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Family Law
South Texas College of Law Houston
Browne-Barbour, Vanessa

Family Law Outline

Fall 2012 Browne-Barbour

Texas Family Law Precedent & Procedure 2012, George

I. Chapter 1: Constitutional Concerns in Family Law

A. Introduction

1. Constitutional issues exist within the family law context

i) Fourteenth Amendment accords constitutional protection to personal decisions relating to marriage, procreation, contraception, family relationships, child rearing, and education.

2. SCOTUS does get involved in family law, usually to determine how much a state can interfere in family or parent-child relationships.

3. Constitutional errors must be raised in the trial court or waived later on

4. Some federal laws do control some family law issues, and states must comply with these

i) Domestic relations are governed by state law b/c

i) They are a non-enumerated power

ii) It is the duty of the states to regulate the health and welfare of their citizens

iii) States are better equipped to handle domestic relations

ii) If you have a protected constitutional interest, federal courts will step in

B. Family Code Chapter One: Public Policy

1. Every marriage is presumed valid unless made void/voidable by Chp 6

2. The state preserves and upholds marriage against claims of invalidity unless there is a strong reason for holding the marriage void or voidable for these reasons:

i) To promote public health and welfare

ii) To provide the necessary records

iii) To provide stability for people entering marriage in good faith

iv) To help determine parentage & security of children of marriages

3. The most recent marriage is presumed valid

i) When two or more marriages of a person to different spouses are alleged, the most recent one gets the presumption of validity

i) This is rebutted when the person asserting the prior marriage proves that it was valid, which voids the more recent “marriage”

4. Regardless of your age, a person who is married by law has the full legal capacity of an adult

5. “Criminal conversation” and “alienation of affection” (aka adultery) are not causes of action in Texas

6. Marriage & “non-marital conjugal cohabitation” promises must be in writing

i) non-marital conjugal cohabitation: contract to establish the respective rights and duties of the parties with respect to their earnings and the property acquired from their earnings during the non-marital relationship.

C. Definitions

1. Acknowledged father

i) a man who has established a father-child relationship under Chapter 160.

2. Administrative writ of withholding

i) the document issued by the Title IV-D agency or domestic relations office and delivered to an employer directing that earnings be withheld for payment of child support as provided by Chapter 158.

3. Alleged father

i) a man who alleges himself to be, or is alleged to be, the genetic father or a possible genetic father of a child, but whose paternity has not been determined.

ii) The term does not include:

i) a presumed father;

ii) a man whose parental rights have been terminated or declared to not exist; or

iii) a male donor.

4. Amicus attorney

i) an attorney appointed by the court in a suit, other than a suit filed by a governmental entity, whose role is to provide legal services necessary to assist the court in protecting a child’s best interests rather than to provide legal services to the child.

5. Attorney ad litem

i) an attorney who provides legal services to a person, including a child, and who owes to the person the duties of undivided loyalty, confidentiality, and competent representation.

6. Authorized agency

i) a public social agency authorized to care for children, including the Department of Family and Protective Services.

7. Bureau of vital statistics

i) the bureau of vital statistics of the Texas Department of Health.

8. Child or minor

i) a person under 18 years of age who is not and has not been married or who has not had the disabilities of minority removed for general purposes.

ii) In the context of child support, “child” includes a person over 18 years of age for whom a person may be obligated to pay child support.

iii) “Adult” a person who is not a child.

9. Child support agency :

i) the Title IV-D agency;

ii) a county or district attorney or any other county officer or county agency that executes a cooperative agreement with the Title IV-D agency to provide child support services under Part D of Title IV of the federal Social Security Act (42 U.S.C. Section 651 et seq.) and Chapter 231; or

iii) a domestic relations office.

10. Child support review officer

i) an individual designated and trained by a child support agency to conduct reviews under this title.

11. Child support services

i) administrative or court actions to:

i) establish paternity;

ii) establish, modify, or enforce child support or medical support obligations;

iii) locate absent parents; or

iv) cooperate with other states in these actions and any other action authorized or required under Part D of Title IV of the federal Social Security Act (42 U.S.C. Section 651 et seq.) or Chapter 231.

12. Clear and convincing evidence

i) 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.

13. Court

i) the district court, juvenile court having the same jurisdiction as a district court, or other court expressly given jurisdiction of a suit affecting the parent-child relationship.

