JUDGE JOE SPURLOCK II - Amazon S3s3.amazonaws.com/mythm-vids-prod/TX.Spurlock.FamilyLaw.pdfTEXAS FAMILY LAW JUDGE JOE SPURLOCK II TEXAS A&M SCHOOL OF LAW CHAPTER 1: MARRIAGE A. Generally:

TEXAS FAMILY LAW JUDGE JOE SPURLOCK II

TEXAS A&M SCHOOL OF LAW

CHAPTER 1: MARRIAGE

A. Generally:

• Same-sex couples may now marry in all states. • All states must recognize a same-sex marriage legally entered into in another state. • Marriage is limited to _________________ persons. • An individual may only be married to _________________ person at a time. • Texas Family Code:

o Marriage is a _________________ in Texas, created by a union, with attached rights. o An individual is either _________________ or _________________.

No status or recognition of any permanent legal separation in Texas

o Once married, a person remains married wherever they go unless the marriage ends by:

Divorce (also includes forms of annulment); or Death

• Under common-law, Texas recognizes marriages contracted elsewhere if the marriage was valid where contracted (except for __________________________________ marriages).

o Same-sex marriages which were legally entered into in Texas after June 26th, 2015, or same-sex marriages which were legal at the time they were entered into in the place where contracted outside of Texas are included.

o Informal marriages (i.e., common-law marriages) which were valid at the time they were entered into in the place where contracted outside of Texas are included.

Could not legally form an informal marriage in Texas before June of 2015, but may register an informal marriage to apply retroactively before that date.

o Marriage contracts do not require __________________________________. o Texas courts will enforce contractual, non-marital __________________________________

agreements, which specify all aspects of the agreement in writing _________________ the relationship begins.

• It must be signed by the parties to be bound. • This can be between any two people who want to live together.

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B. Ways to get married:

1. Formal Marriage

a. In general

The two parties went before a county clerk and took out a __________________________________.

The parties then take the license before a person authorized to conduct a marriage ceremony.

After the ceremony, the license must be returned by the officiant within _________________ days of the date it was issued.

• Failure to meet this deadline will not invalidate the marriage.

b. Who may marry

Any adult may marry any other adult (over the age of _________________)

• If party is 16 or 17, must have _________________ or _________________ consent • Under the age of 16, may only marry with a ________________________________ • No __________________________________ age for court approved marriage in

Texas

To obtain a marriage license, you must declare under oath:

• Your identity – you are who you claim you are • You are not related to each other by a __________________________________

degree of consanguinity or affinity • You are not currently married to someone else or if you were married, that

relationship ended by death, __________________________________, or divorce (if a marriage with a third party ended by divorce, must also sign a statement that the marriage ended at least _________________ days ago)

2. Declaration and Registration

o Must be over the age of _________________ o Must fill out a declaration that you intent to be married to each other and you are married

to each other o Must fill out a form and select the date on which that relationship began, including same-

sex couples seeking to register a relationship entered into in Texas prior to June 26th, 2016. o Must have cohabitated in Texas and held yourselves out as a married couple o Must sign and register the declaration with the county clerk under oath

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3. Common Law (informal marriage)

o To be informally married in Texas, both parties must be 18, have no impediments to the marriage (not now married to someone else or be related within a prohibited degree of sanguinity) meet three requirements:

The parties must establish that they intend to be married; The parties cohabit in Texas; and And must hold themselves out as being married to each other.

o No time limit for cohabitation requirement o Common-law marriage ends by death or divorce. o No difference in status between a formal marriage and an informal marriage

Editor's Note 1: There is an exception to this rule. If parties separate and live apart for more than two years there is a presumption there was no informal marriage. The presumption may be overcome with clear and convincing evidence that the couple is informally married. Ordinarily, the standard would be preponderance of the evidence.

o Full Faith and Credit applies to informal marriages validly entered into in sister states.

4. Requirements for a Marriage License

Must be over the age of 18

• If you are a minor, you must obtain your parent’s permission or court’s order between 16 – 18

• If you are under 16, you must obtain a court order • There is no minimum age for obtaining a court order

o Must not be currently married to someone else or if you were married, that relationship ended by death, annulment, or divorce.

o Consanguinity or kinship

Must not be related closer than the _________________ degree of kinship to the intended spouse

Must not be a current/former stepchild or stepparent of the intended spouse

o TX does not require a _________________ exam or premarital education o Does require a _________________ waiting period between issuing the license and the time

you are married; can be waived if:

Party is a member of the military or on active duty; Parties participated in premarital education course; or Parties present other good evidence to a district court.

5. Solemnization Requirements

o TX only requires a _________________ ceremony.


o Marriage is effective as of the date of the _________________, not the date of issuing license.

o Party who performs the ceremony must have the authority to do so.

However, even if the person does not have actual authority, if they had the appearance of authority, and one party believed that person had authority, the marriage will still be valid.

6. Registering a Prior Informal Marriage

o Agree to date the informal marriage began o Fill out application at the county clerk's office and there file a Declaration signed under oath o Result: The parties may back-date their marriage to a previous date.

This allows you to start the accumulation of __________________________________ property as of that date.

o Consanguinity limitations:

May not marry any ancestor or descendant by _________________ or __________________________________ of the whole or half blood.

May not marry:

• Brother or sister • Niece or nephew • Aunt or uncle • Mother or father • Former step-parents and step-children

C. Void and Voidable Marriages:

1. Void Marriages

Note 1: Concerning children of void marriages, there is no such thing as an __________________________________ child in Texas. A child is the legitimate heir of both its biological mother and presumed father once they are properly identified.

o Either party may petition to set aside a void marriage in an ex parte proceeding. o Void marriages include those which are:

Contracted by people who are under 16 years old without a court order Contracted by people related within prohibited degrees of

__________________________________ or affinity

Editor's Note 2: Bigamy is also a valid reason to declare a marriage void in Texas. Also, a court may declare the marriage void only if the parties contracted the marriage in Texas or if one of the parties is domiciled in Texas


2. Voidable Marriages

o Voidable marriages may be annulled on the basis of:

Lack of capacity of one of the parties due to consumption of alcohol or narcotics; Lack of capacity due to mental illness (not voidable on this ground if the parties

continue to cohabit after learning of the condition); __________________________________ unknown before marriage; or Fraud, _________________, or force used in the inducement

Editor's Note 3: If a child between 16 and 18 marries with neither parental consent nor a court order, the child’s next friend may seek annulment. A marriage may also be annulled if one party was divorced within the 30 days preceding the marriage if the petitioner did not know and should not have known of the concealed divorce, as long as the parties do not cohabit once the petitioner learns of the divorce. If the marriage ceremony takes place within 72-hours of the issuance of the marriage license, a party may annul the marriage for no more than 30 days after the ceremony.

o A party must cease __________________________________ and seek the annulment as soon as the basis for an annulment is discovered.

CHAPTER 2: MARITAL RELATIONSHIP & TORT

A. Generally:

• Duty to support: Both spouses have a duty to support each other and their __________________________________ (born or adopted into that community).

o Liability for all __________________________________

Example 1: Food, medical care, clothing, shelter, etc. Medical care, in particular, is often an issue. If spouse has mounting medical bills, spouse who was not ill has a duty to pay medical bills. If sick spouse passes away, surviving spouse is liable for bills (decedent estate would also be liable).

o Each spouse has a corresponding duty to the other.

• Marital (community) property: Property acquired during the marriage is presumptively __________________________________ property.

• Tort liability: The parties have a duty not to negligently or intentionally harm each other.

o Texas recognizes tort liability - No __________________________________ immunity o A spouse may sue other spouse for intentional and negligent torts.


B. Specific Torts:

• Intentional Infliction of Emotional Distress:

o Spouse can recover for ___________________________________________________ conduct inflicted intentionally or recklessly.

• Actions against third parties for interfering with your relationship with your spouse

o Examples: Criminal conversation or alienation of affection o Texas does NOT recognize these causes of action

Criminal conversation: Third party had a sexual relationship with your spouse Alienation of affection: Third party stole your spouse away from you

• Loss of Consortium:

o May bring a claim for loss of consortium o 3rd Party’s tortious conduct which causes death or injury to your spouse and you've lost the

____________________________________________________________________ of your spouse due to that event (wrongful death action, etc.).

Example 2: Most common in workplace incidents, or where one spouse is injured by a third-party.

Note 2: BE CAREFUL not to confuse loss of consortium and alienation of affection!

• Intentional Infliction of Emotional Distress:

o Claim may be brought, but cannot recover for IIED if spouse uses that same conduct to support a claim for __________________________________distribution of community property.

o Cannot get a __________________________________ recovery

1) You may allege IIED as method for divorce, and for unequal distribution of property; or

2) Actual damages against the party for IIED

o Severe emotional distress means highly unpleasant _________________ reaction such as grief, shame, humiliation, embarrassment, anger, disappointment, or worry.

Usually there is a _________________ manifestation (headaches, sleeplessness, etc.). "Severe" means that the distress is such that a __________________________________

person could not be expected to endure the conduct.

Note 3: Texas permits jury trial in a divorce case, so reasonable person standard is, in those cases, a question for the jury.


CHAPTER 3: DISSOLUTION OF MARRIAGE – GROUNDS AND JURISDICTION

A. Generally:

• The only way to end a valid marriage is through death, _________________, annulment, or a suit to have the marriage declared void.

• Texas has no-fault divorce. • A divorce case is _________________ cases in one:

o The divorce case - dissolution of the __________________________________ relationship; o A suit about the community property accumulated during the marriage; and o A suit affecting the __________________________________ relationship (“SAPCR”).

For sake of convenience, all three are considered as one case.

• In rem jurisdiction for dissolution:

o A court may have in rem jurisdiction of a divorce case filed by one party who is a domiciliary and _________________ of Texas.

o Only one party need appear in order for court to have authority to grant judgment for divorce.

The difficulty, however, is that the court may not grant the divorce if it does not have __________________________________ jurisdiction over both parties for determining child support, dividing community property, or determining paternity

o To obtain personal jurisdiction over the nonresident the party must give citation to the other party, and _________________ to the other party.

B. Grounds:

1. No Fault

o Insupportability

Will not be granted unless there is no reasonable ___________________________________________________ such that further living together is rendered insupportable

Exam Tip 1: MEMORIZE: “Insupportable because of discord or conflict of personalities that destroys the legitimate ends of the marital relationship and prevents any reasonable expectation of reconciliation.”

2. Fault grounds

o Fault may be a basis for unequal distribution of property when the divorce is granted on fault grounds.

o Cruelty

Not limited to __________________________________ Can be mental cruelty or __________________________________


o Adultery o Conviction of a felony during the marriage

If the convicted spouse is imprisoned for _________________ or more and has not been pardoned

o Abandonment

If one spouse abandons the other with the _________________ to abandon and remains away at least _________________ year, the other spouse has grounds

o Living Apart

May be granted for either spouse after at least _________________ years

o Confinement in a Mental Hospital

Must be confined to the hospital for _________________ years and it appears likely that the disorder is such that adjustment is unlikely or that if adjustment occurs, _________________ is probable

C. Jurisdiction:

• Means that a court has authority over:

o The case itself- __________________________________ jurisdiction o The parties in the case- personal jurisdiction o The subject matter of the case- _________________ jurisdiction

• Long Arm Jurisdiction

o For a nonresident, absent respondent, long arm jurisdiction to establish __________________________________ jurisdiction over the spouse is needed.

o Other party must be domiciled in state:

Must be resident in the state for _________________ months prior to filing divorce, and Must be resident in the county for 90 days prior to filing divorce

o Long arm jurisdiction can be obtained through any basis that is consistent with the Constitution

o Can be obtained if Texas is the last _________________ residence of the two parties and the suit is commenced within _________________ years after they were living in that marital residence

• Child Support and Parentage Issues

o When the court acquires personal jurisdiction, it also has jurisdiction over the suit affecting the parent-child relationship.

But without personal jurisdiction over both parties, court cannot make permanent decisions regarding child.


• Suit for Declaration that Marriage is Void

o Does not have a residency requirement as long as either party _________________ in Texas and the __________________________________ was in Texas

o Need to serve citation and notice and give an opportunity to respond

• Waiver

o The party that is entitled to citation and notice may sign a waiver of citation and notice. o A form signed under oath by notary public filed with the court (in family law matters) by

respondent stating the respondent acknowledges receipt of the papers in the lawsuit; enters appearance; does not desire to appear further; so the court may proceed without any notice of hearings.

CHAPTER 4: DISSOLUTION OF MARRIAGE – PROCEDURE AND ALTERNATIVE DISPUTE RESOLUTION

A. Generally:

• Types of proceedings:

o Ask court to grant divorce via bench trial o Jury trial (very expensive and time consuming o Alternative dispute resolutions-have been encouraged by Texas legislature, such as

arbitration, mediation and collaboration

• Pleadings: Grounds for divorce must be alleged in the language used in the _________________.

o No requirement that you allege with specificity. o Surplus language may be _________________ by the court (either on other parties' motion,

or court's own motion).

• Children: Suits affecting the parent child relationship (SAPCR) must be filed contemporaneously with the __________________________________ proceedings.

o If a woman is expecting a child, the divorce case must be ____________________________ until the child is born.

o A child under already under a separate SAPCR must be brought under the jurisdiction of the divorce court through a motion to transfer.

Example 3: Husband moves to Austin, children stay with Wife in El Paso. Once Husband has been in Austin for requisite 90 days, he may have right to file suit for divorce in Austin. In situation where there was a previous SAPCR in El Paso, and Husband then files for divorce in Austin, Husband must file motion to transfer previous SAPCR to divorce action in Austin.


B. Default Divorces:

• A court may grant a default judgment if a party fails to appear after proper service and _________________.

• If there is no response, a default divorce can be granted. However, the lack of response may not be taken as an __________________________________.

o The petitioner still has to prove the grounds of divorce and other issues by a __________________________________ of the evidence.

• A divorce petition must be on file for _________________ days before it may be granted.

C. Temporary Restraining Orders and Protective Orders:

• Aimed at maintaining __________________________________ during pendency of divorce.

1. Temporary Restraining Order (TRO):

o May be filed _________________, without notice to the other party o May be granted by a court to place prohibitions on the other party to maintain the status

quo o Valid until a hearing may be held on whether to grant a

__________________________________ for the duration of the proceedings

2. Protective Orders:

o An order of the court prohibiting one spouse from approaching or contacting the other spouse or children because of past, proven __________________________________.

May be sought outside of divorce court, and may be granted as part of divorce case.

o Temporary Protective Orders may be issued for up to _________________ days temporarily on a showing that family violence has occurred or may occur again.

o After the hearing, a Protective Order may be issue for a period not to exceed two years or one year after release from prison or jail.

o A Temporary Protective Order may be converted into a Protective Order at the Temporary Protective Order hearing or at the time of the final divorce case.

D. Alternative Dispute Resolution:

1. Arbitration

o A neutral __________________________________ appointed by the court makes the determination for the parties.

May be binding or nonbinding on the parties In binding arbitration, the arbitrator's determination it is binding on the

_________________. An arbitrator may not make a decision binding on the _________________. A court always has authority in an arbitrated suit to make the ultimate decision on the best interest of the child.


2. Mediation:

o A neutral third party works as an __________________________________between the parties to help the parties resolve their own differences.

Mediation is becoming an increasingly common way to resolve family law disputes.

3. Collaborative Law:

o Parties enter into a written agreement to use their best efforts and make a __________________________________ attempt to resolve their differences and reach a resolution without judicial intervention.

o Parties make __________________________________ that they might not otherwise make. o Court will approve an agreement and give it judicial effect. The agreement must resolve all

__________________________________ division, conservatorship, and child support issues when applicable.

o If the parties fail to reach an agreement and must resort to judicial intervention, the __________________________________ in the case must withdraw and the parties must employ new attorneys to proceed to trial.

CHAPTER 5: PARENT-CHILD RELATIONSHIP

A. Generally:

• The chief vehicle for bringing a cause of action regarding access to, possession/conservatorship of, or child support for a child, is a Suit Affecting the Parent Child Relationship (SAPCR).

o SAPCRs are Family Code based, but court decisions are based on common law precedents.

