular ground, such as undue influence. However, the adoption decree will become final beyond any challenge within six months, so the motion or petition to set the relinquishment aside on grounds of invalidity must be before that six month deadline.

Husband brought a wrongful death action against Tort, and Husband included a claim for loss of consortium. At trial, Tort's attorney asked Husband if it was true he had a sexual relationship with Girlfriend. If Husband objects to this question, what should the trial judge do?

Overrule the objection unless Husband began his relationship with Girlfriend before the accident that killed Wife. The value of consortium depends on the quality of the relationship with Wife. What happened after death is irrelevant except for formal remarriage. Remarriage (formal) is the one thing the Legislature assumes mends a broken heart.

Mother and Sperm Supplier, both unmarried and living in Texas, agreed before conception to be "co-parents" even though they were not married. They signed a record of intent for Sperm Supplier to be a parent at the doctor's office. Sperm Supplier did not register in the paternity registry. Thirty-two days after Child's birth Mother decided parentage was too much trouble. She placed Child for adoption by Sister. Must Sister provide notice of the adoption to Sperm Supplier?

Probably need to provide notice because sister is petiotioner, and though not filed in paternity registry the joint written agreement of unmarried individuals Is binding and that she will need to give notice. signing a record of intent satisfiies requirements to be a legally protected father

Husband earns $500,000 per year. In early 2022 he made a legal bet of $1,000 on the Houston Texans to win the 2023 Superbowl, hoping to win $300,000 if the Texans did win the Superbowl (the "odds" were really bad). The Texans didn't even appear in the playoffs. If the $1,000 Husband paid was joint management community property and Wife divorces Husband, does Wife have a claim against Husband based on that lost $1,000?

Probably not. Foolishness or selfishness per se is not a crime, tort or misuse of community property, and the expenditure was not grossly disproportionate to community resources. This is not an unauthorized use because he shared management of this money, spent it for a community purpose (his own enjoyment as a member of the community), and the facts don't support a conclusion that the bet would have depleted the community or imperiled support.

Twelve year-old Child reported to a counselor that Mother's live-in Boyfriend had sexually abused her, and that she was afraid to tell Mother. The counselor reported the matter to Children's Protective Services (CPS) and CPS obtained a warrant and removed Child from the household. Ten days later, at a preliminary, post-removal hearing, a social worker testified that he had instructed Mother to evict Boyfriend from the household. Mother did evict Boyfriend, and at the hearing she swore under oath that she would have nothing more to do with Boyfriend. What must the court do?

Return Child to Parent's custody because, on these facts, there is no reason to continue the State's temporary custody. However, the Court might also continue the proceedings and schedule a full hearing on the merits if CPS requests. Yes, for now there is no reason based on these facts to continue the State's temporary custody. However, CPS might want to continue its investigation and its petition. How much did Mother really know? Is she really doing everything she can to keep Boyfriend away from Child? Is she continuing her own relationship with a man who abused her daughter?

Mom left Child with Aunt saying "I'll be back, I just need to get my life together." Now Aunt hasn't heard from Mom for 30 days and doesn't know where Mom is. A new school year is starting and Aunt thinks Child should visit a doctor. Which two could you recommend?

Seek a temporary order for managing conservatorship or Assert standing to seek managing conservatorship, based on a significant risk to Child.

Jack and Jill informally married in 2010. In 2015, Jill decided to leave the relationship. The parties no longer cohabited. Neither party formally asserted their marriage in any judicial or administrative proceeding during the next five years. Then in 2020, Jill denied she was married in an application for a wedding license, and she formally married Danny Duo. What is Jill's status?

She is married to Jack and committed bigamy.

When can any person who has had substantial past contact with a child have standing for purposes of seeking managing conservatorship (sole or joint), possessory conservatorship, or access?

Some other party has already initiated a SAPRC with respect to the child. Yes, under these circumstances a judge can determine that an intervenor has a sufficient relationship with a child to participate in the proceedings as a party, with the possibility of obtaining a court appointment as a managing or possessory conservator. Imagine the State of Texas has taken custody of the child and is seeking to terminate the parent child relationship. It might be useful to have a prospective parent figure on-hand. There might be a person with a keen interest in keeping the child out of the foster care-institutionalized care system.

Assume that in the preceding problem, Mother had long led Father to believe he was Child's father. Now she claims that Sax Player is the real father. Assume that DNA testing would prove Player is the genetic father and Father is not. What is the best strategy for Father to gain a declaration of paternity?

Sue for paternity and plead that Mother is estopped to deny Father's paternity Yes, Father has a very good chance of winning on this issue if Mother has used him as a father and he has been a good father. It might be important to move to delay a court-ordered DNA test until the court decides the paternity by estoppel question.

Obligor earning millions per year owes no more child support than a middle class obligor for the same number of children. Why? Choose the best and most complete answer.

Support is based on an obligor's net resources up to ceiling set by law. The court will not award more than this amount, regardless of the obligor's additional net resources, unless the child has actual, additional, and proven unmet needs, which might be zero even for the child of a wealthy obligor. Yes. While a child of a high income earner might prove additional unmet needs based on past lifestyle or current medical needs, the presumed amount is probably sufficient to cover actual needs for most children. Unless you believe that the rich are naturally more needy.

Wife agreed to testify against Husband in his bribery prosecution. Prosecutor asked her, "When the two of you were finally alone together that night, what did Husband say about the cash you found in his brief case?" Husband's attorney objected. Overruled? Or Sustained? Apply federal rules of evidence.

Sustained. Marital confidence. Yes, the marital confidences objection can be asserted by either spouse. Husband has a right to assert this objection because the facts indicate the conversation in question involved only the spouses and no one else.

By tradition, annulment is retroactive, and an annulled marriage is void ab initio. However, under modern Texas law an annulment also treats a marriage as if it existed so the court can grant remedies for a "dissolution." Short answer, true (T) or false (F): 9An annulment can include "equitable division" of "community property" that formed during the relationship. A person whose immigration is based on the marriage might be subject to deportation because annulment treats the marriage as if it never happened. A court might award "post-marital maintenance" in an annulment.

T T T

Father and Mother never married, cohabited or "acknowledged" Father's paternity, but Mother has allowed Father' assumption that he is Child's father. Father and his own family were Child's primary caretakers while Mother attended school. When Mother graduated she accepted a job hundreds of miles away and told Father she would take Child with her. Father resisted by keeping Child at his house. Mother called the police to "return my child to me." What should the police do

Take Child from Father and return Child to Mother because Father is only an alleged father, not a presumed father Yes. Assuming Father has standing (likely in this case), he should immediately file suit to declare paternity and seek appointment as a parent or non-parent managing conservator (we'll get to the last part of this explanation soon). He can also seek a temporary order pending the resolution of the merits. A temporary order for shared possession will offer some protection for his relationship with Child until has parental rights are established.

Under what circumstances must a party meet a higher than usual factual threshold to file a motion to modify an existing custody order?

That party seeks to change the party designating primary residence within one year of the last order

If a court refers to a spouses special community property what does it mean?