14. Danger to the physical health or safety of a child

i) includes exposure of the child to loss or injury that jeopardizes the physical health or safety of the child without regard to whether there has been an actual prior injury to the child.

15. Disposable earnings

i) the part of the earnings of an individual remaining after the deduction from those earnings of any amount required by law to be withheld, union dues, nondiscretionary retirement contributions, and medical, hospitalization, and disability insurance coverage for the obligor and the obligor’s children.

16. Earnings

i) a payment to or due an individual, regardless of source and how denominated. The term includes a periodic or lump-sum payment for:

i) wages, salary, compensation received as an independent contractor, overtime pay, severance pay, commission, bonus, and interest income;

ii) payments made under a pension, an annuity, workers’ compensation, and a disability or retirement program; and

iii) unemployment benefits.

17. Employer

i) a person, corporation, partnership, workers’ compensation insurance carrier, governmental entity, the United States, or any other entity that pays or owes earnings to an individual. The term includes, for the purposes of enrolling dependents in a group health insurance plan, a union, trade association, or other similar organization.

18. Family violence

i) :

i) an act by a member of a family or household against another member of the family or household that is intended to result in physical harm, bodily injury, assault, or sexual assault or that is a threat that reasonably places the member in fear of imminent physical harm, bodily injury, assault, or sexual assault, but does not include defensive measures to protect oneself;

ii) abuse, as that term is defined by Sections 261.001(1)(C), (E), and (G), by a member of a family or household toward a child of the family or household; or

iii) dating violence,

i) an act, other than a defensive measure to protect oneself, by an actor that:

i) is committed against a victim:

i) with whom the actor has or has had a dating relationship; or

ii) because of the victim’s marriage to or dating relationship with an individual with whom the actor is or has been in a dating relationship or marriage; and

ii) is intended to result in physical harm, bodily injury, assault, or sexual assault or that is a threat that reasonably places the victim in fear of imminent physical

lectronic or other medium; and

ii) retrievable in a perceivable form.

35. Render

i) the pronouncement by a judge of the court’s ruling on a matter. The pronouncement may be made orally in the presence of the court reporter or in writing, including on the court’s docket sheet or by a separate written instrument.

36. Parent locator service

i) the service established under 42 U.S.C. Section 653.

37. School

i) a primary or secondary school in which a child is enrolled or, if the child is not enrolled in a primary or secondary school, the public school district in which the child primarily resides.

38. Standard possession order

i) an order that provides a parent with rights of possession of a child in accordance with the terms and conditions of Subchapter F, Chapter 153.

39. State

i) a state of the United States, the District of Columbia, the Commonwealth of Puerto Rico, or a territory or insular possession subject to the jurisdiction of the United States. The term includes an Indian tribe and a foreign jurisdiction that has established procedures for rendition and enforcement of an order that are substantially similar to the procedures of this title.

40. State case registry

i) the registry established and operated by the Title IV-D agency under 42 U.S.C. Section 654a that has responsibility for maintaining records with respect to child support orders in all Title IV-D cases and in all other cases in which a support order is rendered or modified under this title on or after October 1, 1998.

41. State disbursement unit

i) the unit established and operated by the Title IV-D agency under 42 U.S.C. Section 654b that has responsibility for receiving, distributing, maintaining, and furnishing child support payments and records on or after October 1, 1999.

42. Suit

i) a suit affecting the parent-child relationship.

43. Suit affecting the parent-child relationship

i) a suit filed as provided by this title in which the appointment of a managing conservator or a possessory conservator, access to or support of a child, or establishment or termination of the parent-child relationship is requested.

ii) The following are not suits affecting the parent-child relationship:

i) a habeas corpus proceeding under Chapter 157;

ii) a proceeding filed under Chapter 159 to determine parentage or to establish, enforce, or modify child support, whether this state is acting as the initiating or responding state; and

iii) a proceeding under Title 2.

44. Title IV-D agency

i) the state agency designated under Chapter 231 to provide services under Part D of Title IV of the federal Social Security Act (42 U.S.C. Section 651 et seq.).

45. Title IV-D case

i) an action in which services are provided by the Title IV-D agency under Part D, Title IV, of the federal Social Security Act (42 U.S.C. Section 651 et seq.), relating to the location of an absent parent, determination of parentage, or establishment, modification, or enforcement of a child support or medical support obligation.

46. Tribunal

i) a court, administrative agency, or quasi-judicial entity of a state authorized to establish, enforce, or modify support orders or to determine parentage.

D. What is Family