SPRING 2012 OUTLINE
FAMILY LAW
PROFESSOR SALLEE S. SMYTH
FINAL EXAM
-25 TRUE FALSE
-25 MULTIPLE CHOICE
-1 ESSAY (12 POINTS -6 EACH FOR ISSUES-ONE FACT PATTERN!)
-3 SHORT ESSAY WORTH 6 EACH
-1 SHORT ESSAY WORTH FIVE
-DON’T HAVE TO KNOW STATUTE NUMBERS EXACTLY
-might have to write a paragraph OR might have to make a list!
ACRONYMS TO KNOW:
JMC – Joint Managing Conservator
MC/PC – Managing Conservator
SPO – Standard Possession Order
UCCJEA- Uniform Child Custody Jurisdiction and Enforcement Act
UIFSA – Uniform Interstate Family Support Act
PKPA –Parental Kidnapping Prevention Act
SAPCR – Suit Affecting Parent Child Relationship
CPS – Child Protective Services
Procedural
· Availability or non-availability of jury trials on issues in family law cases 6.703 – 105.002 – 160.632 – 6.104
6.703 – Ch.6 Suit for Dissolution of Marriage
In a suit for dissolution of marriage, either party may demand a jury trial unless the action is a suit to annul an underage marriage under Section 6.102
105.002 JURY- Ch. 105 Settings, Hearings, and Orders
(a) Except as provided by Subsection (b), a party may demand a jury trial. (b) A party may not demand a jury trial in: (1) a suit in which adoption is sought, including a trial on the issue of denial or revocation of consent to the adoption by the managing conservator; or (2) a suit to adjudicate parentage under Chapter 160. (c) In a jury trial: (1) a party is entitled to a verdict by the jury and the court may not contravene a jury verdict on the issues of: (A) the appointment of a sole managing conservator; (B) the appointment of joint managing conservators; (C) the appointment of a possessory conservator; (D) the determination of which joint managing conservator has the exclusive right to designate the primary residence of the child;
(E) the determination of whether to impose a restriction on the geographic area in which a joint managing conservator may designate the child's primary residence; and (F) if a restriction described by Paragraph (E) is imposed, the determination of the geographic area within which the joint managing conservator must designate the child's primary residence; and (2) the court may not submit to the jury questions on the issues of: (A) support under Chapter 154 or Chapter 159; (B) a specific term or condition of possession of or access to the child; or (C) any right or duty of a conservator, other than the determination of which joint managing conservator has the exclusive right to designate the primary residence of the child under Subdivision (1)(D).
Chapter 160. Uniform Parentage Act 160.632 Jury Prohibited – The court shall adjudicate paternity of a child without a jury!
Chapter 6. Suit for Dissolution of Marriage
6.104 Discretionary Annulment of Underage Marriage
(a) An annulment under Section 6.101 or 6.102 of a marriage may be granted at the discretion of the court sitting without a jury. (b) In exercising its discretion, the court shall consider the pertinent facts concerning the welfare of the parties to the marriage, including whether the female is pregnant.
· What jury issues are binding on trial court?
105.002 JURY- Ch. 105 Settings, Hearings, and Orders
(a) Except as provided by Subsection (b), a party may demand a jury trial. (b) A party may not demand a jury trial in: (1) a suit in which adoption is sought, including a trial on the issue of denial or revocation of consent to the adoption by the managing conservator; or (2) a suit to adjudicate parentage under Chapter 160. (c) In a jury trial: (1) a party is entitled to a verdict by the jury and the court may not contravene a jury verdict on the issues of: (A) the appointment of a sole managing conservator; (B) the appointment of joint managing conservators; (C) the appointment of a possessory conservator; (D) the determination of which joint managing conservator has the exclusive right to designate the primary residence of the child; (E) the determination of whether to impose a restriction on the geographic area in which a joint managing conservator may designate the child's primary residence; and (F) if a restriction described by Paragraph (E) is imposed, the determination of the geographic area within which the joint managing conservator must designate the child's primary residence; and (2) the court may not submit to the jury questions on the issues of: (A) support under Chapter 154 or Chapter 159; (B) a specific term or condition of possession of or access to the child; or (C) any right or duty of a conservator, other than the determination of which joint managing conservator has the exclusive right to designate the primary residence of the child under Subdivision (1)(D).
· Standing in suits affecting the parent-child relationship, including parentage
102.003 – 004 -006 -160.002 – 156.002 – 102.0045 102.005 (MAJ. In 102)
Ch. 102 –Filing Suit – 102.003 General Standing to File Suit
(a) An original suit may be filed at any time by: (1) a parent of the child; (2) the child through a representative authorized by the court; (3) a custodian or person having the right of visitation with or access to the child appointed by an order of a court of another state or country; (4) a guardian of the person or of the estate of the child; (5) a governmental entity; (6) an authorized agency; (7) a licensed child placing agency; (8) a man alleging himself to be the father of a child filing in accordance with Chapter 160, subject to the limitations of that chapter, but not otherwise; (9) 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; (10) a person designated as the managing conservator in a revoked or unrevoked affidavit of relinquishment under Chapter 161 or to whom consent to adoption has been given in writing under Chapter 162; (11) a person with whom the child and the child's guardian, managing conservator, or parent have resided for at least six months ending not more than 90 days preceding the date of the filing of the petition if the child's guardian, managing conservator, or parent is deceased at the time of the filing of the petition; (12) a person who is the foster parent of a child placed by the Department of Protective and Regulatory Services in the person's home for at least 12 months ending not more than 90 days preceding the date of the filing of the petition; (13) a person who is a relative of the child within the third degree by consanguinity, as determined by Chapter 573, Government Code, if the child's parents are deceased at the time of the filing of the petition; or (14) a person who has been named as a prospective adoptive parent of a child by a pregnant woman or the parent of the child, in a verified written statement to confer standing executed under Section 102.0035, regardless of whether the child has been born. (b) In computing the time necessary for standing under Subsections (a)(9), (11), and (12), the court may not require that the time be continuous and uninterrupted but shall consider the child's principal residence during the relevant time preceding the date of commencement of the suit. (c) Notwithstanding the time requirements of Subsection (a)(12), a person who is the foster parent of a child may file a suit to adopt a child for whom the person is providing foster care at any time after the person has been approved to adopt the child. The standing to file suit under this subsection applies only to the adoption of a child who is eligible to be adopted.
102.004 Standing for Grandparent or Other Person (a) In addition to the general standing to file suit provided by Section 102.003, a grandparent may file an original suit requesting managing conservatorship if there is satisfactory proof to the court that: (1) the order requested is necessary because the child's present circumstance
deadline by filing an appeal before an appeal deadline.
PROCEDURAL POSTURE: Petitioner mother sought review of a judgment from the Court of Appeals for the Ninth District (Texas), which dismissed her appeal from a parental rights termination order as untimely under Tex. R. App. P. 26.1(b).
OVERVIEW: The mother did not file a motion for extension of time under Tex. R. App. P. 26.3, and her notice of appeal was not filed within 20 days after the trial court signed the final order terminating her parental rights. Accordingly, the court held that her notice of appeal was untimely and failed to invoke the jurisdiction of the COA. Pursuant to Tex. Fam. Code Ann. § 109.002(a), the procedures for an accelerated appeal under Tex. R. App. P. 26.1 were applicable to a parental rights termination case. In an accelerated appeal, absent a Tex. R. App. P. 26.3 motion, the deadline for filing a notice of appeal was strictly set at 20 days after the judgment was signed, with no exceptions. Moreover, filing a motion for new trial did not constitute a bona fide attempt to invoke the court of appeals' jurisdiction for purposes of perfecting an appeal. Although the mother attempted to raise constitutional complaints related to her appeal, she did not assert them in the court of appeals and therefore did not preserve error.
OUTCOME: The court affirmed the court of appeals' judgment dismissing the appeal for want of jurisdiction.
Chapter 109 Appeals. 109.002(a)
(a) An appeal from a final order rendered in a suit, when allowed under this section or under other provisions of law, shall be as in civil cases generally under the Texas Rules of Appellate Procedure. An appeal in a suit in which termination of the parent-child relationship is in issue shall be given precedence over other civil cases and shall be accelerated by the appellate courts. The procedures for an accelerated appeal under the Texas Rules of Appellate Procedure apply to an appeal in which the termination of the parent-child relationship is in issue.
· Temporary Orders pending appeal in dissolution and SAPCR; scope and deadlines
6.709 dissolution– 109.001 SAPCR
Chapter 6 Suit for Dissolution of Marriage – 6.709 Temporary Orders During Appeal (a) Not later than the 30th day after the date an appeal is perfected, on the motion of a party or on the court's own motion, after notice and hearing, the trial court may render a temporary order necessary for the preservation of the property and for the protection of the parties during the appeal, including an order to: (1) require the support of either spouse; (2) require the payment of reasonable attorney's fees and expenses; (3) appoint a receiver for the preservation and protection of the property of the parties; or (4) award one spouse exclusive occupancy of the parties' residence pending the appeal.
(b) The trial court retains jurisdiction to enforce a temporary order under this section unless the appellate court, on a proper showing, supersedes the trial court's order
Chapter 109 Appeals. 109.001 Temporary Orders During Pendency of Appeal (a) Not later than the 30th day after the date an appeal is perfected, on the motion of any party or on the court's own motion and after notice and hearing, the court may make any order necessary to preserve and protect the safety and welfare of the child during the pendency of the appeal as the court may deem necessary and equitable. In addition to other matters, an order may: (1) appoint temporary conservators for the child and provide for possession of the child; (2) require the temporary support of the child by a party; (3) restrain a party from molesting or disturbing the peace of the child or another party; (4) prohibit a person from removing the child beyond a geographical area identified by the court; (5) require payment of reasonable attorney's fees and expenses; or (6) suspend the operation of the order or judgment that is being appealed. (b) A court retains jurisdiction to enforce its orders rendered under this section unless the appellate court, on a proper showing, supersedes the court's order. (c) A temporary order rendered under this section is not subject to interlocutory appeal.
(d) The court may not suspend under Subsection (a)(6) the operation of an order or judgment terminating the parent-child relationship in a suit brought by the state or a political subdivision of the state permitted by law to bring the suit.