That spouse's sole management and control community property. but for marriage would be separate property,

What are two "tracks" for analysis of asserted constitutional violations of a person's "family" or associated rights?

The "equal protection" track and the "substantive due process" track.

Why is it important that the Court applied equal protection and not substantive due process analysis in Skinner (statute for involuntary sterilization of habitual offenders unconstitutional)

The Court left open the possibility that a state could impose involuntary sterilization if it did so in a way that was not unlawfully discriminatory.

Fourteen-year old Ima Delinquent took Father's car without permission. She lost control of the car while speeding and crashed it into Neighbor's house causing $100,000 in damage. What set of rules is most clearly applicable to Neighbor's lawsuit against Father?

The Family Code's statutory provisions for parental liability for a child's negligent accident reasonably attributable to a lack of parental supervision. Yes, this involves property loss, and the child appears to be guilty of negligence, not malice.

Which of the following is not a likely basis for Constitutional rights to enjoy elements of family life?

The Third Amendment. Fourteenth Amendment IS nearly always involved in a constitutional issue about family because that Amendment applies much of the Bill of Rights to the states.

Separated parents sometimes agree to split the cost of a child's higher education, and that agreement is included in the court's "child support" order. If one parent fails to contribute to college expenses as required, how is the agreement about college enforce?

The agreement is enforceable as a "contract," not "child support" order.

Mother agreed to waive her right to child support in exchange for Father's waiver of parental rights (such as access or possession) and his promise not to interfere with Mother's raising of Child. What is the effect of their agreement?

The agreement is void and Father's duty to pay support continues to accrue. Yes, the contract is a nullity. If Mother or the state sue after many years, the amount owed could be very substantial. Father might find some relief in a statutory rule to mitigate child support in some cases, but the rule might not apply to Father who was fully aware of his parentage. In any event, mitigated support can still be very substantial.

Court ordered Father to pay $2,000 per month to the child support registry. Later, Mother and Father agreed that Mother would send Child to live in Spain with paternal grandparents for a year, and that Father could send $2,000 in support to the grandparents for that year. After Child returned from Spain, Mother sued Father for an arrearage (the amount not paid to the registry for the year in Spain). Is father entitled to an "offset" against his arrearage?

The answer might depend on whether the original order required payment of support by "wage withholding." If not, a court might have some discretion to reduce the arrearage based on the facts of this case. Yes. See Ochsner v. Ochsner. The Texas Supreme Court drew a distinction between child support orders that require wage withholding and those that do not. Without wage withholding, a court might have discretion to grant an offset based on payment to a third party (e.g., a grandparent) for bearing the cost of caring for a child.

Single Mother gave birth to a baby and named the baby "Jane Smith" ("Smith" was Mother's family name). Then she sued Father to establish his paternity and for child support. Father counterclaimed to change Jane's name to "Sally Jones" ("Jones" was Father's family name, and he liked "Sally" better than "Jane"). What must the court determine in order to grant Father the requested name change?

The change is for good cause and in the child's best interests. Yes, this is the combined standard under chapter 45 and the UPA. "Good cause" means based on some reason that isn't frivolous or just to cause trouble, but which could include one parent's interests, and "best interests of the child" requires consideration of all circumstances and the effects of changing the name a child already has with predominant concern for the child's interests.

What would be a sufficient ground to petition a court to modify an existing custody order?

The child has turned 12 years of age and seeks a new designation of primary residence. Yes, at 12 the child's voice becomes more important, but not decisive.

When might a parent have the right to deny consent for a child's medical care if the care is reasonably safe and needed to extend the child's life?

The child's condition is terminal, and it is within the realm of reasonable judgment to decide that withholding the care in question will prevent further pain and suffering. Yes, allowing an inevitable death to happen without medical intervention that would mainly prolong pain and suffering might reasonably be decided to be in the child's best interests.

Less than a year has passed since the court's last custody order. Which of the following would be sufficient for a petitioner to allege and prove for a court to modify the order to switch the party designating primary residence from the respondent to the petitioner?

The child's current primary residence with the respondent endangers the child's health or endangerment. Yes, assuming there is real and significant endangerment. But be careful not to exaggerate!

Suppose Holm carefully explained to Ruth that she was to be married only "spiritually" to satisfy God and to assure her entry into heaven, and that they were not really married as a legal matter. Even though Ruth was only 16, she understood she was only a "spiritual" wife and that her big sister was the "official" wife. Would Holm have committed criminal bigamy if he then participated in a "spiritual" wedding with Ruth, without declaring to the state or other parties that they were married?

The clarity could be a legal problem and could be legal and not polygamy

In a divorce proceeding a court appointed Father sole managing conservator and Mother possessory conservator. The parents' pre-nuptial agreement provided that any child of the marriage would be raised Zoroastrian (Father's religion) even if the parties divorced. Nevertheless, after the divorce Mother regularly took Child to an Animist Temple and enrolled Child in Animist religious classes. What is the strongest judicial remedy Father, still a Zoroastrian, might obtain?

The court cannot enjoin Mother's non-Zoroastrian religious services, lessons or discussion with Child. However, the court can arrange a schedule of possession that will assure Father's ability to take Child to religious instruction. True. Father is going to have to learn to coexist. Mother has First Amendment rights to practice her religion during the time she is in possession of Child. While it is true that contracts can sometimes waive rights of free speech (e.g., a non-disclosure or no-disparagement agreement), courts have not recently enforced contractual restrictions against a parent discussing or practicing a religion with their child. However, the prenuptial might be a factor in the court's granting of very limited remedies, such as a possession schedule that makes it possible for Father to take Child to religions classes

In what important ways does Dobbs v. Jackson appear to change the Supreme Court's "liberty" analysis in ways that might affect other "family rights" precedents?

The court limited unstated liberties to those widely recognized in 1788 or otherwise implicit in "ordered liberties," and restored "morality" as a sufficient state justification for intruding on a liberty.

x broke up with y before wedding but did not sign a marriage contract, can y sue?

Yes, an enagemment is a contract enforceable without a writing. statute of frauds does not apply to thee engagement

John proposed marriage to Jane and Jane accepted. They did not sign a "marriage contract" or other writing to show their mutual promises to marry. John broke up with Jane before the wedding. Can Jane sue for breach of contract?

Yes, an engagement is a contract enforceable without a writing.

What is the burden of proof for involuntarily terminating a parent-child relationship for "cause" (e.g., abuse, neglect, or incapacity)?

clear and convincing evidence

When a federal agency like the IRS or the Social Security Administration decides whether two people are married for purposes of federal law, the agency will apply ...

The current domicile if the parties still live together, or their last marital domicile if they no longer live together. The agency will start with some other jurisdiction's law, although it is usually the case that the first chosen jurisdiction will have adopted the "law of the place of the wedding" rule, and the agency will then follow that rule.

What is the effect of an obligor's death on the obligor's duty to pay child support?

The duty is converted to a present value (based on months left until the child's right to support would naturally terminate) owed in a lump sum by the obligor's estate. Yes, this rule is the result of a recent amendment that fixed the problem of abandonment by death.

One ground for termination of parental rights is that a parent caused a child's non-enrollment in school. Could this ground apply to Parent who "home schooled" Child in Texas?

a.No because Texas recognizes that a home school can be a legitimate private school but Texas has no regulations or minimum standards for home schooling.

Wife left Husband in the State of Calizonia and moved to Texas. Assume a Texas court can gain jurisdiction over both parties. Three months after arriving in Texas Wife filed for divorce in Texas. Husband filed a motion to abate (i.e., to stay). Which of the following is true?

a.The court should abate but not dismiss the action.

When one parent seeks a court order changing the name of a child in the course of a paternity action, whose interests are relevant to the court's decision? Texas law.

The interests of all three, with the child's interests predominant.

Brian proposed to Brittany and claimed he loved her. In fact, he proposed only because Brittany was wealthy. They married in a wedding in Texas where they lived, but when the honeymoon was over Brian took a "road trip" with Brittany's car and his new joint credit card. Brittany wants an annulment. Which of the following is true?

The marriage might be voidable and she should seek an annulment based on misrepresentation. The best available answer based on an uncertain state of the law, Texas courts have sometimes allowed annulment based on misrepresentation of motive so serious it goes to the essence of being married. An alternative way of reading these cases is that misrepresentation of motive is not grounds for annulment, but misrepresentation of intent to remain married makes the marriage voidable. In any event she should act quickly. The statutes of limitations for annulment on any ground tend to be a matter of weeks.

In re De La Pena held that a non-parent need not rebut a parent's statutory parental presumption to gain joint managing conservatorship with the parent as the other managing conservator. Assuming that this arrangement does not violate the parent's constitutional rights (it might--see In re CJC, 603 S.W.3d 804 (Tex. 2020)), what must the non-parent managing conservator prove to gain the right to designate the child's primary residence?

The non-parent is able to rebut the "parental presumption." Yes, even if the non-parent qualifies as a joint managing conservator under De La Pena, the non-parent must first rebut the "parental presumption" to gain the right to designate the child's primary residence. Remember, there are three ways to do this under the Texas Family Code: relinquishment, family violence, or parent's management will significantly impair the child.

Under what circumstances might an award of post-marital maintenance be "for life" under Texas law?

The obligee is permanently disabled, or must care for a permanently disabled child

Which of the following is most likely a defense against liability for an accrued but unpaid child support obligation, so as to entitle the obligor to a partial or even complete credit against or negation of that debt?

The obligee relinquished primary possession of and responsibilities of care for the child to the obligor. Yes, this is one narrow case for which the law clearly provides an exception to the duty to make support payments exactly as set forth in the order. It is also the Code's one clearly provided ground for an offset against an arrearage

One category of persons with general standing to file a SAPCR for managing conservatorship is a person who has had 6 months possession, care and control of the child. Which of the following is true about qualifications for that category?

The person must have cohabited with the child.

What must a non-parent petitioner show as a condition for filing a petition to gain sole or joint management of a child, whether or not the child has a parent?

The petitioner has standing in relation to the child. You still need to prove grounds for the order.

Innocent discovered her marriage to Bigamist was void. Bigamist was married to someone else. What would a fraud claim add to Innocent's argument for the putative spouse doctrine?

The possibility of punitive damages, and compensatory damages collectable against Bigamist's future income. tort law adds better damages claims.

Mother and Father, separated, disagree whether 10-year old Child should be vaccinated against COVID-19. Who is entitled to make the final decision about this issue?

The sole managing conservator, if there is one. If the parents are joint managing conservators and one of them objects to vaccination, the parents must resort to the dispute resolution rules of their order, which might require the court's final decision. Yes, the answer is simple at the outset if there is a sole managing conservator, but it's also possible that a non-managing parent will file a motion for an injunction or to change the allocation of management powers.

If Child has no presumed father, Within what period of time must any party file an action to declare a man's paternity

There is no time limit to sue to declare paternity in this case True. Because there is less danger of disrupting "presumed" relationships. Could I still claim to be Bill Gates' father now that he is past the age of changing diapers or college tuition? Yes, but as a practical matter this is not likely to happen. Because we're both adults now and the statute of limitations has passed for child support, the only reason to assert paternity would be for the chance of inheriting his wealth if he predeceases me. However, I'm guessing he is not intestate, and his will gives everything to someone else.

Bride and Groom were living together when they decided to be marry by exchanging vows at the top of Guadalupe Mountain in Texas. After agreeing "we are hereby married" they put on "Just Married" T-shirts and hiked down the mountain, earning smiles and "congratulations" from hikers going the other way. As they neared the end of the trail Groom's mother called. She asked, "You aren't going to marry THAT WOMAN are you?" "No Mom," Groom replied, "I won't be married." What is the marital status of Bride and Groom?

They are married.

Mother and Father never married, cohabited or executed an acknowledgement of Father's paternity of Child, and Father did not file in the registry. However, Father paid as much support has he reasonably could and often served as babysitter. Child refers to Father as "Da Da." One day, when Child was 1 ½ years old, Mother felt discouraged by the burdens of parentage and placed Child with Adopters for with Adopters. What is the duty of Adopters to serve Father with notice and process?

They must use due diligence. This question connects adoption with the paternity registry, which we studied a few classes ago. The child is now older than one. But it might not be hard to find out who the father is, if the father has pursued the relationship. Ask Child if he or she has a "da da." There is no guarantee that this will work. And what do you do if Child doesn't know he or she has a "da da?" Use due diligence. You might need to press Mother for additional information. Check available records.

Husband and Wife signed an agreement with Embryos to Go to create, store, and implant embryos using their own egg and sperm. The agreement provided that in the event of divorce, embryos not yet implanted would be destroyed. Is the agreement to destroy the embryos in the event of divorce enforceable? Texas law.

Yes, and if one spouse notifies the laboratory of the divorce and requests destruction of the embryos, the laboratory must comply.

By statute in Texas, when must a court always appoint counsel for an indigent parent when the petitioner alleges abuse, neglect or incapacity against a parent?

When the petitioner is the State and the State seeks termination of the parent-child relationship. Yes, the two key facts triggering the right to appointed counsel are that the parent is facing the State as an opponent, and State is seeking termination rather than some lesser intervention.

Mom and Dad are not and never have been married, but they conceived Infant as a result of a very brief relationship. There is no other presumed father in the picture. When will the statute of limitations finally expire for purposes of Dad's child support obligation? This might require a guess. Choose the best answer based on what you have learned.

Whenever the statute of limitations would expire for a lawsuit for unpaid child support owed by Mom's husband if Mom had been married when Infant was born. Yes, this is a good guess, because the Constitution requires "equal protection" with respect to marital and non-marital children.

Before a divorce, Husband and Wife lived together in a house that was community property. Wife had a car that was her separate property. A court assigned temporary possession of the house to Wife pending the divorce. The Husband was angry and set the house and Wife's car on fire, destroying both the house and the car. What are wife's most likely remedies considering Schleuter, Price and Section 7.009? Best answer.

Wife can sue Husband in tort with respect to the damage to her car, but not with respect to the house. For the house, her remedy is to invoke the reconstituted estate rule in a just and right division in the divorce Price eliminated spousal immunity. Schleuter then revived spousal immunity as to torts relating to community property, but not separate property. Therefore, Wife can sue in tort with respect to the damaged car (her separate property), but not with respect to the house (community property). For the house, her remedy is the "reconstituted estate" rule in an equitable division of property

Husband's paycheck goes by direct deposit into an account titled in his name. From that account, he bought a car and gave the car to Wife as a gift for their tenth anniversary. He gave her the keys and titled the car in Wife's name only. What is the property characterization of the car?

Wife's separate property. Yes. The money Husband used was his sole management community property. He used that community property to buy a car, but the car became Wife's separate property when he made a gift of it to her.

Wife committed adultery and used her own earnings to pay for her boyfriend's law school tuition. Husband discovered the affair and filed for divorce. Which of the following is true?

Wife's support for her boyfriend was probably constructive fraud and she must reimburse the community estate for those funds. The court will apply the reconstituted estate rule this is the most likely approach under current law. Adultery is not a tort per se, and a tort claim based on Wife's use of community property is barred by Schleuter. Husband's remedy is to invoke the reconstituted estate rule in an equitable division of property.

Husband was injured in an accident last night and has no hope of regaining consciousness. Who is the presumed "surrogate" for purposes of guardianship or, in the absence of a guardian, immediately needed medical decision-making?

Wife, if any, and then next closest relative. Yes, a spouse is the presumed surrogate.

If Child has a presumed father, Within what period of time must a challenge to that paternity be filed in a court?

Within four years after Child's birth. Yes. Some people wonder if this is still too long to allow a dispute that will disrupt presumed relationships.

Parent's cohabiting non-marital partner and Parent's child, where the partner is taking care of the child after Parent's accidental death, is an example of a potentially "functional" family (as opposed to a "formal" family)?

Yes

When Girlfriend broke up with Boyfriend, he filed in the paternity registry. She gave birth to Child six months later without telling Boyfriend. Two years after Child's birth she married Husband. After several years of marriage she filed for divorce. In the divorce proceeding Husband sought appointment as a non-parent possessory conservator of Child. Is Boyfriend entitled to service of notice and process of the divorce proceeding?

Yes

Boyfriend registered in the paternity registry because he learned Mother was pregnant and believed he might be the father. A few months later Mother did give birth to Child. A few months later Mother filed for divorce from Husband and sought terms of management, possession and child support from Husband. Must the court send notice of the divorce action to Boyfriend?

Yes statute of limitations has not yet passed

What is a difference between retroactively due child support (not yet liquidated by a court) and a child support arrearage?"

a.The grounds for a court to reduce a retroactive duty are much broader than the grounds to reduce an arrearage.

In a jurisdiction that allows private use of fireworks, Father was exercising his scheduled possession of eight year-old Child when he noticed Child lighting fireworks. Child had obtained the fireworks from a friend. Father neither stopped Child from handling fireworks nor supervised Child's handling of fireworks. As a result of lack of supervision, Child was badly injured by a rocket and eventually died from his injuries. Mother, as representative of Child's estate, sued Father for damages based on Child's pain and suffering. Is Child's claim filed by Mother on behalf of Child's estate barred by parental immunity?

Yes because Father's alleged duty to supervise arose from his role as a parent. Yes, this is a parent acting as a parent. An unrelated bystander would have no duty to supervise child. Father's additional duty is because he is a father. Therefore he is immune from liability to Child. You might be wondering about Father's liability to Mother for Mother's own loss of consortium claim. The answer is not absolutely clear. At least some Texas courts that have considered the question have held that Mother's claim is also barred by Father's parental immunity.

Can a 16-year old child marry in the state of Texas?

Yes if emancipated by judge

Husband operates a sole proprietorship business. Employee recovered a judgement against him for sexual harassment under a discrimination statute. Can Employee collect this judgment by seizing a bank account titled in Wife's name alone and holding only her marital earnings?

Yes if sexual harassment in violation of a statute is a "tort." "No" if it is a "non-tort."

Brian and Brittany agreed their marriage was only for Brian to obtain insurance coverage as Brittany's "spouse" and there would be no intimacy or cohabitation. Their prenuptial agreement eliminated community property. After their wedding, they lived apart in separate lives. Ten years later Brittany died in an accident caused by Tort. Can Brian sue Tort for wrongful death? There are two possible right answers. Choose a best answer.

Yes, Brian and Brittany are bound because neither deceived the other, and while they intended to deceive an insurance company they did not intend to deceive Tort. Brittany and Brian are bound by marriage because neither misrepresented to the other. However, third parties might not be bound. A victim of this fraud might not be required to recognize the marriage. However, Tort was not a victim of the fraud. Remember Estate of Dominguez? Family members were not entitled to assert fraud as a reason to reject a marriage that was only for immigration purposes. They were not the intended victims of the fraud. At the same time, there is no clear law in Texas as far as I know, so I cannot say that this answer is definitely wrong.

One day when Wife was away, Husband searched Wife's personal home office and found a book, "My Diary," written in Wife's handwriting. When Husband divorced Wife later that year, he produced photocopies of her diary as part of his evidence in one of the divorce-related issues. Wife was shocked when she discovered Husband had read her diary. Can she sue Husband for the tort of invasion of privacy?

Yes, Wife could have a reasonable expectation of privacy with respect to the diary, and a fact-finder might find the intrusion offensive. Yes, that's the tort of invasion of privacy, no longer barred by spousal immunity.

Wanda believed she might be married to Will because she believed cohabitation created marriage in Texas (she would not have been completely wrong 100 years ago). In a gathering with friends she expressed her belief that she and Will were married. When friends turned to Will, he said "no comment." But Wanda and Will continued to live together for another year with Wanda regularly describing herself as Will's "common law wife." Will often overheard such statements but never objected. Have Wanda and Will tacitly agreed that they are married?

Yes, a tacit agreement. should object to being married if not married

Father was the unmarried genetic father of Baby. When his girlfriend Mother gave birth, Father understood he was probably the Father and he paid some of Mother's medical expenses. Father also paid a little support (voluntarily, not under court order) but not much because he was in school in another city and had very little income. Although Father had broken up with Mother, he visited Baby and did some babysitting when he was home from school once every few months. When Baby was a year and a half, Mother relinquished Baby to her sister and brother-in-law for adoption. Father was not in the paternity registry. The adopters knew about Father but they did not serve him with process. Father learned of the adoption months after the order became final. Can he successfully file a "bill of review" to set the adoption aside for failure to serve him with process and failure to obtain his consent?

Yes, as long as he files no more than six months after the decree becomes "final." Yes. Because Baby was more than a year old, the adopters were required to exercise due diligence in serving Father with notice even though he was not in the registry. Granting the adoption without notice to him is probably a denial of due process. But an adoption decree becomes immune from such collateral attack after six months.

Husband and Wife were in the process of divorce when Wife called the police to report that Husband was storing illegal drugs in the basement of their house. She invited the police to search the basement. When the police arrived, Wife opened the door and allowed them to enter, telling them that Husband was sleeping in the bedroom and that they should search quietly. If the police proceed with the search without waking Husband and asking for his permission, will the search be lawful under the Fourth Amendment?

Yes, based on the invitation of Wife as an apparent owner/tenant, as long as Husband does not awaken and object to the search. The police have no duty to wake Husband or ask Husband Search quietly. If Husband wakes up, he is another apparent owner/tenant and can veto the invitation of any other owner/tenant.

A court has granted Mother sole managing conservator, and now it must decide whether to grant Father possessory conservatorship. Mother argues that Father's lack of responsibility and occasional intoxication renders him unable to monitor 3 year-old Child safely during possession, exposing Child to danger. If Mother's allegations are true, should court still grant Father possessory conservatorship

Yes, because a parent who is not a managing conservator is entitled to possessory conservatorship unless that parent is guilty of "family violence," and the facts do not show family violence by Father. The presumption for possessory conservatorship can be rebutted by proof of a significant danger to child even in the absence of past "family violence." A danger might be because of father's general irresponsibility, or the emotional effect on Child of any contact with Father. Perhaps Child has become very afraid of Father because of things Father tends to say or because of his history of bizarre behavior.

Which of the following factors is a court permitted to consider in deciding which of two parents will have managing conservatorship with the right to designate residence?

a.The location of the parent's planned residence.

Mother and four-year old Child were living in a tent in a public park. Authorities became aware of Child's situation when Mother brought Child to the emergency room for an ear ache. Are there grounds for the state to take temporary custody of Child?

Yes, because homelessness can present an immediate danger to a child. For purposes if initial removal, the state doesn't have to prove Mother is guilty of abuse or neglect. First priority: protect the child. The ensuing investigation will include an offer of assistance (family housing), and an exploration of the cause of the family's problems and options. Does the problem persist despite the provision of aid? Does Mother refuse aid? Is Mother suffering emotional or mental disability

Mother is a single parent of Child. Mother is addicted, has abused drugs for four years, has failed all offered services for rehabilitation, and shows no more interest in rehabilitation. Her mental and physical health are declining. State recently took custody of Child but lacks any evidence of abuse or neglect by Mother. Are there grounds to terminate Mother's parentage?

Yes, if a court finds that Mother suffers from an incapacitating mental or emotional illness from which she is not likely to recover before Child reaches 18. Yes, if a parent simply cannot take care of a child or make arrangements for a child with others, incapacity can be grounds for termination, but only if a court also finds that termination is in the child's best interests.

Boyfriend learned that Girlfriend had a child 8 years old. Boyfriend had grown lonely and wished he had a family. He approached Girlfriend to see if he was really the father of Child, but Girlfriend refused to talk with him and stopped answering his calls. Can Boyfriend successfully sue to establish paternity?

Yes, if child has no presumed father if child has presumed father there is a 4 year SOL

Felon, who is on death row, and his wife Civilian want to have a baby by artificial insemination. Prison officials say "no." Might Felon have a constitutional right to permit the transfer of his sperm to Civilian for purposes of having a baby? Best answer.

Yes, being a parent is a liberty of significant weight, but subject to prison officials' legitimate concerns about being required to provided assistance for artificial insemination (a reason to restrict the liberty).There is no definitive resolution of the issue, although it does appear that prison officials might successfully assert a security and management-based reason to deny their cooperation in what Felon and Civilian want.

Les Cash is behind on child support but wants to marry Wanda B. Bride. Can Les and Wanda marry in Texas before Les pays his past due support obligation?

Yes, but he must disclose his past due obligation on the wedding application he submits with Wanda.it's an important conversation to have, whether or not the law compels it. Compelling the sharing of this information does not appear to violate the constitution.

One ground for a non-parent's standing is that the non-parent had "care, control and possession" of the child for six months before the non-parent's petition. Mother lives with Child and with Partner. Mother and Partner are not married but living in a quasi-marital relationship. Parent relied substantially on Partner for day-to-day help for several years. Parent eventually became jealous of Partner because Child seems better bonded to Partner than Parent. Child has grown to an age at which constant control is not so essential, so Parent ordered Partner to leave. Partner sued for joint managing conservatorship. Does Partner have standing under the "control, care, and possession" rule?

Yes, if Partner provided physical and psychological care and control typical of a "parent's" governance of a child on a day to day period. Yes. And this means that adult partners cohabiting with a parent and child sometimes do qualify for standing if the parent has depended substantially on the partner to be the day to day caretaker of the child. The partner might be step-parent or just an unmarried partner.

Mother and Father were unmarried and did not cohabit. Mother ceased seeing Father when she became pregnant with their child. Father noticed that Mother was pregnant but did not file in the paternity registry. Mother eventually gave birth to Baby and relinquished Baby to the primary possession of Sister and Brother-in-Law, but without any formal court order or legal appointment. After a year, Mother decided she was not ready to be a full-time mother. With Mother's consent, Sister and Brother-in-Law petitioned for adoption. Father learned of the adoption proceeding from a common acquaintance and intervened in the adoption to establish his paternity and oppose the adoption. Can the court terminate Father's parentage?

Yes, if Sister and Brother-in-Law can prove Father had the financial ability to pay child support but failed to support Baby in accordance with his ability. Yes, it's been a year. His non-support in accordance with his proven ability can be a ground for termination. If so, the court will then decide whether termination is in the child's best interest.

Birth Mother signed a relinquishment for the purpose of adoption, granting possession of Child to a licensed adoption agency in Texas. The relinquishment said nothing about the Birth Mother's right to revoke. If Birth Mother changes her mind, can she revoke her relinquishment and regain custody of Child?

a.No, unless she alleges grounds that would make the relinquishment voidable, such as misrepresentation, duress, or undue influence.

Mother and Father were convicted of tax evasion and bank fraud. Could their conviction result in the termination of their parental rights with respect to Child??

Yes, if the judge sentences them to incarceration for two or more years. Yes, what the judge does at the sentencing hearing could affect their parental rights. But a lengthy sentence does not require termination if the parent is able to arrange for the other parent or some other person to assume custody during the period of incarceration. Either way, a court would need to determine whether termination of parentage is in the child's best interests.

Wife once gave husband her password specifically for the purpose of logging in to a credit card website to pay off her debt when she was at work and unable to log in herself. Six months later husband used the password again to check wife's credit card account for suspicious activity. Has husband committed a tort?

Yes, if wife can persuade a court that she had a reasonable expectation of privacy with respect to her credit card account, and that her one-time authorization for husband's access was not for any other purpose. Under these facts it might have been reasonable for wife to understand she was not authorizing husband's future access to the account.

Mother, sole managing conservator, has moved with fourteen-year old Daughter to join a community of religious polygamists. Can this action by Mother be grounds for Father, the possessory conservator, to successfully seek modification of custody so that he has sole managing conservatorship?

Yes, provided Father can show that the religious practices of Mother's adopted religion, such as a practice of underage marriage, pose a significant risk of harm to Daughter's physical or emotional health Yes, focus on the harm of the practices, not the belief system. It is possible that some beliefs are harmful in themselves, but Father is most likely to succeed if he focuses on dangerous practices.

Jack proposed marriage to Jill, and Jill agreed. They scheduled a large, formal wedding for October 30. On October 29, Jack broke off the engagement for no reason attributable to any "fault" or breach of duty by Jill. Can Jill sue Jack for breach of contract?

Yes, provided Jill can prove "damages." And in this setting, it might be difficult to prove "expectation" damages because marriage is now terminable at will. A promise to be married is almost, but not entirely, illusory, because either party can initiate dissolution immediately after the wedding. However, reliance damages for the cost of preparing for the wedding are a strong possibility.

A police officer observes a parent disciplining a child with stick. Can the officer take possession of the child and turn the child over to Children's Protective Services, despite the parent's objection and without a warrant or a pre-removal hearing?

Yes, provided the officer reasonably believes there is an imminent threat of serious physical harm to the child and there is no time to obtain a warrant. Yes, the officer can act immediately if the danger is imminent, so that the child might be dead or seriously injured in the time it takes to contact a magistrate for a warrant.

Mother failed to pay money to the child support registry as she was scheduled to do by the support order for Child. Could a court hold her in civil or criminal contempt?

Yes, she has violated the child support order, and a contempt citation is a possibility, subject to inability to pay and a few other limited defenses. Yes, one way that child support collection is different from other collection remedies is that there is already a specific order commanding the obligor to pay a certain amount. If you don't comply with a court order you might be in contempt.

When Debtor and Intended filled out a marriage license at the clerk's office, Debtor falsely stated on the form that he was not behind in paying court-ordered child support (committing perjury). Three days later Debtor and Intended had a wedding. Are they married? When Debtor and Intended filled out a marriage license at the clerk's office, Debtor falsely stated on the form that he was not behind in paying court-ordered child support (committing perjury). Three days later Debtor and Intended had a wedding. Are they married?

Yes, the marital presumption makes their marriage valid because a false entry on an application form is not listed in Chapter 6 as making marriage void or voidable.

Wife was at fault in an accident. The victim-plaintiffs sued and won a tort judgment against her for more than the amount of her liability insurance. Can the plaintiffs collect the rest of the judgment by levying on a beach house that is Wife and Husband's community property?

Yes, the plaintiffs can seize any community property regardless of the management and control rights of Wife and Husband. this is a tort judgment, and the beach house is community property. Management and control is irrelevant

Sue and Sam cohabited. One night Sue asked if they would ever marry. Sam said, "let's just be married, we don't need an expensive wedding." Sue replied "yes, OK." They toasted "to our marriage." The next day Sue's best friend Friend visited and Sue announced "we're married!" Sam said nothing. A week later, Sam moved out to live with Jill. Did Sam and Sue get married?

Yes, they agreed they were married, cohabited, and declared their marriage to another person with Sam's tacit assent to the declaration. They are still married until divorced or one of them dies. Common law marriage can be as fast as formal marriage. Once it happens it is dissolved only by divorce, annulment or death

A year before Wife and Husband married, Wife gave birth to Child. Alleged was Child's father. Wife and Alleged have not seen each other since they conceived Child. Alleged did not file in the paternity registry, and Wife never sought child support from Alleged. Child is now 8 years old and living with Wife and Husband. Wife and Husband have filed for a step-parent adoption by Husband. Must Wife and Husband serve Alleged with notice?

Yes, they owe a duty of due diligence to serve him with notice.

Client and Clientele want your help in drafting a non- marital cohabitation agreement. Should you ask whether they have contemplated marriage?

Yes, to check if they understand what rights and benefits they are forgoing.

Mr. and Mrs. Parent arranged with an assisted reproduction laboratory for the creation of embryos (Mr. Parent's sperm and Mrs. Parent's egg), storage of the embryos, and implantation of the embryos in Mrs. Parent one-embryo-at-a-time until a successful birth. Their agreement to continued efforts at implantation was conditional on marriage. If Mr. and Mrs. Parent divorce, can Mrs. Parent still implant one of the embryos without Mr. Parent's consent? Current Texas law based on available case law.

Yes, unless agreement prohibits the laboratory from implanting without both parties' consent, but only Mrs. Parent and not Mr. Parent will be the father of the child. Yes, this is the best answer given the current state of the law. In some states including Texas, the agreement might validly prohibit the laboratory from implanting embryos without the mutual consent of the parties.

What is the one and only ground for a court's reduction of a child support obligor's arrearage specifically authorized by the Family Code?

a.Obligee relinquished care, custody and control of the child to Obligor for part of the period covered by the arrearage.

If couple represented to any other person that they were married, we should presume they were married and were cohabitatating. is that consistent with a Texas rule courts use to resolve a dispute whether two cohabiting individuals are/were married?

Yes. In fact at one time, cohabitation, STANDING ALONE, created a presumption of marriage. The modern world is a bit more complicated. Still, even today, proof of a wedding or marriage license are not necessary in Texas. But don't think that the couple in question are CERTAINLY married.

After being ejected from the game, Punch went into the parking lot, where he vandalized the visiting team's bus, causing $20,000 in damages. Under what set of rules will the liability of Punch's parents be evaluated?

a.Statutory liability under Family Code Chapter 41.

When might a court have greater leeway to reduce an arrearage (e.g., to reduce the amount of the arrearage for a reason not expressly authorized by the Code)?

a.The child support order includes wage withholding.

The facts are the same as in the preceding question. Wife, now a domiciliary of Texas, filed for divorce in Texas. Husband made a special appearance and moved to dismiss for lack of personal jurisdiction. He is right: the court has no jurisdiction over him. What should the court do?

a.Deny the motion for purposes of dissolution, but grant the motion and dismiss as to the incidents of the divorce.

What is a parent's affirmative defense for failing to provide for a child's basic needs (shelter, food, clothing, medical care), if the parent is seeking to maintain custody of the child?

a.Financial inability.

Wife left Husband in the State of Calizonia and moved to Texas. Then she filed for divorce in a state court in Texas. Husband filed a separate suit in a federal court in Calizonia naming Wife as the defendant, alleging assault and battery, and pleading diversity jurisdiction. Wife moved to dismiss the federal tort action. What should the federal court in Calizonia do?

a.It should grant the motion based on Younger abstention.

Texas statutory law is unclear, but what "factor" is most important in allocating rights of managing conservatorship between two parents, as a matter of modern tradition and the confluence of other factors?

a.The parent who has been the primary caretaker.

In what kind of proceeding might one of the parties invoke the doctrine of equitable adoption?

a probate proceeding Yes, the typical modern context is a probate proceeding with the allegedly equitably adopted person seeking a share of the deceased equitable parent's estate

a. Les wants to give a $10,000 engagement ring to Angel but he doubts his own commitment. Can he present a ring in a way that will allow him to take it back if he gets cold feet? b.Suppose after Les became engaged, he learned he was suffering a terminal illness. He cancelled the wedding and sought return of the ring to support his children. c.What if Les gave Angel diamond earrings for Christmas during the engagement and later cancelled the wedding w/out fault? d.Suppose during the engagement Les bought a future family house and put the title in both names. If Angel cancels the wedding for no good reason, can Les sue to remove her name from the deed?

a. Get it in writing that its a conditional gift and have her sign it. b. Issue with fault rule c. Was this a gift as a contemplation of marriage? Or just a gift? d. Yes, there is precedent to remove her name. The argument is u would not do this but for the marriage. It's not like giving earrings, it's a house.

Mrs. Bickerson wanted a child. Her husband Mr. Bickersondid not want a child. They filed for divorce. Days later Mrs. Bickerson went to Super Star Sperm Warehouse Outlet for artificial insemination. She told Mr. Bickerson nothing about this. Nine months later, before a final divorce decree, Mrs. Bickersongave birth to Child. a. If Mrs. Bickerson used sperm that was not Mr. Bickerson'ssperm, could Mr. Bickerson be the "father" of Child? b. What if Mrs. Bickerson used Mr. Bickerson's old "stored" sperm to conceive Child?

a. he could end up being the father since they're still married (divorce not final yet) presumed father because he didn't consent he can avoid his duty to support. (if he changes his mind and decides to live happily ever after then can lead to estoppel argument) b. usual assumption when wife uses husbands sperm is that he intended to be father whether there is writing or not.

Whether Punch's parents are liable for Punch's tort depends on the common law of torts with respect parental fault. a.Did Punch's parents owe a general duty of supervision, which they likely failed under these facts? b.What circumstances might make the parents liable?

a. there is not a general duty to supervise in all situations when kid is out of reach (sporting event, at school) b. circumstances: foreseeability (violent child)

What does it matters if a failure to fulfill a financial obligation is a breach of a contract and not a violation of a "child support" order? Choose the most important reason, if any.

a.A failure to pay child support is punishable by contempt. A failure to pay a contract claim is not punishable by contempt.

Many "removals" happen quickly because of a risk of danger to a child. What does "due process" ordinarily require before the state removes a child even in an emergency?

a.An ex parte hearing for a warrant, notice when practical, and an opportunity to be heard within 2 weeks of the removal.

What is it important that Parent gain appointment as Possessory Conservator if Parent will never have "possession" of Child?

a.As possessory conservator, Parent will have a right to certain information about Child, and a right to "confer" about major decisions such as school or medical care.

Wife lied. She was not a domiciliary of Texas when she filed for divorce. She was commuting from Calizonia to Texas for court hearings and filed in Texas hoping to get the advantage of Texas marital property law. The Texas court denied jurisdiction over property division but did grant a dissolution. A week later Wife married Boyfriend. Husband sued for divorce in Calizonia, claiming the parties were still married. Which is true?

a.Calizonia can ignore the Texas decree and might hold that Wife and Husband are still married, so that Wife's income after the Texas decree is community property.

Child was visiting Father when a fire at Father's home caused Child's death. Father had not installed smoke detectors. Mother sued Father on behalf of Child's estate. Can Father assert immunity? Inspired by Sepaugh v. LaGrone, 300 S.W.3d 328, McCullough v. Godwin, 214 S.W.3d 793.

a.Yes, if a Court finds having a smoke detector is a duty owed as a parent and not as a property owner.

Does an indigent parent have a right to appointed counsel in a "dependency" proceeding (i.e., state action for custody of a child)? Answer based on statutory law in Texas.

a.Yes, in a proceeding in which the State seeks to terminate parentage.

Jill identified Jack as a desirable sperm donor. She made a contract with Jack to have sex for the purpose of conceiving a child, with Jill promising not to seek child support or to impose any parental duties on Jack. Jack and Jill did conceive a child by natural sex (less expensive than paying an AR clinic), and Jill gave birth to Child, the genetic offspring of Jack. Can Jack be sued for child support?

a.Yes, the contract is of no legal effect.

Parent cannot be trusted with physical custody or possession of Child. Is parent entitled to appointment as possessory conservator?

a.Yes, with restrictions on possession, possibly limited to access.

Child was visiting Father when a fire at Father's home caused Child's death. Father had not installed smoke detectors. Mother sued her for own loss of consortium. Can Father assert immunity? Inspired by Sepaugh v. LaGrone, 300 S.W.3d 328.

a.Yes. Mother's claim is independent of Child's claim and parental immunity is irrelevant to a claim between parents.

What is the earliest stage a spouse obtain a court order assigning exclusive residence of the family home to that spouse (and children if any) in the course of a dissolution?

after the filing of a petition to dissolve and after reasonable notice and reasonable opportunity to be heard

James and John want to be parents. They are negotiating a contract with Surry to gestate an embryo formed from James' sperm and an egg of John's sister. Which of the following is required for the contract to be binding on all three parties (Surry to relinquish; James and John to be parents) under Texas law? A court's approval of the arrangement before implantation of the embryo. The gestational mother (Surry) must not be the genetic mother. The intended parents must be married to each other. All of the above?

all the above.

Which of the following is not a decision a possessory conservator could make during possession without the assent of the managing conservator (assuming no clear court order to the contrary? a.What time to go to bed. b.Whether to go to Church, Synagogue, Mosque, Temple. or an Astros game this Sunday night. c.Whether to enlist in the Navy at the age of 17. d.Whether to watch an R-rated versus G-rated movie.

c.Whether to enlist in the Navy at the age of 17.

Mr. Client has hired you to represent him in a divorce from Mrs. Client. The Clients have a two-year old child. Mr. Client does not expect "custody" of the child but does expect visitation and a support obligation. He would like your help in keeping court-ordered support to a minimum. Should you automatically place paternity in dispute (causing a court-ordered test to determine paternity)?

consider if you want to be bound by the DNA test,

Boyfriend learned that Girlfriend had a child 8 years old ("Child"). Boyfriend had not registered in the paternity registry. Boyfriend had grown lonely and wished he had a family. He approached Girlfriend to see if he was really the father of Child. Girlfriend refused to talk with him and stopped answering his calls. In fact, she had just married, and her new husband had filed for step-parent adoption. Must she and her husband serve Boyfriend with notice of the termination/adoption proceeding?

yes. child is older than 1

How Does Marriage Protect Non-Income Contribution? John and Jane live together. John earns $100,000. Jane earned $100,000 before and after their cohabitation until she became pregnant, gave birth to Junior, and interrupted her career to become a homemaker/caregiver. After Jane left her job, John and Jane began to save money, bought a new house (title and mortgage in John's name), and began making mortgage payments. Jane contributed non-income producing services: caregiving, cleaning and maintenance. How will John & Jane divide wealth at dissolution if they (a) remained unmarried? (b) married when they discovered Jane's pregnancy?

engaged in division of labor, also accumulating assets (houses, maybe pension) if they remain unmarried it is property law, who's name is on house? who earned what? so Jane will walk away with nothing unless its under her name or she earned it. if married then they will have community property

An important difference between states with respect to rules of consanguinity in marriage is whether

first cousins can marry.

a Childs home state is where

has lived with parent for 6 months proceeding pettion

Mother and Sperm Supplier knew each other but were not married and had no intent for Sperm Supplier to be a parent. At the office of a doctor who conducted the insemination, they recorded an express agreement that Sperm Supplier would not be a parent. After Child's birth, Sperm Supplier changed his mind and filed a paternity action. What is the right outcome?

he's just a donor because he's not married and would need something in writing before insemination signed by both parties that say he's a father, we don't have that so he is a donor joint acknowledgment of paternity is needed

Ten years after marriage, Husband inherited a condo in Colorado. An agent manages the rental of the condo 44 weeks per year, collects rent, and forwards rent to Husband after deducting expenses. Husband places those funds in his own bank account. What is the most likely characterization of the funds in that account?

husbands sole management and control community property

How Does Marriage Avoid Accounting Problems? Revised Facts: John & Jane both continued their jobs after Jane became pregnant and gave birth to Junior. Instead of buying a new house they remained in a house John had acquired before Jane moved in. John used his earnings to pay the mortgage from "his" checking account and they depended mainly on "Jane's" checking account for expenses such as groceries, entertainment and travel. Each bought a car with his or her "own" account. John's employer provided a retirement plan but Jane's did not. How will they divide wealth at dissolution if they (a) remained unmarried? (b) married when they discovered Jane's pregnancy?

if they remain unmarried, and for ex: jack saves his money and they live off her money then jack still keeps his savings and since her income has not yielded any assets she walks away with nothing.

j

j

Mother needed to enter treatment for drug addiction. She left Child with Aunt saying, "I'll be back for Child as soon as I can, but I don't know when that will be. I won't be able to work so I don't have any money." Mother called to say "Hello" to Child from time to time, but a year later Mother had not returned and had not sent money. Has Mother "abandoned" Child?

no because she expressed intent not to abandon

Mother needed to enter treatment for drug addiction. She left Child with Aunt saying, "I'll be back for Child as soon as I can, but I don't know when that will be. I won't be able to work so I don't have any money." Mother called to say "Hello" to Child from time to time, but a year later Mother had not returned and had not sent money. Is Mother subject to termination for non-support?

no she provided fro child by arranging for aunt to provide care and support for child

Wife had an affair with Boyfriend while Husband was away on business. Nine months later she gave birth to Child. Boyfriend did not file in the paternity registry. However, ten months after Child's birth, Wife and Husband were served with process in Boyfriend's paternity suit. Is Boyfriend's paternity suit barred if the parties are all in Texas? What happens next?

no.

Mother and Sperm Supplier decided that physician assisted artificial insemination was too expensive. Mother is a nurse. She performed self-insemination using Sperm Supplier's sperm with a written and signed agreement that Sperm Supplier would not be the father. Is Sperm Supplier a parent or a non-parent donor?

non parent donor because it is not assisted reproduction, missing doctor

Mother and Sperm Supplier (not married to each other or anyone else) decided doctor-assisted artificial insemination was too expensive. They engaged in unprotected sexual intercourse with the understanding that Sperm Supplier would only be a "donor" and not a parent. They signed an agreement to this effect before sexual intercourse. Mother became pregnant and gave birth to Baby. Is Sperm Supplier a parent, or just a donor?

not assisted reproduction, so sperm supplier is still father

Mother has a common law husband from whom she is separated. Mother and Sperm Supplier, who is unmarried, engaged in physician-assisted insemination and made a record of their agreement for Sperm Supplier to be a parent. Is Sperm Supplier entitled to a declaration of his paternity after the child's birth? What might be a solution for the parties, if all agree the donor should be father?

not entitled to be father because other is married and both parties would need to be unmarried for the agreement the common law husband is the father the solution if everyone agrees that donor should be father, then the common law husband would need to sign the joint paternity acknowledgement as well to terminate his rights

Wife could have used her separate property to fund her "Girls' weekend in Vegas" with friends. Instead, she used her special community property funds. In a divorce, does Husband have a claim against Wife for this use of community funds?

not unless the expidenture was so disproportionate to the community estates size and needs as to be waste

when can the clerk object to issuance of a marriage license?

only when parties fail to satisfy a lawful statutory qualification (age or consanguinity) clerk could not personally object to a marriage based on same sex or color, clerk would also expose themselves to personal liability (tort like cause of action for a person whose civil rights have been denied by another person acting under color of state law.

Suzy and Sam were informally married in Texas and lived together for two years when Sam left and moved to California to pursue his dream of becoming a movie star. Suzy moved on with her life and did not further communicate with Sam. Suzy eventually moved in with Secunda but they resolved never to marry. Meanwhile, Sam "married" Alice in California. Fifteen years later he got his big break as an actor. He began earning millions and bought a ranch in Texas, which became a new domicile for Sam, Alice and Baby. Suzy sued Sam for divorce. How should a court divide the ranch?

reliance on who believes that they were actually married, Alice reasonably believed and suzy not so much because she wasn't relying on him for marriage

One reason it is unlikely that the post-Dobbs Supreme Court will overrule Obergefell and revive laws against same sex marriage is that ....

same sex marriage is still protected by the equal protection clause of the Fourteenth Amendment.

Jurisdiction to resolve an interstate dispute over custody and support of a child is decided principally by

the Childs home state if any

In some states, including Texas, the license and procedural rules for issuance of license are "directory," not mandatory. If you violate the licensing rules, such as by misrepresentation on the application or skipping the license altogether, you might be liable for a fine, but your wedding will be valid. However, solemnization is mandatory in nearly every state even if you did get a license. Without solemnization you cannot be married. Why should we require solemnization even if you did obtain a valid license?

the license is just permission to get married, solemnization is required because the wedding is the official witnessing of the promise to marry

A public entity (such as a zoning commission, public housing agency, welfare agency or children's protection agency) cannot restrict the right of family members to cohabit... (complete this sentence)

unless the restriction is tailored to achieve a compelling state interest. And the reason must be "compelling" (not merely rational) because the right to live with your "family" is of such significant weight. But remember the state might in fact have a "compelling" reason to restrict the right.

In Texas, a flaw in the licensing of a marriage, such as by misrepresentation to the clerk, omission of a signature or use of an out-of-date form results in a marriage that is ....

valid and not void or voidable.

When Girlfriend broke up with Boyfriend, he filed in the paternity registry. Two years later, Texas Children's Protective Services seized custody of "Child," who was Girlfriend's child, on the grounds of abuse and neglect. Is Boyfriend entitled to notice of the proceeding?

yes applies to any SAPCR suits

Wife acquired the family home before the marriage. Husband is now disabled and unemployed. Wife has filed for divorce. Is it possible for Husband to obtain an order granting him sole residence in the home during the divorce proceeding?

yes if the court regards husband as dependent of wife still married and duty of support