Family Law – Spring 2017 – Browne Barbour
Chapter 1 Constitutional Concerns in Family Law
What is a Family?
Family- a number of individuals related to the nominal head of the household or to the spouse of the nominal head, living as a single housekeeping unit in a single dwelling. Limited to spouse of nominal head, unmarried children of nominal head, parent of nominal head, and no more than one dependent (having more than 50% of support provided).
A family can consist of one person.
Marriage has been described as “the foundation of the family and of society, without which there would be neither civilization nor progress.”
When the family unit is created, the law provides certain rights to and imposes certain obligations on spouses, parents, and children.
The nature and extent of a person’s civil and criminal liability can be affected by her status as a spouse, parent, or child.
Whether persons living in the same household are related or not, the choice to live together and conduct daily lives as a family is a personal choice not to be interrupted by the state
Who is a Parent?
Parent- is (1) the mother, (2) a man presumed to be the father, (3) a man legally determined to be the father, (4) a man adjudicated to be the father by a court of competent jurisdiction, (5) a man who has acknowledged his paternity under applicable law, or (6) an adoptive mother or father.
Mother Child Relationship
The mother-child relationship is established between a woman and a child in any of the following four ways:
(1) The woman giving birth to the child. (Unless signed gestational agreement)
(2) The woman adopting the child.
(3) An adjudication of the woman’s maternity. (Normally only arise from Immigration cases)
(4) An adjudication confirming the woman as the mother of the child born to a gestational mother (another woman) under a validated or enforceable gestational agreement
Father Child Relationship
The father-child relationship is established between a man and a child in any of the following seven ways:
(1) An unrebutted presumption of the man’s paternity.
Man is PRESUMED if:
Married to mother during birth
Child born within 300 days of marriage termination
Voluntarily marries mother and accepts paternity
Continuously lived in same house for 2 years with child
Presumption can be REBUTTED if:
A suit to adjudicate marriage is filed
A form is signed denying paternity and another man and the mother signs form claiming the new paternity
In case of NO PRESUMED father:
Man can sign a valid acknowledgment of paternity and file it with the Texas Vital Statistics Unit
Must be in writing, signed, on an official form, state the issue, state the acknowledgment of both father and mother, and include any paternity testing results
To give up paternity the two fathers must sign form denying and accepting paternity claims.
(2) The man’s acknowledgment of paternity.
(3) The man’s adoption of the child
(4) An adjudication of the man’s paternity.
(5) A husband consenting to assisted reproduction by his wife, resulting in the birth of the child.
“Assisted reproduction” means a method of causing pregnancy other than sexual intercourse. The term includes (1) intrauterine insemination, (2) egg donation, (3) embryo donation, (4) in vitro fertilization and transfer of embryos, and (5) intracytoplasmic sperm injection.
(6) An unmarried man intending to be a father, providing sperm to a licensed physician, and consenting to assisted reproduction by an unmarried woman, resulting in the birth of the child.
(7) An adjudication confirming the man as the father of the child born to a gestational mother under a validated or enforceable gestational agreement.
Constitutional Rights of Grandparents:
A person with a right of access can approach, communicate with, and visit with the child but cannot take possession or control of the child away from the managing conservator
The child’s physical health or emotional well-being will be significantly impaired if the grandparent is denied possession or access
Sadness is not sufficient. The requisite level of impairment might be present if the child lived with the grandparent for some time. The grandparent must attach an affidavit to his or her petition that sets forth the facts supporting the claim of significant impairment
A finding of significant impairment overcomes the presumption that parents act in their child’s best interest
At least one of the child’s parents has not had their parental rights terminated
The grandparent is the biological or adoptive parent (NOT a step-parent) of one of the child’s parents
The grandparent’s son or daughter:
Has been incarcerated for 3 months before the petition is filed, OR
Is incompetent, OR
Is dead, OR
Does not have actual or court-ordered possession of the child
The child’s remaining parent intends to completely deny the grandparent possession and access
When Asking to be an MC, must prove:
Both parents are dead, OR
Both parents or surviving parent consents OR
The grandparent provides satisfactory proof that the child’s present circumstances significantly impair the child’s physical health or emotional development
Polygamy, Religious Freedoms, and Interracial Marriage:
Polygamy- is the practice or custom of having more than one wife/husband at a time
The Courts do not allow Polygamy, a second marriage on top of a first is void
Religious duties are separate from one’s civic duties
Marriage is a right, it effects social lives, economy, society. Don’t use Religious beliefs to break laws
Restricting freedom to marry solely on racial classifications violates equal protection
The freedom to marry or not marry persons of certain races reside within an individual and cannot be infringed upon by state. Apply Strict Scrutiny to these issues.