• Key Issues:

o Who is the parent? o And, what outcome is in the "Best Interest of the Child?" (BIC)

These are the ultimate issues involved in a suit affecting the parent-child relationship. Each child has a separate SAPCR with each parent. For convenience sake, they are

usually put into one overall SAPCR, but you must deal with each of the relationships between the mother or father and each individual _________________.

Public policy is that children should have _________________and continuing contact with parents who have shown the ability to act in the __________________________________ the child by providing a safe, stable, and __________________________________ environment for the child.

Exam Tip 2: Do not emphasize parental rights to the exclusion of the child’s best interest. The parent’s rights arise from how the parent treats that child and what the relationship between the parent and child has been in the past.


B. Jurisdiction:

• A court issuing a SAPCR judgment retains a peculiar form of exclusive __________________________________. Any suit affecting the parent -child relationship continues so long as the child is under the parent’s guidance or control and is not emancipated. Therefore, the court that issues the SAPCR judgment retains a continuing, __________________________________ jurisdiction.

• May be transferred to a new court if the child has legally obtained a new county of residence outside the jurisdiction of the original court for a period of ______________________________

• SAPCRs are reviewable periodically

C. Who is a Child?

• A child is a person:

o Under the age of _________________ o Who is not __________________________________ or has not been married o Who has not enlisted in the military o Who has not had the disabilities of minority removed

A child may have disabilities of minority removed for general or special purposes, such as for contract purposes for a child performer.

A child who has remained separate and apart from parents from age _________________ and up may petition to have disabilities removed.

Marriage and entry into _________________ service also remove disabilities of minority.

o A person over 18 may still be a child, and the parent must pay child support:

If the child suffered from a _________________ known, or the cost for the same existed, before the age of _________________

Until the child graduates from __________________________________, providing the child attends school and the graduation occurs before the child turns 21.

D. Who is a Parent?

• Mother on proof of having __________________________________ • Man may be presumed to be the father • Man may be legally determined to be the father • Man may be adjudicated to be the father • Man who acknowledges his paternity • Or an __________________________mother or father-have same rights as a natural parent has. • Paternity Presumptions:

o A man is presumed to be the father of the child under the following circumstances:


If a man and woman married or attempted to marry in good faith and a child is born during the marriage or within _________________ days of the breakup of the marriage, that man is presumed to be the father of the child.

• The presumption may be overcome by __________________________________ evidence.

A man is presumed to be the father if during the first 2 years of the child’s life he continuously resided with the child in the same home and __________________________________ the child to be his.

• The only form of the presumption not requiring marriage

Man is presumed to be the father if he was voluntarily named as child’s father on birth certificate and later married the mother or filled out a proper form and registered it.

o Statute of Limitations: The presumption may only be attacked within the first _________________ years of the child’s birth or execution of the instrument in which the man made the acknowledgement.

Can only challenge a presumption of paternity:

• By the __________________________________ of a court of some other man’s paternity, or

• By filing a _________________ of paternity with another man’s valid acknowledgment of paternity

• After age 4, a presumed father may attack his paternity on the basis:

o That he and the mother did not live together or have intercourse during the time of __________________________________; or

o Without obtaining genetic testing he was precluded from making a timely denial by __________________________________ that led to his mistaken belief he was the child's genetic father.

E. Rights & Duties of Parents:

1. Rights:

o Physical __________________________________ o Direct religious training o Designate residence o Service and earning o Consent to marriage/enlistment in armed forces o Consent to medical/dental/psychological care o Right to represent the child in legal actions o Give and receive payment for the support of the child o Right to inherit


o Right to make decisions about __________________________________ o Any other right by law o Corporeal punishment – You can use __________________________________ discipline.

That right is extended to other persons who have duty of control and reasonable discipline, such as grandparents, etc.

2. Parental Duties:

o Care o Control o Reasonable discipline o Support, including __________________________________ support, and also including the

duty to see that children are educated o Parent may also be held liable for damage the child does to the property of another

If the child is over _________________and under _________________, parents may be liable to the willful and malicious acts of the child up to $25,000.

No limit for negligent conduct of the child (i.e. parents' own negligent conduct in failing to supervise child).

Note 4: A parent is liable for any damage proximately caused by the child's negligent conduct if the conduct is reasonably attributable to the parent's negligent failure to exercise his or her duty of control.

CHAPTER 6: PARENT-CHILD RELATIONSHIP – SUITS AFFECTING THE PARENT-CHILD RELATIONSHIP

A. Generally:

• SAPCR – may be a standalone lawsuit or must be filed during the course of the divorce

o Standalone suits come around when the state is trying to establish paternity, for the protection of the child, etc.

o Once a divorce action is filed, SAPCRs MUST be transferred into the county where the divorce is pending.

o No __________________________________ in favor of one parent over the other

Cannot give weight to the sex of the parent or to the fact that either parent is in a relationship

Exception for issues of family violence – one parent may be presumed not to be a proper conservator based on history of family violence

• Conservatorship

o Joint managing conservators (JMCs)– both will be appointed as managing conservators


One JMC parent has the right to determine residence and domicile. The other parent automatically becomes the JMC parent with visitation and the duty to pay __________________________________.

o If not JMCs, ordinarily one is Sole Managing Conservator (SMC), the other a Possessory (PC), who has right to visitation and duty to pay child support.

B. Who may file?

• Parent • Child – through a representative authorized by the court • Any managing conservator • Guardian • Licensed Child Placing Agency • Foster Parents who have had custody for more than _________________ months • Others with custody for _________________ months • Possibly Grandparents

Editor's Note 4: The sibling of a child separated from the sibling due to an action by the Department of Family and Protective Services also has standing to file a SAPCR, regardless of the age of the sibling.

C. Venue & Jurisdiction:

• Venue: Must be filed in the county where the child __________________________________ unless it has been joined to the divorce proceedings

• Jurisdiction: Once a court acquires jurisdiction, it retains continuing, ______________________ jurisdiction in any further matters with regard to that child until the child is _________________ unless:

o The parents _________________ each other o The child otherwise has its disabilities removed o The child moves to another place and resides there lawfully for _________________ months

or more

• Long Arm Jurisdiction:

o Must have ___________________________________________________ over parties to suits regarding the parent/child relationship

o Examples of ways to get jurisdiction over a nonresident, absent respondent:

By Personal Service of Citation and Notice in Texas Get __________________________________ File a responsive pleading Resided previously with child in Texas From a __________________________________ relationship in Texas by which child

may have been conceived.


The alleged father registered with the paternity registry. Any basis that comports with the U.S. and state constitutions.

D. Child Representation:

• In a SAPCR, there does not need to be an attorney for the child. A court may appoint an attorney or guardian to represent a child (child is NOT a necessary party to a SAPCR).

1. Guardian Ad Litem:

o Does not have to be an __________________________________ o Works with the child to provide protection for the child as in ordinary probate matters o The guardian speaks for and handles the estate of the child

2. Attorney Ad Litem:

o Under state bar rules, the attorney must take direction from the child client, even if the attorney does not agree that what the child wants done is in the child’s best interest.

3. Amicus Attorney:

o Appointed by the court to provide the court with information on the ___________________________________________________.

Note: Amicus may not communicate "ex parte" on this issue with the court, must be done in court, or with other attorneys present.

CHAPTER 7: CHILD SUPPORT

A. Generally:

• Parents have a duty to support their children. • Texas Family Code: Sets out a __________________________________ of net income per child

that is to be paid for child support

o The parent living apart from the child has a duty to pay child support generally based upon the minimum tables found in the Code.

• Duty to Support:

o Generally to the age of 18, or graduation from secondary school, or had disabilities of minority removed

If lifelong disability was known before 18th birthday, potential for duty to extend for child's lifetime.

o Includes both the amount of money from the table based on net income as well as the duty to provide _________________ support


B. Guidelines:

• Order of Support amount is determined by a percentage of the net resources of the obligor parent.

o The tables are applicable only to the first _________________ of net resources per month.

• Percentage of net income

1 child = 20%

2 children = 25%

3 children = 30%

4 children = 35%

o In no event may the amount ever be more than _________________.

• An obligor who nets more than $8,550 per month, the obligor can be required to pay above the guidelines if it is proven that there are _________________ of the child or children that require an additional amount.

o Must show actual needs, such as:

Special medication, special learning needs, private education may be ordered, lifestyle child was accustomed to before the breakup of the marriage, etc.

C. Later Marriage:

• If obligor remarries, the new spouse’s income _________________ included in the net resources of the obligor.

• If the obligee remarries and that marriage brings in more income to the child's household, that income _________________ provide any kind of set-off against the obligor’s duty to provide child support.

o Note: additional children of the obligor may affect child support obligation.

• With disabled adult children, the duty and need are computed according to the tables.

D. Modification of the Child Support Obligation

• Generally must be brought in the court of __________________________________ jurisdiction which issued the original support order

• Grounds:

o In order for a support order to be modified:

The circumstances of the child, or someone affected by the child support order must have been __________________________________ and __________________________________ changed, or


Has been _________________ years since the order was last modified and the monthly amount differs by either _________________ of what it was before, or $100 from the guidelines.

E. Enforcement:

• All final or non-temporary child support orders must provide for mandatory __________________________________.

1. Self-Employed Obligor:

o May be ordered to prove or post a _________________ that will be forfeited upon failure to pay

2. Money Judgment:

o Each child support order that is _________________ days overdue becomes a final judgment at law.

Editor's Note 5: This is a misstatement of the law. If the obligor does not pay child support on time, the amount in arrears automatically becomes a money judgment. § 157.261. A court’s only role is to confirm the amount of unpaid child support and to calculate interest due on that amount. There is no requirement that the child support be 30 days overdue.

o Parties have up to _________________ years after the child becomes an adult or the date the child support obligation terminates by law to reduce past due support to a money judgment.

o Arrearages incur 6% interest per year on the unpaid balance.

3. Suspension of License:

o Any individual state-issued license of a person who fails to pay _________________ days' worth of child support and has been given an opportunity to catch up may be suspended by a court.

Includes any state-issued license required for __________________________________, driving, or pleasure.

Obligor must be given _________________ days' notice of the state's intent to suspend.

4. Lien Attached to Property:

o Equal to the amount of __________________________________ o Attaches to any non-exempt real estate o Liens attach even when the arrearages have not been reduced to judgment o Lien can be perfected by filing an _________________ of judgment for past due support or

a lien notice with the county clerk o Can lead to foreclosure of all financial assets not subject to exemption


5. Contempt Power of the Court:

o If you violate a child support order, you can face _________________ in jail or a fine of _________________ for each such offense (or both jail and a fine).

6. Probation:

o Can be put on probation for failure to pay child support o Up to _________________ years of community supervision.

F. Defenses:

• An exception to payment of child support is _________________ to pay. • Another exception is that you had lawful possession of the child for the period of time when the

support went into arrears.

G. Jurisdiction:

1. Interstate Enforcement:

o Uniform Interstate Family Support Act (UIFSA)

Non-Texas order can be enforced in Texas through that act by __________________________________ an out of state order.

2. Continued Jurisdiction:

o If all parties are in Texas, a Texas court can render judgment. o If judgment was rendered in another state and one party or the child still lives there, then

the state court with continuing jurisdiction there controls any modification actions.

3. Full Faith and Credit:

o All judgments are given full faith and credit provided that the original court issuing the same had __________________________________ over the subject matter and the __________________________________ involved in the case; and

o The parties in that case were given _________________ of the suit and an opportunity to be heard, whether they came or otherwise appeared or not.

CHAPTER 8: CONSERVATORSHIP

A. Generally:

• Joint managing conservatorship: Parents _________________ responsibilities with regard to the child, but one will have the superior right to determine the ______________________________ of the child.

• Sole managing conservatorship: one parent has primary responsibilities, duties, and rights with regard to the child including the right to designate the child's primary residence.


o The other parent is called the ___________________________________________________ and will have a scheduled right to the child’s physical presence through visitation, and have a duty to pay child support.

• The parent with primary possession is called either

o A sole managing conservator, or o A joint managing conservator with the power to determine the _______________________

of the child.

• The parent awarded visitation is called either

o A possessory conservator, or o A joint managing conservator with __________________________________.

• If the parents are given joint managing conservatorship, one will be the primary conservator and the other will pay _________________.

B. Best Interest of the Child:

• Not defined in Texas Code; but developed through case law • Rebuttable Presumption: May find by ______________________________________________

evidence that both parents are, or either parent is not, fit to be a conservator

o A parent will always be a conservator of some type unless you overcome the presumption that they are fit to be so.

• Written Agreement:

o Parties may reach a parenting agreement and present it to the court. o Court will honor such an agreement if the court also determines that it is in the

__________________________________ of the children o Court bases their decision on the following factors:

Physical, psychological, and emotional needs of the _________________ Whether the parents will be able to reach an agreement with each other on day-to-day

issues related to the child Whether the parents had and have honored responsibilities prior to separation or since

separation Preference of the child 12 years or older

• May no longer state a preference in __________________________________ • May state preference to the court orally in chambers at a hearing or a non-jury trial

only.

Proximity of party’s homes Any other factor the courts can use to determine the best interest of the child


• A best interest of the child determination must be attacked by attacking the __________________________________ of the court.

• Preference to keep _________________together • No preference can be given to parents due to their _________________ or prior or current

relationships • History of Violence: When proved by a ______________________________________________

can affect the decision regarding conservatorship of the children.

C. Rights and Duties of Conservators:

1. Parents who are appointed conservators when there is possession:

o Duty of care, control, and reasonable discipline during the times the child is in their possession

o Duty to _________________ o Right to consent to emergency medical care (involving an immediate danger to the child) o Right to direct _________________ and _________________ training o Each of these rights may be limited by the _________________.

2. Parent whether in possession or not:

o May receive __________________________________ from the other conservator concerning health

o May confer with other parent in making decisions about child o May confer to find out about medical /educational records o May consult with _________________ of child o May consult with school officials o May attend __________________________________ (unless limited) o The court will act in the best interest of the child and may make any limitations that the

court may support with evidence in writing.

3. Non-Parent Managing Conservator:

o Designate primary __________________________________ o Make decisions regarding __________________________________ o In some instances, consent to the child’s __________________________________

4. Sole Managing Conservator (or Joint Managing/right to determine residence) has the rights to:

o Designate primary __________________________________ o Consent to medically invasive procedures or psychiatric care and treatment o Receive __________________________________ payment o Represent the child in legal actions o Consent to the ______________________________ (ages 16-18) or the military enlistment

of the child o Act as child’s __________________________________


CHAPTER 9: CONSERVATORSHIP – GRANDPARENT’S RIGHTS, POSSESSORY CONSERVATOR, AND MODIFICATION

A. Grandparents Rights:

• Grandparents have few, if any rights • There is a __________________________________ that a parent will act in the best interest of

the child and the parent has the fundamental right to determine who has _________________ to the child. That includes whether or not grandparents have access.

• A grandparent seeking possession or access must prove:

o Parental rights of one of the child’s biological or adoptive parents haven't been terminated. o The child’s physical _________________ or emotional well-being would be significantly

impaired if the grandparent were denied access or possession. o The grandparent is a parent of the child’s parent, and o One of the following is true about that parent:

The child’s parent has been incarcerated for at least _________________ when the case is filed.

The child’s parent has been declared judicially __________________________________ The child’s parent is _________________; or the Child’s parent doesn't have actual or court ordered possession of or access to the child.

• As Managing Conservator:

o May file suit to be managing conservators o Commonly occurs where:

Grandparents already had actual control, care, and possession for at least _________________ before filing the suit.

The child’s current circumstances significantly impair the child’s physical health or emotional development.

B. Possessory Conservator:

• Visitation Orders:

o Courts generally use a ___________________________________________________ o There is a set of guidelines for parents who reside within __________________________ of

each other with a variation for parents who live farther apart.

Presumptively in the best interest of the child Parents may reach an agreement to the contrary. A party may move for a __________________________________, but the party must

establish the need for and the court must make a special finding for varying from the guidelines.


o Either parent changing their __________________________________ must tell other parent within a stated period of time.

C. Modification:

• Making a modification of visitation or conservatorship is like modifying child support

o File a Petition for Modification under the existing SAPCR cause no. in the court of continuing jurisdiction and provide new service and notice to all parties (as if it were in an original suit).

o Must have grounds for modification: a material and substantial _________________ in the circumstances affecting the child or either party.

o Modification sought must be in the child’s __________________________________.

A child over the age of _________________ may express to the court in chambers a desire to live with a particular parent (at a hearing or in a non-jury trial only).

o May move to modify the conservatorship with exclusive right to designate the primary residence if a person has given up that right to the moving party for _________________ and the change would be in the best interest of the child

o Otherwise, a suit to modify should not be filed within _________________from the date of the original order. If filed within 1 year, the party must prove the present environment of the child may endanger the child’s physical health or significantly impair emotional development or you must have _________________of the present manager AND it must be in the best interest of the child.

CHAPTER 10: ENFORCEMENT OF CUSTODY ORDERS

A. Enforcement:

1. Habeas Corpus Action:

o Used when the party with visitation retains the child and does not return the child to the parent with possession

o Person goes to the court to get an order directing the party retaining the child unlawfully to bring the child before the court

o Sole question: who has the superior right at that time for the _________________________ of the child?

o Cannot be used to _________________ an order o If there is a serious, immediate question concerning the welfare of the child, the court will

involve the proper authorities, but a modification MAY NOT take place through enforcement of a custody order.

2. Tort Action:

o Interference with child custody


o May seek damages of actual costs and expenses, including ___________________________, mental suffering and anguish, and possibly exemplary damages

3. Contempt:

o Ordinary way to enforce orders o Each act of failure to comply with a court order is a separate act punishable by up to

_________________ in jail and a fine of up to _________________.

4. Uniform Child Custody Jurisdiction and Enforcement Act:

o Used only when parents reside in _______________________________________________ o Key question: what is the __________________________________ of the child?

The home state is where the child lives or has lawfully been for _________________ prior to the filing of the action.

The home state may already be determined if it was the state where the original SAPCR was filed. Home state jurisdiction may be obtained through continuing, exclusive jurisdiction of that court so long as a parent or the child remains in the state.

Example 4: Mother moves to Texas with children, Father stays in original state of Ohio. If Mother brings action less than six months after moving to Texas, then Texas court will not likely accept jurisdiction, as this is not technically the child's "home state."

Court may _________________ jurisdiction if the forum is inconvenient, and may transfer to another state which is willing to take the case.

5. Expedited Enforcement:

o Must prove the home state of the child and _________________ the order in a separate state

o The court in that separate state must find that the child is imminently likely to suffer __________________________________.

CHAPTER 11: TERMINATION OF PARENT-CHILD RELATIONSHIP

A. Generally:

• Two types: Voluntary and Involuntary • If the parent-child relationship is terminated involuntarily, the child is completely removed from

the life of the parent and vice versa.

o Exception: A parent’s rights may be involuntarily terminated, but a court may continue to require a parent to pay child support, such as in the case of a parent convicted and incarcerated for abusing his/her children.


B. Involuntary Termination:

• Generally involves the parents doing something wrong, either intentionally or through neglect • Courts can involuntary terminate parent-child relationship if they find by

___________________________________________________ evidence that it would be in the child’s best interest to be removed from the parent and that one of the situations listed in the Texas Family Code has occurred. (May be in a jury trial).

• Examples:

o Leaving the child with non-parent with the express _________________ not to return o Knowingly and voluntarily leaving a child in an _________________ environment o Using a controlled substance in a way that harms the child o Committing a heinous act or intentional harm to the child o Failing to pay __________________________________ for period of one year ending

within six months of date of hearing

• Two questions must be answered (by the judge in a bench trial or by the jury):

1) Did the parent engage in the alleged conduct? And then, only if the answer is "Yes,"

2) Is termination in the ___________________________________________________?

• Additional Ground for Involuntary Termination:

o If the parent is unable to take care of the child due to the parent’s mental or emotional _________________ rendering the parent _________________ to provide for the needs of the child and,

Child services has had temporary or sole managing ______________________________ for 6 months because of the parent's inability to care for the child;

The inability is likely to continue in the future 'til the child is 18; The termination of parental rights is in the Best Interest of the Child, and All these allegations are proven by ___________________________________________

evidence.

C. Paternity Suits:

1. Jurisdiction:

o File the paternity case where the _________________ resides, or where the respondent resides if the child does not live in Texas

o Guardian ad litem must be appointed if a parent is not likely to represent or protect the best interest of the child

2. Who has standing to bring a paternity action:

o Child o Adoption Agency


o Mother o Man o Person Related to the Mother by Consanguinity o Intended Parent

D. Voluntary Termination:

• An alleged father may file a voluntary termination any time after the first __________________________________.

• The mother may terminate her rights by a witnessed, notarized, signed affidavit _________________ after the birth of the child; signed within that time, the mother's affidavit is _________________.

• Termination of Father’s Rights:

o Non-marital child: Alleged father may disclaim all interest without acknowledging paternity by a witnessed, notarized, and signed affidavit of disclaimer.

E. Effect of Termination:

• Ends all legal rights and responsibilities between the parent and the child

o Except: The child may _________________ through the natural parents unless the final judgment expressly prohibits such right to inherit.

o Does not eliminate the duty to pay child support arrearages due before termination o Court may require parent to continue to pay child support (unusual, but useful when the

parent's termination was based on some harmful conduct towards child, etc.).

F. Parenting Presumptions:

• Man is the presumed father if he and the mother were _________________ or had attempted in good faith to marry (even if the marriage was void/voidable) at the time of the child's birth,

o OR the child was born within _________________ days after termination of any valid or attempted marriage,

o OR he marries the mother after the _________________ and voluntarily asserts paternity in a record or on the child's birth certificate.

o OR he lives with the child for its first _________________ years of life whether/not he and mother ever married

1. Rebuttable Presumption:

o Can deny paternity with a genetic test

2. Parentage by Estoppel:

o Married persons involved in a situation where either party has ___________________________________________________ on the alleged father’s


presumed parentage and it would not be in the best interest of the child to allow either parent to deny paternity

Area of law that is in flux in Texas right now.

o Court could deny a motion for __________________________________________________ if the conduct of the mother or presumed father estops the party from denying parentage and it would be inequitable to deny the father’s paternity.

3. Statute of Limitations:

o If the child has no presumed, acknowledged, or adjudicated father, there is no statute of limitations for the _________________ to seek paternity.

o If there is a presumed father, the statute of limitations is _________________ for either party to attack the presumption, unless:

• you can prove that at the time of conception there was no _________________ to or cohabitation with the mother by the presumed father; OR

• (If after 4 years) the presumed father proves he failed to deny paternity or seek genetic testing due to a misrepresentation which led to his mistaken belief he was the biological father.

G. Parentage Suits:

• Temporary child support may be paid during certain circumstances:

o If there is a __________________________________ father o If there is a petition to have the paternity adjudicated o Alleged father declines __________________________________ o Any person who clearly and convincingly can be shown to be the father or the mother may

be ordered to pay.

• Retroactive Child Support

o If there was no previous order, may get support dating back as far as _________________ years.

o If the alleged father knew, or should have known that he was the father, then you can go back to the birth of the child.

H. Parentage Acknowledgement:

• Mother and father can file an acknowledgment before or after the child’s _________________ • If the mother declares that she is married to a man other than the father of her child, it must be

accompanied by a declaration from the __________________________________ that he is not the father, and from the other man that he is the father.


• Rescission of the denial/acknowledgement can be made after it is filed with the court if it was based on fraud, duress, or material mistake of fact (i.e. mistaken belief that he was father, based on fact that there was no blood test).

CHAPTER 12: ADOPTION

A. Generally:

• Texas does not have __________________________________ adoption; there must be a termination of the parental rights of the natural parents, or the natural parents must be deceased.

• The exception is when a parent’s ___________ is adopting within the marital relationship.

B. Stepparent Adoption:

• One parent of child is a spouse of the step-parent, and joins in suit

o The other parent may voluntarily give up their rights, or the adopting party may seek an involuntary termination.

• A former step parent may adopt a child who is at least two years old if (i) the parent-child relationship has been terminated as to one parent, (ii) the stepparent has been a managing conservator of the child for at least six months before the adoption, and (iii) the non-terminated, natural parent consents to the adoption.

o If the natural parent does not consent, the former stepparent must have been a managing conservator (or have had actual care, possession, and control of the child) for at least one year before the adoption.

• Courts must always find that the adoption is in the __________________________________ of the child.

• Adopting parent replaces a parent, meaning replaced parent must have had rights terminated, or relinquished them, or the replaced parent must be _________________.

C. Adoption of an Adult:

• Any adult may adopt another adult. • May be granted as long as it is __________________________________ by both parties • An adult adoption cuts off the natural relationship between the adult adoptee and the adult

adoptee’s natural parents (including intestate inheritance rights).

D. Finalization of Adoption:

• Pre and post adoption social studies to give picture of the conditions of the child • Must conduct a report of the adoptive parent’s __________________________________ • Social, educational, and genetic history report in all cases where it is not a stepparent adoption


E. Effects of Adoption:

• Creates a __________________________________ relationship between the adopting parent and the child

• In a stepparent adoption, the natural parent must join in the adoption

F. Other Family Law Issues:

1. Abuse and Neglect:

o Courts are able to _________________ children from a home based on abuse and neglect if in the best interest of the child.

o Duty to Report: All persons with knowledge of past, present, or possible child abuse must report that to the proper authorities.

This includes _________________. Attorneys may not be compelled to testify against their clients, but they must make the report.

Doctors, nurses, school employees, religious workers, and counselors are also required to report abuse.

2. Abortion:

o Physicians may not perform abortions on an unemancipated minor unless:

There is _________________ notification; A court authorizes the abortion without notification to parents, in which case a

__________________________________ must be appointed; OR An immediate abortion is necessary to prevent the minor’s _________________ or to

avoid substantial and irreversible impairment of a major bodily function of the minor.

G. Wrap up – Three Additional Matters

• A stepparent may adopt the child of a deceased spouse:

o If the child is two years old, has been living under the care and control of the stepparent for _____ months, with the consent of the other natural parent

o If the child is two years old, has been living under the care and control of the stepparent for 1 year, can adopt even without the consent of the other natural parent

o In either case, the adoption must be in the best interest of the child.

• Before any adoption of a child may occur, the child must have resided in the home with the adoptive parent for at least _________. In some cases of _________________ adoptions this may be waived.

• If the child to be adopted is ______ or older, the child must consent in writing or appear in court; this requirement may be waived for good cause.

[END OF HANDOUT]


Documents

JUDGE JOE SPURLOCK II - Amazon S3s3.amazonaws.com/mythm-vids-prod/TX.Spurlock.FamilyLaw.pdfTEXAS FAMILY LAW JUDGE JOE SPURLOCK II TEXAS A&M SCHOOL OF LAW CHAPTER 1: MARRIAGE A. Generally: