Family Law
That said, issuance of a license does not render valid
any marriage otherwise prohibited by law (e.g., a bigamous or incestuous relationship) [Id.] A county clerk who fails to follow proper statutory procedure when processing a marriage license application commits a misdemeanor that could result in a fine of $200 to $500. [§ 2.012]
What are the two judicially-created exceptions limited application of federal jurisdiction to cases traditionally heard in state courts?
"domestic relations" and probate
•To be enforceable by contempt, a decree must
"set forth the terms of compliance in clear, specific and unambiguous terms so that the person charged with obeying the decree will readily know exactly what duties and obligations are imposed upon him." Ex parte Chambers, 898 S.W.2d 257, 260 (Tex. 1995).
•In considering whether the evidence is legally sufficient to support a finding of endangerment, we must determine whether there was
"some evidence of endangerment on which a reasonable factfinder could have formed a firm belief or conviction of endangerment." J.O.A., 283 S.W.3d at 346 (citing J.F.C., 96 S.W.3d at 266). •
The Family Code defines clear and convincing evidence as
"the measure or degree of proof that will produce in the mind of the trier of fact a firm belief or conviction as to the truth of the allegations sought to be established." TEX. FAM. CODE § 101.007; see J.F.C., 96 S.W.3d at 264. •We strictly construe involuntary termination statutes in favor of the parent. •We have previously examined the manner in which to apply the clear and convincing evidentiary standard onto our legal sufficiency review.
DIVORCE: JURISDICTION AND RESIDENCY
(1) 6 month current Texas domicile- 6.301(a), AND ----One spouse is enough - 6.302 (2) 90 day residence in county - 6.301(b) •Either spouse - 6.302 •Resident jurisdiction over non-resident - 6.305 ----•Within 2 years after leaving ----•Or "any basis consistent with the constitution of this State and the US for the exercise of personal jurisdiction" (this is a marriage "long arm" statute) •Parent-child suit tags along - 6.305(b), 103.001 •
•Standing is constitutionally mandated if, near the time of the child's birth, a biological father both
(1) acknowledges responsibility for child support or other care and maintenance, and (2) makes serious and continuous efforts to establish a relationship with the child.
•A petition requesting termination of the parent-child relationship with respect to a parent who is not the petitioner may be granted if the court finds that: •(1) the parent has: •
(A) voluntarily left the child alone or in the possession of another not the parent and expressed an intent not to return; or •(B) voluntarily left the child alone or in the possession of another not the parent without expressing an intent to return, without providing for the adequate support of the child, and remained away for a period of at least three months; or •(C) voluntarily left the child alone or in the possession of another without providing adequate support of the child and remained away for a period of at least six months; or... •and in addition, the trial court further finds that termination is in the best interest of the child.
Presumed father
160.102(13) means a man who is recognized as the father of a child until that status is rebutted or confirmed in a judicial proceeding Man who was married to the baby's mother at or within 300 days of the time of the baby's birth
Texas Marriage Age
*18+ formal or informal* •Can get married formally or informally •Adult •Don't need parent's permission *Under 18, can't get married, formally or informally, with or without parent's permission* •ONLY way is to get a court order •They are granted with some regularity, almost always involves a pregnancy. •Without marriage, underage mothers wouldn't have parental rights since they are still children. •By allowing marriage, they are free of the legal disabilities of childhood
Is a non unanimous verdict in parental termination proceedings constitutional?
*Arguments Pro*: State Law •Court of Appeals finds arguments frivolous *Arguments Against:* •US Constitution requires unanimity in criminal cases •TX SCt: termination of parental rights is the "civil equivalent" of the death penalty. •Social science evidence suggests major differences in deliberation in bodies with unanimity requirements •If you have a requirement of exemplary damages (2005), it must be unanimous with clear and convincing evidence •Exemplary damages may be awarded only if the jury was unanimous in regard to finding liability for and the amount of exemplary damages •Appeals for parental termination are different from other appeals in TX. Different deadlines, etc.
Past Laws that Destroyed the Family
*Community Property* •Was radical at the time adopted •Prior to community property, women lost all property rights, husband would get full control of all property •Community property system based on radical premise that marriage was composed of two people that remained individuals after marriage; that woman kept her rights and property coming into marriage. •Husband might be in control, but didn't have total control, women weren't considered property, controlled their own property •Perceived as a women's rights initiative in the north *Women's suffrage* •Women in the workforce - WWII •Two income families *No-fault divorce* •Notion that either party can get a divorce without saying much more than "I want out" is a radical innovation •1970 - CA started, then most states followed within 5-10 years •Marriage was primarily an economic institution (still argue that it is ) •Economies of scale to marriage, 2 incomes better than one in one household •Replaced by notion that marriage is based in love was radical change. *Unwed Fathers' Rights* •Now has legal constitutional rights to continuing contact with the child •Enormous change *Same Sex Marriage*
Child Support: Retroactive Support
*General Rules* •Often comes up in a place when it is hard to pin down father because he's disappeared, or you didn't know who father was, etc. •in these situations you can get support. *Time Period* •Assumed you can go back 4 years (court doesn't have to, but is permitted) •Can get more than 4 years back or more than standard amount of money if you: •1) should've known you were parent •2) tried to avoid liability •But: no new filings more than 4 years after the child turns 18
Child Support: Retroactive Support Amount
*Guidelines* •Standard guidelines presumed amount of support •But: no required fact findings (so ask) •Factors •Financial •Dad's actual net resources •Hard on dad and family? •Past actual support? •Moral •Did mom try to notify father that there were children that needed support? •Did dad know, or should have known that there were children that might be in need of assistance? •Of course, there are other factors you can bring up
City of Sherman v. Henry, 928 S.W.2d 464, 465 (Tex. 1996) Issue: whether conduct involving an affair by one police officer with the wife of another officer is a fundamental, constitutionally protected right. Is there a constitutional right to adultery? [when the issue is framed this way, gives you a big hint what the outcome will be]
*Holding:* Using the Bower framework, we hold that adultery is not a protected right "implicit in the concept of ordered liberty" or "deeply rooted in the nation's history and tradition" receive constitutional protection. Q1: Is there any privacy interest? Q2: What precedent controls? Bowers Q3: How does history count? Asks if history of "Right to adultery" Q4: Is the case still good law? Yes, but not because of reasoning used in majority opinion (because Lawrence has overruled Bowers, which was the basis of the majority's reasoning) But the idea that private actions can undermine the ability to command in a quasi-military force is still very valid. Two types of privacy recognized by the US SCt protected by the Constitution 1) protects an individual's interest in avoiding the disclosure of personal information 2) right to make certain kinds of important decisions and to engage in certain kinds of conduct Individual autonomy: marriage, procreation, contraception, family relationship, child rearing *TSEU Texas SCt case* FACTS: TX Dept of Mental Health had instituted a mandatory polygraph policy requiring employees to submit to a polygraph during the course of an investigation of suspected patient abuse, theft, or other criminal behavior. HOLDING: govt impermissibly intruded on employees' "right to be let alone" TSEU doesn't apply because Henry's claim is about right to have an affair RELIES on US SCt in Bowers held that there is no privacy right to have homosexual sex under the substantive due process under the 14th amendment. It held that only those rights which are "implicit in the concept of ordered liberty" or "deeply rooted in the nation's history and tradition" receive constitutional protection. Lawrence hasn't been issued yet Spector, J. (concurrence) Cannot join in opinion that unreasonably narrows a precious fundamental right of privacy. Majority reframes the issue in a way that assures the answer they want. This is not about the "right to have an affair" but instead is about the right to be let alone, protected in TSEU City infringed on Henry's rights in two ways: 1) internal affairs investigation of his rumored affair City invaded his constitutionally-protected privacy interests when it inquired into his off-duty sexual conduct 2) when it denied the promotion he was entitled to Historical analysis is a starting point, but rights are not frozen in time; they continue to evolve I concur because the dept had a compelling reason for its action: police depts are quasi-military organizations that require obedience; if Henry's actions undermined his ability to command, that is a legitimate reason to withhold promotion Owen, J. (concurrence) Majority opinion is broader than necessary to decide issue of the case. Henry had a right to privacy, but the city had a compelling reason to deny the promotion because of how it undermined his authority and interfered with his job. Just because a right exists doesn't mean it can't be limited. For example, if he had exercised his free speech rights in a way that undermined his authority, he could have also been denied a promotion. However, the breadth of the decision is concerning. Could Henry be denied a promotion because of his immoral but legal association with a married woman? What if Henry was a woman that gave birth to the child of a man married to someone else?
Acknowledged Parent - 160.301+
*Purposes:* •short-cut/settlement in support proceeding •Part of termination/adoption proceeding *Effect*: same as adjudication *Requirements* •Signed with oath by mother and alleged father •No presumed dad (or named if so) •Void if a presumed dad, unless denial by same on file •No genetic testing, or consistent with results •Filed with Bureau of Vital Statistics *Effective*: later of birth or filing *Rescission*: earlier of 60 days or filing of court proceeding (like support) *Post-rescission challenge*: •Before court order (like child support) issues •- Fraud, duress, material mistake of fact •- DNA testing demonstrates material mistake of fact *Procedure* generally the same as adjudication •
What is Marshall's holding?
*State courts have jurisdiction over*: •Probate or annulment of wills •Administration of estates •Disposition of probate property *Fed'l courts*: Everything else within jurisdiction
Grounds for Voidable Marriages
*Under the influence* - 6.105 *Impotency* - 6.1.06 •Permanent impotency - old provision •Unknown to other spouse at marriage •No cohabitation after discovery •Notice, this is a gendered clause *Fraud, duress, force* - 6.107 •No cohabitation after release •Mental incapacity - 6.108 •Unable to understand or consent - "reasonable person standard" •No cohabitation after capacity restored *Concealed divorce* - 6.109 •Only covers divorces within 30 days before marriage •Unknown to other spouse at marriage •Reasonable person standard •One-year statute of limitations *Marriage within 72 hours after license* - 6.110 •30 day state of limitations
VOID VS. VOIDABLE MARRIAGE
*Void* •1. Not married •2. Later validity not retroactive as to property rights •EX: if first spouse dies, later void marriage becomes valid •3. Procedure: suit to declare void - 6.307 & 6.401(b) •Don't have to file lawsuit unless you want to make it clear. If it's void, it's NOT a marriage •4. Collateral attack possible •Can contest the marriage •EX: insurance company owes death benefits to spouse; if a void marriage, insurance doesn't have to pay •5. Suit not barred by death *Voidable* •1. ARE married •2. Later invalidity not retroactive as to property rights •3. Procedure: suit to annul - 6.306 & 6.401(a) •4. Collateral attack not possible
Adjudication of Parentage - Overview
*What is an adjudication?* - 160.637(c) •Judgment says child is "of the marriage" that is an adjudication •H ordered to pay child support, unless paternity denial is included *Who is bound?* - 160.637(a) •All signers of acknowledgment or denial •All Parties to court adjudication *When is adjudication not binding?* •For party, personal jurisdiction problem - 159.201 •Special TX statute that grants PJ if you have minimum contacts, but that one "contact" has a lot to do with parentage (get it?) •How then, could you ever have a PJ issue? *For child, the adjudication is never binding unless:* - 160.637(b) •acknowledgement + genetic testing, •judgment + genetic, •actual party or ad litem representation (legal representation)
Child Support: Modification Basics
*When can you modify?* 156.401 •1) When there is a material and substantial change in circumstances of child, mom, dad, anyone else affected by order, OR •2) Has to be either 3 years since last order, AND •More than 20% or $100 off current guideline amount *Do Guidelines Matter?* - 156.402 •Can help prove material and substantial change •Can modify to fit guidelines •If in child's best interests •Can consider other factors •Practice note: courts consider guidelines, period •New Sept, 2018: agreed amount modified only if material and substantial change from agreement
2) marriage ceremony characteristics
*Who is authorized to perform ceremony?* -Minister or priest -Rabbi -"Officer of a religious organization, authorized by the association" -If your religious organization says anyone is authorized, then anyone is authorized -Most judges 2.202(a)(4) *Apparent authority and good faith belief enough 2.302* -Apparent authority (the person conducting the marriage appears to have the authority to do so) and good faith belief (from at least one of the people being married that the person has the right to marry people) Would the "infidel and swine" marriage be valid? Yes, because the person conducting it had apparent authority, and the people involved have a good faith belief *People who perform marriages Cannot discriminate (2.205)* Does that mean a rabbi for two members of Nazi group? -Maybe? In theory that's correct. -Religious freedom exception (if you don't believe in same sex marriages, you don't have to perform them)
Establishing Parentage: Overview
*Woman*: giving birth establishes parentage (or adjudication, adoption) *Father* - being unrebutted presumed father; assisted reproduction; acknowledged; •Adjudication •Gestational agreements (surrogacy) •Court sanctioned is best way to get iron clad agreement •Adoption - Has to be handled through court proceeding (law suit)
PROCEDURAL SAFEGUARDS FOR BIOLOGICAL FATHERS - PATERNITY REGISTRIES. •Lehr v. Robertson, 463 U.S. 248 (1983)
, the United States Supreme Court ruled that a New York "paternity registry" — a statute that permits prospective biological fathers to demonstrate their intent to claim paternity of a child born out of wedlock — afforded sufficient protection to a biological father. •In Lehr, the apparent father had lived with the mother before the child's birth and visited the child in the hospital, but had not provided financial support or offered to marry the mother. Shortly after an adoption proceeding was filed, the claimed father filed a paternity suit and request for visitation. In a six-to-three decision, the United States Supreme Court declared: •The significance of the biological connection is that it offers the natural father an opportunity that no other male possesses to develop a relationship with his offspring. If he grasps that opportunity and accepts some measure of responsibility for the child's future, he may enjoy the blessings of the parent-child relationship and make uniquely valuable contributions to the child's development. If he fails to do so, the Federal Constitution will not automatically compel a State to listen to his opinion of where the child's best interests lie. •If the alleged father had been sufficiently familiar with the law to file with the New York paternity registry, he would have been entitled to notice of the adoption proceeding, together with a chance to assert his parental rights. •The New York courts, however, were under no independent obligation to assure he received notice. •Like New York, Texas provides a paternity registry. Review TEX. FAM. CODE §§ 160.401 - 160.423. •Unlike New York, a biological father's failure to register does not relieve litigants of the responsibility of notifying the biological father under all circumstances. See, e.g., TEX. FAM. CODE § 161.002.
Texas Law - Texas joined the union in 1845 as the second community property jx, after LA.
-H & W in a community property regime are co-equal business partners, the "business" being marriage. No matter who works outside the home, both marital partners own all assets acquired by the efforts of either spouse during marriage, in 50/50 shares.
Three ways to get out of marriage
1) Annulment - claiming marriage never existed. EX: one or both parties drunk Cannot annul a void marriage 2) Death - If you die, even if voidable marriage, you die married. 3) Divorce - Restoring you to the status quo ante Where lawyers tend to make money. What if you file for divorce, but then die? Death comes first, so you are not divorced.
Three Major Divisions of English Law
1) Common Law - customary law In effect before Battle of Hastings, before William the Conqueror conquered England. Bottom up law, generally administered at the local level King needed money to pay his armies, etc. Had to pay to bring legal suits. Was a major source of income for nobles; king didn't get much King decides to get his own source of income, creates Chancery 2) Equity/Chancery - comes from the crown Top down law Had to "go to Westminster" - had to have testimony in writing; interrogatories (asked and answered); paper documentation Influenced modern discovery procedures 3) Ecclesiastical/Church - sacraments -Abolished by Henry VIII when he wanted to get a divorce. -Parliament hands over power relating to marriage/divorce to Equity/Chancery courts
2) Elements of Informal Marriage - MUST KNOW THESE ELEMENTS
1) Prove there's an agreement, and thereafter (go to 2nd element) -between BOTH to marry (doesn't have to be in Texas) -Agreement will survive if it is not dissolved at least as formally as it was entered into 2) Live together in Texas as husband and wife (cohabitation), and 3) Represented themselves to others as married ("holding out") in Texas "Others" - more than one person -If no suit within 2 years of breakup, rebuttably presumed no agreement to marry Odds and ends -Must be over 18 (added in 1997) -Concern that minors were doing an end run around the law -Formal marriages possible at a younger age with judicial approval -Can't have another current spouse (2005 - in response to threatened polygamist horde, radical mormon splinter group) -The first is the only one that counts
•Statutory Estoppel: Parentage - 160.608 •No DNA testing (and presumed father becomes adjudged) if :
1) bad conduct of mother or presumed father estops, and •2) inequitable to disprove father-child relationship with presumed father •Includes paternity acknowledgement or denial •Court must consider child's best interests •Child must have representation •Requires "clear and convincing" evidence
Two ways of entering into informal marriage
1) file a declaration with public office 2) meet elements of informal marriage
Three categories of presumed fathers who get standing
1) married when child born or "seems" married (informal marriage) •Or 300 days after marriage ends •Assuming you decided to have sex one last time on the day of divorce 2) married after child born, PLUS •Voluntarily does one of the following three: •Asserts dad in Bureau of Vital Statistics (BVS) record •Named on birth certificate •Promises support in record 3) resides with child + claims as own + two years •Does NOT require marriage •Why two years? •Best interest of the child, stability Demonstrates true commitment to child
When can you get a Bill of Review, and what is it?
1) prevented from asserting meritorious defense •2) because of fraud, accident, wrongful act or official mistake •3) unmixed with own negligence (you didn't cause it) •Only extrinsic fraud counts *A bill of review* is an independent equitable action that challenges the validity of a judgment that is no longer appealable. Courts have long recognized the importance of the finality of judgments. As a result, the grounds for setting aside an otherwise final judgment are limited. •The bill of review complainant is required to file an adequate petition and then to present a meritorious prima facie defense at a pretrial hearing. Only upon satisfaction of both requirements will the court grant a new trial. Otherwise, the court will automatically dismiss the case without motion or request from either party •Fraud, as it applies to attacks upon final judgment, may be either intrinsic or extrinsic. *A bill of review requires EXTRINSIC fraud* 4 years statute of limitations (most common time limit in TX)
Standing in Parentage
160.602 1) the child 2) mom 3) man whose paternity is to be adjudicated 4) govt agency 5) adoption agency 6) representative for deceased, incapacity, minor 7) if mom dead, person related within 2nd degree of consanguinity 8) intended parent after 18, if child has no presumed, acknowledged, or adjudicated dad, only adult child can maintain parentage suit
Fundamental error
A fundamental error is consistent among all US Courts as these errors violate the fundamental rights guaranteed by the US Constitution is a legal term provided by United State Courts to describe an error which occurs whenever a judgement violates a federal fundamental right. In United States constitutional law, fundamental rights have special significance under the U.S. Constitution. Those rights enumerated in the U.S. Constitution are recognized as "fundamental" by the U.S. Supreme Court. State courts within the United States may define fundamental error rules independently of the federal courts. State fundamental error rules may include errors which violate rights in additional to those rights guaranteed by the U.S. Constitution, but these rules may not infringe upon federal fundamental rights.[1] Any law restricting such a right must both serve a compelling state purpose and be narrowly tailored to that compelling purpose.
Sessions v. Morales-Santana Q. 4: Why did the statute fail?
A: (1) Statute does not assure a connection between the child and the U.S. because mother doesn't have to be present in the U.S. at the time of birth (one year at any time in the child's life), and father excluded even though he may be in the U.S. at child's birth and thereafter. Here, the governmental purpose in adopting the statute is to ensure a connection between the child and American ideals and principles. There is no basis for a claim that it takes longer for a father to assimilate his child to American culture than a mother. (2) Statute cannot be justified on the basis of reducing the risk of statelessness because (a) no real proof that this was a motive, (b) no empirical proof, and (c), U.N. says gender-discriminatory laws increase the risk of statelessness.
Sessions v. Morales-Santana (2017) Q. 3: What is the current justification for the discriminatory policy against unwed fathers?
A: (1) insuring a connection between the child and the United States; and (2) preventing "statelessness."
Sessions v. Morales-Santana (2017) *Q. 1: What standard of review?*
A: Intermediate scrutiny: "The defender of legislation that differentiates on the basis of gender must show "at least that the [challenged] classification serves important governmental objectives and that the discriminatory means employed are substantially related to the achievement of those objectives." The U.S. Supreme Court adds that the government has provided no "exceedingly persuasive justification" for the statute
Sessions v. Morales-Santana (2017) Q. 2: What was the original justification for the law?
A: Two assumptions: "In marriage, husband is dominant, wife subordinate; unwed mother is the natural and sole guardian of a nonmarital child."
Judicial Evolution of the Probate/Domestic relations Exception
Barber (1859) - creates exception Markham (1946) - Fed'l jx okay if does not interfere with probate proceedings Ankenbrandt (1992) - restricts domestic relations Marshall (2006) - restricts probate
What is the statutory analysis of the domestic relations/probate exception?
Constitution - all Cases, in Law and Equity Judiciary Act of 1789 - all suits of a civil nature at common law or in equity 28 USC 1332 (1948) - "all civil actions" [same thing, fewer words]
writ of mandamus
Court order directing an official to perform an official duty or a lower court abuse of discretion A relator petitioning for relief by mandamus must show a clear abuse of discretion and the absence of an adequate remedy by appeal. •Mandamus is not a substitute for an ordinary appeal; rather, it is an extraordinary remedy available only in limited circumstances, and not for grievances that may be addressed by other remedies such as an appeal •A clear abuse of discretion requires proof that "the trial court could reasonably have reached only one decision,' and that its finding to the contrary is 'arbitrary and unreasonable." •An appellate court may not deal with disputed areas of fact in an original mandamus proceeding. Nor, in reviewing findings of fact in a mandamus proceeding, may an appellate court substitute its judgment for that of the trial court.
No matter what one's view of the constitutional soundness of Family Code Section 2.601, the fact that hasty drafting can result in poor drafting should be beyond dispute.
For example, the phrase "a clergy" misuses a plural or collective noun. Limiting the statute's protection to "a clergy or minister" arguably would exclude imams, rabbis and the like. Even within the Christian faith, one finds groups like the Churches of Christ and Jehovah's Witnesses whose basic tenets reject the idea of designations such as "clergy." A better-drafted statute would have tracked the language of Family Code Section 2.202(a)(3), extending to "a person who is an officer of a religious organization and who is authorized by the organization to conduct a marriage ceremony."
Valid marriage - two types in Texas (most just have one)
Formal - same everywhere Informal - common law marriage Not common; has nothing to do with common law Prof prefers term "informal" marriage because common law has negative associations that are not fair Both types of marriages are equally valid
Holick v. Smith, 685 S.W.2d 18, 19 (Tex. 1985) FACTS •Mom leaves kids with Smiths, goes to Dallas to waitress and live with boyfriend. Smiths want to adopt. •ISSUE •Can rights be terminated on 161.001(b)(1)(c) - not "providing" support for 6 months, when she relied on Smiths to support? •Or would that just be "providing for" support, as in (b)?
HELD •Letting another support is "providing" support (not "providing for"). •Comments •Dissent right on normal statutory construction ("providing" must differ from "providing for") •Majority right, because construing termination provisions •Statute has draconian consequences •Because of the fundamental right involved, there is a strong presumption in favor of parent's rights
Roosth v. Roosth - (Houston 14th 1994, writ denied) [p. 295] •FACTS: Mom appointed SMC; dad's PC "only at times mutually agreed to in advance" •
HELD: Appeals court says an abuse of discretion •Why? •TCt could have denied PC, if all evidence believed •TCt cannot grant PC, and then refuse to set out specific terms. The judge's job is to set out terms of possession. If there aren't any specific terms of possession (EX: every third Thursday, etc.) •In this case, if the mom cuts off all access, the father has no recourse. There's nothing clear enough in order to be a legal requirement to do anything
In the Interest of J.R., (Tex. App. 2010) •FACTS: Dad committed family violence, bank robbery, etc. in prison, which probably is a good idea. Dalila and 2nd husband want to adopt J.R. so terminating Dad's parental rights •ISSUE: Dad concedes best interest. Questions are whether there's factually sufficient evidence to support termination on at least one of three grounds: abandonment, non-support, and 2 year incarceration.
HOLDING: Can terminate based on Section C. [The other grounds did not have clear and convincing evidence] •Abandonment: •Section C of 161.001(1) •(1) Voluntarily leaves the child (by putting himself in prison) •(2) At least six (consecutive) months •(3) Without providing adequate support •Evidence shows no child support ever •FAILURE TO SUPPORT IN ACCORDANCE WITH ABILITY •Section F •For 12 uninterrupted months during the 18 months before filing •Evidence not sufficient. Dad has been in prison all this time, and there's no evidence had the ability to provide any support •Knowingly engaged in criminal conduct that has resulted conviction/confinement and inability to care for child •Section Q - Must be 2 years from filing of termination of suit; no such showing •No evidence as to the length of his sentence or the likely date of parole or release. •Legally, insufficient evidence for termination on this ground; presented no evidence as to the length of his sentence or the likely date of parole or release. •Note: Statute is prospective. Just needs C&C evidence that Dad will be in jail for two years.
Reliable Consultants, Inc. v. Earle, 517 F.3d 738, 740 (5th Cir. 2008) FACTS: The complaint alleged that the provisions making it a crime to promote or sell sexual devices violated substantive liberty rights under the Fourteenth Amendment and commercial speech rights under the First Amendment. The district court held that there was no constitutionally protected right to publicly promote obscene devices. ISSUE: Whether the Texas provisions impermissibly burdened an individual's substantive due process right to engage in private intimate conduct of his or her choosing,
HOLDING: YES. the provisions Tex. Penal Code Ann. §§ 43.21 and 43.23 violate the Fourteenth Amendment. Because Tex. Penal Code Ann. §§ 43.21(a)(5) and 43.23(c) made it illegal to lend or give a sexual device to another person, the provisions restricted the exercise of the constitutional right to engage in private intimate conduct in the home free from government intrusion and undercut any argument that the provisions only affected public conduct. State interest in public morality could not constitutionally sustain the statutes by restricting private intimate conduct.
In the Interest of M.M.M., (Tex. App. 2014) •FACTS •Complex. Marvin and Cindy "platonic friends" (Marvin is gay). Cindy gives birth to twins; Marvin's sperm & donor egg. Cindy says unwritten joint parenting agreement; Marvin says just a surrogate. •Marvin planning to move away with partner and child; Cindy welcome to come along as nanny. Cindy not pleased; thought she would be a parent. •Not a statutory surrogacy arrangement; however, statutory is NOT exclusive. But if you follow the statute, much safer. If you don't follow the terms, you can get in nasty lawsuit •Issue: •Is Cindy a surrogate or the mother? •
Held: Cindy is the mother because she gave birth, period. Even though she is genetically not the mother (because it was a donor egg) •Discussion: •Cindy argues: Gave birth, so mom by definition •Marvin argues: UPA gender-neutral; presumed mom trumped by DNA, just like presumed dad. •If you have to prove dad with DNA testing, then you should apply that to mother as well. •Court says no such term as "presumed mother"; gender-neutral requirement refers only to "determination of parentage" not "establishment of parentage" •Court says there's only one way to jettison birth mother; via statutory gestational agreement, only available to married couples •Not so. Court is wrong that you have to follow statute •No actual prohibition on non-statutory gestation agreements •Unconstitutional to so limit? •Unconstitutional to limit only to married couples •But almost certainly waived
Davis v. Davis, (Tex. 1975) •FACTS: H dies with two wives, one in Texas (Mary) with kids and one in Singapore (Nancy). When he dies, he gets $50k benefit. •Baby Nancy born to W (Mary Nell) through H (Charles) had been in Singapore with W2 Nancy for a long time. •2nd Issue: can we consider testimony by W (Mary Nell ) of H's "non-access" during relevant time? (Lord Mansfield's Rule) •
Held: Divides the property equally between the two wives. •Looks at putative spouse as a "business partner" (though doesn't say so explicitly, this is Paulsen's theory) •Held, 2nd issue: Yes, no good reason why not - and common law rules subject to common law evolution •*Abolishes Lord Mansfield's Rule in Texas* •Testimony of non-access between man and woman is admissible from any witness knowledgeable of the fact. No longer will Lord Mansfield's Rule bar testimony that they had no connection/access to each other and thus the legitimacy of the child is in doubt.
Obergefell v. Hodges (2015) Facts: mostly irrelevant; a variety of same-sex couples Issue: Are state bans on same-sex marriage unconstitutional?
Held: YES The Fourteenth Amendment requires a State to license a marriage between two people of the same sex and to recognize a marriage between two people of the same sex when their marriage was lawfully licensed and performed out-of-State. Discussion: - rational basis test? (O'Connor's rational basis plus) - odd that talking about rational basis since relates to fundamental rights. Ultimately, the four principles underpinning the protection of the right to marry apply equally to opposite and same-sex couples: (1) the right to choose whether and whom to marry is "inherent in the concept of individual autonomy"; (2) the right serves relationships that are equal in importance to all who enter them; (3) assuring the right to marry protects children and families, which implicates the myriad of rights related to procreation and childrearing; and (4) lastly, marriage is the very "keystone of our social order" and foundation of the family unit. Refusing to allow same-sex couples to marry denies them a myriad of legal rights, including those related to taxation, insurance benefits, intestate succession, spousal evidentiary privileges, child custody and support, etc.
Clark v. Jeter - (US 1988) •FACTS: PA law: out-of-wedlock child must sue for support within 6 years; in-wedlock can sue at any time •Issue: violation of the Equal Protection Clause to make a distinction?
Held: Yes •Intermediate scrutiny •Genetic testing greatly reduces proof problems •Not nearly as much of a need for the irrebuttable presumption of legitimacy as there once was •All states put a primary emphasis on genetic testing today •Rule of Law •A six-year statute of limitations imposed on paternity actions filed on behalf of illegitimate children is too short to satisfy the requirements of equal protection. •the period must be long enough to provide a reasonable opportunity for claims to be presented, and the time limitation must be substantially related to the state's interest in curbing stale or fraudulent suits. •There are legitimate reasons why a mother might not file a paternity claim within the first six years. •In addition to emotional obstacles, she might not realize the extent of her child's financial needs until the child gets older. •Even if six years were reasonable in light of the mother's situation, however, the Court concludes that such time limitation does not substantially relate to Pennsylvania's interest in curbing stale or fraudulent suits. •First, Pennsylvania allows such paternity suits to be filed beyond the six-year period in a number of circumstances. •Second, the enactment of the 18-year limitations period clearly indicates that the state is not overly concerned with the likelihood of evidentiary problems. •Finally, the increasing accuracy and sophistication of paternity tests notably reduces evidentiary issues. •Consequently, Pennsylvania's statute of limitations violates the Equal Protection Clause
Desta v. Anyaoha, (Tex. App. 2012) •FACTS - green card marriage, defrauds spouse, walks away as soon as gets marriage •Issue: Is it fraud that destroys the purposes of marriage.
Held: Yes. The court affirmed the judgment of annulment. •Discussion: •- Fraudulent inducement requires a material misrepresentation: (1) knowingly false, (2) intended to be acted upon, (3) relied upon, and (4) injury. •- W falsely claimed she wanted long-term relationship with children. W secretly gets birth control injection. •- Strange argument that only fraud regarding matters "essential to the relationship" counts is about the same as "material" misrepresentation.
Christoph v. Sims, (Dallas 1950, no writ) Facts: H supposedly drove 400 miles (Falfurrias to Matmoros) while too drunk to remember anything. Had set up a house beforehand. Claims no sexual relations after marriage •Issue: Was H too drunk to consent to marriage; did he lack contractual capacity? •
Holding/Discussion: Married. •Case is from 1950. Newer cases make same point. Prof likes language. •Marriage contract has a lower standard than contracts in general •Don't require as much consent as we would for ordinary K •Part of the idea may be that there's a strong presumption in favor of marriage validity (Claveria) •"Marriage depends to a great extent on sentiment, attachment, and affection, ...and not necessarily on the exercise of clear reason, discernment, and sound judgment, as in other contracts, though such should go hand in hand" •Different from statutory standard? •Because of alcohol etc., "did not have the capacity to consent" •What is capacity? Is it ordinary K capacity or is it what the Christoph court says? •unsettled Must be so drunk that you have no idea what is going on
Reynolds v. United States United States Supreme Court 98 U.S. 145 (1878) Facts: Reynolds (D), a Mormon married man, was charged with bigamy in the territory of Utah in violation of a federal bigamy law after he married a second wife. Issue: Does a law criminalizing bigamy violate a defendant's constitutional right to the free exercise of religion under the First Amendment?
Holding: No. A law criminalizing bigamy does not violate a defendant's constitutional right to the free exercise of religion under the First Amendment. *Q1: Who does polygamy hurt?* To justify criminal statue, must show an injury? Harms the innocent women and children (no evidence offered; if there was, the court would have cited) Sees harm as so overwhelming obvious, no need for evidence Polygamy ban: many were sent to prison (the men) Wives/children - became impoverished. Had to rely on church for support (no fed govt welfare yet) *Q2: Is polygamy anti-democratic?* U.S. monogamous marriage was NOT democratic at all *Q3: what examples of polygamy did the court avoid?* Moses, Abraham, Solomon, etc. Lots of patriarchal polygamists in the Bible *Q4: Where does one draw the line between church and state?* Beliefs vs. acts LOOK AT JEFFERSON COMPARISON Generally, Congress may not pass a law that infringes upon an individual's right to the free exercise of religion guaranteed by the Constitution. Here, as a member of the Mormon Church, Reynolds claims that the religious tenets of the Mormon Church expressly permit him to have more than one spouse. However, the practice of polygamy has long been deemed repugnant in civilized society. In Europe, the practice has been outlawed for centuries. Further, in England and Wales, bigamy has historically been punishable by death. There has never been a time in any state or territory of the United States when bigamy or polygamy has not been considered an offense against society and punishable by courts. It is inconceivable to think that the constitutional guarantee of religious freedom was intended to supplant the criminalization of bigamy. Ultimately, marriage is a civil contract governed by law, and Congress was well within its authority to enact a statute that protects the institution of marriage by prohibiting bigamy. If a man was permitted to ignore the law because of his professed religious beliefs, then such permission would make religious doctrines superior to the law of the United States. A citizen would become a law unto himself, and the government would exist in name only. Reynolds may not escape punishment for a violation of the bigamy statute by claiming religious belief as a defense, while others who do not hold similar beliefs are convicted and sentenced. The judgment of the Supreme Court of the Territory of Utah is affirmed.
Bradwell v. Illinois United States Supreme Court 83 U.S. (16 Wall.) 130 (1873) Facts: Myra Bradwell (P) applied to the Supreme Court of Illinois for a license to practice law in the State of Illinois (defendant). Her application included a certificate of good character and her qualifications, as required. The Supreme Court of Illinois denied her application. Bradwell appealed directly to the United States Supreme Court. *Issue*: Does the Privileges and Immunities Clause of the Fourteenth Amendment guarantee a woman's right to hold the same occupation as a man?
Holding: No. The Privileges and Immunities Clause of the Fourteenth Amendment does not guarantee a woman's right to hold the same occupation as a man. -United States citizens have privileges and immunities that states cannot abridge. However, the right to be admitted to practice law in state courts is not one of them. -Such a right does not depend on citizenship of the United States. State and federal courts frequently admit non-U.S. citizens to practice law. -Basically arguing that a law license is not a property right; and taking it away is no big deal. -First case to interpret 14th amendment was Pennoyer v. Neff. Weird since 14th was about ensuring rights to former slaves.
Zablocki v. Redhail United States Supreme Court 434 U.S. 378 (1978) Facts: WI law won't let deadbeat parents marry. 14th Amendment violation? Issue: Whether a statute that prevents certain residents from marrying without first obtaining a court order granting permission to marry violates the Equal Protection Clause of the Fourteenth Amendment.
Holding: Yes. The right to marry is a fundamental right and strict scrutiny is appropriate for evaluating the constitutionality of any state statutes limiting the right to marry. Depriving people of their liberty. *Q1: What's the constitutional standard used for restrictions on marriage?* Strict scrutiny: marriage is a fundamental right However, Marriage is inherently a public act: requires a ceremony, or public record filed; Though sex is private, there's no necessary link between sexual relations and marriage *Q2: where is the right to marry found in the Constitution?* Due Process Clause of 14th amendment. Substantive due process right under the "liberty" *Q3: How does the WI statute fail the constitution test?* Not even a rational relationship between getting a marriage license and child support Stopping someone from getting married doesn't make child support more likely. Don't have to get married to have children You can get married at an age beyond child bearing TX still doesn't recognize this (marriage statutes still require that you are not delinquent on child support (box you have to check)). But it is the only box you can check for which a marriage license CANNOT be denied. The right to marry among interracial couples was first discussed in Loving v. Virginia, 388 U.S. 1 (1967), but subsequent Court decisions extended the right to marry to all persons as part of their fundamental liberty interests protected by the Due Process Clause of the Constitution. Additionally, marriage is part of the fundamental "right of privacy" implicit in the Fourteenth Amendment's Due Process Clause. The right of marriage is legally on the same level of importance as other decisions involving procreation, childbirth, child rearing, and family relationships. Reasonable regulations that do not actually interfere with the ability of a person to marry are not subject to strict scrutiny and can be legitimately imposed. The Wisconsin law clearly and absolutely interferes with Redhail's right to marry on the grounds that he can likely never attain the financial means to fulfill his child support obligations and thus receive a court order granting him permission to marry. Applying strict scrutiny, the Wisconsin statute can be upheld only if it is supported by sufficiently important state interests and closely tailored to accomplish those interests exclusively. Despite the fact that Wisconsin offered important state interests as justification for the statute (i.e. counseling Redhail about his support obligations and ensuring out-of-custody children are financially supported), the statute itself is not closely tailored to accomplishing these interests and is unconstitutional. Numerous, less discriminatory means exist by which the Court may compel delinquent persons to fulfill child support obligations. The Wisconsin statute is unconstitutional and the decision of the district court is affirmed.
•Termination "Best Interest" Finding Prohibited by Statute if: [FC 161.101(c) & (e)] •
Home schooled •Economic status •Charged with certain misdemeanor offenses •Administering medical marijuana to child •Religious objection to vaccination •BUT, does not prohibit DFPS evidence
What is the "domestic relations" exception?
In Ankenbrandt v. Richards, 504 U.S. 689 (1992), the Court examined the limits of one of the exceptions, the "domestic relations" exception, and found that a federal court may exercise subject-matter jurisdiction in certain domestic cases, but not in divorce, alimony, or child custody suits.
PARENTAGE OF POST-DIVORCE CHILDREN BORN FROM PRE-DIVORCE FROZEN EMBRYOS. •While Roman v. Roman indeed may be a case of first impression in Texas as regards the enforcement of an agreement between spouses regarding the disposition of frozen embryos, it is not the first reported decision in the state to address the general subject. *Interest of O.G.M., 988 S.W.2d 473 (Tex. App.-Houston [1st Dist.] 1999, pet. granted, dism'd agr.)* may hold that distinction. •This paternity action between Don and Mildred McGill rose when the parties disputed Don's right to claim paternity to a child born to Mildred from a frozen "pre-embryo" implanted after divorce. Don claimed he should be recognized as the father; Mildred said he donated the pre-embryo.
In what was characterized as "a case of first impression without any statutory or precedential guidance," Houston's First Court of Appeals *affirmed summary judgment upholding Don's paternity claim*, relying on the following: •(1) McGill is O.G.M's biological father; (2) McGill was named O.G.M.'s father on her birth certificate; (3) McGill filed a statement of paternity; (4) the pre-embryos were conceived while McGill was married to Schmit; (5) McGill consented to Schmit's implantation of pre-embryos created with the her ova and his semen; (6) McGill was present when the IVF procedure took place; (7) McGill pays child support for O.G.M.; (8) Schmit was unmarried at the time O.G.M. was born; (9) there was no writing setting out the parties' agreement regarding rights and obligations to O.G.M.; and (10) depriving McGill of paternity rights would bastardize O.G.M. •How would these factors play out under the post-2001 Texas version of the Uniform Parentage Act? See TEX. FAM. CODE § 160.602. •In a separate section, the current Family Code specifically addresses the McGills' situation. Review TEX. FAM. CODE § 160.706. •How would O.G.M. have been resolved, under the Texas Legislature's current approach to the parentage issue?
Informal Marriages
Informal marriage IS a real marriage -Unlike some other states' use of "common law" marriage -Minority rule -No marital property implications -Except beginning date of marriage -Don't generally have a piece of paper to establish date, have to prove -No such thing as a "common law" or "informal" divorce -Consequence of early Texas informality -Texas has strongest support for informal marriage -Not clear why, perhaps because in the early days of Texas, marriages were informal. Would be years before frontier communities would see a priest
Waite v. Waite(Houston [14th] 2001, pet. denied) [p. 227] •Facts: No-fault divorce (high animosity)
Issue 1: Does no-fault violate "free institutions" clause of Texas Constitution? •Held: No, intent is to focus on public institutions •Issue 2: Does no-fault violate "open courts" clause of Texas Constitution? •Held: No, divorce not a well established common law cause of action. •Comment: Questionable, but probably good on other grounds. •Issue 3: Does no-fault violate Free Exercise and Establishment clauses? •Held: No, marriage not a contract or a religious rite. •"We ... disagree with appellee's contention that there exists two distinct forms of marriage - sacramental and civil. •Comment: Wrong on both counts. •Dissent •Marriage is religious in nature. •No-fault requires one to consider the "legitimate ends of marriage" -including religion. •Therefore, statute requires unconstitutional inquiry. •
DISTINGUISHING BETWEEN LEGITIMATE AND ILLEGITIMATE DURESS. •Most people would say that being forced to choose between marriage and criminal prosecution involves a certain amount of duress. Assuming the facts were as stated, was the court's decision correct or incorrect? •
Johns v. Johns, 44 Tex. 40 (1875), •a decision relied on in Marckley, presents a closer case on the facts. •Johnson Johns was arrested and jailed on a seduction warrant. Johns denied any improper behavior, stating that the girl's sworn affidavit to the contrary was "moved and instigated by the devil." •The sheriff, court clerk and "other persons"—apparently including the girl's father and brothers—took Johns to a justice of the peace's office, where he was presented with the alternative of marriage or further jail time. •Rejecting Johns' later claim of force or fraud, Justice Reuben Reeves commented: "He knew whether he was guilty or not of the charge against him when he married, and he cannot now cancel the marriage and rid himself of his wife, as he did the prosecution, without showing a better reason for it than he has given in his petition."
•In Interest of S.G.S., 130 S.W.3d 223 (Tex. App.-Beaumont 2004, no pet.), the Beaumont Court of Appeals also rejected application of the fundamental error doctrine in the context of counsel's failure to object to the factual sufficiency of the evidence supporting termination of parental rights. •The Beaumont court also had written the Interest of M.S. decision reversed by the Texas Supreme Court on the ground that litigants could raise an "ineffective assistance of counsel" defense. The court commented on Interest of M.S. as follows: •
M.S. states, "That a motion for new trial is required for appellate review of a factual sufficiency issue is something that competent trial counsel in Texas should know." . . . Considering this statement, it would be quite ironic to hold the issue to be exempt from procedural default. Interest of S.G.S., 130 S.W.3d at 231 n.5. What do you think about the S.G.S. court's reasoning on this point?
Except as provided by Sections 160.307 and 160.308, a valid acknowledgment of paternity filed with the bureau of vital statistics is the equivalent of
an adjudication of the paternity of a child and confers on the acknowledged father all rights and duties of a parent." TEX. FAM. CODE §160.305(a).
RIGHT TO COUNSEL. •In a splintered decision filled with caveats, the United States Supreme Court has ruled that there is no general right to counsel in parental rights termination proceedings. See Lassiter v. Dep't of Soc. Servs., 452 U.S. 18 (1981). •
Nonetheless, the Texas Family Code provides that an indigent parent facing possible termination of parental rights is entitled to appointed counsel. See TEX. FAM. CODE § 107.013(a). •If both parents face termination, they are entitled to separate counsel, unless "the court finds that the interests of the parents are not in conflict." Id. § 107.013(b). •In In re B.L.D., 113 S.W.3d 340 (Tex. 2003), the Texas Supreme Court stated that when both indigent parents rights are at issue a trial court must determine whether there is a substantial risk that a lawyer's obligations to one parent would materially and adversely affect his or her obligations to the other parent when deciding whether there is a conflict of interest between parents opposing termination in a single suit. •In evaluating whether there is a substantial risk of a conflict of interest before trial, the trial court should consider the available record to determine the likelihood that the parents' positions will be adverse to one another. Id. at 347. The trial court's decision is reviewed only for abuse of discretion. •A practice tip: Because the trial court might have very limited information before it at the time it determines whether to appoint separate counsel for each parent, the attorney appointed to represent two parents would be wise to conduct an independent review of potential conflicts, and bring such problems to the court's attention. The attorney appointed to represent two parents might also be well advised to obtain a conflict waiver as a matter of course. See TEX. DISC. R. PROF. COND. 1.06(c).
1) marriage license characteristics
Obtained from county clerk Voidable if less than 72 hours old Most states have a waiting period Void vs. Voidable marriage Voidable marriage - is a marriage Void marriage - NOT a marriage Misdemeanor (for person performing) if more than 90 days old We do not expect couple getting married to be in a state of mind to evaluate the license. Thus the person performing marriage is the one liable for these mistakes
•Termination of parental rights requires proof by
clear and convincing evidence. •This heightened standard of review is mandated not only by the Family Code, see TEX. FAM. CODE § 161.001, but also the Due Process Clause of the United States Constitution. •
Marshall v. Marshall United States Supreme Court 547 U.S. 293 (2006) Facts: Widow Vicki/Anna fighting stepson Pierce. Vicki's federal bankruptcy v. Pierce's Tex. probate. Issue: Fed'l jurisdiction over Vicki's tort claims, or barred by probate/domestic relations exception?
Rule of Law A federal court may exercise subject-matter jurisdiction over a state law tort claim so long as it does not involve specific domestic relations or probate matters. Holding and Reasoning (Ginsburg, J.) Yes. Historically, two judicially-created exceptions limited application of federal jurisdiction to cases traditionally heard in state courts. -SCt CANNOT change its own jurisdiction. Supreme Court does not have the right to throw out jx over family law from a constitutional/statutory point of view. -the "domestic relations" exception, and found that a federal court may exercise subject-matter jurisdiction in certain domestic cases, but not in divorce, alimony, or child custody suits. -The "probate" exception reserves to a state probate court the right to adjudicate the probate of a will and the administration of a decedent's estate. -Further, the exception precludes a federal court from disposing of property of an estate of which a state probate court has custody. -However, a federal court is not prohibited from adjudicating matters touching a state probate matter. *Here,* Vickie's tortious interference claim against Pierce was personal in nature and did not involve the administration of J. Howard's estate, the probate of his will, or any other purely probate matter that is under the jurisdiction of the Texas Probate Court. -Further, Texas law governs Vickie's claim against Pierce for tortious interference. Erie R. Co. v. Tompkins, 304 U.S. 64 (1938). -The Bankruptcy Court properly had subject-matter jurisdiction of Vickie's tortious interference claim. -The judgment of the court of appeals is reversed and the matter is remanded for further action consistent with the opinion.
Sessions v. Morales-Santana (2017) Facts: Complicated. Luis is being deported; says he's a citizen because gendered law discriminated against his father, Jose. Luis has standing to assert dad's rights. Law required 10-year U.S. residence after age 14 for unwed U.S. citizen father; only 1 year prior residence for unwed U.S. citizen mother. Jose missed by 20 days. Issue: Equal Protection violation? Answer: YES.
Rule of Law A law that discriminates based on biological sex is unconstitutional if it is not substantially related to the accomplishment of an important governmental purpose.
Orr v. Orr United States Supreme Court 440 U.S. 268 (1979) Facts: William Orr (defendant) and Lillian Orr (plaintiff) were divorced in Alabama in 1974. Under Alabama alimony statutes, husbands, not wives, were required to pay alimony upon divorce. As a result, William Orr was required to pay monthly alimony to Lillian Orr in the amount of $1,240. Lillian sued William for nonpayment in the Lee County Circuit Court in 1976. William challenged the Alabama alimony statutes alleging the statutes violated the Equal Protection Clause of the Fourteenth Amendment. Issue: Does an alimony statute that requires husbands and not wives to pay alimony violate the Equal Protection Clause of the Fourteenth Amendment?
Rule of Law: A state alimony law may not discriminate on the basis of gender if the state's compensatory and ameliorative purposes are equally served by a gender-neutral classification. Holding: Yes. If the purpose of the Alabama alimony statute is to announce the state's preference for an allocation of family responsibilities in which the wife plays a dependent role, then it is unconstitutional because this is not a legitimate purpose. -In contrast, Alabama states two other purposes for the law: (1) to provide help for needy spouses; and (2) to compensate women for past discrimination in marriage and divorce. -Requiring men, and not women, to pay alimony is not substantially related to either of the stated purposes. -Alabama already conducts individualized administrative hearings as part of each alimony ruling. -The hearing officer can easily consider the parties' financial circumstances and assign alimony payments based on who is best equipped to pay. -Hence there is no reason for Alabama to use generalizations about gender as a proxy for need. -Additionally, using gender as a proxy for need actually has the potential to bring about perverse results in Alabama's alimony system. -For example, if a woman is very wealthy and a man is needy, the Alabama statutes prohibit the man from receiving any type of alimony benefit from the woman regardless of his need. -Where a state's compensatory and ameliorative purposes are equally served by a gender-neutral classification as one that discriminates based on gender, the state is not permitted to discriminate on the basis of gender. -The Alabama statutes are unconstitutional, and the decision of the court of appeals is reversed.
Lawrence v. Texas (2003) Facts A Texas statute made it a crime for two people of the same sex to engage in some types of intimate sexual conduct. Issue: 14th amendment violation?
Rule of Law: Yes. The liberty interest protected by the (substantive) Due Process Clause of the Fourteenth Amendment protects the right of consenting adults to engage in intimate contact in the privacy of their own homes, including sexual acts between people of the same sex. Q1: What basic right is involved? Liberty (directly stated in 14th), also privacy
Loving v. Virginia (1967) Facts: Felony conviction of interracial married couple (1 yr or leave). Issue: 14th Amendment violation?
Struck down state's law banning interracial marriage as violation of the 14th Amendment equal protection clause (Warren Court) Strict scrutiny for race-based questions BOTH EP and DP issue: Equal Protection argument based on suspect racial classification, which triggers strict scrutiny; also Due Process argument by interfering with liberty to marry, a fundamental right. Violation of liberty also requires strict scrutiny (like Skinner) No valid reason for law; based on white supremacy IMPACT: Loving reinvigorated the "substantive due process" doctrine. It also largely completed the selective incorporation process as nearly all of the first 8 amendments are now incorporated. NOTES Texas History TX permitted interrational marriages for a short period in the 1870s (until reconstruction ended)
In re J.W.T.,
Texas Supreme Court holds that the denial of a putative father's standing to sue with regard to a child who has a presumed father is unconstitutional: •The constitution does not guarantee every natural father ties with his illegitimate offspring. However, one who is arbitrarily prevented from attempting to establish any relationship with his natural child, after making early and unqualified acceptance of parental duties as the biological father has done, is denied due course of law under Tex. Const. art. X, § 19.
How did we get common law exception to the statute (and to some extent, the USC)
The Barber decision (SCt) was the initial ruling on the matter in the 1850s "We disclaim altogether any jx in the courts of the US upon the subject of divorce, alimony, either as an original proceeding in chancery or as an incident to divorce or [separation]" Concurring opinion sets out: "By Coke and Blackstone, marriage creates one person in law, the legal existence of woman is suspending during the marriage..." -The two become one, and the one is the husband -Thus, how can you sue yourself? -Even if woman moves to different jx, they are still a single human being, thus no diversity jx. -Not surprisingly, this is no longer the law of the US In the 1960s, the last vestiges of coverture have been removed [aside: "spinsters" retained rights even in the old days] 2nd justification for exception: "It is not in accordance with a Govt having its origin in causes and necessities, political, general and external, that it should assume to regulate the domestic relations of society; should .... enter the habitations and even into the chambers and nurseries of private families and inquire into the morals and habits of the members of every household" [not really adhered to; govt shall not intrude into family relations? Ha! Why do we have marriage licenses? - -DOMA? Laws against adultery? In reality, govt intrudes in family life a great deal] 3rd justification for exception: The English chancery/equity courts does not deal with marriage/divorce, but rather this is the jurisdiction of the ecclesiastical courts
Texas currently recognizes two distinct methods for entering into a marriage:
ceremonial (formal) and informal.
Children: Jurisdiction and Residency CORE CONCEPT: Continuing Exclusive Jurisdiction (CEJ)
The doctrine that only one support order should be effective and enforceable between the same parties at any one time and that when a particular court has acquired jurisdiction to determine child support and custody, it retains authority to amend and modify its orders therein
What burden of proof is required to rebut a rebuttable presumption?
The usual rule is that any rebuttable presumption requires only a preponderance of the evidence to refute, unless the statute provides otherwise.
Why should we care about the domestic relations/probate exception?
There is federal diversity jx if citizens of 2 states where amount in controversy is greater than $75k (many divorces have more than 75k at issue) -Often after a divorce, one spouse leaves the state. -Thus, divorce often meets the criteria of diversity jx -There is nothing in the constitution under federal diversity jx that creates an exception -*But you will never get a divorce case in federal court unless it is connected as a collateral matter to something* *Family law is almost completely state law* The only place the federal courts get involved is with Constitutional issues -Thus, there is a great deal of leeway for state courts to develop divergent jurisprudence -However, American Law Institute (ALI) has created uniform family law. All 50 states have adopted with minor variations -There are federal statutes (EX: Federal Parental Kidnapping Act)
•In E.B., cited by the Texarkana Court of Appeals in L.C., the Texas Supreme Court states that "[t]he charge in parental rights cases should be the same as in other civil cases." •The wisdom of that conclusion could be questioned.
Unlike most civil cases, termination of parental rights must be proved to the constitutionally-mandated "clear and convincing evidence" standard. •Accordingly, if the instructions that accompany a broad form parental rights termination issue are not completely clear, jurors might aggregate less than clear and convincing evidence on several independent grounds for termination into an overall conclusion that the parent has, by clear and convincing evidence, done something or another to justify termination of parental rights.
Temporary injunctions
[longer term] also possible - 6.502 •Injunction requires hearing - 6.502(a) •NOT ex parte •Must be incident to a suit for dissolution of marriage - 6.501(a)
•Who may adopt? [Standing]
`•Stepparent •Possession within the last 30 days •Possession for 2 of last 3 months •Sibling's foster or adoptive parent [new 2007] •Catch-all: "substantial past contact ... sufficient to warrant standing" •***adults only* If married both spouses must join
Adjudicated father
a man who has been adjudicated by a court to be the father of a child
Void marriage -
a marriage that is invalid from its inception and that does not require court action for the parties to be free of any marital obligations causes confusion. Is not a marriage. Nonmarriage. Legally impossible for two people to be married.
•Texas has laws regarding children of assisted reproduction and gestational agreements, both contained within the Uniform Parentage Act. See TEX. FAM. CODE §§ 160.701-.707, §§ 160.751-.763. •Assisted reproduction means
a method of causing pregnancy other than sexual intercourse, including IVF and transfer of embryos. § 160.102(2)(D). •The statute requires that both husband and wife consent to assisted reproduction. § 160.704(a). •However, section 160.704(b) acknowledges that a child may be born without the husband's consent. § 160.704(b). •Section 160.706 addresses paternity in the event of divorce as follows: "if a marriage is dissolved before the placement of eggs, sperm, or embryos, the former spouse is not a parent of the resulting child unless the former spouse consented in a record that if assisted reproduction were to occur after a divorce the former spouse would be a parent of the child." § 160.706(a). •This section also provides that consent of the former spouse may be withdrawn at any time before the placement of eggs, sperm, or embryos. § 160.706(b). Noticeably absent from these sections is any legislative directive on how to determine the disposition of the embryos in case of a contingency such as death or divorce. Nor is there anything in the case law that is incompatible with the recognition of the parties' agreement as controlling.
Significant Impairment must be proved by
a preponderance of the evidence indicating that some specific, identifiable behavior or conduct of the parent, demonstrated by specific acts or omissions of the parent, will probably cause that harm. •This is a heavy burden that is not satisfied by merely showing that the non-parent would be a better custodian of the child. •"Close calls" should be decided in favor of the parent. •Evidence of past misconduct is not alone sufficient to show present unfitness. "If the parent is presently a suitable person to have custody, the fact that there was a time in the past when the parent would not have been a proper person to have such custody is not controlling."
The _______________ is the primary consideration in matters of child support. TEX. FAM. CODE § 14.07 (a) [cf. TEX. FAM. CODE § 154.122].
best interest of the child
•Factual Sufficiency Review:
can ONLY be conducted by Court of Appeals (NOT TXSCt) TXSCt can only review whether ACt kept to proper standard Specifically, a proper factual sufficiency review requires the court of appeals to determine whether "the evidence is such that a factfinder could reasonably form a firm belief or conviction about the truth of the State's allegations." Id. at 25. •"If, in light of the entire record, the disputed evidence that a reasonable factfinder could not have credited in favor of the finding is so significant that a factfinder could not reasonably have formed a firm belief or conviction (under a C&C standard), then the evidence is factually insufficient." In re J.F.C., 96 S.W.3d 256, 266 (Tex. 2002). •And in making this determination, the reviewing court must undertake "an exacting review of the entire record with a healthy regard for the constitutional interests at stake." See C.H., 89 S.W.3d at 26. But, as we also recognized in C.H., while parental rights are of a constitutional magnitude, they are not absolute. •Consequently, despite the heightened standard of review as articulated in C.H., the court of appeals must nevertheless still provide due deference to the decisions of the factfinder, who, having full opportunity to observe witness testimony first-hand, is the sole arbiter when assessing the credibility and demeanor of witnesses. In re J.L., 163 S.W.3d 79, 86-87 (Tex. 2005). •For this reason, we concluded that if a court of appeals is reversing the jury's finding based on insufficient evidence, the reviewing court must "detail the evidence relevant to the issue of parental termination and clearly state why the evidence is insufficient to support a termination finding by clear and convincing evidence." C.H., 89 S.W.3d at 19. This requirement ensures the reviewing court appropriately respects the jury's act-finding function. •Though we have repeatedly articulated the above standard—requiring courts of appeals to detail the evidence—in cases reversing a jury verdict based on insufficient evidence, we have never similarly required appellate courts to detail the evidence in this manner when the court affirms the judgment of termination.
Sections 160.307 and 160.308 establish the process for rescinding and challenging an adjudication of paternity. Section 160.307 provides in pertinent part that a signatory may rescind an acknowledgment of paternity by
commencing a proceeding to rescind before the earlier of: (1) the 60th day after the effective date of the acknowledgment, as provided by section 160.304; or (2) the date of the first hearing in a proceeding to which the signatory is a party before a court to adjudicate an issue relating to the child, including child support. See TEX. FAM. CODE §160.307.
Texas the strongest
common law marriage laws of any state
As regards punishment for false statements on a license application, one curious item bears mention. The applicant must certify that "I am not presently delinquent in the payment of
court-ordered child support. "[§2.005(b)(7)], but the statute implicitly exempts a false answer to this particular question from criminal prosecution. Of course, the rationale of the U.S. Supreme Court's decision in Zablocki v. Redhail, 434 U.S. 374 (1978), supra at 20, undoubtedly suggests that any such effort would be declared unconstitutional.
The ceremony itself can be conducted by ...
current or retired federal or state judges, as well as "a person who is an officer of a religious organization and who is authorized by the organization to conduct a marriage ceremony." [§ 2.202].
•Best interests of the child
evaluated using Holley Factors: (1) the child's desires; •(2) the child's emotional and physical needs now and in the future; •(3) any emotional and physical danger to the child now and in the future; •(4) the parental abilities of the individuals seeking custody; •(5) the programs available to assist the individuals seeking custody to promote the best interest of the child; •(6) the plans for the child by the individuals or agency seeking custody; •(7) the stability of the home or proposed placement; •(8) the parent's acts or omissions which may indicate that the existing parent-child relationship is improper; and •(9) any excuse for the parent's acts or omissions.
1) Declaration of Informal Marriage
file a formal document of informal marriage. File a Declaration of Informal Marriage - signed, but in marriage records, etc. Why? To know when the marriage started. EX: perhaps you are about to die, filing establishes the date for all the property issues involved
Following the expiration of the period for rescission under section 160.307, a signatory may initiate a proceeding challenging the acknowledgment of paternity on the ground of
fraud, duress or material mistake of fact. See TEX. FAM. CODE §160.308(a). •An adult signatory must initiate a proceeding challenging the acknowledgment "before the fourth anniversary of the date the acknowledgment . . . is filed with the bureau of vital statistics . . . ." TEX. FAM. CODE §160.308(a). •Proof by genetic testing of the male signatory's non-paternity constitutes a material mistake of fact under section 160.308(a). See TEX. FAM. CODE §160.308(d).
The attack-on-termination provision, section 161.211 (titled "Direct or Collateral Attack on Termination Order"), states in subpart (c): •A direct or collateral attack on an order terminating parental rights based on an unrevoked affidavit of relinquishment of parental rights or affidavit of waiver of interest in a child is limited to issues relating to
fraud, duress, or coercion in the execution of the affidavit.
Valid marriage -
have to get a divorce to end •Can argue in the alternative void or voidable or divorce •
•If the court determines that incarceration is a possible result of the proceedings, the court shall
inform a respondent not represented by an attorney of the right to be represented by an attorney and, if the respondent is indigent, of the right to the appointment of an attorney. TEX. FAM. CODE § 157.163(b).
Nunc pro tunc
is a phrase used in an order or judgment when the court wants the order or judgment to be effective as of a date in the past rather than on the date the judgment or order is entered into the court record
•gestational agreement
is an agreement between a woman and the intended parents of a child in which the woman relinquishes all rights as a parent of a child conceived by means of assisted reproduction and which provides that the intended parents become the parents of the child. See § 160.752(a). •The statute specifically authorizes a gestational mother, her husband if she is married, each donor, and each intended parent to enter into a written agreement that relinquishes all parental rights of the gestational mother and provides that the intended parents become the parents of the child. See id. § 160.754(a). •The statute also requires that the parties to a gestational agreement must enter into the agreement before the 14th day preceding the date of transfer of eggs, sperm, or embryos to the gestational mother. See id. § 160.754(e). Parental rights are transferred when a court validates the gestational agreement. See id. § 160.753(a), (b). •To validate a gestational agreement, the court must find, in relevance to our issue, that each party to the agreement voluntarily entered into and understood the terms of the agreement. Id. § 160.756(b)(4). •The statute also provides that "[b]efore a prospective gestational mother becomes pregnant by means of assisted reproduction, the prospective gestational mother, her husband if she is married, or either intended parent may terminate a gestational agreement...." Id. § 160.759(a). •We glean from these statutes that the public policy of this State would permit a husband and wife to enter voluntarily into an agreement, before implantation, that would provide for an embryo's disposition in the event of a contingency, such as divorce, death, or changed circumstances.
Ceremonial (AKA "Formal") Marriage Two elements:
license & ceremony
•: In a legal sufficiency review, an appeals court should
look at all the evidence in the light most favorable to the finding to determine whether a reasonable trier of fact could have formed a firm belief or conviction that its finding was true. •To give appropriate deference to the factfinder's conclusions and the role of a court conducting a legal sufficiency review, looking at the evidence in the light most favorable to the judgment means that a reviewing court must assume that the factfinder resolved disputed facts in favor of its finding if a reasonable factfinder could do so. •A corollary to this requirement is that a court should disregard all evidence that a reasonable factfinder could have disbelieved or found to have been incredible. •This does not mean that a court must disregard all evidence that does not support the finding. Disregarding undisputed facts that do not support the finding could skew the analysis of whether there is clear and convincing evidence. •If, after conducting its legal sufficiency review of the record evidence, a court determines that no reasonable factfinder could form a firm belief or conviction that the matter that must be proven is true, then that court must conclude that the evidence is legally insufficient. Rendition of judgment in favor of the parent would generally be required if there is legally insufficient evidence.
•An existing child support order may be modified if the circumstances of the child or a person affected by the order have
materially and substantially changed since the order was signed. TEX. FAM. CODE § 14.08 (c)(2) [now § 156.401]
If the officiant knowingly conducts a ceremony for persons legally prohibited from marrying or fails to return the license on a timely basis, that person may be subject to
misdemeanor penalties. [§§ 2.202(c), (d); 2.206-.207]
We have held that "endanger" means
more than a threat of metaphysical injury or potential ill effects of a less-than-ideal family environment, but that endangering conduct need not be directed at the child. •The Department is required to prove by clear and convincing evidence that termination of a parent's right to his children is in the children's best interest. See TEX. FAM. CODE § 161.001(2).
False statements are punishable as misdemeanors [§ 2.004(c) &(d), though the validity of the marriage itself is
not affected by "fraud, mistake, or illegality" in the course of obtaining a license. [§ 2.301]
Even if the officiant lacks authority to perform the ceremony, the validity of the marriage itself is ...
not affected, provided that the person officiating appears to have authority and at least one party to the marriage is acting in good faith. [§ 2.301]
Extrinsic fraud
on the other hand, is wrongful conduct practiced outside of the adversary trial--such as keeping a party away from court, making false promises of compromise, denying a party knowledge of the suit--that affects the manner in which the judgment is procured. Only extrinsic fraud supports a bill of review
However, just two days after Obergefell issued, Texas Attorney General Dan Paxton opined that such public officials also can refuse to participate in same-sex marriages that violate their religious beliefs, at least if
other officials are available and willing to provide the same services. Att'y Gen'l Op. No. KP-0025 (2015). The statute and attorney general opinion arguably conflict with a Texas Family Code provision that "[a] person authorized to conduct marriages cannot discriminate against an applicant "on the basis of race, religion, or national origin." [§ 2.205] The statute also may violate the United States Constitution.
•Res judicata, or claims preclusion,
prevents relitigation of a claim or cause of action that has been finally adjudicated, as well as of matters arising out of the same transaction that, with due diligence, should have been litigated in the original suit. •
•The preclusive effect of prior judgments extends beyond parties named in the suit and applies to the
privies of those parties. A privy is one who is so connected in law with a party to a judgment as to have such an identity of interests that the party represented the same legal right in the previous suit. Privity is not established, however, by the mere fact that persons may happen to be interested in the same question or in proving the same facts.
•The Texas cases appear to favor, within reason, children having an opportunity to
pursue their own interests in establishing paternity. Though Texas society also benefits by protecting citizens from repetitive and harassing lawsuits, its fiscal, emotional, and informational interests in establishing paternity can outweigh the societal interests in finality of judgments. . . . •This conclusion is more compelling as the science of blood-testing in tandem with DNA-screening becomes more precise and dispositive; the burden on alleged fathers of submitting to a second blood draw is minimal compared to the weighty burdens on children of living without knowing who their fathers are.
Lord Mansfield's rule
refers to a rule of evidence which provides that both husband and wife are not entitled to give testimony on the question whether they had access to the other at the time of conception. •With the advent of the Texas Family Code nearly 200 years later, putative fathers were granted a statutory right to voluntarily establish paternity. •But it took a ruling by the United States Supreme Court to force Texas to recognize the rights of illegitimate children to obtain child support via involuntary paternity suits. Gomez v. Perez, 409 U.S. 535 (1973). •The Legislature's reluctance to do so is best demonstrated by the successive statutes of limitation which were imposed [citing a one-year statute in 1975, a four-year statute in 1981, and a twenty-year statute in 1983]. •The Texas Supreme Court abrogated Lord Mansfield's Rule in Davis v. Davis, 521 S.W.2d 603 (Tex.1975). •Even then, however, the marital presumption prevented a spouse from challenging paternity of a child born during marriage. J.W.T., 872 S.W.2d at 193. •Husbands gained that right in 1983; the same right was accorded to wives in 1987. •By 1989, the phrase "illegitimate child" was banished from the Family Code, replaced by the more palatable "child who has no presumed father." •The trend toward removing the stigma of illegitimacy was paralleled by a relaxation of social and cultural morés. Extramarital liaisons challenged traditional notions and moral expectations of the nuclear family.
Intrinsic fraud
relates to issues that were presented and resolved-or could have been resolved--in the former action. Fraudulent instruments and perjured testimony are considered intrinsic fraud because these are matters presented to and considered by the court in the original proceeding.
Collateral estoppel, or issue preclusion,
requires a showing (1) that the facts sought to be litigated in the second action were fully and fairly litigated in the first action, (2) that those facts were essential to the judgment in the first action, and (3) that the parties were cast as adversaries in the first action
•In Interest of S.A.P., 156 S.W.3d 574 (Tex. 2005) (per curiam), also an appeal from a Waco Court of Appeals decision, the Texas Supreme Court held
that parents could *not raise an estoppel defense on appeal when that defense had neither been pled nor submitted to the jury*. In this case, the Texas Department of Protective and Regulatory Services had investigated a child abuse complaint, then issued a letter to the parents stating that "all allegations involving you as an alleged perpetrator have been ruled out," that the parents had the right to request that information implicating them be removed from TDPRS records, and that after removal "this information will be permanently destroyed and will not be available to use for any purpose whatsoever." •Nonetheless, the agency sought - and pursuant to a jury verdict, obtained - termination of parental rights, relying at least in part on information referred to in the earlier letter. •Beyond its holding that error had not been preserved, the Texas Supreme Court advanced several other grounds for declining to give effect to the TDPRS letter - that *the doctrine of estoppel cannot be used against a state agency,* the state based its termination complaint at least in part on events occurring after the date of the letter, and the TDPRS letter did not constitute a promise not to use the same information providing that information was obtained from sources other than TDPRS files, and the parents did not prove detrimental reliance. •Curiously, the Texas Supreme Court also stated: •[We have difficulty imagining how parents found by a jury to have endangered their children can have the "clean hands" needed to estop such a finding. See Champlain Oil & Ref. Co., v. Chastain, 403 S.W.2d 376, 384 (Tex. 1965) ("The doctrine of estoppel is for the protection of innocent persons, and only the innocent may invoke it.") (citation omitted). •One might reasonably ask whether this particular argument does not beg the central question in the case, that being whether the TDPRS was equitably estopped from relying on certain evidence to attempt to prove the parent's "innocence" or "guilt" for purposes of a termination proceeding.
As a result of legislation that took effect 15 days before the United States Supreme Court struck down same-sex marriage bans in Obergefell v. Hodges, 135 S. Ct. 2584 (2015), infra at 77, a religious organization, a person employed by such an organization, or "a clergy or minister" can refuse to conduct or otherwise facilitate a marriage if
the action "would cause the organization or individual to violate a sincerely held religious belief." [§ 2.601] This statute's protection does not on its face extend to civil officials, including county clerks or judges.
•Section 160.304 of the Family Code specifies that an acknowledgment of paternity becomes effective on
the date of the birth of the child or the filing of the document with the bureau of vital statistics, whichever is later. TEX. FAM. CODE §160.304(c). "
The Family Code does not address the form or content of the ceremony itself, though it does provide that
the officiant must record the date of the ceremony, sign the license, and return the license to the issuing county clerk within 30 days. [§ 2.206(a)]
The procedure and requirements for a formal (or "ceremonial") marriage are set out in Subchapters A through D of Chapter 2 of the Texas Family Code ("The Marriage Relationship"). The Texas statutes governing formal marriages are for the most part straightforward, and reported court decisions relatively rare. A marriage license is issued by a county clerk [(§ 2.001(a)], though the marriage ceremony need not take place in the same county. Both applicants usually appear in person, though the Family Code does permit one applicant (and on rare occasions, both applicants) to appear by sworn affidavit. [e.g., §§ 2.002, 2.006-.007] Each applicant must sign a form certifying that...
the person is of legal age, that the applicant is not currently married to another person, and that the prospective spouse is not related within the prohibited degrees of consanguinity. [§ 2.004]
. •In ruling on a modification, the court must compare the financial circumstances of the child and the affected parties at the time the support order was entered with
their circumstances at the time modification is sought. •
•While findings of fact issued in a bench trial have the same force and dignity as a jury's verdict, the trial judge's findings of fact are not conclusive when
there is a complete statement of facts in the record. •Since the record contains an entire statement of facts, we are not bound by the trial court's findings. . . .
•To establish that the parties agreed to be husband and wife (in an informal marriage), it must be shown that
they intended to create an immediate and permanent marriage relationship, not merely a temporary cohabitation that may be ended by either party. •An agreement to be married cannot be inferred from the mere evidence of cohabitation and representations of marriage to others, but such evidence may be circumstantial evidence of an agreement to be married. •The circumstances of each case must be determined from the facts of that case.
A Texas marriage license has a limited shelf life. With some exceptions, the ceremony must take place more than ...
three days, but less than 90 days, after the license issues. [§§ 2.201, 2.204]]
marriage is NOT grounded in the right ...
to privacy. It's all about "holding out"; filing documents with public authorities, etc.
General Standing for SAPCR - know this (102.003)
•A Suit Affecting the Parent-Child Relationship, or SAPCR •Parent •Child •Custodian (court order) •Guardian •Govt' Entity •Agency (authorized or licensed) •Alleged Dad (per JWT) •Actual Care, Custody, Control (6 months, ending within 3 months of the law suit) •Relative (within the 3rd degree of consanguinity, if parents dead) •Adopting (if so designated in writing, usually through a lawsuit to finalize adoption procedure)
•Voidable marriage -
valid until annulled •
How long is child support paid?
•General Rule - 154.001(a) •Extends to age 18, however if you are enrolled in school and making normal progress, can be extended past 18 •What extends? •Progress to graduation •Disabled (until end of child's life) •Agreed amount of child support •Until end of college, etc. •There can be tax benefits •Also indicates to court an interest in child's life •
A CAVEAT ON OLDER CASE AUTHORITY REGARDING THE STANDARD OF REVIEW IN PARENTAL TERMINATION CASES
• In 2002, the Supreme Court of Texas clarified the standard of appellate review for parental rights termination cases. See Interest of C.H., 89 S.W.3d 17 (Tex. 2002) (factual sufficiency); Interest of J.F.C., 96 S.W.3d 256 (Tex. 2002) (legal sufficiency). •These decisions resolved a deep division among the various courts of appeal as to whether an altered proof burden at trial required a different appellate review standard. See, e.g., James W. Paulsen, Family Law: Parent and Child, 54 SMU L. REV. 1417, 1466-67 (2001). •Accordingly, caution is advised when relying on court of appeals termination decisions issued before 2003. •As a general matter, pre-2003 decisions favoring retention of parental rights still are reliable. •Decisions upholding termination, on the other hand, should be treated with caution, as a now-disfavored standard of review may have been employed.
•There is some uncertainty regarding the precise elements of adoption by estoppel in the probate context. See, e.g., Luna v. Estate of Rodriguez, 906 S.W.2d 576 (Tex. App.-Austin 1995, no writ). •The Luna court held that proof of only two elements need be made:
•"(1) the existence of an agreement to adopt and (2) performance by the child." •The court rejected the idea that the child must show reliance on the agreement as a separate element, reasoning that a "child subject to an equitable adoption acts in reliance on its belief in its 'status' as a child, not necessarily in reliance on an agreement to adopt or on representations about adoptive status."
Statutory Overview of Voluntary Adoption Registries
•"Double blind" registry •Non-exclusive (can go thru courts) •Sealed court records can be accessed "for good cause under a court order" [162.022] •What is good cause? •Doesn't include possible inheritance •Mutual consent; voluntary •Can refuse at any time, even post contact notice [162.407(f)] •Counseling •Central adoption registry •Required to submit duplicates of materials [162.404] •Unauthorized disclosure = felony [162.421]
•The Legislature has set out detailed requirements for an affidavit of voluntary relinquishment of parental rights. •Reflecting the grave significance of such a procedure, Family Code section 161.103 includes 28 subparts. •The statute requires, among other elements for a valid affidavit:
•(1) a waiting period after birth; •(2) two witnesses; •(3) verification by the parent that termination of the parent-child relationship is in the child's best interest; •(4) designation of the person or agency to serve as the child's managing conservator; •(5) a statement that the parent has been informed of parental rights and duties; and •(6) a statement that the termination is irrevocable if that is (as here) the case.
•A valid common-law marriage consists of three elements:
•(1) an agreement presently to be husband and wife; •(2) living together as husband and wife; and •(3) holding each other out to the public as such. . . . •This law has been codified in the Family Code [Section 2.401].
•Collectively, these statutes provide that it is presumed that the appointment of "the parents of a child" as joint managing conservators is in the best interest of the child. To overcome this presumption, a court must find that
•(1) appointment of the parents would significantly impair the child's physical health or emotional development, •(2) the parents have exhibited a history of family violence, OR •(3) the parents voluntarily relinquished care, control, and possession of the child to a non-parent for a year or more [§§ 153.131(a), (b), .373].
•The Family Code specifies additional evidentiary factors that may be considered by a court in making a child support ruling. Pertinent to this appeal are the following factors:
•(1) the amount of the obligee's net resources, including the obligee's earning potential if the obligee is unemployed or underemployed; •(2) the age and needs of the child; •(3) child care expenses of working parents; •(4) whether either party has custody or managing conservatorship of another child; •(5) whether either party has housing or other benefits provided by an employer; •(6) provisions for medical insurance and payment of uninsured medical expenses; •(7) the special educational or health care needs of the child; and •(8) positive or negative cash flow from any real and personal property and assets. •See TEX. FAM. CODE § 14.054 [now §154.123]. •
•In determining whether the evidence is legally sufficient to support a best-interest finding, we "consider the evidence that supports a deemed finding regarding best interest and the undisputed evidence," and ignore evidence a factfinder could reasonably disbelieve. •We have previously articulated nonexclusive factors to be considered in determining whether termination of parental rights is in a child's best interest:
•(1) the child's desires; •(2) the child's emotional and physical needs now and in the future; •(3) any emotional and physical danger to the child now and in the future; •(4) the parental abilities of the individuals seeking custody; •(5) the programs available to assist the individuals seeking custody to promote the best interest of the child; •(6) the plans for the child by the individuals or agency seeking custody; •(7) the stability of the home or proposed placement; •(8) the parent's acts or omissions which may indicate that the existing parent-child relationship is improper; and •(9) any excuse for the parent's acts or omissions. •Holley v. Adams, 544 S.W.2d 367, 371-72 (Tex. 1976). •The Holley Court itself cautioned that "the list is by no means exhaustive, but does indicate a number of considerations which either have been or would appear to be pertinent." Id. at 371.
•For a trial court to terminate a parent's right to his children, the State must prove by clear and convincing evidence both that:
•(1) the parent committed an act prohibited under Texas Family Code section 161.001(1), and •(2) termination is in the children's best interest. See TEX. FAM. CODE § 161.001(1)-(2).
Interest of A.M. (TX SCt 2019) •As a statutory matter, the State of Texas cannot sever the legal bond between parent and child unless it proves, by clear and convincing evidence, that
•(1) the parent has committed one of the enumerated predicate acts, and •(2) termination is in the child's best interest. TEX. FAM. CODE § 161.001(b). •As a constitutional matter, courts have long acknowledged "the fundamental right of parents to make decisions concerning the care, custody, and control of their children." Troxel v. Granville, 530 U.S. 57, 66 (2000). •"This natural parental right [is] a basic civil right of man[] and far more precious than property rights." Holick v. Smith, 685 S.W.2d 18, 20 (Tex. 1985)
•The court shall dismiss a suit contesting a presumption of paternity filed by a man who is not a presumed father, but who alleges himself to be the biological father of a child, if:
•(1) the suit is filed after the second anniversary of the later of: •(A) the date of birth of the child; or •(B) the time the presumption of paternity came into existence after the child was born; *AND* •(2) the presumed father: •(A) has resided in the same household as the child in a father-child relationship or has established a father-child relationship with the child through his other actions; AND •(B) requests an order designating him as the father of the child. •The statute was designed to prevent the disruption in a child's life caused by a Johnny-come-lately who appears on the scene after significant emotional and psychological bonding has occurred.
•There are five requirements for termination under subsection (1)(C):
•(1) voluntarily left the child, •(2) alone or in the possession of another, •(3) without providing adequate support of the child, •(4) remained away for at least six months, and •(5) termination is in the best interest of the child.
•The privilege of a person's spouse not to be called as a witness for the state does *not* apply:
•(A)Certain Criminal Proceedings: In any proceeding in which the person is charged with a crime against the person's spouse, a member of the household of either spouse, or any minor, or in an offense charged under Section 25.01, Penal Code (Bigamy). •(B)Matters occurring prior to marriage. As to matters occurring prior to the marriage.
•TEX. PENAL CODE § 25.08. Sale or Purchase of Child (amended 2001, 2003)
•(a) A person commits an offense if he: •(1) possesses a child younger than 18 years of age or has the custody, conservatorship, or guardianship of a child younger than 18 years of age, whether or not he has actual possession of the child, and he offers to accept, agrees to accept, or accepts a thing of value for the delivery of the child to another or for the possession of the child by another for purposes of adoption; or •(2) offers to give, agrees to give, or gives a thing of value to another for acquiring or maintaining the possession of a child for the purpose of adoption. •(b) It is an exception to the application of this section that the thing of value is: •(1) a fee or reimbursement paid to a child-placing agency as authorized by law; •(2) a fee paid to an attorney, social worker, mental health professional, or physician for services rendered in the usual course of legal or medical practice or in providing adoption counseling; •(3) a reimbursement of legal or medical expenses incurred by a person for the benefit of the child; or •(4) a necessary pregnancy-related expense paid by a child-placing agency for the benefit of the child's parent during the pregnancy or after the birth of the child as permitted by the minimum standards for child-placing agencies and Department of Protective and Regulatory Services rules. •(c) An offense under this section is a felony of the third degree, except that the offense is a felony of the second degree if the actor commits the offense with intent to commit an offense under Section 43.25.
•TEX. PENAL CODE § 25.09. Advertising for Placement of Child
•(a) A person commits an offense if the person advertises in the public media that the person will place a child for adoption or will provide or obtain a child for adoption. •(b) This section does not apply to a licensed child-placing agency that is identified in the advertisement as a licensed child-placing agency. •(c) An offense under this section is a Class A misdemeanor unless the person has been convicted previously under this section, in which event the offense is a felony of the third degree. •(d) In this section: •(1) "Child" has the meaning assigned by Section 101.003, Family Code. •(2) "Public media" has the meaning assigned by Section 38.01. The term also includes communications through the use of the Internet or another public computer network.
How much child support should you pay?
•- most complex part of statutes •Guidelines - 154.121 •Intended to guide the court •Guideline amount presumed reasonable •Courts like, that means they are in good position for appeal •Also presumed in best interest of child • •Calculation? - 154.125 •20% net monthly resources/1 child •+5% per addition child to 5 (up to 40% cap of obligor's resources) •>$9,200/mo. - "high end support" •The guidelines cease when you get to this level. •Above this amount, your support obligation is based on the child's actual needs. •The needs of the child are determined in part by the child's prior standard of living •Net resources •Need minus guideline amount
•In the Interest of A.T.C., No. 07-08-0258-CV, 2008 Tex. App. LEXIS 9246, at *3 (Tex. App.--Amarillo Dec. 12, 2008, no pet.)
•. . . The six-month period is a period of at least six consecutive months. Id. at *3. Indeed, we find that case persuasive here as it is nearly factually identical. There, as here, the father was not interested in having a relationship with his son, who was eight years old at the time of trial. The mother testified that the father "had no contact with A.T.C. after he was one year old." Id. Neither the father nor his family provided support over the years and according to Attorney General reports, no child support had been paid since 2003. In finding that the evidence was both legally and factually sufficient, the court concluded "[t]he evidence is clear and convincing that [the father] voluntarily left A.T.C. in [the mother's] possession without providing adequate support and that [he] remained away for a period of six consecutive months." •The same is true here. The evidence is both legally and factually sufficient to support termination pursuant to Section 161.001(1)(C). [The other grounds did not have clear and convincing evidence]
2.401 - The 2-Yr "Rebuttable Presumption"
•2 year "Rebuttable Presumption" •What the legislature took out still exists - inference/circumstantial •What the legislature put in was ruled unconstitutional (the one year thing) •Instead, TX SCt holds that If you don't bring a lawsuit within 2 years of breakup, there's a rebuttable presumption that there is no agreement •However, this doesn't really change anything, because the same person has the burden of proof to prove the three elements •Thus, this statement doesn't really matter •The only reason for this was for the legislature to save some face. Wanted to fill the gap with something that wasn't unconstitutional. Just face-saving fluff. •To prove informal marriage, must prove all 3 elements by a preponderance of the evidence
Parental Termination: Abandonment
•Abandonment - •a) leave intending not to return •b) leave without "providing for" support for the child, for more than 3 months •EX: leaving with friend, family member, etc. •c) leave without providing support, more than 6 months •g) abandon with no means of identification •h) abandoned mother while she is pregnant •k) written relinquishment of parental rights •n) constructive abandonment - consists of various things, EX: aren't following court orders •s) leave a child with EMS provider (emergency room, firestation) •Abandoning a child in a way less likely to result in criminal charges
CHILD SUPPORT ENFORCEMENT
•About 25 years ago, Texas was #50 in the US in child support collection efforts •AG John Hill started exercising greater enforcement efforts. •AG office and Family Law section of the bar lobbied to get better statutes to enforce child support •Came up with support system statewide •State-run statewide collection system •All the checks go into state office, then disbursed to the child support obligees •Central registries where all support orders are filed •State unit that takes in the checks as they're paid (not paid directly to ex-spouse anymore) •State registry where every employer has to list everyone they've hired, which is helpful for going after deadbeats •Services and handling fee taken out of check, then check sent out to obligee •State keeps records of when child support is paid, how much child support is paid •Answers the problem that had plagued to family law courts when payments went directly from one spouse to another. •New system avoids the "he said, she said" situation •To help all of this, a printout of the official records in an exception to the Statute of Frauds •It is automatically considered evidence as an official record that is admissible in court •Encouraged to do electronic funds transfers instead of cash/check.
Coordinators & Facilitators
•Added to FC in 2009 •General Theory •Outside referees appointed by parties or court (collaborative law idea; TX was 1st in the US to adopt as a formal part of the statute) •Idea is that family law is too adversarial; opportunity for facilitators will make family law less harsh •Parties are supposed to get together, present problem to facilitator, things can be worked out by agreement when you have neutral outsiders who are giving perspective •Functionally defined •Facilitator is like a coordinator, except facilitator can testify in court as to what he learned in facilitation/coordination side proceeding. •Coordinator CANNOT give courtroom testimony •When used •On motion by Court or by agreement of the parties - 153.601 •Facilitator can only appointed in high-conflict, low-violence situation - 153.6051 •Cost: •Major problem: Rich couples or volunteers •Either you are representing rich people that can afford to pay these people for an extra court proceedings, OR •Volunteers willing to do for free
ADOPTION: Procedure: General Considerations
•Adoption is a lawsuit (so you can have finality, res judicata) •Can be combined with termination proceeding •It is preferentially set, try to fast track [162.0045] •Time requirements •Do have to have 6 months possession, unless waived - 162.009 •Pre and post placement Social studies completed •Divorce abates, but death does not [162.013] •No attack after 6 months [162.012] •Name change also available [162.016]
Child Support Affirmative Defenses
•Affirmative Defenses - burden on Defendant - 157.006 •Very few; general theory is that if you can't pay, you should go to the court and request modification. •Two circumstances where affirmative defenses typically happen •Obligee has relinquished child •Usually when parents have switched custody. •Defense to Contempt: inability to pay or get money (most common)
Conservatorship: Best interest of the child
•Always the primary consideration •No overall statutory definition of BIOC •It would be pretty difficult •Holley factors •Sets out list for determining BIOC •Statutory do's and don'ts •Cannot consider the sex or marital status of the person who is vying for conservatorship - 153.003 •In the old days, there was the "tender years doctrine" - that essentially meant men were considered less able to take care of toddlers; that really young children are better off with mom •There was a bias in favor of father once child hits 8 or 9 if the child was male •Single parents cannot be discriminated against •But it probably still does happen •Also includes "living together" status •Must consider family violence in conservatorship decisions, if there is any credible evidence - 153.004 •Doesn't mean that if you have a history of family violence you automatically lose conservatorship, but you will have to convince judge that there will not be violence in the future. •Includes accusations of sexual abuse •If you make a false accusation, that will weigh against you heavily •Quasi-generic list for JMC
NO-FAULT DIVORCE
•As already mentioned, and in line with a trend that swept the nation in the 1960s and 1970s, Texas adopted an additional ground for divorce that massively changed the contours of litigation — insupportability or "no-fault" divorce. The Family Code now states: •On the petition of either party to a marriage, the court may grant a divorce without regard to fault if the marriage has become insupportable because of discord or conflict of personalities that destroys the legitimate ends of the marital relationship and prevents any reasonable expectation of reconciliation. •TEX. FAM. CODE § 6.001. •This ground now is pled in virtually every Texas divorce. It is no exaggeration to say that the easy availability of divorce without proof of fault, or much in the way of defenses, has drastically changed the landscape of marriage. •In Texas, as elsewhere, "no-fault" divorce has been attacked on a wide variety of constitutional grounds, none of which have been successful — at least to date. •For the most part, constitutional challenges never were given serious consideration. See, e.g., Saltarelli v. Saltarelli, 670 S.W.2d 785 (Tex. App.--Fort Worth 1984, no writ); Trickey v. Trickey, 642 S.W.2d 47 (Tex. App.--Fort Worth 1982, no writ); Hopkins v. Hopkins, 540 S.W.2d 783 (Tex. Civ. App.-Corpus Christi 1976, no writ). •The somewhat more recent case that follows is a typical example of this cursory treatment of constitutional issues, with the exception of a thoughtful dissenting opinion.
CURRENT LAW ON INHERITANCE FROM ADOPTIVE FAMILY.
•As presently worded, the Texas Family Code states that an adopted adult "is entitled to inherit from and through the adopted adult's adoptive parents as thought the adopted adult were the biological child of the adoptive parents." TEX. FAM. CODE § 162.507(b).
Gestational Agreements: Requirements for Gestational Mother
•Gestational Mother •Cannot use her own egg •At least one previous successful pregnancy •If married, the spouse of the gestational mother must give consent (good old days of coverture!) •If marries later, doesn't count •Spouse party to core proceeding (coverture again)
EMBRYOS AS PROPERTY.
•As the Roman opinion points out, the trial court characterized the frozen embryos as the couple's community property, perhaps because the agreement itself specified that the embryos would be "joint property." •In a 2012 decision on a marginally related issue, the Supreme Court of Texas noted Roman in passing and stated: "The court of appeals only decided that agreements regarding the disposition of frozen embryos before cryopreservation do not violate public policy. It did not decide whether embryos are in fact property." Evanston Ins. Co. v. Legacy of Life, Inc., 370 S.W.3d 377, 386 (Tex. 2012). •Are there any problems with considering the embryos to be property? Would there be any problems with alternative characterizations?
THE TEXAS GRANDPARENT VISITATION STATUTE.
•As the Supreme Court of Texas noted, the Texas grandparent access statute was amended several years after the United States Supreme Court's Troxel decision. •The current version of the statute is TEX. FAM. CODE § 153.433. Based on what can be gleaned from the preceding decision, did the Texas Legislature cure all constitutional infirmities? •Grandparent Access: Key Provisions - 153.432 •New version of statute says that you have to show a significant impairment of physical or emotional development •Preponderance of evidence standard for proving that the grandparent should have access •[prof. Thinks clear and convincing standard would be more likely to be found constitutional by US SCt] •
FELONY CONVICTION AS GROUND FOR DIVORCE.
•As the Wright court notes, conviction of a felony was not sufficient ground for divorce in early Texas. Thus, in Sharman v. Sharman, 18 Tex. 521 (1857), the wife was denied a divorce even though her husband — a convicted forger — had been sentenced to a seven-year prison term and she was left without adequate means of support. •The wife's attorney had argued: •We shall not contend that the conviction and confinement in the penitentiary, in all cases, is sufficient to entitle a party to a divorce . . ., but we do most respectfully submit, if, where that conviction stamps the offender with an offense which forever blackens his character, as in this case, whether or not to compel a lady of refined feelings and character to be tied down during a long life, to one whose character is blasted and has no standing with honorable men, and to compel her against all her finer feelings, to embrace one she cannot respect, love, honor or obey, is not within the spirit and meaning of our statute, such ill treatment and outrage, as to render their living together as man and wife insupportable. •The Supreme Court of Texas rejected out of hand the contention that commission of an act resulting in a prison sentence and inability to provide support constituted cruelty or ill treatment, or that it was tantamount to voluntary abandonment. It was not until 1876 that felony imprisonment was added as a ground for divorce. See TEX. FAM. CODE § 6.004. Long-term confinement in a mental institution also is ground for divorce. See TEX. FAM. CODE § 6.007. •In a time and place in which married women were barred from most jobs, and in which social welfare programs did not exist, what were Mrs. deprived of contractual authority and closed off from most jobs, what were Mary Sharman's options?
•(SUBSECTION Q): INCARCERATION FOR MORE THAN TWO YEARS. •Subsection Q of Family Code § 161.001(1) permits termination of parental rights if the parent has "knowingly engaged in criminal conduct that results in the parent's imprisonment and inability to care for the child for not less than two years from the date of filing the petition." •The statute contains a potential ambiguity: Must the state wait until the parent already has been incarcerated more than two years before securing termination of the parent's rights, or is a criminal sentence of two years or more sufficient to invoke the statute? •In the former case, the state might risk dismissal of a termination proceeding because the Family Code generally requires that a final order be rendered within 12 months of filing. See § 263.401 et seq. In the latter case, a parent's rights might conceivably be terminated even if the parent is for some reason released from prison before two years have passed. Understandably, the courts of appeals were divided.
•As the principal case notes, in Interest of A.V., 113 S.W.3d 355 (Tex. 2003), the Texas Supreme Court settled the controversy, ruling that the phrase "two years from the filing of the petition" in the statute indicated that the statute should be read *prospectively.* The Court explained: •In reading subsection Q to apply prospectively, the subsection fills a gap left by other grounds for termination. A prospective reading of subsection Q allows the State to act in anticipation of a parent's abandonment of the child and not just in response to it. Thus, if the parent is convicted and sentenced to serve at least two years and will be unable to provide for his or her child during that time, the State may use subsection Q to ensure that the child will not be neglected. 113 S.W.3d at 360. •The Court also dismissed an argument that considering incarceration before the statute's effective date violated constitutional rights. Throughout, the court emphasized that "the primary focus is protecting the best interests of the child." Id. at 361. •Are there any other arguments that could have been raised, or that could be raised in the future, regarding the constitutionality of the statutory provision? Does the Texas Supreme Court's interpretation of the statute in the principal case follow the standard set out in Holick v. Smith, supra? •Remember: need two things; a statutory ground and BIOC. •Here, TX SCt is using the BIOC to interpret the statute prospectively •Prof thinks that a Due Process claim here would have a good chance of success. •Wealth-based statute. We've abolished debtor's prisons. Basically based on ability to pay for child while in prison. A wealthy person can meet the requirements, but a poor person can't.
CURRENT LAW ON INHERITANCE FROM BIOLOGICAL PARENTS.
•Before 2005, the Texas Family Code stated that an adopted adult "retains the right to inherit from the adult's biological parents," but that the biological parents could not inherit through the adopted adult. •The Code now reads: "The adopted adult may not inherit from or through the adult's biological parent. A biological parent may not inherit from or through an adopted adult." What public policy reasons support this change?
Interest of A.M. (TX SCt 2019) •FACTS: Unimportant, except that appeals court based its termination ruling in part on corporal punishment •ISSUE: Can reasonable corporal punishment be a BIOC reason to terminate? •
•Blacklock & Devine: No •Is parental control over children a fundamental right? •Cites Declaration of Independence? •Supreme Court, opinions? •"[T]he right of parents, in relation to the custody and services of their children, are rights depending upon the mere municipal rules of the state, and may be enlarged, restrained, and limited as the wisdom or policy of the times may dictate." - Joseph Story, 1816 •"Termination of parental rights has rightly been called the civil death penalty." •If so, why don't we use death penalty standards of evidence and review? •
Gestational Agreements: Requirements for Intended Parents
•Both consent •Have to be married (strange in a time where children born out of wedlock have no disabilities; putative fathers have rights, etc.) •Have to prove that mom can't bear children on her own with unreasonable risk (lots of wiggle room here) •Mental health check •Home study of intended parents as if they were adopting a child •Unless waived
Proving Endangerment •Burden of Proof/Standard of Review
•Burden for Trial Court - *Clear and convincing evidence* •FC 101.007: The measure or degree of proof that will produce in the mind of the trier of fact a firm conviction or belief as to the truth of the allegations sought to be established. •Burden for Appeals Court: *Legal Sufficiency Review (no evidence standard)* •Reviewing court looks at all the evidence in the light most favorable to the finding to determine whether a reasonable finder of fact could have formed such a firm conviction or belief •Preponderance - more than likely (51%+) •Beyond a Reasonable Doubt (90%+) •Clear and Convincing: somewhere in between. About 70%
Protective Orders
•Can be enforced outside state lines if they are written clearly •Must have evidentiary support •Petition must disclose order status and past order - 6.405 •Only one at a time, so you don't have conflicting provisions •Court required to inform when appropriate to the person who has had an order issued - 6.404 & 105.001 •Scope: includes dating relationships [71.0021] and family [71.003] •Court shall render if violence (a) has occurred in the past, and (b) is likely to occur in the future [81.001]; •Threat counts as violence [71.0021, 71.004] •There can be significant hesitancy by the court; tendency to "give dog one bite"; but this is changing as awareness of family violence has increased •Free for applicant; paid by violent party [81.002 - .006] •TRO equivalent (ex parte order) possible [Ch 83] •Wide ranging options in order: •counseling, •no contact, •no guns if you are subject of order (mandatory as of 2009), •safe zones (EX: not within 500 yards of victim's home, church, etc.) [85.022] •Can be tailored to individual circumstances •2 year duration default
ADOPTION: Relation to termination
•Can combine adoption with termination [162.001(b)(1)] •Does death equal termination? Probably •How does one terminate an unknown parent's rights? •For father, default judgment if not registered but cannot be located or served [161.002] •Statutes don't address situation where you don't know who the mother is •Unknown mother? "Jane Doe" procedures? •Six month "statute of limitations" for challenge [162.012]
•Differences between Statutory/Equitable Estoppel?
•Child doesn't have to have representation •others? Clear and Convincing evidence Statutory general used to stop DNA testing to presumed fathers; whereas equitable can be used even if DNA testing has already happened.
•What cuts off child support obligation?
•Child's death •Emancipation - disabilities of minority removed •Enlistment in military •Remarriage - NOT marrying someone else; really only if the people who got divorced remarry each other, child support terminates. •Obligor death? •Accelerates total anticipated obligation and collect as lump sum; debt of estate •Unless life insurance court order •Fairly common in divorce decree
SURROGACY/GESTATIONAL AGREEMENTS.
•Complicated as Sullivan and Roman may be, they involve only two potential parents, one of whom is the birth mother. Advances in medical technology also now permit surrogacy arrangements, in which the biological mother may be carrying to term a fetus that is not biologically related to her. •Gestational Agreements: Mechanics •Court-supervised lawsuit/contract. •Means if you later challenge you are trying to overturn a court judgment (same as adoption) •Have to file a lawsuit - 160.755 •1st court hearing to validate agreement - 160.756 •Prior determination of parentage •Completely discretionary 160.705(d) •2nd court hearing to finalize •File notice of birth with court, within 300 days •If claim that kid comes from another source, gene testing - 160.760(c) •
Void marriage
•Consanguinity (including adopted) •Father-son •Sibling •Uncle or aunt •Step or ex-stepchild •Nephew or niece •(NOT on the list - first cousin?) •Most states permit first cousin marriage •Bigamy •Underage •Same-sex (not constitutional, if still on the books)
CONSERVATORSHIP: MODIFICATION P.301
•Conservatorship Modification - 156.101 •General: Conservatorship, or any term, can be modified if: •Child's best interest •Circumstances have materially or substantially changed since the date of the last order •Child, conservator, other party affected by the order •Specific: can also modify if •Child over 12 expresses preference to judge •This is material and substantial change •Conservator w/sole right to pick residence (primary or SMC) has voluntarily relinquished primary care for 6 months (not including military deployment) •Child abuse/family violence conviction [156.104 and .1045] •Exception [156.102] - if it's been less than a year since the last conservatorship order, must file an affidavit that •environment "may endanger" physical health or "significantly impair emotional development, OR •Primary parent is asking, or has given up kid of 6 months AND modification is in BIOC
Children: Jurisdiction and Residency
•Core concept: Continuing, exclusive jx •Basic test: where child resides - 103.001 •Exception 1: Another court has continuing exclusive jx; court continues to have jx for 6 months - - 103.001(a)(1) •Exception 2: divorce trumps - 103.001(a)(2) etc. •Exceptions handled by venue transfer - 103.002 •Jurisdiction usually through final order - 155.001 •Transfer - 155.201+ •Required if child residences in another county for more than 6 months •Discretionary: can transfer for the convenience of parties, witnesses and interest of justice •Often, the two judges just get on the phone and discuss which is better venue •Paper hearing
SUPPORT OF DISABLED ADULTS (p. 337) Interest of D.C. - TxSCt 2018 •Not actually a court opinion; a concurrence denial of petition for review •Used to be uncommon, becoming more common •FACTS: Support of disabled adult. Motion for modification. Autistic, high functioning, but living on his own and pursuing a master's after graduating with a double major.
•Court does not modify, but does order Mom to apply for govt services that could apply. •Child support can go on indefinitely if child is disabled, not capped at age 18, etc. •What if she doesn't apply? Get a second motion to modify in the reasonably near future, or a motion to enforce contempt motion •Petition denied, but Justice Guzman highlights statutory ambiguities; warns about possible judicial action if legislature doesn't clean it up •Issues: •What is a disability? Do we make up on case-by-case basis or do we follow Federal guidelines? •Expert testimony required? (None here) •To prove or disprove disability. •A bit odd to say that just the parties to the case can testify on whether someone is disabled or not. Usually would have expert witness in a situation like this. [In MedMal you are required to have expert] •However, here the parties don't have a lot of money, and experts cost a lot of money. •Evidence requirements? •If you don't have to have expert testimony, what are the evidentiary requirements? How much do you have to have sworn to, etc.? •What is "material and substantial change" in this context? •[since this is a modification proceeding] •The mom argues that the child has always been autistic and always has been high functioning. Otherwise child would have never graduated from high school, college, etc. •This area lacks case law; otherwise Justice Guzman would have mentioned. •Professor was delighted this case came up because it highlights an area that needs attention.
ADOPTION: "Best Interest" Statutes
•Court grants if in child's "best interest" [162.016(b)] •Social study [162.003, 107.151+] during 6 month provisional adoption (probationary period) •Qualified private contractor or agency [107.0501?] •Data includes: interviews with all, child and home observations, and "obtaining of information from relevant collateral sources" [107.109(a)(4)?] •Post-adoption study also (w/in 6 mo. tryout) [107.052] •Usually paid by petitioner •Criminal background check [162.0085] •Managing conservator or child > 12 yr must consent (unless waived)
Child Input in Conservatorship - 153.009
•Court interview •Over 12, required on request by party that child be interviewed •Under 12, discretionary with court •Typically takes place "in camera" (in court's chambers, outside of jury's hearing) •Over 12, child's written preference serve as "material change" in circumstances sufficient to warrant modification; allows to skip through evidentiary proof
Military Deployment [Expanded 2009-11]
•Courts are authorized and encouraged to make Temporary conservatorship orders for deployment - 153.702 •If residential conservator deployed, that person can designate a temporary replacement conservator - 153.703 •Same idea on possessory conservatorship (visitation); can have someone exercise visitation on your behalf •Temporary support modification (child support orders). - 153.706 •EX: if you are getting less pay in military •Make-up possession or access; increased access when you are home. Make-up time.
Ince v. Ince, 58 S.W.3d 187, 188 (Tex. App. 2001) Dissent (Vance) •1. This is extrinsic fraud •2. Public policy (DNA supreme)
•Dissent argues that Bill of Review can apply since lies took place before court proceedings; also, DNA testing is a more conclusive method of finding conclusive truth than court proceedings •Furthermore, Section 70 of the Restatement (Second) of Judgments, "Judgment Procured by Corruption, Duress, or Fraud," provides: •(1) Subject to the limitations stated in § 74, a judgment in a contested action may be avoided if the judgment: •(a) Resulted from corruption of or duress upon the court or the attorney for the party against whom the judgment was rendered, or duress upon that party, or •(b) Was based on a claim that the party obtaining the judgment knew to be fraudulent. •(2) A party seeking relief under Subsection (1) must: •(a) Have acted with due diligence in discovering the facts constituting the basis for relief; •(b) Assert his claim for relief from the judgment with such particularity as to indicate it is well founded and prove the allegations by clear and convincing evidence; and •(c) When his claim is based on falsity of the evidence on which the judgment was based, show that he had made a reasonable effort in the original action to ascertain the truth of the matter. •RESTATEMENT (SECOND) OF JUDGMENTS § 70 (1982). The comments to section 70 show that the distinction between extrinsic and intrinsic fraud must be carefully defined and applied and that the ultimate goal of revisiting a judgment is to search for "incontestable proof as to truth of the underlying matter in issue." Id. § 70 cmt. d. •Derek's petition for review of the judgment asserts that it was based on a claim that Virginia, the party obtaining the judgment, knew to be fraudulent, i.e., her claim that Derek was the biological father of her child. Id. § 70(1)(b). It further asserts facts that meet the requirements of subsection (2) of section 70. Id. § 70(2). Derek believes that he can show by clear and convincing evidence, i.e., a DNA test, that the judgment is erroneous. He should be permitted that opportunity at a trial on the merits of his petition. Otherwise, we "compound the injustice of its result on the merits with the injustice of the means by which it was reached.
Rights & Duties During Possession - (153.074)
•Duty of care, control & discipline •Duty to support •Right to consent to emergency & nonintrusive medical care •Right to direct moral and religious training •UNLESS otherwise ordered
Protective Order Enforcement
•Eliminates major restrictions on TROs and injunctions (because they were considered ineffective) •No problem excluding from family home (but not ex parte) •Includes dating/unmarried persons •Replaces contempt with criminal penalties •Violation of protective order is a Class A misdemeanor - 85.022 •1 year prison and/or $4000 fine - Penal Code 25.07 •Required to arrest on probable cause - penal code 14.03 •Family domestic violence situations are more likely to be dangerous for police •People get outraged that police are interfering with their families •Police have digital access to orders; individualized criminal statute (more or less) •Centralized database; get direct online access to the language of protective order •Protective orders act as individual tailored criminal statute
Parental Termination: Endangerment
•Endangerment •d) knowingly place a child in a dangerous environment •e) knowingly place a child with bad people •Hard in reality to separate bad environment and bad people •Often suit will allege both •So common, it is often referred to as a "D & E lawsuit" •l) convicted (or come close to conviction) on a crime against children •m) prior (d) or (e) term. •If you've already had your rights terminated on D or E grounds, then you can bring (m) immediately •Still have to prove BIOC •p) drug use endangering, AND after court tries rehab •Courts typically look for alternatives first (foster care with bio parent getting visitation) •r) if you are using drugs and give birth to drug-addicted child •t) murder, attempted, or sexual assault of other parent •u) probation, etc. for sexual assault of other parent
•Procedure: Motion to Enforce - 157.001
•Enforce as you would any other court judgment - 157.264 •As with all aspects of family law, unless there's something specific in the FC, you can handle as you would any civil case •Support lien (pre- or post-judgment); Garnishment, attachment, sequestration, etc. •Must be specific for contempt •As Acker points out, you have to have a really specific order. •Cannot be ambiguous, because if you are going to put someone in jail for contempt, that is a quasi-criminal action and you've got to at least meet criminal standards in specifying crime (here, the contempt motion) •Must give specifics on contempt and how you can purge yourself of contempt •Free lawyer if incarceration possible as in any other case where jail time possible •Probation possible •Hold over obligor's head. If they fall behind while on probation, you've got a ready-made jail time order
Temporary Restraining Orders and Injunctions
•Enforcement by contempt - 6.506 •Including criminal contempt which can include up to 6 months in jail •2015 amendment says a final divorce order may omit required info (SSN, residence [might be in a shelter, etc], employer, etc) if family violence is likely
TERMINATION PROCEDURE: In the Interest of T.C. (Tex. App. 2006) •Notes •Post-trial hearing determines whether (a) new trial, (b) indigent, and/or (c) frivolous
•Frivolous - unique to family law cases in TX •If determined frivolous, only limited appeal and no free record of actual trial, but record of that hearing "without advance payment" •Plus, court can order full record if necessary to determine if the appeal is frivolous. •Lots of evidence here, and law allows 10-2 jury question •Apparently no constitutional question raised on 10-2 jury verdict point.
What are the elements of equitable estoppel?
•Equitable estoppel is based on fair dealing, good faith and justice. •Equitable estoppel may arise if five factors are satisfied: •(1) there was a false representation or a concealment of material facts; •(2) made with knowledge, actual or constructive, of those facts; •(3) to a party without knowledge, or the means of knowledge, of those facts; •(4) with the intention that it be acted upon; and •(5) the party to whom it was made must have relied on the misrepresentation to his prejudice. •The theory is that a person who by speech or conduct induces another to act in a particular manner should not be permitted to adopt an inconsistent position, attitude or course of conduct. Id. Each case must be determined upon its own facts.
In re Shockley, (Tex. App. 2003)
•FACTS: one woman, two boyfriends. Woman lies. Gets DNA tests only when ex-boyfriend might get custody. •Presumed father was lied to; but already has relationship with child. •Only finds out he's not real father during custody proceeding. •HELD: woman equitably estopped • •Could Kevin use estoppel statute to block Damin from establishing his paternity? •No, not presumed father •Could Kevin use equitable estoppel to block Damin from establishing his paternity? •Yes, assuming elements met •But, statutory construction (expressio) •And constitutional problems?
DIVORCE GROUNDS
•FC 6.001 •Standard old grounds: cruelty, adultery, criminality, abandonment, living apart, confinement to mental hospital (with little chance of getting out) •No fault came to Texas around 1970, like the rest of the country •Makes a lot of the old grounds irrelevant •No fault divorce hasn't been as good as some thought it would be
Interference with Child Custody
•FC Ch.42 •Interfering with custody, or assisting party (often parent of person violating order. EX: hiding kid in grandparents' home) •Can win costs for locating and returning, plus attorney's fees against person interfering, or assisting with interference. •Often they do have some money •Mental anguish damages (similar to IIED), plus exemplary if malicious •Criminal Interference (Penal Code 25.03) •Equivalent sometimes of criminal false imprisonment •Felony for knowing interference •3 day grace period •Common law remedies •False imprisonment •Defamation •Civil Contempt; writ of habeas corpus to recover child •Federal Laws - Parental Kidnapping Act (taking child over state borders), etc.
Temporary Restrictive Orders (TROs)
•FC permits TRO without notice - 6.501 •Emergency proceeding; •Go to judge for hearing; judges on call 24/7 •Extended form provisions, including threats, harassment, injury - 6.501 •Lax requirements (no oath, etc.) - 6.503 •2015 amendments •Strengthen 6.501 by covering all sorts of communication, including electronic (online harassment); not just phone and writing •Also prohibits cutting off utilities as a form of harassment •TRO cannot exclude one spouse from home, unless part of a family violence protective order - 6.501(b)(2)(A) •Weakness of TRO •Temporary orders for SAPCR limited to child's safety - 105.001
CHILD SUPPORT: APPEAL FACTORS
•Factors to Consider on Appeal: •Basic Presumption: guideline amount is reasonable - 154.122(a) •Deviation from guideline amount allowed •If "unjust or inappropriate" - 154.123(a) •Evidentiary hearing - 154.123(b) •Hearing is supposed to be tied to statutory factors you should discuss (17 factors) - 154.123 •Fact Findings required before you can appeal •Ask: hearing or within 10 days - 154.130(a) •If you don't ask, every presumption will be indulged against you •Ask at the hearing, or within 10 days following the hearing •Always the loser that asks •Court is Required to issue fact findings if the support ordered deviates from the guidelines* - 154.130(a)(3) •[*if total can be justified by high end support, not a per se deviation; findings only on request] •Specific resource numbers + math - 154.130(b) •Appellate review: •General: abuse of discretion •But: evidence must support •Remember the TxSCt three years ago approved specifically a two-step process •Also a requirement that there be supporting evidence, and that there be findings that spell out how the court dealt with the evidence and essentially connect all the dots •This is not a classic abuse of discretion appeal and ultimately what the TxSCt has decided is that the first question is: Is there enough evidence on which the TCt can exercise intelligent discretion; second: was exercise of discretion so bad as to be an abuse of discretion
Pleading and Procedure
•Family Law Pleadings •Lawsuit Caption (don't always actually see it) •Should be referred to in the following form: •- "In the Matter of the Marriage of" - 6.401 •- "In the Interest of _____, A Child" - 102.008 •Divorce Pleading - 6.402 •OK to just track the statute; no special exceptions •Courts prefer that the pleadings not get into gory details •OK to strike evidentiary pleadings; sua sponte •Non-statutory gloss: liberal interpretation •Initial Confidentiality •Kept secret for 31 days, or until service on the responding party (or for counties of 3.4 million or more: only Harris County) - 6.411 •- Ditto SAPCR proceedings - 102.0086 •
TRADITIONAL FAULT-BASED GROUNDS FOR DIVORCE.
•For most of the state's history, a spouse seeking a divorce had to prove fault on the other spouse's part — typically cruel treatment, adultery and long-term separation or abandonment. See TEX. FAM. CODE §§ 6.002, 6.003, 6.005 & 6.006.
Standard Possession Order
•For possessory conservatorship (presumptive minimum for lessor of two JMC) •1st, 3rd, 5th weekends •Starting Thursday at 6pm or dismissal during school year (at PC's option) - [153.312 + 153.317] •Plus adjacent school holidays - [153.316] •Every Thursday PM (at PC's option, overnight) •Alternating spring breaks, holidays •30 day minimum during summer; July default •PC election, on written notice •MC gets one weekend visit during that 30 day period of PC •If divorced parents live more than 100 miles apart, as above or if that doesn't work, then: •1 weekend + every spring break + 42 summer days (PC gets to decide which) [153.313] •There is NOT a standard order for kids under 3 years old - [153.254] •Mother typically gets much more time. •prospective order required for what happens once child turns 3 years old (to avoid having to come back to court, if possible) •Most divorced parents work out details/deviations without going to order unless things get bad between them and/or they are wealthy enough to take to court.
Gestational Agreements: Requirements for all
•General Requirement •Informed consent from all •14 day cooling off period to back out of contract •Can't contract around health of gestational mother •Allocate costs in advance •No sex (no self help gestational agreements....haha) •Cannot pay her beyond cost of service
Conservatorship: Role of Guidelines
•Guide the court - 153.251 •Standard possession order - 153.252 •Rebuttably presumed "reasonable minimum" •Rebuttably presumed in child's best interest •For either PC or JMC •If standard order unworkable, supposed to get as close to standard as possible •Age, needs, circumstances of conservators, best interests, anything else [153.256] •If court deviates from guidelines, specific fact findings justifying the deviation are required in required at oral hearing or in writing within 10 days thereafter - 153.258
Interest of N.T. - El Paso 2011, p326 •FACTS: Omar, basketball player, meets Leah at UTEP. After graduation, wanders around, trying to break into NBA. Child needs chemo. Omar says he makes under minimum wage as player in European leagues. Leah says earns much more. Doesn't work during summers. No records, basketball league doesn't have much to show. He's bragging at home what a big deal he is; but in court he says something different. •ISSUE: Can you impute income to him? What about paying him paying arrearage?
•HELD: Affirmed - good case law here •Abuse of discretion standard of appeals review; two part test •1) sufficient info to exercise its discretion (sufficiency review) •2) whether the TCt erred in its application of that discretion •Arrearages generally can go back 4 years •Upon a finding of parentage in a paternity action, a TCt may order retroactive child support - 160.636(g); going back 4 years - 154.131(c) •Should consider net resources during time period •Omar produces no records; TCt entitled to believe Leah regarding what Omar was earning in the past. Obligation is on child support obligor to keep records. •Court didn't believe Leah fully, or didn't think would be fair •Could have ordered $50k, ordered 30k instead •Case also good on intentional underemployment •Omar also challenges the fact that the TCt deviated from guideline child support requirements •Omar cites no case law; and the TCt is within its discretion to believe the mom
In re RDY - (Tex. 2002; review denial dissent) [p. 297] •FACTS: Mom SMC. Dad and Grandma (mom's mom) move to appoint Grandma SMC. •TCt appoints all as JMCs, but gives Grandma's "sole discretion" to determine whether Mom is "mentally and physically capable of properly exercising her visitation"
•HELD: Appeals Court holds no abuse of discretion; 3 Tx SCt question and note division of appeals court •Prof thinks this is an abuse of discretion; wrote amicus brief to that effect. •"In the present case, amicus curiae, Professor James W. Paulsen, also argues that giving a managing conservator of a child sole discretion to determine visitation and possession is an impermissible delegation of the trial court's authority and may also have the effect of shielding the decision from any meaningful appellate review."
In re BGD - Fort Worth 2011 •Remand of previous case (Derzapf) •FACTS: remand of major decision (derzapf). Grandma (dead wife's mom) tries again to get visitation. Tension (life accusing dad of hastening mom's death). Dad pretty much cuts off contact •ISSUE 1: Does Grandma lack standing, because visits not totally prohibited? •Courts are pretty broad and liberal on who has standing; but standing does not mean that there will be access at end of the trial •ISSUE 2: Did TCt err by granting visitation?
•HELD: Goes to merits, not standing• HELD 2: Yes, evidence not sufficient •Discussion: •Same evidence that TX SCt found insufficient; being brought up again by TCt •No evidence that denying access to Grandma alone will "significantly impair" •Expert saying distraught not sufficient to establish significant •Review standard is "abuse of discretion," but no discretion applying law to facts
Melton v. Toomey - San Antonio, 2011, p.332 •FACTS: Child Support Modification •ISSUE: "Material and substantial change"?
•HELD: Melton did not prove •In general, courts use "before and after" analysis •Look at what things were like before order, and what they look like today •In support modification proceedings, you are not asking if first order was fair or not (that's for appeals court); modification courts are just looking at what was then, what is situation now •Evidence here does not establish any actual change. •Discussion: Role of guidelines in modification •San Antonio says discretionary; courts are divided on whether guidelines are presumptively correct •Do the guidelines still apply? •In this case, the court says discretionary, just a guide •But in the original setting of support, they are the presumptive amount of support, and presumptively in the BIOC. •If court deviates from amount, should have evidence why deviation was appropriate
Sutphin v. Sutphin (Amarillo 1998, pet. denied) [p. 255] •FACTS: child custody, jury trial. Attorney ad litem for children uses all 6 peremptory challenges to strike women jurors •Batson: can't strike jury on racial grounds •ISSUE: Does this violate civil version of Batson? •[Batson: can't strike jury on racial grounds]
•HELD: NO. •Explanation for strikes is adequate. Attorney had reasons that were legitimate •Just needed facially plausible reason that doesn't involve the sex of the juror •Women ended up on jury anyway •Query: What's the discrimination? •Assumed women would favor women seeking custody •Correct? Not at all certain that this is actually true •Recalls "tender years doctrine" - that very young children are better off with mother
Guardianship of CEM-K(San Antonio 2011, no pet.) [p. 299] •FACTS: Ex-stepfather arguably had neglected the children by not reporting Mother's misconduct, and had deferred adjudication for assaulting Mother while defending his son from being beaten by Mother. •ISSUE: Does neglect or family violence preclude Ex-stepfather's appointment as managing conservator?
•HELD: No •TCt had discretion to decide not enough evidence to establish a "pattern" of neglect •TCt found ex-stepfather had completed anger management classes, extenuating circumstances (the fact that there was only one incident of violence, which occurred as a result of the mother attacking the child. He was just defending the child). •Plus, countervailing considerations ("best interest" of child to stay with half-sister)
Stringfellow v. Stringfellow, Eastland 2017 •FACTS: "this case involves a simple miscalculation of child support." Mom did not prove the needs of the children. Therefore, guideline amount calculated on the basis of $8550 gross wages, not the $14,500 MNR (monthly net resources) actually proved •ISSUE: Did TCt calculate support correctly?
•HELD: No •$8550 is a cap, not a starting number •Required to deduct insurance from that amount, even though Mom argued (correctly) that he had a lot more money •A: the amount $ available is not the issue, the guideline amount is the issue. •Problem in the case is that mom never proved actual needs of the child, so unable to get "high end" support.
Interest of Sanders - Amarillo 2005; p.329 •FACTS: Paternal parentage and retroactive support proceeding. Child born 1984 to Rolisa and Sanders. Sanders married to another the entire time. Relationship continues to 1991. Suit brought to 2003 for arrearage. •Issue: Amount of support awarded wrong?
•HELD: No •Court entitled to assume Sanders (H) is earning most (or all) the money (10-year average) •Ordinarily not proper, but evidence in dispute •Guidelines are just a guide for retroactive support •The Amarillo ACt: can't determine with precision the dad made in past decade, the guidelines are just a guide; •*Fair reading of the statute as such, but there is room for interpretation. Even if the guidelines are just a guide, courts are usually more comfortable following* •Lots of discretion; "shall consider" past voluntary payments does NOT mean that the court must credit past payments in calculation of retroactive support obligation •Plus, house and car could have been to facilitate affair •Bought her a house and car, he says it proves he's a good father, but court responds this could just be for affair •Business losses (unless self-employed) don't necessarily factor into net resources •Note •Mom brought suit very close to child's 18th birthday •Waited a long, long time to establish parentage and retroactive support •Probably kid is getting ready to go to college, and mom is trying to find money •No retroactive support while relationship continued (i.e. only 1991 forward) •Fact that dad bought house and car while in the relationship means that if you give money for that period, you might be "double dipping"
Abalos v. Abalos, Eastland 2013 •FACTS: court sets Willie's support obligation at $2100, plus $3400 for private school tuition (total tuition is $5400). Main problem in case; court did not file fact findings or conclusion of law •ISSUE: remand for findings? •HELD: No. Willie did not show date request or whether past-due notice was made per Rule 297. His word is not enough. •ISSUE 2: private school tuition? •
•HELD: No •Only evidence of "proven needs" is tuition. Total support exceeds by $100/month •The $3400 for private school tuition is not proven; have to show proved needs of child are actually up to the amount that the court is ordering. Not just tuition; have to prove that the generalized support obligation ($2100) is also justified. Don't have to do that for guideline support obligation; but when you get into high support, you do have to prove it. Not just guideline amount, and that amount above. •In this case, if you work out the math, the amount exceeds proved needs by $100 •Can't take judicial notice of evidence in earlier proceedings without transcript •Discussion •What happens on remand? •Predictable: likelihood in average appeal, that it will take long enough that can make motion for new child support based on new evidence.
Cole v. Joliet - one of Paulsen's favorite cases b/c Joliet was his legal secretary •FACTS: Motion to modify support, based on increase from $5k to 38k per year; support increased only $50 per month. Dad filed motion to decrease support; Mom files counterclaim to increase.
•HELD: No abuse of discretion in denying both appeal and cross-appeal. •Dad: Mom's $ and child not going hungry do no justify deviation. •Should deviate downward. •Mom: facts not stated include Dad lying about income 3 times, 3 separate proofs of $120k income (loan statements, expense analysis, tax tables) •He's spending $120k per year, but says he's only making $38k. •What is "material and substantial"? •Do guidelines matter? 156.402 •Wasn't really raised in the case, but pretty clear the judge would've stuck with guideline amounts under any circumstances
Elk Grove USD v. Newdow - US SCt 2004 •Rare case where US SCt talks about conservatorship •Synopsis: Constitutional standing of a possessory conservator. •ISSUE: How many constitutional rights does a PC have? •Parent-child relationship bond is fundamental right •Each parent has a constitutional right to continue relationship with the child. •But in a divorce, who gets what rights? •FACTS: •California Pledge of Allegiance appeal by atheist father of kindergarten daughter; •religious mom tries to intervene, claiming court order "sole legal custody" with right to make education decisions
•HELD: No standing to bring lawsuit in case. •Odd, because US SCt grants cert, goes pretty far into case, then pulls the plug with standing decision •Discussion: •Special family law standing rule when basic parental rights are in dispute? •US SCt didn't really say anything on this •Right to instill religious beliefs vs. right to control flow of ideas? •Again, unaddressed •Why grant, anyway?
PARENT-CHILD RELATIONSHIP ISSUES: Little v. Smith, (Tex. 1997) - DATED •FACTS: Katherine Smith, adopted as a child, sues to collect on will from biological grandma or damages for exclusion. TCt rules barred by SOL, ACt applies discovery rule. •ISSUE: Does discovery rule toll SOL for adopted child estate's claim:
•HELD: No, for public policy reasons; discovery rule doesn't apply. *What are the competing interests at issue?* •Right of adopted children to inherit through biological parents •Need for confidentiality of adoption proceedings •Need for probate finality •Ruling emphasizes finality over inheritance •But, no ruling on an "actual fraud" situation
Guardianship of CEM-K(San Antonio 2011, no pet.) [p. 301] •FACTS: Mom dead. Fight between biodad and ex-stepfather. Evidence both ways •ISSUE: Does biodad get a parental presumption in a modification proceeding? •Ex-stepfather has neither legal nor bio connection to child
•HELD: No, per Family Code •No express provision, plus TX SCt decision in VLK •Can tell court does not approve of VLK decision (most courts dislike) •DISCUSSION •Note that "original" proceeding was the earlier divorce to which ex-stepfather was not even a party; no indication any of the same issues were in dispute
In re Derzapf •FACTS: Mom dies. Grandma and step-grandpa care for kids while Dad adjusts. Tensions arise. Grandparents sue for SMC. TCt denies and Dad cuts off visits. Kids' grades improve, get off antidepressant meds. Grandparents sue for visitation under grandparent access statute; TCt grants •ISSUE 1: Does step-grandfather have standing? •ISSUE 2: Did TCt properly grant grandma access?
•HELD: No. •Initially, step-grandpa did have general conservatorship standing under 102.003, but that suit was dismissed •Grandparent access statute does not include step-grandparents •HELD 2: No •Post-2005 amendment, must show access denial would "significantly impair" physical health or emotional well-being •Psychologist not sure visits with Grandma alone would be a good idea
Cole v. Cole, (Fort Worth 1994, no writ) •FACTS: Teenage boys, living with dad, experience beer, naked strippers, 30-40 kids at a party, high-caliber guns •ISSUE: Did the court commit error in naming mom (Benita) primary JMC?
•HELD: No. •Why this 15-year-old's preference not conclusive? •Why aren't dad's rights terminated? •Delta (mom's mom), living with her daughter's ex, says everything is great •Mom's mom is actually living with dad
Bos v. Smith (Tex 2018) •FACTS: Divorced Mom gets 3-year-old son to make false abuse claim against Dad. Mom's parental rights terminated [poisoning child against other parent can lead to some drastic court remedies]. Dad sues Mom's parents who had helped out mom's efforts. •ISSUE: Are Grandparents liable for aiding and abetting interference with custody under Ch 42?
•HELD: No. Didn't know specifics of custody order; one incident wasn't enough to cause much damage. •DISCUSSION: •Note that boyfriend/psychologist did not appeal his conviction under Ch42 •When you have a kid making false abuse claims against the father; and have a professional psychologist helping in the brainwashing to make it more effective. Pretty extreme situation.
In re JRD & TCD - (Austin 2005, pet. denied) •FACTS: Garden-variety modification proceeding; JMC dad gets more liberal, but not equal, terms of possession •ISSUE: Are constitutional rights or state statutes violated by allowing unequal physical possession on "best interest" alone, by preponderance of evidence, and abuse of discretion review? •Since parental rights are fundamental, when you name someone a PC, you are taking away some rights. Should you justify this without clear and convincing evidence? •Father contends as a good father he should get nearly equal time or his constitutional rights are violated.
•HELD: No. No constitutional rights violated. BIOC standard applies. •- concurrence is important aspect of case (Paulsen calls spectacular) •Black-Letter Law good in case •Modification conservatorship only if •Modification in child's best interest •Circumstance have materially and substantially changed •Shows up often in statute •Burden on proof is on party seeking to modify conservatorship order; preponderance standard •Appellate Review •Abuse of discretion standard •Not a true abuse of discretion standard •Two step process: Have to have findings of fact; This is NOT an abuse of discretion •Aren't usually part of the same system to have findings of fact and abuse of discretion standard together. •1) is there enough evidence there that a trial court could intelligently exercise its discretion •EX: clearly abuse if there's no evidence for decision •2) did you abuse discretion from that factual basis •Wiggle room in how standard is stated and applied •Standard: Arbitrary, unreasonable, without reference to guiding rules or principles •Non-standard: Legal and factual sufficiency analysis relevant in determining abuse of discretion *Concurrence* •Statutory complaints •Presumptive minimum is maximum in reality •When you look at the statute's terms and conditions of conservatorship, it says presumptive minimum. •But in truth, when you have list that is presumptive, have to prove otherwise, it in reality becomes the maximum as well •Unequal possession not contemplated "sharing" •If you're going to have JMC, and that means you're supposed to share, that's a nice theory, but the MC rights are going to be given to the principal JMC, and the other JMC actually has no more access than the minimum afforded to a PC •In other words, JMC is a nice phrase, but it doesn't really get any more access than they would've had as a PC •In statute, you have to show a lot of bad stuff to demote someone to PC; but in reality, a JMC doesn't get anymore access to child than PC •JMC sounds good, sounds like a "tie" between parents, but in reality it's no different than SMC & PC •However, just changing the language to allow for JMC actually HAS reduced the number of suits •Abuse of discretion standard scuttles legislative intent •Prof. doesn't necessarily agree with this argument •Constitutional complaints •BIOC is not enough in custody •If you think about Troxel involving grandparent visitation, and TX cases; it IS a problem if you let 3P have significant access to child just because it is in BIOC. •Troxel says that BIOC is NOT enough when you are considering grandparent access. •Parents have rights too. •Termination of parental rights proceedings require more than just BIOC •If you give parent zero access to child, how is that different from terminating parental rights? •But in statute, you can get to that much more easily if you just talk about in terms of parental rights •Clear and convincing evidence should be required •Majority response: US SCt says "best interest" enough, per Flores •But what about more recent decisions?
Brook v. Brook - TX 1994 •[not in book - here because good background] •This area of law is in flux •FACTS: Mom and mom's parents appointed as JMCs. Dad squeezed out. •Remember presumption is that both parents get conservatorship. •ISSUE: Parental presumption violated?
•HELD: No; statutory presumption only applies when no parent appointed as JMC •Discussion: •Rational reasoning process? •Prof. thinks no. If there's a presumption for both parents as JMC, there should be a descending scale: as a parent should have right as JMC unless bad stuff going on, then at least PC unless terrible stuff going on •Constitutional issues? •Prof: yes, serious issues going on. Bets on this decision overruled by US SCt if brought up •Note: before 1995 statutory change establishing general preference for JMC; significant language change in this statute as well. •It's an excuse to overrule a case without actually using word overrule
EQUITABLE ADOPTION: In re M.L.P.J., (Tex. App. 2000) •FACTS: H lives with W's child for 10 years. Does not formally adopt (drug probation problems) but holds out kid as his own. Divorce court rules equitable adoption, child support •ISSUE: Is equitable adoption possible?
•HELD: Not outside Probate Code. (only for inheritance) •Comments •Public policy issues? •The reason we have all the formal safeguards of adoption is because we are checking out for the best interests of the child; if you can sidestep all that, you would really defeat purpose of the protections of formal adoption process. •Elements of Equitable Adoption? •Estoppel situation: •Must be agreement •Must be performance •[basically, child has to act like a child; not too difficult]
Starck v. Nelson - Corpus Christi 1994 •FACTS: Man with erratic employment history gets temporary reduction after losing his job, followed by automatic increase one year down the road. Remarriage considered as grounds for deviation from guidelines. •Court increases automatically increases support on certain dates, on assumption he will get better employment
•HELD: REVERSED; WRONG ON BOTH COUNTS •Discussion - HAS LOTS OF GOOD LAW ON CHILD SUPPORT MODIFICATION •If remarriage can't be considered directly (154.069), then can't be a legitimate ground for deviation. •Remarriage can't be considered as a factor in setting or modifying support •No evidence of intentional unemployment •Can't have automatic increases, absent extraordinary circumstances (speculation is not fact) •Maybe if there's automatic military promotions that are pretty certain
In re CJC - No oral argument yet, currently pending (in supplement) *oral argument shown on last day of class* •FACTS: Mom and dad signed order naming them as JMC, with mom having right to designate the child's primary residence. Mom files motion to modify, but then Mom dies; her parent denied standing. •Mom's boyfriend granted standing against fit dad in modification proceeding. •Boyfriend is proxy for grandparents. Grandparents denied standing on their own, but trial court seems to really likes them, so the trial court permits the boyfriend standing despite good evidence that all care, custody, control of the child will be handed over to grandparents. •ACt denied mandamus •ISSUE: Whether or not you have a Parental presumption in conservatorship modification proceeding? •Disguised by the fact that the briefing is on the grandparent's standing issue. •Is there any presumption in favor of biodad and against the ex-boyfriend
•HELD: Stay tuned; oral argument rescheduled for April 22. •Prof guess: will be most significant conservatorship decision in decade •Likely to establish new presumption in favor of fit parent •Really good discussion in supplement of Tex FC provisions vs. Troxel. •Parental presumption - under Texas Family Code 153.131(a), there is a presumption in original suits that a parent should be appointed as the managing conservator over a nonparent, and the nonparent has an increased burden to show that the appointment of the parent as managing conservator would be detrimental to the child. •The law presumes that a parent, unless shown to be unfit, acts in the BIOC •Troxel "fit parent presumption" - a fit parent has a due process right to handle the care, custody, and control of his/her child without governmental interference
Cook v. Mayfield (Waco 1994) •Example of trying to figure out where someone is residing •FACTS: Divorce. W files, claims Waco (McClennan County) residence •H files a plea alleging that W had not been a resident of the county for 90 days preceding her filing as required by FC (6.301). •Court denies •H claims Pflugerville (Williamson/Travis County) •Most contacts (drivers licence, residence, job) with Pflugerville, etc. •W moves furniture to Waco, files 12 days later. Says Waco always her home; "constantly" returning to help ailing mother •ISSUE: Residence in Waco?
•HELD: TCt - Waco, ACt: reverses •Comments •Fact-intensive •TCt decision reversed only for abuse of discretion •Residence just like Civil Procedure •Actual presence •Intent to remain indefinitely
Texas Criminal Bigamy Statute
•Tex. Penal Code 25.01(a) •(a) An individual commits an offense if: •(1) he is legally married and he: •(A) purports to marry or does marry a person other than his spouse in this state, or any other state or foreign country, under circumstances that would, but for the actor's prior marriage, constitute a marriage; or •(B) lives with a person other than his spouse in this state under the appearance of being married; or •(2) he knows that a married person other than his spouse is married and he: •(A) purports to marry or does marry that person in this state, or any other state or •foreign country, under circumstances that would, but for the person's prior marriage, constitute a marriage; or •(B) lives with that person in this state under the appearance of being married. •
Tucker v. Tucker - San Antonio, 1995, p339 •FACTS: Dad loses modification hearing, despite losing his job, undisputed inability to get a satisfactory new job, responsibility for a new child, and personal bankruptcy •Interesting case: has a good review; also a rare situation where a TCt is reversed even on an abuse of discretion standard •Remember this is before there was explicit approval for the two-step standard
•HELD: TCt abused discretion by NOT modifying. •What the ACt is doing is really infringing on the TCt's discretion. Basically telling the TCt exactly what its decision must be on remand •Discussion: •Rare example of abuse of discretion reversal •TCt ruling on modification not within guidelines in the number the court came up with •Differs with Sanders case on role of guidelines •Good contrast on the extent to which guidelines matter in modification proceedings •Good law statement
Ex Parte Rojo - TX 1996, p342 •FACTS: After serving time on a criminal contempt charge, Dad argues inability to pay as a defense to civil contempt •Criminal contempt - for what you've done in the past, punishment •Civil contempt - to encourage payment; can be incarcerated for up to 6 months, and have ability to argue inability to pay
•HELD: TX SCt says inability to pay is a good defense on civil contempt side •Discussion: •Criminal contempt for past violations; civil contempt to encourage current payments •After Rojo, it was put into Family Code •A person cannot be incarcerated indefinitely for civil contempt if he or she does not have the ability to perform the condition required for release. . . . Civil contempt is coercive, and is based on the notion that the contemnor "'carries the keys of [his] prison in [his] own pocket.'" •As we explained in Dustman: An order of contempt imposing a coercive restraint is void if the condition for purging the contempt is impossible of performance. [cites omitted]. Unless he has the means by which he may purge himself of the contempt, the relator must be discharged from jail. Otherwise, as stated in Ex parte DeWees, the effect of denying the writ of habeas corpus when the relator is unable to purge himself would be to authorize the trial court to confine the relator for the balance of his natural life. •This principle is now codified in the Family Code, which provides that a child support obligor may plead as an affirmative defense to an allegation of contempt that the obligor: •(1) lacked the ability to provide support in the amount ordered; •(2) lacked property that could be sold, mortgaged, or otherwise pledged to raise the funds needed; •(3) attempted unsuccessfully to borrow the funds needed; and •(4) knew of no source from which the money could have been borrowed or legally obtained. TEX. FAM. CODE § 157.008(c).
TERMINATION PROCEDURE: In the Interest of T.C. (Tex. App. 2006) •FACTS: Mom and Dad's parental rights terminated. In pre-appeal hearing, judge finds that they are indigent, but that the appeal is frivolous. •ISSUE: Is it unconstitutional to differentiate between private and state initiated termination suits?
•HELD: There's no real difference •HOLDING: The court held that § 263.405 applied equally to indigent and to non-indigent parents AND equally in termination suits initiated by TDFPS and by private individuals. •Nothing in § 263.405 suggested that a non-indigent appellant had the right to file any record with an appellate court other than the reporter's record and the clerk's record of the frivolousness hearing. •Therefore, an appellant was statutorily guaranteed the same limited appellate review of a trial court's frivolousness finding regardless of whether the appellant was indigent. •Section 263.405 did not operate to deny appellants of a meaningful appeal. The trial court acted within its discretion in finding that the appeals would be frivolous. •The evidence at trial demonstrated, inter alia, that the parents abused drugs, did not maintain a stable home, did not maintain stable employment, abandoned their children, left their children with people who were violent and known drug users, and did not pay child support. Outcome: The court affirmed the trial court's frivolous findings.
In re Mays-Hooper - TX 2006 (per curiam) •less excruciating version of Troxel (in which the US SCt held unconstitutional a WA trial court's order granting a boy's grandparents visitation rights over the objection of his mother) •FACTS: grandparent access. Ex-H dies. Ex-W fighting with Ex-H's mom. Grandma gets substantial visitation •ISSUE: Is Texas statute unconstitutional?
•HELD: Yes •Discussion •Same situation as Troxel v. Granville (US SCt), so unconstitutional • Troxel? - plurality say factors include (pretty vague guidance) (1) the child's mother was not unfit, (2) her decisions about grandparent access were given no deference, and (3) she was willing to allow some visitation. •"[S]o long as a parent adequately cares for his or her children (i.e., is fit), there will normally be no reason for the State to inject itself into the private realm of the family...."
Russell v. Russell - (Tex. 1993) •FACTS: Not particularly important •ISSUE: can agreement (Element 1) be inferred from cohabitation (Element 2) and holding out (Element 3)
•HELD: Yes, 2 and 3 are circumstantial evidence of 1. •Legislature removed the word "inferred" •If evidence of an express agreement to marry is not offered, the fact finder will have to treat the facts of cohabitation and the holding out as circumstantial evidence of the agreement in order to find a tacit agreement to be married. •The process is "virtually identical to the prior process of inference" •However, it seems that the evidence of holding out must be more convincing than before the 1989 amendment
Lehman v. Corpus Christi Nat'l Bank, (Tex. 1984) •FACTS: Granddad's will leaves trust to "descendants" of "children," including "those who are adopted." •ISSUE: Is Randy, adopted adult, included in the definition of "children"?
•HELD: Yes, Randy inherits •Comments: •"Child" in family code usually not age-specific, but exceptions (such as when defined as "minor") •Statute now reads "from and through," not "from" an adopted adult was "for every purpose, the child of his parent or parents by adoption as fully as though born of them in lawful wedlock." . . . The current law is no different
Roman v. Roman, (Tex. App. 2006) •FACTS: •In a final divorce decree, the 310th District Court, Harris County, Texas, awarded three frozen embryos to appellee former wife. Appellant former husband sought review. •pre-embryos in divorce; ex-H insisting on destruction per contract •Doesn't want children to be born years after marriage ends, then be adjudicated father and be on the hook for child support •ISSUE: Does contract govern disposition?
•HELD: Yes, embryos are community property •Why CP? Because agreement seems to say so •FC 160.706 covers post-divorce "parents" •Roman holding contrary to criminal law? •Civil law says embryos are property •But criminal laws says if you murder pregnant woman, it is double murder
In the Interest of L.C., (Tex. App. 2004) - OVERRULED BY TX SCT! NO LONGER GOOD LAW •FACTS: not relevant, except that jury instructed on three grounds, with no instruction clearly stating 10 of 12 had to agree on any one •ISSUE: •Is broad-form submission in termination cases constitutional? •Issue: Bad mom contends that the trial court erred in denying her request that the jury be asked to decide separately which of the three alleged statutory grounds has occurred.
•HELD: Yes, following TX SCt precedent - but doesn't seem happy about it. Says "bound to follow the court" •RULES/REASONING •Reviewed under "Abuse of Discretion Standard" - a trial court's discretion in submitting a question to the jury is abused if the submission is arbitrary, unreasonable, and without reference to any guiding rules or principles. •TX SCt has held that the controlling question is whether the parent-child relationship has been terminated, NOT what specific ground the jury relied on to answer affirmatively the question posed. •Further, the "ten juror" argument is rejected (that you need all 12 jurors, not just 10)
In re Adoption of Gomez, (Tex. Civ. App. 1967) •FACTS: Strawn (black man) wants to adopt two white or Hispanic girls. Texas anti-miscegenation statute prohibits intermarriage between negro (defined as 1/8 or more black) and whites (defined as non-blacks). •ISSUE: Does statute violate 14th amendment and Texas analogue?
•HELD: Yes, interracial adoption legal •Comments •Race-based discrimination now prohibited (162.015) •But discrimination in favor of Native Americans required (federal law requires it). (id. & 25 USC 1915) •Can't discriminate against deployed military
Critz v. Critz, (Tex. App. 2009) •FACTS: Dad moves out. Mom and Child move in with Dad's grandparents. Mom then dumps Child; moves in with new boyfriend; another child. Dad files for divorce, wants primary conservatorship. Grandparents intervene; want primary JMC. Mom gets in lawsuit. Everybody gets JMC; grandparents primary conservatorship. •Seems that dad wants to offload kids onto parents. But by dad bringing suit, he gets higher presumption than if grandparents brought suit directly. Dad is essentially a puppet for his parents. •ISSUE: Does parental presumption apply when grandparents are JMC too?
•HELD: Yes, must overcome with as to both parents; Brook doesn't apply because statute changed. Insufficient evidence of voluntary relinquishment or significant impairment •Discussion: •Dissent says legislative change not enough, and that only TX SCt can overrule Brook •Prof. argues that dissent is "more honest"; personally doubts that majority is best decision •But there should be a parental presumption in designating primary residence, because that is so important
In the Interest of W.E.R., (Tex. App. 1983)• FACTS: TCt denies single adult adoption in favor of placement with "a mother and father" and "a proper family type" •ISSUE: abuse of discretion?
•HELD: Yes, statutes do not prohibit single-parent adoption. Accordingly, single status alone cannot bar otherwise acceptable person •Comments •Dissent argues social science date favoring two-parent households •TxSCt reverses because supposedly invalid reason (single parent status) not reflected in findings, and record might support decision
Guardianship of CEM-K (San Antonio 2011) •FACTS: custody dispute between ex-stepfather and biological father •ISSUE: Does ex-stepparent have standing to seek conservatorship
•HELD: Yes. 102.003(a)(9), as person with actual care, custody, control of child for 6 months ending within 90 days before filing •Discussion: •6 months doesn't have to be in a single lump •Not argued: •Possibly under subdivision (11), as living for 6 months with child's mom? •Possibly under grandparent statute (no) •[Father] first contends the trial court erred in awarding conservatorship of [Child] to [Ex-stepfather], a former stepfather, because [Ex-stepfather] lacked standing. •[Ex-stepfather] responds that he established standing pursuant to section 102.003(a)(9) of the Texas Family Code, having had possession of [Child] for more than six months ending within 90 days of suit being filed. •The question of who has standing to bring a suit affecting the parent-child relationship is a threshold issue. •Standing is not merely a statutory bar, but is a component of subject-matter jurisdiction. •A court cannot act if it does not have subject-matter jurisdiction, and if it does, any action taken is void. •If a party lacks standing, the trial court is deprived of subject-matter jurisdiction. •"The Texas Legislature has provided a comprehensive statutory framework for standing in the context of suits involving the parent-child relationship." Id. (citing TEX. FAM. CODE §§ 102.003, 102.004, 102.0045, 102.005, and 102.006). •When there is a statutory framework for standing, a standing analysis is conducted within that framework. ••The party seeking relief must allege and establish standing within the parameters of the statutory language. •In the family law context, when the petitioner is statutorily required to establish standing with "satisfactory proof, the applicable evidentiary standard is a preponderance of the evidence. •Whether the party has established standing is a question of law, which we review de novo. •When, as here, the trial court does not make separate findings of fact and conclusions of law, we imply the findings necessary to support the judgment. •We review the entire record to determine whether the implied findings are supported by any evidence. ••[Ex-stepfather] alleged, and contends he proved, standing pursuant to section 102.003(a)(9) of the Texas Family Code. That section provides that, "a person, other than a foster parent, who has had actual care, control, and possession of the child for at least six months, ending not more than 90 days preceding the date of the filing of the petition has standing." TEX. FAM. CODE § 102.003(a)(9). •The purpose of this section is to "create standing for those who have developed and maintained a relationship with a child over time." •A determination of standing under section 102.003(a)(9) is fact specific, and must be resolved on a case-by-case basis. •It should be noted that in computing the six month period under section 102.003(a)(9), the time need not be "continuous and uninterrupted." TEX. FAM. CODE § 102.003(b). •Rather, the court shall consider the child's principal place of residence during the relevant time period.
In re C.S. (Amarillo 2009) •FACTS •Man signs voluntary acknowledgement of paternity, recorded •Mom files for divorce •Man says he signed affidavit by mistake •TCt sets affidavit aside; orders gene test •Mom brings mandamus to stop •ISSUE: Did man sign because of fraud, duress, or material mistake of fact?
•HELD: Yes. Evidence both ways, but TCt has discretion •Discussion: •- Can't rescind because more than 60 days after acknowledgment, but can set aside within 4 years on fraud, duress or mistake. •- DNA test, by statute, proves material mistake of fact.
Iliff v. Iliff (Tex. 2011) •FACTS: H unemployed. Quits a good ($102k) job and starts taking odd jobs earning less than $5000/year. Six months later, W files for divorce •H may have changed jobs as part of pre-divorce planning. •ISSUE: Is H intentionally underemployed so that support should be based on potential?
•HELD: Yes; 12 contrary appeals courts decisions overruled. 12/14 appeals courts disagreed •Texas Family Code section 154.066 contains no requirement of proof that an obligor be intentionally unemployed or underemployed for the purposes of avoiding child support. •Where a trial court determines that an obligor is intentionally unemployed or underemployed, it is in the court's discretion to set child support based on earning potential. The trial court did not abuse its discretion in setting James's child support based on his earning potential. We affirm the judgment of the court of appeals and disapprove of courts of appeals opinions to the extent they require proof of intent to avoid child support. •Discussion: •Two possibilities •Intent to avoid paying child support, OR •"Intentionally" means "conscious choice" to take a lesser job, not intent to avoid supporting children; not trying to avoid child support •Actually in line with more other states •Requiring a person to keep a job they hate to pay more child support? •Required to keep bad job? •Involuntary servitude? - apparently TX SCt thinks okay •Reasons can be taken into account in deviating from guidelines •You can argue to the court that you are working in job you actually want •"Best interest" means more than money •Need time to go to child's event •Coming home before midnight so that kids know they have parents, etc. •If you want to deviate from your potential, you have to make case to court
In re Scheller - TX 2010 •FACTS: Grandparent access case. Mom dies. Kids always visited Grandpa and step-grandma every 6 weeks or so; Dad cuts way down. Grandpa sues and gets substantial access via temp orders. Dad appeals. •ISSUE: violation of constitutional liberty interest?
•HELD: no showing children's physical health or emotional well-being "significantly impaired" for temporary orders, but appointment of expert OK •Discussion: •Parents given deference, per Troxel •TX statute imposes "hefty statutory burden" of proof •But courts can do investigation, but when it comes to merits, will need to show a lot •In Derzapf, we held that the grandchildren's "lingering sadness" from lack of contact with the grandparents did not sufficiently demonstrate significant harm to the children because the court-appointed psychologist testified that the sadness did not "manifest [] as depression or behavioral problems or acting out" so as to "rise to a level of significant emotional impairment." 219 S.W.3d at 330, 332-33. •And in Mays-Hooper, we held the trial court erred because it "did not indicate any reason why" it should interfere with the parent-child relationship, and the mother "articulated several reasons for not wanting to turn her son over to her mother-in-law[,]" including "differences about church attendance, what to say about [the father's] death, and alleged inattention by her mother-in-law." 189 S.W.3d at 778. •Despite considerable discretion vested in courts to issue temporary orders "for the safety and welfare of the child," a court cannot act to infringe on a party's constitutional rights. TEX. FAM. CODE § 105.001, see also Grigsby v. Coker, 904 S.W.2d 619, 621 (Tex. 1995) (per curiam) (holding that a trial court abused its discretion by entering a temporary gag order in a child custody modification proceeding that violated the parties' constitutional rights to free speech and due process). •Parental control and autonomy is a "fundamental liberty interest." Derzapf, 219 S.W.3d at 335 (quoting Troxel, 530 U.S. at 65). •And as we previously explained, there is no reason to inject the State into the family realm when a parent adequately cares for his children. Id. at 333 (citations and quotations omitted).
Ex parte Acker - Tx 1997 (one of Paulsen's favorites), p344 •FACTS: Mom being held in contempt for not paying support. Mom uses habeas to challenge contempt confinement
•Held: Granted •Discussion: •Contemnor must be advised of right to counsel •Order stating "June 1" for insurance payments didn't specify year •Court: must specify the year to be effective, even if the context is relatively clear •Order must be specific enough to be enforced. •What should you do? •Go back to court, ask for an order non pro tonc (sp?), asking court to fill in year. Fix a clerical error. Order allows the court to fix after the fact. •We hold that the first order is unenforceable because the trial court did not inform relator of her right to counsel when she appeared pro se at the contempt hearing. We further hold that the second order is unenforceable because the divorce decree provision mandating the insurance payments is too vague to enforce by contempt.
In the Interest of C.W., (Tex. 2019) •FACTS: Trial court and CA terminate on D and E (principally, prostituting 14 year old daughter) plus O - failing to comply with court orders for regaining access. •Appeals court affirms, detailing evidence only on O and best interests •ISSUE •Did appeals court err by not detailing D and E evidence?
•HOLDING •Appeals court erred because D and E finding by trial court could justify a later M finding (termination re previous child) •M: you can have your parental rights terminated if your parental rights were terminated for a previous child on D or E grounds (endangerment) DISCUSSION •1. Small exception to general rule (checking one ground usually is enough) •2. Best interest" finding sketchy •The Texas Supreme Court held that the court of appeals correctly determined that the trial court could have reasonably formed a firm belief that termination of the mother's parental rights was in the child's best interest. •The Court explained that the evidence showed that "the child was likely being sexually abused, the mother was likely forcing the child into prostitution, the child did not wish to live with the mother in a homeless shelter [is this appropriate to consider?], and the mother would pose a threat to the child if the child were in the mother's care [independent evidence or just a conclusion?]." •Does this sound like application of the appropriate standard of review? •Likely is more preponderance than required clear and convincing evidence •Child's wishes aren't usually grounds •Court doesn't explain why the mother poses a threat. No evidence
Morgan v. Morgan (Hou. 1st 1983) •Texas has peculiar rules that say we can be more sloppy as family law lawyers than "real" lawyers •FACTS: Garden-variety divorce •ISSUE 1: Could Trial court award attorney's fees to Percy Foreman even though petition named a different lawyer? •ISSUE 2: Could TCt grant permanent injunction (usually serious deal) without verification and a request in the pleadings?
•HOLDING 1: Yes. Pleadings construed liberally. Even a general plea for relief would suffice •If you ask for "...and all other appropriate relief" this can satisfy •HOLDING 2: Yes, in theory, but here elements not proved
Appellate Review: *In the Interest of A.B. (Tex. 2014)* •FACTS: Dad terminated because child diagnosed with "failure to thrive" and after reunification, showed signs of physical abuse ["D&E Endangerment case"]. Court of Appeals reverses trial judgment terminating parental rights (twice) on *factual sufficiency* grounds •ISSUE: On review, how much detail must court of appeals give?
•HOLDING: In jury trial, detail required only if not affirming the jury verdict. •But the court of appeals' authority to conduct a factual sufficiency analysis does not permit the court to stand in the role of a thirteenth juror. Thus, if the reviewing court is to reverse the factfinder, it must detail the evidence supporting its decision. Here, by considering the record in its entirety, the court of appeals executed an appropriate factual sufficiency review. Because the court ultimately affirmed the jury's termination findings, it was not required to detail the evidence. Accordingly, we affirm. •TX SCt rationale: *1. Parental rights v. punitive damages?* (guess parental rights aren't as important...) •Is court's conclusion that exemplary damages are more serious than termination of parent-child relationship correct? •Is this really true? - or reflecting TX SCt attitude? •After all, the general public would likely think that the parent-child relationship is more important than protecting defendants from punitive damages •What's the purpose of punitives, anyway? •To punish? •Are limitations on punitive damages a "fundamental right"? *2. Parent rights v. BIOC?* •Is BIOC the most important issue? •If you at the statutes, you never get to BIOC until AFTER you find a ground of termination •Even if an objectively terrible parent, you can keep kid if doesn't fit into statutory ground •Statute lists BIOC second. [IN ESSAY DO SECOND] •In other areas, BIOC is explicitly named as the "primary consideration"; but NOT here. *3. Parental rights v. jury trial?* •Prof: most absurd ground for decision •Is the court's conclusion that trial by jury should balance out parental rights correct? •Would US SCt buy this argument? •Only 5 states permit jury trial in termination suits •What's intrinsically different about judges and juries? [Judges are, obviously, more familiar with the law and are more likely to make a decision in the case on the basis of an objective application of the law to the facts. Juries may be more inclined to allow emotion to impact their opinion on a case, which could either help or hurt you depending upon the circumstances.] •What about the fact that either party can opt for a jury trial? •A little odd. •In criminal trial, only D can opt for jury trial. Meant as defensive mechanism. •Texas has different approach. •Prof: great example of TX parochialism, in lessening the importance of a federally-recognized fundamental right
In the Interest of E.N.C., (Tex. 2012) •FACTS: Father's rights terminated because of prior WI undersage sex conviction, parole violation, and deportation for 10 years minimum •ISSUE: No evidence to justify termination? •Q: What statutory factors are examined for termination? •Q2: How is "best interest of the child" determined? •Holley "best interest" factors (below) •Q3: What standard of review? •No evidence/Legal sufficiency review
•HOLDING: NO EVIDENCE, legally insufficient. •HOLDING: The court reversed the judgment as to the father and remanded. •Although the father's prior conviction, probation violation, and deportation were factors to be considered, no reasonable fact-finder could have formed a firm belief that the father engaged in a course of endangering conduct. •The Department had to meet its burden of proof, and the evidence did not support the Department's burden regarding the best interest finding.
Lowe v. Lowe (Hou. 14th 1998) •FACTS: Divorce default judgment against Ex-W; Ex-H gets primary conservatorship. Continuance denied; no lawyer present for trial •Ex-W didn't know anything was scheduled (lawyer falsely told her continuance was granted) •Ex-W files motion for new trial; denied •ISSUE: Does Ex-W's new trial motion meet Craddock standards (three prong test for a new trial after a default judgment)?
•HOLDING: Yes, reverse and remanded for new trial •What are Craddock's new trial requirements? •1) Accident or mistake, not intentional or conscious indifference •2) Meritorious Defense •3) New trial would not delay or injure the other party •Does Ex-W meet Craddock requirements? *1) Not Ex-W's conscious indifference (new law)* •Problem here is that lawyer was clearly informed 30 minutes ahead of trial, doesn't show up anyway. Shows conscience indifference •However, here •1) the lawyer misled the client, or wholly failed to perform his professional duties, and •2) the client is free of responsibility and knowledge •Thus, meets first prong (this is new law) *2) Meritorious "defense"* •doesn't mesh easily with "best interest" standard (which is the primary question before the court in these cases), •Looks at Holley factors •Court-appointed investigator favors Ex-W as primary caretaker •Kids are 3 and 5 •H had not taken care of kids for extended period of time •Court holds that this evidence might have been effective defense *3) No injury because Ex-W willing to absorb new trial costs* •Purpose of third prong is to protect P against the sort of undue delay, such as the loss of witnesses or other valuable evidence that would disadvantage the P in presenting the merits of the case at a new trial •H does not say how a new trial would harm him; appeal was quickly filed. •Wife meets three prongs of Craddock •Craddock shouldn't be used, anyway •- Not standard two-party adversarial litigation; "best interest" •- Not "meritorious defenses;" just "factors" •- No real finality in SAPCR cases •However, court argues that Craddock shouldn't be used in SAPCRs because it was designed to be applied in traditional civil litigation in which only two competing interests are involved. But in SAPCRs, there are more than two: H, W, and most importantly, the CHILD's •Craddock doesn't inquire into the child's interests and leaves no room for a judge to consider the child's interests •2nd prong (meritorious defense) is inappropriate in family law. •Unlike other areas with clear defenses and claims, family law only has factors to determine best interest •Craddock also assumes adversarial relationship, when family law is trying to get away from winner-loser aspect of custody litigation
In re Leva 96 MR 723 (W.D. Tex 1989) •FACTS - Couple lives together as "engaged" for several years. Don't positively represent themselves as married. •Debtor argues that his relationship with Ms. Brenda King and her son qualifies the debtor for the personal property exemption applicable to a family ($30k). They were common law married. •The trustee retorts that the debtor qualifies for only the $15k exemption for single adults •Issue: Does debtor get a "family" personal property exemption in bankruptcy?
•HOLDING: common law marriage. Debtor entitled to 30k exemption •Discussion: Very liberal decision; unusual decision. Probably out of sympathy for debtor. •Highly conflicted evidence can still prove "holding out" •"Holding out" can be satisfied by an absence of community gossip •Shows that community viewed couple as married •Not very applicable today in a large urban community; would have to show that a small tight-knit community with the kind of social mores that would disapprove of couple living together without being married. •What of the testimony that they intended to get ceremonially married in Hawaii once debt problems are resolved? •HERE •First two elements met: •Cohabitated •Engaged (with engagement ring), planned on getting married. Debtors financial problems caused delay •Hold themselves out to the public as married? •Neither debtor nor trustee introduced evidence regarding whether couple was perceived by community as married •No evidence they represented themselves to the world as married •However, unrefuted testimony of couple demonstrates beyond a preponderance that cohabitation over extended period attained the status of a common law marriage.
ADOPTION: Information for Adoptive Parents
•Health, Social, Educ. & Genetic History Rep't [162.005+] •Must include history of abuse [162.005(c)] •Medical (including immunizations) •School records •Genetic (including ethnicity and race) •Social (educational level, criminal history, religion) •Duty to update [162.005(f)] •Must be filed with court, unless within family or unknown •Right to examine other records [162.006] •Possible sibling access [162.0086 - 2017] •All redacted
Marital Presumption
•Marital Presumption •Child born in marriage presumed H's child •Not as strong a presumption now as it used to be •May change in the future as science marches on •Initially, effective irrebuttable presumption unless H not in England or within the "four seas" surrounding England, or H proved sterile or impotent. •Even after Davis, not challengeable by spouse, thought of as too ruinous to the marriage •(until 1983 for H, and 1987 for W) •Excluded children could challenge since 1973, per Gomez •US SCt action: a child can challenge parentage. •Today, we've mostly gotten rid of the label "legitimate" regarding children. Either way, they have the same rights.
Brown v. Buhman, 947 F. Supp. 2d 1170, 1175 (D. Utah 2013) •FACTS: High-profile polygamists (on Sister Wives show) sue to challenge the Utah bigamy/polygamy statute (substantially identical to Texas in relevant parts - but TX has informal marriage, Utah doesn't, adding a wrinkle). •Issue: Can religiously-motivated polygamous "marriage" be a crime when the parties clearly indicate their use of the word does not connote state-sanctioned marriage?
•Held: No •Discussion: The issue can be framed in many different ways •By marriage, they don't mean state-sanctioned marriage, but "spiritual" marriages •Today, LDS church sanctions plural marriage in heaven, not on earth •Like in Lawrence, can frame as "right to same-sex sodomy" or "liberty to engage in private intimate conduct between consenting adults" •Ruling is comparatively narrow, to avoid conflict with circuit precedent •What is the review standard ultimately employed? •Rational basis; looks a lot like plain ordinary rational basis •Is the Utah statute logically sustainable if adultery has (effectively) been decriminalized? •The same as it has in TX as we know from City of Sherman •Remember that Texas has decriminalized adultery by statute •(Utah basically doesn't prosecute polygamy unless becomes high profile or minors are involved)
Hausman v. Hausman, (Tex. App. 2006) •FACTS: TCt holds H not the father because of H's gene test, but that W estopped from contesting parentage •In statutory estoppel, the effect is to stop DNA testing. But what happens if DNA testing has already happened? •Issue: Does estoppel statute replace equitable estoppel? •In other words, does estoppel only work to deny genetic testing?
•Held: No, no indication statute so intended •Statutory - stops DNA testing •Equitable - can happen even if DNA testing has already taken place
In re C.M.V. - (El Paso 2015, no pet.) •Facts: Child support enforcement action; Luis claims informal marriage, contra earlier dismissed divorce action brought by Frances. •ISSUE: Married? What about Luis' tax return statement about being single?
•Held: No. •Discussion: •Determination is very fact-dependent •"Agreement" testimony depends on understanding what "marriage" means •What about formal documents? •"The two-year window had already closed"? •However, the judge got this wrong. The two year window doesn't change anything because the burden of proof to establish the 3 elements of common law marriage are still the same.
Marckley v. Marckley, (Tex. Civ. App. 1945) - DURESS? •One-legged tail gunner case •FACTS: •Gets underage girl pregnant. Parents know the sheriff and gives the army air corp guy a choice: marry her or go to jail. •He later protests that he was under duress so the marriage under duress and seeks annulment •Issue: Duress?
•Held: No. •Discussion: •It is never duress to threaten to do what a party has a legal right to do. •Marriage entered into to escape the penalties of the law may not be annulled as for duress •Threats to prosecute made by a minor female's parents against a male admittedly guilty do not authorize judgment annulling a marriage.
In the Interest of J.W.T., (Tex. 1993) •Facts: Larry G. conceived J.W.T. (99.41% likely) while living with Judy T. during divorce proceedings. Couple reconciles. •ISSUE: In this case we consider whether, under the Texas due course of law guarantee, a biological father may be denied an opportunity to establish his paternity and claim parental rights
•Held: No. Bio-father cannot arbitrarily be denied right to prove paternity, providing he makes "early and unqualified acceptance" of parental duties. •First case in TX that allowed genetic testing to break marital presumption •You can get standing if you have early and unqualified acceptance of parental responsibilities. •On Remand •The husband was declared the parent, Larry G. ruled NOT the biological parent, despite the DNA test and fact that the husband had a vasectomy and could not be the father. •The appeals court reversed and declared Larry G the biological father •Prior law: Only H and W could contest paternity if married; biological father could not contest if a "presumed father" existed •Federal law: Splintered and uncertain; Michael H. plurality (1989) and Clark v. Jeter (paternity registries, 1988) •Texas test: Bio-father cannot arbitrarily be denied right to prove paternity, providing he makes "early and unqualified acceptance" of parental duties.
B.M.L. v. Cooper, (Tex. App. 1996) - no longer current law •FACTS: mom takes up with Air Force guy, who is posted overseas in Turkey, mom claims he is her child's father. Court ordered DNA testing happens in Turkey. One of the doctors on base conducts the test; shows father is not a genetic match. •Later, the doctor sees a person with the same name tag who is a different person. Highly suspect •Doctor sends a note to mother regarding his suspicions. •GIGO: garbage in, garbage out: DNA tests are no good if you have the wrong DNA •Issue: Child precluded from later suit?
•Held: No; Burden of Proof on Cooper to establish child's interests fully protected •We conclude that Cooper did not carry his burden to establish that the parties to the 1993 suit so fully represented the child's interests as to establish an identity of interests precluding B.M.L.'s suit. •Cooper's summary judgment evidence clearly shows that B.M.L. was not a party to the 1993 action and there is no indication that she was represented by an attorney or guardian ad litem. RESULTS UNDER CURRENT LAW: *For child, the adjudication is never binding unless:* - 160.637(b) •acknowledgement + genetic testing, •judgment + genetic, •actual party or ad litem representation (legal representation)
Coulter v. Melady, (Tex. Civ. App. 1972) •Facts: Archie and Leola were ceremonially married. Leola did not respond to the JP's questions, possibly inferring non-consent •Issue: valid marriage?
•Held: Yes •Discussion: •Non-consent not specifically mention in FC as rendering marriage void or voidable; nonetheless, necessary •Aside: Marriage is a contract. Contracts DO require consent....so.... •No particular form of ceremony or set questions required •Participation in license application and other formalities enough •Want of consent to marriage, standing alone, is not listed in the Texas Family Code as a cause that renders a marriage either void or voidable. •Nevertheless free consent and agreement of the parties is essential to a valid ceremonial marriage. (Common law, since not in code) •A party's knowing compliance with the requirements of the Texas Family Code evidences voluntary consent to marriage and by force of law is conclusive that such party voluntarily consented. •Mrs. Anderson's failure to audibly respond to questions during the ceremony does not raise a fact issue as to her consent to the marriage, and her prior action shows consent as a matter of law.
Colburn v. State, 966 S.W.2d 511, 512 (Tex. Crim. App. 1998) •FACTS: capital murder death sentence; James says Martha's testimony should have been excluded because of spousal privilege, per declaration of informal marriage filed in 1990 that states 1988 they agreed to be married. Testimony related to events that occurred in 1989. •Issue: Does evidence rebut presumption of informal marriage rising from declaration?
•Held: Yes •Martha's testimony - "I'm going to marry her....just as soon as we get around to it" shows only evidence of future intent •the trial court may find the common law marriage proven based upon the declaration alone, but evidence may be offered rebutting the existence of the marriage as sworn to or stated in the declaration. In other words, the trial court is not bound to find a marriage as stated in the declaration when there is evidence to the contrary. •Common law marriage requires that there be some agreement presently to be married, not to marry sometime in the future
Smith v. Smith, (1846) - quasi-marriage (AKA putative marriage) •FACTS: probate fight. Maria, innocent partner in bigamy, tries to administer estate as "surviving wife." •Issue: Is Maria a "surviving wife"?
•Held: Yes, for purposes of probate, although technically not a wife under law •Discussion: •Putative spouse is one who enters into a bigamous marriage in good faith, in excusable ignorance. •The status lasts so long as good faith lasts. •Effects: Children are all legitimate; putative "wife" has all the rights of a "real" wife •But does NOT force out the "real" wife as far as all rights are concerned •Warning about case: Chief Justice Hemphill notwithstanding, not a real marriage. Can't have two wives at once. Better regarded as a business partnership conceptually. •Remember: the relationship kicks in as a real marriage once the impediment is removed
Wright v. Wright, 6 Tex. 3 (1851) •Facts: H refuses to get W medical aid when sick, murders W's son (H's stepson) •• Issue 1: Sufficient grounds for divorce on cruel treatment ground? •Issue 2: Does renewed cohabitation for a couple of weeks equal condonation or reconciliation?
•Held: Yes. •Held: Irrelevant, because further cruelty revives prior complaints. •Discussion: •Texas fault-based divorce initially was very strict •This case was W's 2d try at pleading (Note 1) •Proof that H was a murderer was not enough •H's long-term imprisonment initially was not enough (n.3) •
Tex. Dep't of Protective & Regulatory Servs. v. Sherry, (Tex. 2001) •FACTS: Threesome. Bio-dad stays out until mom and adjudicated dad die •When child is born, TX gets involved to try to ensure child support payments •Charlie Cannon was initially acknowledged father; but dies. Then mom dies of drug overdose •Charlie Sherry comes out of the woodwork, says "I'm dad!" •Everyone agreed originally that I was the less responsible father, but now everyone else is dead, so I'm going to step up.
•Held: barred by judgment; lost your chance to become dad. •Charlie's claim of no notice? •Argues he had no notice of the first lawsuit that adjudicated Cannon father. •Court's response: you are not an "alleged father" •Strange: if you're not in lawsuit, or in privity with someone in the lawsuit, you are not bound by the lawsuit. Cannot be precluded by a judgment. •Perhaps TX SCt was focused on the outcome instead of correct procedure. Wanted to get kid into good adoptive family instead of this Sherry guy. •Charlie's constitutional complaints? •Constitutionally can't be bound by a lawsuit to which you are not a party •Did not assert his constitutional claims in his trial court pleadings or at the trial court hearing on standing. •Prof: parties shouldn't have to raise constitutional issues. •Critique of Sherry reasoning •Violates basic res judicata law •Ignores child's rights •Ignores public policy •What about current law? •Barred by prior proceeding? •Is there is a presumed/adjudicated dad? Why no allow Sherry to be adjudicated father so he can be forced to pay child support?
Ince v. Ince, 58 S.W.3d 187, 188 (Tex. App. 2001) •FACTS: 13 years post-divorce, ex-H claims not father. Brings bill of review, claiming ex-W's fraud. DNA testing under false pretenses
•Held: bill of review not permitted because no extrinsic fraud •HOLDING •Paternity, although not contested, was an issue addressed and resolved by the trial court in 1987. The divorce decree establishes Derek as the child's father and provides for child support, conservatorship, and visitation. •Derek failed to allege any act on the part of Virginia that prevented him from contesting the issue of paternity. •Derek had the option to contest paternity at the final divorce hearing. He was never denied the defense. •At most, he was denied the evidence of Virginia's adultery that would have assisted in proving the defense. •As the Tice court pointed out, each party must exercise due diligence to guard against adverse findings upon issues directly presented. Tice, 767 S.W.2d at 702. •We find that Derek alleges only intrinsic fraud because his "meritorious defense" could have been fully presented at the original trial.
VOLUNTARY TERMINATION: In the Interest of K.S.L., (Tex. 2017)• Facts: Voluntary termination challenged by parents. Claims that affidavit does not prove "best interest". •Drug addict parents sign affidavit voluntarily terminating parental rights, then change their minds. •Issue: Arguable statutory conflict (between grounds for termination orders and how to attack termination orders)
•Holding: Voluntary termination affidavit conclusive, absent proof of fraud, duress, or coercion •Discussion: •Signing the affidavit alone is enough to satisfy "best interest" affirmations in an affidavit of relinquishment are, in the ordinary case, ample evidence to support a best-interest determination.
Assoun v. Gustafson •Facts: Ex-H wants to get out of "alimony until remarriage" court judgment. Ex-W in a very longterm public relationship •Not how it works in Texas/USA. You don't get out of alimony if your ex-spouse remarries. But this is an English order. •Issue: Informal marriage?
•Holding: not married. The circumstantial evidence cannot overcome the direct evidence. - Direct evidence (testimony) from both cohabitants trumps pretty much anything. •Discussion •- What is the evidence, pro and con? •- How does this square with summary judgment standards? •- How does this compare with Leva? •"Courts cannot marry parties by mere presumption without their consent. In the absence of consent, the status of marriage is never created by any government. The law compels no one to assume the matrimonial status. Without assent, no statute or constitution can create this relation." •DISSENT: Lots of circumstantial evidence that they were common law married. Huge financial interest to deny. Should NOT grant summary judgment
Child Support Enforcement
•How can you put muscle behind enforcement? •There's lots of things coming from the fact that the AG wanted to get out of 50th place. For a while many TXLeg sessions were coming up with new ways to collect child support. •Today, Texas is somewhere in the middle among states in child support collection. •
Getting Around People Who Get Around Income
•How do you deal with people who don't have records, don't file taxes, etc. •Required info: furnish sufficient information from which wages can be determined •There's a standard form that's supposed to be filled out before you get into court, this tends to get a good bit of credence •Presumption: everyone is earning at least minimum wage •But what about person in prison? •Have to go in and prove that you can't pay. Can't just show person is in prison •Deemed income from assets •EX: if one spouse gets big family home after divorce you can argue that a single person doesn't need 8 bedroom home with gold toilets, you could get yourself a one bedroom apt and rent out home. •Assets that could be used to receive income; that potential income can be added to monthly resources •Underemployment = potential •In other words, is working in a job that is not up to their earning potential. •Look at potential income that obligor could be making
Child Support: Multiple Families •How do you split child support obligations to children of two different mothers (or more)?
•How do you split child support obligations to children of two different mothers (or more)? •Two ways to do this: •Method #1: use the statutory chart - 154.129 •Method #2: use the statutory formula - 154.128 (should be the same as the chart) •Step 1: compute total $ amount as if all children for whom support owed were in a single family •Step 2: divide this amount by total number of children, then multiply by number of children not before the court •Step 3: subtract Step 2 number from net resources •Step 4: compute $ for family 2, as adjusted •[look at PPT that has hypo] •This doesn't apply to computation of "high end" support •Method 3: •Monthly Child Support Calculator on TX AG's office •Fill in salary, deduction, current support, etc.
In re Scheller - TX 2010 psychologist appointment fine
•However, the trial court's appointment of an evaluative expert does not infringe on Scheller's rights because such an appointment is allowed by law; the order entered by the Court does not interfere with the parental relationship, but rather seeks to determine the best interests of the children; and no conflict exists between appointing the evaluating psychologist as guardian ad litem. •The Family Code specifically provides for this type of appointment. A suit for access to a child is a suit affecting the parent-child relationship (SAPCR) in which the principal consideration is the child's best interest. See TEX. FAM. CODE § 101.032(a) (defining a SAPCR); id. § 153.002 (explaining that "[t]he best interest of the child shall always be the primary consideration of the court in determining the issues of . . . possession of and access to the child"). •In SAPCRs, a trial court may appoint a psychologist or psychiatrist to conduct a mental examination of the parties and children subject to the suit. TEX. R. CIV. P. 204.4(a). •A trial court additionally has discretion to appoint a guardian ad litem in a suit for access to a child if it "finds that the appointment is necessary to ensure the determination of the best interests of the child . . . ." TEX. FAM. CODE § 107.021(a)(3), (b)(2). •Psychologists are one class of professionals qualified under the Family Code to serve as a guardians ad litem. See id. § 107.001(5)(B), (5)(C). •In using these finite resources at the trial court's disposal to determine the best interests of the children, the trial court did not abuse its discretion.
In re Thacker, 881 S.W.2d 307, 307 (Tex. 1994) •FACTS: Baby selling conviction; private adoption lawyer convicted of "purchase of a child," 10 years probated + $10k
•ISSUE: Is baby selling disbarrable "moral turpitude"? •HOLDING: Yes. •Comments: •We classify the crime, not the person •Any money changing hands, outside authorized agency fees, legal fees, expense reimbursement
•When can you Deviate from child support amount? - 154.122(b)
•If "unjust or inappropriate" •Gives wide discretion to trial court •The presumptions are AGAINST adjustments guideline amount •And in child's best interest •16 factors, + #17 catch-all •Lawyers treat as a checklist
•Condonation (old defense)
•If a husband committed adultery, and confessed to wife, she could file for divorce, but if she was in a bad economic place, she could just say "I forgive you" and marriage would stay in effect
PROVING "ENDANGERMENT." •In the principal case, the Texas Supreme Court observed that "'endanger' means more than a threat of metaphysical injury or potential ill effects of a less-than-ideal family environment, but that endangering conduct need not be directed at the child." •The latter point is illustrated in Interest of B.R., 950 S.W.2d 113 (Tex. App.-El Paso 1997, no writ).
•In B.R., the father had been sentenced to life imprisonment for the shotgun murder of his pregnant wife. The child B.R. was eleven months old at the time. The father argued there was no evidence showing that his conduct had any adverse effect on the child, in that the child was not directly exposed to the murder and that the murder had no noticeable effect on the child's behavior. The court of appeals did not agree, stating: "[T]he specific danger to the child's wellbeing need not be established as an independent proposition, but may instead be inferred from parental misconduct."
LESS-THAN-UNANIMOUS VERDICTS.
•In Interest of T.C. & G.C., the Fort Worth Court of Appeals rejected out of hand the notion that permitting a ten-to-two verdict in a parental rights termination proceeding (as is permitted in other civil cases) could be a legitimate basis for appeal. •Is a non-unanimous jury verdict consistent with a "clear and convincing" evidentiary standard? •In In re J.F.C., 96 S.W.3d 256 (Tex. 2002), the parents also contended that the jury charge failed to satisfy due process requirements because the jury was instructed it could reach its decision by a ten-to-two verdict. •The Texas Supreme Court declined to consider the issue because it had not been raised at the trial level, but added: "[E]ven assuming, without deciding, that 1) this argument could be raised for the first time on appeal and 2) the charge erred in this regard, we do not reach the constitutional challenge because the evidence conclusively establishes" grounds for termination. Id. at 277. If the ground was facially frivolous, why did the Texas Supreme Court not just say so? •The provision for non-unanimous verdicts is not the only aspect of jury trial procedure in termination cases that might be the subject of further litigation. Consider the question of broad-form jury submission, explored the case that follows.
What is the probate exception?
•The "probate" exception reserves to a state probate court the right to adjudicate the probate of a will and the administration of a decedent's estate. •Further, the exception precludes a federal court from disposing of property of an estate of which a state probate court has custody. •However, a federal court is not prohibited from adjudicating matters touching a state probate matter.
FUNDAMENTAL ERROR DOCTRINE IN PARENTAL TERMINATION SUITS?
•In a series of decisions, the Waco Court of Appeals contended that, in view of the importance of the parent-child relationship, legal errors not objected to at the trial level could nonetheless be considered on appeal. See, e.g., In re J.F.C., 57 S.W.3d 66 (Tex. App.-Waco 2001); Interest of B.L.D., 56 S.W.3d 203 (Tex. App.-Waco 2001). •As might be gathered from some of the decisions discussed in the preceding notes, this view generally has been *rejected by the Texas Supreme Court*. See, e.g., Interest of B.L.D., 113 S.W.3d 340 (Tex. 2003). •The Court acknowledged the importance of the interests at stake in parental rights termination cases, but — applying the test set out for procedural due process safeguards in Matthews v. Eldridge, 424 U.S. 319 (1976) — viewed those interests as being outweighed by the interest of the state and the child in speedy and final determinations. Thus, "[a]s a general rule, due process does not mandate that appellate courts review unpreserved complaints." Id. at 354. •However, the Court added: "[We acknowledge that in a given parental rights termination case, a different calibration of the Eldridge factors could require a court of appeals to review an unpreserved complaint of error to ensure that our procedures comport with due process." Id.
MEDIATED SETTLEMENT AGREEMENTS THAT LEAD TO VOLUNTARY TERMINATION OF PARENTAL RIGHTS
•In addition to voluntary affidavits, parental rights can be terminated through the mechanism of a mediated settlement agreement. See Texas Family Code, Chapter 153. In a 2018 decision, the Texas Supreme Court noted: •We recently held in In re K.S.L. that similar affirmations in an affidavit of relinquishment are, in the ordinary case, ample evidence to support a best-interest determination. Discerning no material difference in the evidentiary value of a parent's voluntary statements in a mediated settlement agreement, we affirm the court of appeals' judgment. •Interest of A.C., 560 S.W.3d 624, 626-27 (Tex. 2018).
SINGLE PARENTS AND ADOPTION
•In considering the "best interests" of the child in an adoption proceeding, can (or should) courts give preference to married couples, or to couples rather than single adults? •Consider the case that follows. In reading Interest of W.E.R., however, keep in mind that the Texas Supreme Court reversed the decision of the San Antonio Court of Appeals in a per curiam opinion, appended to the case.
NATIVE AMERICANS AND ADOPTION
•In contrast to provisions on the subject of interracial adoption, federal law sets out a statutory preference that American Indian child adoptions to take place, "in the absence of good cause to the contrary, with •(1) a member of the child's extended family, •(2) other members of the child's tribe, or •(3) other Indian families, in that order. See 25 U.S.C. § 1915(a). •What public policy might justify this differential treatment?
"ANDERS" BRIEFS ON APPEAL.
•In criminal cases, when the defendant insists that appointed counsel prosecute an appeal against counsel's better judgment, the lawyer has the right to file a brief demonstrating that there are no non-frivolous grounds for appeal. •This sort of filing generally is referred to as an "Anders brief," in reference to the United States Supreme Court's leading decision on the subject. See Anders v. California, 386 U.S. 738 (1967). •While the Texas Supreme Court has not spoken to the subject, at least half the Texas courts of appeal have extended this doctrine to appeals of decisions terminating parental rights. See, e.g., Interest of K.D., 127 S.W.3d 66 (Tex. App.-Houston [1st Dist.] 2003); In re K.S.M., 61 S.W.3d 632 (Tex. App.-Tyler 2001, no pet.); In re AWT, 61 S.W.3d 87 (Tex. App.-Amarillo 2001, no pet.). •The Family Code also provides a procedure for determining whether an appeal is frivolous. See TEX. FAM. CODE § 263.405.
Wall v. Tex. Dep't of Fam. & Prot. Servs., 03-04-00716-CV (Tex. App.-Austin June 2, 2006, no pet.), the mother testified that she was coerced, defrauded, deceived or was the victim of undue influence or overreaching when she was persuaded to relinquish rights to two children during a termination proceeding, when she was told that an adverse ruling on the merits also could be used to justify termination of rights to her unborn child. •She also argued that she was eight months pregnant and "fatigued, hungry and feeling sick" when she signed the affidavit. She asked her attorney to revoke the affidavit the same day it was signed.
•In each of these cases, the mother was represented by counsel when the affidavit was signed, a fact that commonly leads to the conclusion that an affidavit is signed voluntarily. See, e.g., In re N.P.T., 169 Sl.W.3d 677, 681 (Tex. App.-Dallas 2005, pet. denied) (relinquishment affidavit as part of a criminal plea bargain); In re D.R.L.M., 84 S.W.3d 281, 298-99 (Tex. App.-Fort Worth 2002, pet. denied). Should the mothers in R.M. and Wall have raised other claims?
DE NOVO REVIEW OF TERMINATION CASES?
•In his short concurrence in C.H., Justice Hecht made the point that de novo review, not just a "firm belief or conviction" standard, might constitutionally be required. He analogized to defamation cases and punitive damage awards, in which the United States Supreme Court also has mandated a "clear and convincing" trial standard, and in which the United States Supreme Court has also intimated that some sort of de novo appellate review should be conducted •In a footnote omitted from the edited version of the case, the majority also addressed the question, as follows: •In Bose Corp. v. Consumers Union of the United States, Inc., 466 U.S. 485, 510-11 (1984) the United States Supreme Court held that, in First Amendment cases, a finding of "actual malice" must be supported by clear and convincing proof to satisfy due process. The Court adopted a standard of appellate review that required "judges, as expositors of the Constitution, must independently decide whether the evidence in the record is sufficient to cross the constitutional threshold that bars the entry of any judgment that is not supported by clear and convincing proof of 'actual malice'." Although the Supreme Court in Santosky has also required that parental termination be proved, at a minimum, by clear and convincing evidence, the Court did not articulate a standard for appellate review. Because we decide this case today on non-constitutional grounds, we express no opinion whether the Bose standard applies in a proceeding to terminate the parent-child relationship. •In the later J.F.C. decision, the Texas Supreme Court's majority opinion returned to speculation on a possible de novo review standard, commenting: •We note that the parents have not argued that the United States Constitution requires appellate courts to conduct a de novo review in parental termination cases like the de novo review that the United States Supreme Court has held is required in defamation cases and for punitive damage awards. . . In the absence of any contention that the federal constitution requires a de novo review of the evidence, we leave open, as we did in In re C.H., whether the United States Constitution requires the type of review set forth by the United States Supreme Court in Harte-Hanks and Bose, and if so, whether the standards we have set forth above would comport with the de novo review required by those decisions. •Interest of J.F.C., 96 S.W.3d 256, 267-68 (Tex. 2002). In 2003, the Texarkana Court of Appeals rejected a request to apply a de novo standard; the Texas Supreme Court denied the petition for review without comment. See Interest of A.B., 125 S.W.3d 769 (Tex. App.-Texarkana 2003, pet. denied).
What "Similar" Arrangements are Banned by Texas DOMA
•The *Covenant Marriage* Problem? •Laws against same sex marriage are still on the books •TX Constitutional Marriage Amendment - "all marriages or institutions similar are void" •What is "similar" to marriage? •Since Obergefell, same sex marriage legal, but what about things "similar" to marriage? •Marriage is a "contract" according to the law •Marriage is like adoption, military enlistment, alimony, Christmas (abides in both secular and religious worlds)
Good statement of appeals court review standard of trial court child support modification holding
•In this case, no findings of fact or conclusions of law were filed. It is therefore implied that the trial court made all the findings necessary to support its judgment. Lemons v. EMW Mfg. Co., 747 S.W.2d 372, 373 (Tex. 1988). •In determining whether some evidence supports the judgment and the implied findings of fact, "it is proper to consider only that evidence most favorable to the issue and to disregard entirely that which is opposed to it or contradictory in its nature." Renfro Drug Co. v. Lewis, 235 S.W.2d 609, 613 (1950). •The judgment must be affirmed if it can be upheld on any legal theory that finds support in the evidence. In re W.E.R., 669 S.W.2d 716, 717 (Tex. 1984). •The trial court's implied finding of a material and substantial change in circumstances is reviewed on a clear abuse of discretion standard. . . . Further, the trial court's action is justified if a material change in circumstances can be shown for any party - father, mother or child. TEX. FAM. CODE § 14.08(c)(2) [now § 156.401]. •The trial judge was the trier of fact at the hearing and observed the witnesses and listened to their testimony. The trier of fact is entitled to believe or disbelieve any witness or any portion of that witness' testimony.
INEFFECTIVE ASSISTANCE OF COUNSEL.
•In view of the statutory right to counsel just mentioned, is there a right (akin to that found in criminal trials) to complain of ineffective assistance of counsel? •In In re M.S., 115 S.W.3d 534 (Tex. 2003), the Texas Supreme Court answered that question in the affirmative. •In In re J.O.A., 283 S.W.3d 14 (Tex. 2009), the Texas Supreme Court ruled that an ineffective assistance of counsel complaint, including an assertion of a constitutional claim, could be raised on appeal even if not included in a statement of appellate points. •In yet another case, relying on Texas Supreme Court authority, the San Antonio court of appeals ruled that an indigent litigant is entitled to a free record whenever (and apparently, however) the litigant indicates the intent to claim ineffective assistance of counsel, notwithstanding a finding that the appeal is frivolous. Interest of E.M.M.M,, 340 S.W.3d 767 (Tex. App.-San Antonio 2011, no pet.).
What is "monthly Net Resources" - 154.062
•Included: •All the actual income an obligor receives: active, passive, prize, gift, pensions, SS benefits (but NOT SSI benefits), trusts, etc. •Essentially any income from anywhere •Excluded •Return of principal or capital •Accounts receivable •AFDC payments •Federal and state income tax (+SS tax) •Union dues •Health insurance for kids •Because there's a statute that requires obligor to pay for health insurance anyway •New spouse's income is not considered •Because needs of a new spouse also ignored •Marrying poor or new spouse doesn't affect obligor's obligation •Court control of liens
Is polygamy now legal?
•Is it possible to enforce a law in TX banning polygamy? •Think of Hugh Heffner. •We basically have decriminalized adulterous relationships. •"Open marriages" are not illegal •Only difference with polygamy is that it is religiously sanctified. •Will be tough to come up with a rational basis under these circumstances. •Only difference in adultery and polygamy is that there's a religious component (which we're not supposed to consider under 1st amend) and polygamy is open, not secretive like many adulterous relationships.
DEFENSES TO FAULT-BASED GROUNDS FOR DIVORCE.
•John argued that the fact Margaret returned to live with him for a brief period of time after her son's death prohibited her from raising the issue. •Margaret's explanation was that, after filing for divorce, John enticed her to move back in for a brief time by arguing that Margaret's two daughters — still in his possession — needed a mother's care. What did the court rule? •The defense of condonation is now severely limited by statute, and other former defenses were abolished in 1970. See TEX. FAM. CODE § 6.008.
Right to a Jury Trial
•Jury trial is constitutionally guaranteed by TXC (+ civil Batson) Procedure •- Either party may ask for jury - 6.703 •- Ditto child custody - 105.002 •Exceptions •No jury in adoptions •No jury in parentage determinations •Divorce •Jury on facts justifying divorce, character of property (separate or community), value of property •Division of property: jury is advisory ONLY Jury advisory only - 7.001 •Children - 105.002 •Jury on conservatorship and primary residence •NO jury on specific terms of conservatorship and child support
COMPARATIVE LAW.
•Justice Frost's dissenting opinion noted that only three states — Texas, Michigan, and Iowa — have no-fault divorce statutes that refer to the "legitimate ends of the marital relationship." Other states require that the spouses have lived apart for some period of time, or use language such as "irreconcilable differences," "incompatibility," or require a finding that "the marriage is irretrievably broken."
Exclusive Rights of SMC - 153.132
•Lists what a sole managing conservator should expect; presumptions •Establish primary residence •Thinking is that if managing conservator has the right, then majority of rights go along with this •Consent to invasive medical treatment and all psychological care •Receive child support •Make all educational decisions •Be the child's representative in legal action and make "other decision of substantive legal significance" •Consent to marriage (can be basis of emancipation) or enlistment •Child's services and earnings •UNLESS limited by court order
•Conservatorship Vocabulary •3 Kinds of access
•MC - managing conservatorship (~custody) •Basically the person who gets the right to determine where the child lives, and with that comes the majority of powers that come with taking care of a child •PC - possessory conservatorship (~visitation) •Person who has some possession rights in a child, what used to be called visitation •Court will set out hours, days of the week, etc. •Can be multiple PCs, so long as they don't overlap in periods of possession •JMC - joint managing conservatorship (~custody) •Two people who are sharing responsibilities
Family Violence & "Best Interest" - (153.004)
•Major topic on bar •For SMC or JMC, court "shall" consider violence within 2-year window •SMC or primary JMC not possible if credible evidence of abuse or neglect by that parent (does NOT require conviction); presumption against unsupervised possession. •If child abused, judge must find no present danger and craft a possession order for parent access •Sanctions for false reports of abuse - (153.013) •
•THE SEVEN-YEAR PRESUMPTION OF DEATH.
•The presumption that a person absent for seven successive years is dead still is a valid one in Texas. See, e.g., TEX. CIV. PRAC. & REM. CODE § 133.001.
UNDERAGE MARRIAGES IN TEXAS:VOID OR VOIDABLE?
•Marriages contracted when one (or both) of the parties is under the legal age of consent have not uniformly been characterized through Texas history. •In Robertson v Cole, 12 Tex. 356 (1854), the underage marriage in question was "under all the circumstances of the case" considered "void." Id. at 365. •More recently, at least until the 2005 anti- polygamy amendments, underage marriages were deemed voidable only. E.g., Husband v. Pierce, 800 S.W.2d 661 (Tex. App. - Tyler 1990, orig. proceeding). •In 2005, the Legislature expressly declared that "[a] marriage is void if either party to the marriage is younger than 16 years of age." TEX. FAM. CODE § 6.205 (2005). •In 2017, the Legislature changed the legal age for marriage to 18, absent a court order, but retained the language declaring underage marriages "void." TEX. FAM.CODE § 6.205. •Nonetheless, the Legislature has left in place statutes providing for the "annulment" of underage marriages. See TEX. FAM. CODE §§ 6.102-.104. •*However, if such a marriage is truly "void," there is nothing to "annul," as Texas law views "annulment." It would be helpful, to put it mildly, if the Legislature would address this anomaly.*
Parental Termination: Miscellaneous
•Miscellaneous •.003 - long-term mental illness (no real chance you'll recover to the point you can take care of child) •No letter, number: it is a ground so old it comes from a time that they didn't need subdivisions •.006 - live birth after attempted abortion •.007 - birth as a result of a criminal act •EX: rape (the rapist's rights)
•The natural right existing between parents and their children is of constitutional dimensions. . . .Indeed, "involuntary termination of parental rights involves fundamental constitutional rights." . . . This natural parental right has been characterized as "essential," "a basic civil right of man," and "far more precious than property rights." . . . A termination decree is complete, final, irrevocable and divests for all time that natural right as well as all legal rights, privileges, duties and powers with respect to each other except for the child's right to inherit. . . . [§ 161.206]
•Moreover, the evidence in support of termination must be clear and convincing before a court may involuntarily terminate a parent's rights. . . . Consequently, termination proceedings should be strictly scrutinized, and involuntary termination statutes are strictly construed in favor of the parent. . . .
Adoption of Adults - 162.501+
•No best interest requirement •If adoptive parent married, both must join •Adult must consent •Law views as Son or daughter for all purposes •Cuts off inheritance through biological parents
Parental Termination: Nonsupport
•Nonsupport •f) nonsupport in accord with ability for 1 year ending within 6 months of suit (consecutive 12 months) •q) knowingly engage in criminal conduct resulting in prison AND inability to support children for 2 years •Designed to make it clear that when you go to prison for a long time you can have parental rights terminated. But not JUST because you are in prison. •Thus statute is saying you are deliberately not supporting •The big difference is wealth. People who can still afford to support kids while in prison aren't affected, but those who can't, are subject to parental termination.
VOID MARRIAGES
•Not a marriage; does not become valid with a couple of exceptions •Exceptions: if you are in informal marriage that can't be a marriage because there's a pre-existing marriage; once the first marriage ends, the 2nd marriage becomes an informal marriage •You don't have to file a lawsuit, because if marriage if void, it's void •But you might, just in case, want to file a suit for a declaratory judgment
Parental Termination: Not following orders
•Not following orders •i) contumaciously (willfully disobedient) refuse to follow state orders •Violating court order so badly that you can be put in jail •j) violating truancy orders •Parent under orders to get kids to school •o) don't follow court ordered program to regain custody •Common ground for termination •Leverages other grounds of termination. •EX: court has found previously that parent has done bad things (EX: drug rehab), but parent does do it.
NON-STATUTORY GROUNDS FOR ANNULMENT.
•Nothing in the Family Code specifically says that the statutory grounds are the only bases for annulling a marriage. If duress can be a reason for setting aside a marriage, what about lack of consent? Consider the two cases that follow.
CONVERTING A VOID BIGAMOUS MARRIAGE INTO A VALID INFORMAL MARRIAGE.
•Of the two historic fact patterns for declaring a Texas marriage void, only one - consanguinity - is immutable. •The other - bigamy, or the existence of an earlier valid and existing marriage - depends on facts that can be changed. •If a couple is living together in circumstances that would constitute a valid informal marriage, but for the existence of a prior marriage, the void marriage is validated as an informal marriage once the prior marriage is dissolved by death or divorce. Cf. TEX. FAM. CODE § 6.202(b) (stating that "[t]he later marriage that is void . . . becomes valid when the prior marriage is dissolved if, after the date of the dissolution, the parties have lived together as husband and wife and represented themselves to others as being married").
PROTECTING THE INNOCENT PARTY TO A VOID MARRIAGE: THE TEXAS PUTATIVE SPOUSE DOCTRINE.
•On occasion, one "spouse" will not discover that another, "real" spouse exists - and that his or her marriage therefore is void - until the second "marriage" is dissolved by death or divorce. In recognition of the gross inequities that would arise if the property accumulated during a later "marriage" were awarded to an absent spouse, the Texas Supreme Court has developed the "putative spouse" doctrine
Child Support Enforcement: License Suspension
•One of the best ways to get child support paid •Can get license suspended •What are the requirements? - 232.003 •Either all three of the following, OR •1) more than 3 months delinquent •2) court or agreed repayment order •3) no compliance with schedule •Violating custody or subpoena - alone enough to get licensed suspended •What licenses are covered? •All, unless statute supersedes - 232.002 •Hunting license is the best incentive in TX, apparently •What is the procedure? •Motion, notice and hearing •"Inability to pay" defense - 157.008 •What if you need a drivers license to work? Depends on TCt, if judge thinks you are sincere
Assisted reproduction - 160.701+
•Only applies when the "mother" gives birth •Other statutes for surrogacy/gestational agreement •Donor of sperm not parent unless also the husband •[Constitutional issue? JWT case application?] •or written agreement with consent •If married, both spouses must consent to assisted reproduction •Contest within 4 years + no husband consent •Unless 160.705(b) limitations period trumps •Effect of marital dissolution? •Everything in writing •The whole area of parentage, Texas is on the cutting edge of science/statutory reform. •TX early adopters of Uniform Parentage Act. •In this one area, going in the right direction. Good body of uniform statutes to work with •means a method of causing pregnancy other than sexual intercourse, including IVF and transfer of embryos. § 160.102(2)(D). •The statute requires that both husband and wife consent to assisted reproduction. § 160.704(a). •However, section 160.704(b) acknowledges that a child may be born without the husband's consent. § 160.704(b). •Section 160.706 addresses paternity in the event of divorce as follows: "if a marriage is dissolved before the placement of eggs, sperm, or embryos, the former spouse is not a parent of the resulting child unless the former spouse consented in a record that if assisted reproduction were to occur after a divorce the former spouse would be a parent of the child." § 160.706(a). •This section also provides that consent of the former spouse may be withdrawn at any time before the placement of eggs, sperm, or embryos. § 160.706(b). Noticeably absent from these sections is any legislative directive on how to determine the disposition of the embryos in case of a contingency such as death or divorce. Nor is there anything in the case law that is incompatible with the recognition of the parties' agreement as controlling.
Covenant marriage
•Opt-in "super-marriage" •Alters requirements for marriage •Alters grounds for divorce •Only on "biblically-sanctioned" grounds •3 states have this two-tiered system •Arizona - John & Cindy McCain; Huckabees;
Paternity Registry - FC 160.401+ •Scenario is strange: •Guy has one night stand, thinks to himself a kid might result, goes down to the govt office to register and request notification •If you register, you have a right to notice, if not you don't •Similar principle to notice by publication •Confidential records
•Original purpose was to protect biodads, when no formal rights (and better than publication) •Then Lehr v. Robertson (USSCt 1983) says NY biodad who filed suit still loses rights if not registered •Biological father had a really strong suspicion that he was the actual father •Says no notice is okay because there's a registration opportunity (Paulsen finds shocking to the conscience) •Most states ignore this case •Some states (including Texas - JWT) split *Basics* •Registration as possible father = right to notice •Confidential; (violation results in criminal penalties) •Before or within 31 days after birth •Get notice in termination and adoption proceedings •If address no good, due diligence required and ad litem appointed •Not required to register if -P/C relationship already established -Alleged dad already litigating before terminated (anti-Lehr v. Robertson) -For kids over 1, still must certify biodad's identity and/or location unknown
Standard Order, Miscellaneous Defaults
•Pick up and deliver child at MC's residence, or at school if appropriate •Don't mess with clothes and toys •When one parent is just the PC and the child is living at the other parent's home, whatever toys and clothing they come with to PC's home, they must leave with. •Has been manipulated out of spite so that all the child's favorite clothing and toys were transferred. •Thus, there is a statute, so at some point PC can be forced to return and will get monetary penalty. •Substitute adults OK with notice •Notice required (to other conservator, and school if applicable) if there's a problem
Genetic Testing Rules
•Presumed, acknowledged or adjudicated dad disproved only by testing that eliminates or IDs another - 160.631 •99% valid testing usually wins; binds court, no jury •Can use relatives & test the dead •"Rebuttable," but only by another test of equal validity excluding paternity or ID's another •Conflict = more tests •Identical brother = traditional methods
•Batson Procedure (burden shifting framework)
•Prima facie showing of discrimination (pattern of strikes, nature of questions in voir dire, etc.) •Burden shifts: lawyer who exercises strikes must provide "facially neutral" explanation - can be "silly, superstitious, or founded on hunch" as long as not facially discriminatory •Burden shifts back to original movant, who then must persuade TCt that discrimination occurred; they were pretextual or unfounded, etc. •Reviewed for abuse of discretion •Reviews questions of law de novo (such as whether the reason given for exercising the strike is truly neutral) Questions of fact: must defer to lower court's resolution
Wage Withholding Orders
•Probably the biggest deal for child support collection •Default setting, the presumption is that there has to be a support order •Must be filed with court, and sent to employer •Rare exception: •Parties agree that there doesn't have to be service of support order on employer (argument is that it violates confidentiality; don't necessarily want the fact that you are paying child support to get around the office) •good cause for not sending to employer •Due Process requires: notice and hearing - 158.301 •Must get specific notice of wage withholding order and opportunity for a hearing •Flip side: employer is required to deduct this amount; but the employer is also covered in that if the employer in deducting money is following a court order it is not possible to sue for what the employer is doing •Employee can't sue the employer to enforce the court order now as long as employer is following order - 158.206(a) •Cannot consider the fact that the employee is paying child support in hiring/firing decisions - 158.209 •If the employer ignores the order, the employer is Liable to recipient for the amount that should have been withheld from the paycheck (plus a fine) - 158.206(b) •Military - considered punishable offense to not pay child support •Can deduct administrative fee - 158.204 •Maximum 50% of income •Employer cannot withhold more than half of employee's income
Conservatorship Presumptions
•Probably the hottest topic in conservatorship •If you have a couple of parents, JMC presumed in child's best interest - 153.131 •Unless family violence •Presumption for both parents as JMC parents, or one parent as SMC parent - 153.131(a) •Presumption overcome by showing that appointment would "significantly impair child's physical health or emotional development" •No "best interest" test •Burden of proof is heavily weighted toward biological or adoptive parent •If parent doesn't get JMC or SMC, there is a Presumption that parent at least becomes non-SMC or JMC parent to be PC [153.191] •Unless possession or access "would endanger" child's "physical or emotional welfare" AND •Not in child's best interest •PC restriction/denial "may not exceed those [terms] that are required to protect child's best interest" - 153.193 •Oddball provision: voluntary surrender for less than year, within 90 days before filing, + best interest of child = rebuts parental presumption - 153.373 •Kind of like constructive abandonment
•the Beavers standard.
•Residency requires an actual, physical, continuous living in the county of suit by one of the parties for the period specified, coupled with a good-faith intent to make that county home. Beavers, 543 S.W.2d at 721.
Rights of Any Parent Conservator - 153.073
•Right to receive information about health, education and welfare info •Concomitant duty to provide the same - 153.076 •Specific duty to provide information if parent about to move in with sex offender •Attend school activities •Deal with medical emergencies •Manage child's estate (created by that parent) •UNLESS court orders otherwise •
•TX SCt: Effective May 1, 2020, TX Rules of Civil Procedure are amended. Broad-form submission is NOT allowed.
•Rule 277 - Submission to the Jury [Effective May 1, 2020], Tex. R. Civ. P. 277 •In a suit in which termination of the parent-child relationship is requested, *the court shall submit separate questions* for each parent and each child on (1) each individual statutory ground for termination of the parent-child relationship and (2) whether termination of the parent-child relationship is in the best interest of the child. The court shall predicate the best-interest question upon an affirmative finding of at least one termination ground. Comment to 2020 change: Rule 277 is revised to require a jury question on each individual statutory ground for termination as to each parent and each child without requiring further granulated questions for subparts of an individual ground for termination. Rule 277 is also revised to require a separate question on best interest of the child as to each parent and each child that is predicated on an affirmative answer to at least one termination-ground question. The revisions supersede Texas Department of Human Services v. E.B., 802 S.W.2d 647 (Tex. 1990).
FLDS - Fundamentalist Church of Latter-Day Saints
•Set up Hilldale/Short Creek as towns just across border from Utah/Arizona as a way to avoid state authorities. Just run across state border if authorities from one state •Warren Jeffs was a leader/prophet. Lots of underage girls married off
Child Support: Intentional Underemployment
•Setting support at the level the obligor's income would be if obligor picked different job for which he was qualified
Paternity Adjudication Procedure
•Standing - child, mother, man at issue, intended parent (or representative for all), state (usually support or adoption) agency •Necessary parties: mother, man at issue •Can join with other proceedings, like adoption, termination (voluntary termination is usually to try to get out of child support), conservatorship, support, divorce
Conservatorship: Public Policy
•State has a strong interest in welfare and upbringing of children •Despite sanctity of parenthood •Statute sets out public policy underlying chapter •Basics - 153.001(a) •Assure contact with parents who can act in child's best interests •Provide safe, stable environment •Encourage parents to share responsibilities •Just because you've divorced spouse, does not mean that you've given up responsibilities for children •Conservatorship and child support separate •Paying child support does NOT entitle you to contact with child •There is a myth otherwise, but it is totally untrue •By statute you are forbidden to condition access to child on paying child support - 153.001(b); 154.011 •If you try to condition to access on child support, the judge will look on this very unkindly •You can be required to pay child support without ever having any contact with child. 153.075
Child Support Statute of Limitations
•Statute of Limitations •Money judgment - must bring action within 10 years after the support ends or the child becomes an adult and is no longer eligible •EX: if you have a kid in college, and having trouble paying because obligor hasn't paid in 10 years, you can get a order requiring payments be up to date and hand it to the college registrar •To get Contempt order - must file within 6 months after support obligation ends; or child becomes an adult
•Interest of R.M & J.M., 07-05-0424-CV, 2006 Tex. App. LEXIS 5011 (Tex. App.-Amarillo June 9, 2006, no pet.), the mother testified that she signed a voluntary relinquishment affidavit during a hearing on removal of her children because she overheard a conversation in which the state's lawyer said she would either sign the affidavit or go to jail. •The Texas Department of Protective and Regulatory Service's attorney more or less confirmed the conversation, but explained that he felt obligated to pass information gleaned from some of the testimony to the criminal division of the district attorney's office - and actually had done so.
•The Amarillo Court of Appeals affirmed a decision denying a new trial, and a statutory finding that the appeal was frivolous.
DEAD MAN'S STATUTE
•The Texas Dead Man's Statute prohibits a party or interested witness from testifying to uncorroborated oral statements of a dead person, unless called to testify to such statements by that party's opponent. See TEX. R. EVID. 601(b). This evidentiary rule sometimes can present an obstacle to proof of equitable adoption. See, e.g., Defoeldvar v. Defoeldvar, 666 S.W.2d 668 (Tex. App.- Fort Worth 1984, no writ); Bowden v. Caldron, 554 S.W.2d 25 (Tex. Civ. App.-Texarkana 1977, writ ref'd n.r.e.).
•REBUTTING THE PRESUMPTION OF A VALID MARRIAGE.
•The Texas Family Code provides that state policy is to "preserve and uphold each marriage against claims of invalidity unless a strong reason exists for holding the marriage void or voidable." TEX. FAM. CODE § 1.101 (emphasis added). •Moreover, the most recent marriage is presumed valid "until one who asserts the validity of a prior marriage proves the validity of the prior marriage." TEX. FAM. CODE § 1.102. •In Texas Emp. Ins. Ass'n v. Elder, 282 S.W.2d 371 (Tex. 1955), the Texas Supreme Court explained: •The presumption in favor of the validity of a marriage which, as in this case, has been duly shown to have been contracted is one of the strongest, if, indeed, not the strongest, known to law. "The presumption is, in itself, evidence, and may even outweigh positive evidence to the contrary. The strength of the presumption increases with the lapse of time, acknowledgments by the parties to the marriage, and the birth of children; and the fact that the legitimacy of a child may be involved is a factor in sustaining the validity of the marriage." . . . It is well that the presumption should be so regarded, for it is grounded upon a sound public policy which favors morality, innocence, marriage, and legitimacy rather than immorality, guilt, concubinage, and bastardy. •Id. at 373 (quoting C.J.S.). • STATUTORY CHANGES. •In 1989, the Texas Legislature amended the informal marriage statute in an apparent effort to make it more difficult to prove the existence of an informal marriage. That effort, described in the case that follows, did not meet with favor in the courts.
Michael H. v. Gerald D., 491 U.S. 110 (1989).
•The United States Supreme Court, in a plurality opinion, concluded that a biological father did not have a constitutionally protected interest because "our traditions have protected the marital family ... against the sort of claim the [alleged father] asserts."
THE CONSTITUTIONAL ADEQUACY OF THE TEXAS PATERNITY REGISTRY. •Interest of Baby Girl S., 407 S.W.3d 904 (Tex. App. - Dallas 2013, pet. denied), cert. denied, 135 S. Ct. 1896 (2015).
•The case arose from an alleged biological father's challenge to the validity of an adoption. •The mother claimed she did not know the father's identity. Because no one had filed with the paternity registry, the father's parental rights were terminated without notice when the child was 35 days old, as provided by statute. See TEX. FAM. CODE §§ 160.403, 161.002 (b) (3) & (c) (1). •The alleged father learned of the adoption about a month later, and filed a bill of review to set aside the adoption four months after that. •He claimed the adoption violated both the Fourteenth Amendment's due process clause and the Texas Constitution's due course of law provision. See U.S. CONST. amend. XIV; TEX. CONST. Art. I, § 19. The Dallas Court of Appeals rejected his claims. •
ACCELERATED TRIAL AND APPEAL. •As a result of 2001 amendments to the Family Code, trial and appellate deadlines under Chapter 263 may be different than for other civil cases. For one thing, if the Texas Department of Regulatory and Protective Services is involved, the suit must be brought to conclusion within one year, with the possibility of a single 180-day extension. See TEX. FAM. CODE § 263.401. •Additionally, an appeal is subject to the deadlines that govern accelerated appeals, not ordinary civil appeals. See TEX. FAM. CODE § 263.405. •These different deadlines apparently are not limited strictly to termination cases. Houston's Fourteenth Court of Appeals has ruled that in a conservatorship dispute between the parents and one set of grandparents, the fact that the TDPRS was a party and had remained in the suit even after dropping the termination request, subjected the parents' appeal from a decision granting conservatorship to the grandparents to the accelerated deadlines. Interest of A.J.K., 116 S.W.3d 165 (Tex. App.-Houston [14th Dist.] 2003, no pet.).
•The distinctions can be fatal. In a typical civil appeal, notice of appeal can be filed within 30 days of the trial court's order, and a motion for new trial or similar motion extends that deadline to 90 days. See TEX. R. APP. P. 26.1. •*By contrast, a family law accelerated appeal notice must be filed within 20 days, and the filing of a motion for new trial or similar motion does not extend that time period*. See TEX.R. APP. P. 26.1(b); TEX. FAM. CODE § 263.405(a); see also In re K.A.F., 160 S.W.3d 923 (Tex. 2005) (time line for accelerated appeal of termination not affected by post-trial motions); but see In re J.L., 163 S.W.3d 79 (Tex. 2005) (new final order from grant of post-trial motion restarts accelerated appeal time frame). •In a somewhat surprising decision, the Supreme Court of Texas also has ruled that even though a parental rights termination case should be dismissed if the suit is not concluded within the statutory period, the proper route by which to complain of the court's error is an accelerated appeal, not mandamus. In re Tex. Dep't of Fam. & Prot. Servs., No. 04-1043 (per curiam) (orig. proceeding) (Sep. 22, 2006) (leaving open the possibility of mandamus relief in some cases).
•Do protective orders work?
•The more scientific studies find them to be effective; one study found an 80% reduction in family violence when protective orders are in place. •Thus, judges tend to be inclined to issue them. Remember, just threats are enough. •Often puts in place as a precaution •Of course, it implies that the person is violent, which is embarrassing •Can get you in trouble with employer
ESTOPPEL
•The one exception of almost all DNA testing. The one time that DNA testing will be ignored. •Under certain circumstances, it's better not to ask. In UPA, so TX is not unique •Estoppel in paternity actions is merely the legal determination that because of a person's conduct, that person, regardless of biological status, will not be permitted to litigate parentage. It operates both offensively and defensively. •In most instances it applies to prevent a party from disestablishing a parent-child relationship, such as an adjudicated father who learns through genetic testing that he is not the biological father and wishes to denounce paternity so he can discontinue paying child support. . . . •The application of estoppel in paternity actions is aimed at "achieving fairness as between the parents by holding them, both mother and father, to their prior conduct regarding the paternity of the child." . . . •Estoppel is based on the public policy that children should be secure in knowing who their parents are. If a person has acted as the parent and bonded with the child, the child should not be required to suffer the potentially damaging trauma that may come from being told that the father she has known all her life is not in fact her father. •In determining whether the doctrine should be applied to a particular case, the child's best interests are of paramount concern. •"To that end, the 'courts are more inclined to impose equitable estoppel to protect the status of a child in an already recognized and operative parent-child relationship.' "
CONSTITUTIONAL CHALLENGES TO ABSOLUTE LIMITATION PERIODS FOR PATERNITY DETERMINATIONS. •In re Attorney General of Texas, 195 S.W.3d 264 (Tex. App.-San Antonio 2006, orig. proceeding) addressed a paternity dispute between Marco DeJong, Jr. and Daisy Selvera, an unmarried couple. Marco apparently had doubts that he was the father, but signed an acknowledgment of paternity anyway. •A month or two after the four-year statute for contesting paternity acknowledgments ran, Daisy and the Attorney General's office sued for child support. While Marco did not appeal a judgment ordering child support, he did file a motion for new trial that for the first time raised constitutional issues.
•The trial court granted a new trial and ordered genetic testing. The San Antonio Court of Appeals affirmed the new trial grant but ruled the trial court abused its discretion by ordering testing before ruling on the merits of Marco's constitutional and statutory complaints. •"Because genetic testing in no way advances [Marco's] threshold arguments about the validity of his acknowledgment or the constitutionality of the statute, genetic testing is irrelevant at this phase of the proceeding." Id. at 270.
•Who may be adopted? [162.001]
•Theory: 2 parents max per child; 1 or both missing •2-parent adoption: •If married, both must join in petition [162.002(a)] •1-parent adoption - "an adult" may petition •Stepparent adoption if married (any age) •Or if child > 2 yrs old, •managing conservator or •6 months' care, possession & control or •former stepparent + consent (or 1 yr w/o consent)
•In Flynn v. State, 667 S.W.2d 235 (Tex. App. - El Paso 1984), aff'd on other grounds, 707 S.W.2d 87 (Tex. Cr. App.1986), the court of appeals extended the application of equitable adoption to a case outside the Probate Code. •In that case, the defendant had been certified as an adult and convicted of murder. The State served the defendant's aunt with notice of the certification hearing and alleged that she was the defendant's mother. •The defendant had lived with his aunt from his third day of life until he was 15. The defendant was treated like her son by the entire family even though she had never formally adopted him. •After waiver of juvenile court jurisdiction and indictment but prior to the trial in district court, the defendant moved to quash the indictment contending that the State had notified his aunt, not his natural mother. •The defendant argued that the trial court should have granted his motion to quash the indictment because the juvenile court failed to appoint a guardian ad litem in the absence of the defendant's parent or legal guardian. TEX. FAM. CODE § 51.11. •The court of appeals stated that the evidence was sufficient to establish a parental relationship under the doctrine of adoption by estoppel despite the acknowledged lack of formal adoption proceedings.
•Therefore, Section 51.11 was satisfied without the appointment of a guardian ad litem. •On appeal to the Court of Criminal Appeals, the court held that it was error to apply the doctrine of equitable adoption. Flynn v. State, 707 S.W.2d at 87. •The court noted that "'Parent' is defined in the Family Code § 51.02(2), [now § 101.024] as: 'the mother, the father whether or not the child is legitimate, or an adoptive parent.'" •Since the aunt had never adopted the defendant, the court acknowledged that: "In the strict terms of § 51.11, appellant was not accompanied by a parent or guardian when he appeared before the juvenile court, and a guardian ad litem should have been appointed for him." Flynn v. State, 707 S.W.2d at 88. •The court went on to state that the Texas Supreme Court in Heien held firmly that this equitable doctrine is to be applied in only a narrowly circumscribed set of facts: •The descriptive phrases, "equitable adoption," "adoption by estoppel," and "adoptive status," are used in decided cases strictly as a shorthand method of saying that because of the promises, acts and conduct of the intestate deceased, those claiming under and through him are estopped to assert that a child was not legally adopted or did not occupy the status of an adopted child. Analysis of the cited cases makes clear that we did not intend to hold, and did not hold, that "equitable adoption" or "adoption by estoppel" is the same as legal adoption or that it has all of the legal consequences of a statutory adoption. (Citation omitted) From its beginnings, the doctrine of adoption by estoppel has been used only "to preclude adoptive parents and their privies" from asserting that the child seeking to inherit was not the adopted child of the deceased
Terms and Conditions of Conservatorship
•This part of the course is almost entirely statutory •JMC, SMC, PC conservator options •Once you get a conservatorship order, you have presumptive terms under the statute •Which means "what everyone does except in rare circumstances" •LOOK AT STATUTES AND GET A GOOD UNDERSTANDING •Cases are just how it plays out in a certain setting *Sole Managing Conservator* - required to have some rights, specifically the right to pick where the child lives; intrusive medical, legal representation, etc.) [153.132] •Not absolute, because court can restrict to a particular county; can limit by court order • standard order is presumed to be reasonable, and in BIOC *Joint Managing Conservator* - Standard order presumed "reasonable minimum" and in child's best interest [153.252] *Possessory Conservator* - standard order is presumed to be reasonable, and in BIOC; [153.252] •If court deviates from standard order, TCt must provide reason for doing so if they want to be sustained on appeal •Similar to child support - there's a formula for standard child support, but court can deviate if has a good explanation
Exceptions to the 4 year statute of limitations:
•Three possible situations *1) someone has acknowledged or adjudicated the father* •Usually a 4 year statute of limitation •Unless you are trying to rescind parentage - 60 days, filing •fraud ,duress, mistake? - time of filing •Party to judgment? - appeal, etc. (unless you have a good position for bill of review) *2) presumed dad?* - usually 4 years (kid's 4th bday) •Unless - haven't been living together or having sex? •Misrepresentation to presumed dad as to whether he is dad? (no statute of limitation) *3) no 160.201(b) dad?* [basically no dad under any category, presumed, adjudicated, or otherwise] •If there's no dad out there, there's no statute of limitations establishing paternity. •The purpose of SOL is to provide certainty, finality •But if there's no dad, there's no certainty or finality, thus no need for SOL •After child turns 18, child is the sole plaintiff
TRANSRACIAL ADOPTION.
•Under the influence of federal legislation, TEX. FAM. CODE § 162.015 (a) now provides that "the court may not deny or delay the adoption or otherwise discriminate on the basis of race or ethnicity of the child or the prospective adoptive parents." •State agencies likewise are prohibited from discriminating. What policy issues are presented by transracial adoptions? Is a ban on considering the race of the prospective parents wise, or even realistic?
Rebutting the Paternity Presumption
•Usually a Court judgment •Occasionally: paternity denial in conjunction with paternity acknowledgment •Can't have previous acknowledgement or adjudication •Exception: presumption can be irrebuttable if "paternity by estoppel"
•Significant impairment (of physical health/emotional development)
•Usually used as a standard you must meet before you can interfere with parent's rights over the child
In re VLK - [good modification basics] •ISSUE: whether the parental presumption still applies in a modification setting
•VLK facts: conservatorship fight; dad is dead; fight between mom and dead dad's parents. Originally dead dad's parents were in favor of mom's conservatorship. But then mom was accused of murdering dad. But forensics contradicted mom's story. Dad was shot in back in driveway multiple times trying to escape mom. Mom kept changing story; tried to paint dad as abusive. •Jury believes mom's version of facts on battered spouse; got "misdemeanor murder" defense •Paternal aunt and uncle convinced the trial judge that the parental presumption does not apply in a modification proceeding, at least when the parent in question has previously relinquished managing conservatorship. Trial judge submitted a "no presumption" jury instruction; jury awards conservatorship to aunt and uncle. •Appeals court disagrees, holds that parental presumption applies •HOLDING: TX SCt reversed, holding that the parental presumption does NOT apply in a modification suit and that any error in submitting a "no presumption" jury charge had been waived. •In its decision, the Court emphasized the different between an original conservatorship determination and a modification proceeding, so far as public policy is concerned. Because a change of custody disrupts the child's living arrangements and the channels of a child's affection, a change should be ordered only when then the trial court is convinced that the change will be a positive improvement for the child. •In an original proceeding the natural parent has the benefit of the parental presumption, and the non-parent seeking conservatorship must meet a higher burden. More specifically, the FC provides that the initial presumption in favor a parent can be overcome by showing that the appointment of the parent would significantly impair the child's health or development. •However, the Court also pointed out that the presumption is rebutted "if the natural parent has 'voluntarily relinquished action care, control, and possession of the child to a nonparent" for one year or more, and the appointment of a nonparent as managing conservator is in the best interest of the child. •Moreover, in any conservatorship case, a court's primary consideration shall always be the BIOC •Chapter 156, which governs modification of conservatorship, does not include a parental presumption. •Thus, any person seeking to modify an original order of SMC must show that the circumstances of a party affected by the order have materially and substantially changed and that modification would be a positive improvement for the child. •Court noted the TXLeg did not express any intent to apply the presumption in Ch156 modification suits and concluded that the parental presumption does NOT apply in modification suits. •Discussion •TX SCt's decision is fair reading of FC and appears rational at first. •However, there are constitutional issues. Ms. Kilgore did not raise due process concerns. But if Troxel means anything, it would be that the parental presumption counts in parent versus nonparent conservatorship decisions. •In ordinary case, FC works so that one or both parents are appointed managing conservators. •Assuming a parent has been appointed, the FC works to preserve the parental presumption in a modification suit by favoring managing conservator, usually a parent. •In VLK, W was not able to care for her son during original conservatorship decision. •Not clear that her arranging for son to stay with relatives met requirements for voluntary relinquishment of control. •Also, when managing conservator (here, W's mom) favors the mother, it is not clear why a competing claim for managing conservatorship between paternal aunt/uncle vs. mom should be based on the need for stability. Either way, there will be a change the in the status quo (child will move either way), so why is there not a parental presumption? •Seems to leave open constitutional arguments •Made the point that no constitutional issue was raised in the case; all bets are off on TX SCt statutory analysis if the constitutional raised •There has to be some sort of presumption in favor of bio-parent (based on Troxel) •When VLK came out, prof did extra research; VLK was a major case
Involuntary Termination Overview
•Very heavily constitutional; also relates to criminal law •Most active area of family law litigation at TX SCt •To terminate parental rights, must meet two prongs: •1) Statutory Ground, and •2) Best Interest of the Child •Statutory Ground •Have to have a miniature FC version of a criminal statute, and have to find a violation (like you would with a crime) •Constitutional right and duty to prove the ground with *clear and convincing evidence* •BIOC - alone not enough to terminate child. •Less clear that there are constitutional grounds for BIOC. •US SCt tries to avoid family law cases •TX law DOES require clear and convincing evidence •Both grounds must be proved by clear and convincing evidence - heightened burden •Above preponderance, below BARD •
CONSERVATORSHIP: ENFORCEMENT
•What happens if the conservator parent violate the terms and conditions? •For one thing, it's a material and substantial change in circumstances, and one that will likely not endear you to judge. •Remember the same judge that wrote the order is likely to hear an enforcement proceeding •Several things that can be done in enforcement proceedings •Punitive change to order in a way that is unfavorable to violator •Civil contempt order against violating party
CONSTITUTIONAL CONSIDERATIONS IN BROAD FORM SUBMISSION. Texas Supreme Court observed that "our courts of appeals are now divided on this issue" — the issue evidently being the wisdom of broad form submission of the termination question
•What if you have three different grounds, A, B, and O, each getting 4 different jurors. So each ground can only get ⅓ at best, but broadly, there's 12/12 overall? Seems questionable. •EX: If you have 2 people whose parental rights are being terminated, the jury must vote on EACH ground. Must have at least 10 of 12 jurors concurring on at least one ground for parental rights. •***and of course, need 10/12 to decide termination is in best interest of the child***
STATUTE OF LIMITATION OF PARENTAGE ACTIONS
•When adopting the Uniform Parentage Act, Texas added a non-uniform four-year general statute of limitations for establishing or contesting paternity, subject to certain limitations. Under normal circumstances, this should provide more than enough time for a diligent biological parent to pursue legal remedies.
Family Violence: Other Avenues
•While injunctions and protective orders are the biggest, don't forget •General criminal law •Lots of crimes relate to family violence [see ppt slide] •Yes, you CAN kidnap your own child/grandchild. •Defense: trying to retain lawful control •Interference with Custody •Violating Family Violence Order - •Violating Computer Security (online harassment) •Wiretapping •IS a crime, BUT one party consensual wiretap okay. If you are recording a convo that you yourself are having, that is okay. Thus, telephone threats can be recorded and admissible •Invasive Videos •Revenge porn, etc. •Defense: legitimate use in court proceedings •Unauthorized recording by lawyers OK if: •1) legit purpose •2) client info protected •3) not illegal in applicable jx •4) not contrary to any representation to anyone •Duty to Report: Applies without exception to lawyers •Termination of parental rights •Abandonment •Endangerment - •D & E - knowingly placing with bad people or in a bad place •L - convicted (or close: deferred adj. etc) of a crime against kids •T/U - murdered, sexual assault, attempt •Conservatorship •JMC: unless family violence •Can't be appointed SMC if that appointment would significantly impair child's health/development - certainly, child abuse is enough. Even abuse against another household member can qualify as significant impairment •No presumption in favor of a parent being PC if parent's access would endanger child's welfare •Modification •Similar exceptions •It is a ground for modification of conservatorship if there's been family violence •Boss v. Smith •Unequal property division •For fault-based property division, family violence is a way to get a disproportion share of community property (but separate property cannot be divested under any circumstances) •(Ex-) spousal support •Tort lawsuit •Assault, wrongful imprisonment, etc. •Self-Help? •"Needed killing" doctrine/misdemeanor murder •Confession in public by perpetrators, TX residents
CHAPTER 9: CHILD SUPPORT. Who Pays?
•Who Pays? •Parents - 154.001 - •Both if 3P custody •No sex discrimination - 154.010 •Mom can pay too •Remarriage OK - 154.010 •New stepdad no end of $ •Just because the new stepparent has lots of money does not mean you get out of paying your obligation •Assume $ goes to custodial parent (even if there's a new step parent) •No requirement that rich parent pays poor parent •Theory generally is that some support support should be paid by the noncustodial parent to give them a vested interest in child's life
Special Grandparent (etc.) Standing - 102.004
•Who qualifies for MC (managing conservator) of a child? •Grandparent •Anyone else 3d degree of consanguinity (aunt/uncle) •Anyone with general standing •Typically must have had significant past contact, etc. •What criteria for grandparent standing? •Significant impairment (of physical health/emotional development), OR if •Consent or filing by: parent(s), MC, custodian •What about PC (possessory conservatorship)? •Intervention in a pending (grandparent or past contact) only if significant impairment •But not the only way a grandparent/relative can get the court to consider •What about "grandparent access"? •Separate statute: 153.432 et seq
Is a bill of review still available post-2001 Uniform Parentage Act was implemented in TX?
•YES, per 160.637(e) •A party to an adjudication of paternity may challenge the adjudication only under the laws of his state relating to appeal, the vacating of judgments, or other judicial review. •A bill of review is NOT an appeal. •Can only do after exhausting appeals and find something extrinsic that was wrong. •*But Bill of Review can fit under "other judicial review*"
Is it legal to marry first cousin in Texas?
•Yes, but it it's illegal to have sex with first cousin because it's a felony under the Texas Penal Code •2005 Legislature tried to make first cousin marriages illegal (same year as the anti-polygamy efforts) •Is attempted marriage void? •Not per se (see FC 6.201) •Legislature did not do the easy thing and just say "first cousin marriage is illegal" *Ceremonial marriage?* •No license - FC 2.004(b)(6)(f) •Lie = misdemeanor - 2.004(d) •But marriage is still valid unless there's an underlying statute that makes it invalid *Informal marriage?* •No, legislature closed that off, said you "cannot get declaration of informal marriage" •BUT! Legislature forgot to plug subdivision 2 method of informal marriage, those based on the elements. *Criminal sanctions?* •Having sex with first cousin is now a felony •But will that work if brought up in the courts? •If same sex sodomy cannot be prohibited under the law, how well can you uphold? •The question is whether marriage between first cousins is still permissible, YES. •So what is the effect of a law that says you can marry your cousin but can't have sex? •Sex with first cousin = felony •BUT Lawrence - good luck enforcing
First Cousin Marriage: Pro & Con
•Yes. It is legal *Cons* •Genetic problems: close relatives marrying leads to some genetic problems. At a very low level. Probably not enough •Family difficulties •Discourages inherited wealth • *Pro* •Lower rate of failed pregnancy •Family harmony - more likely to share common beliefs, views, etc. •Concentrates family wealth •Famous First Cousin Marriages •Edgar Allen Poe •Charles Darwin •Albert Einstein •Mohammed •J.S. Bach •H.G. Wells •Werner von Braun •Jesse James •Osama bin Laden