Can Marriage be Barred by Support Obligations?
Marriage cannot be barred based on a party’s duty to pay child support
Child support payments can be sought via:
Contempt of court
Second Spouse Rule: if the obligor remarries, the spouse can petition to release any community or jointly-owned property from the lien, if sale of that property would result in an unreasonable hardship upon the second spouse or family
Homosexuality Protected from criminal Prosecution:
Our laws and traditions afford constitutional protection to personal decisions relating to marriage, procreation, contraception, family relationship, child rearing, and education
Courts cannot discriminate based on sex, race, sexual preferences
Criminally prosecuting homosexual couples leaves lasting effects on personal records as well as violates their right to privacy
No reason for Court/State intervention when two consenting adults are making their own decisions behind closed doors
(*Cite Lawrence v. Texas case for extra points)
Challenging Same Sex Marriage:
In 2015, Supreme Court held that all states must allow same-sex marriages, and recognize same-sex marriages performed in other states
In anticipation of this ruling, Texas passed a law ensuring that clergy and religious organizations would not have to participate in same sex marriages if the action would cause the organization or individual to violate a sincerely-held religious belief
The Texas Attorney General stated
County clerks could refuse to issue a same sex marriage license if
doing so would violate their sincerely held religious beliefs, AND
they delegated the task of issuing the license to a deputy clerk
Judges and other government officials authorized to conduct marriage ceremonies could refuse to marry same-sex couple’s if:
doing so would vio
and address of the person to whom the absent applicant desires to be married;
(6) The approximate date on which the marriage is to occur;
(7) The reason the absent applicant is unable to appear personally before the county clerk for the issuance of the license; and
(8) The appointment of any adult, other than the other applicant, to act as proxy for the purpose of participating in the ceremony, if the absent applicant is:
(A) A member of the armed forces of the United States stationed in another country in support of combat or another military operation; and
(B) Unable to attend the ceremony.
§ 2.010 – AIDS Information; Posting on Internet: The Department of State Health Services shall prepare and make available to the public on its Internet website information about acquired immune deficiency syndrome (AIDS) and human immunodeficiency virus (HIV). Information must be designed to inform an applicant for a marriage license about:
(1) The incidence and mode of transmission of AIDS and HIV;
(2) The local availability of medical procedures, including voluntary testing, designed to show or help show whether a person has AIDS or HIV infection, antibodies to HIV, or infection with any other probable causative agent of AIDS; and
(3) Available and appropriate counseling services regarding AIDS and HIV infection.
§ 2.013 – Premarital Education Courses:
(a) Each person applying for a marriage license is encouraged to attend a premarital education course of at least eight hours during the year preceding the date of the application for the license.
(b) A premarital education course must include instruction in:
(1) Conflict management;
(2) Communication skills; and
(3) The key components of a successful marriage.
(c) A course under this section should be offered by instructors trained in a skills-based and research-based marriage preparation curricula. The following individuals and organizations may provide courses:
(1) Marriage educators;
(2) Clergy and their designees;
(3) Licensed mental health professionals;
(4) Faith-based organizations; and
(5) Community-based organizations.
(d) The curricula of a premarital education course must meet the requirements of this section and provide the skills-based and research-based curricula of:
(1) The United States Department of Health and Human Services healthy marriage initiative;
(2) The National Healthy Marriage Resource Center;
(3) Criteria developed by the Health and Human Services Commission; or
(4) Other similar resources.
(e) The Health and Human Services Commission shall maintain an Internet website on which individuals and organizations described by Subsection (c) may electronically register with the commission to indicate the skills-based and research-based curriculum in which the registrant is trained.
(f) A person who provides a premarital education course shall provide a signed and dated completion certificate for each individual who completes the course. The certificate must include the name of the course, the name of the course provider, and the completion date.
Subchapter B – Underage Applicants: