FAMILY LAW WARNE SPRING 2011
What factor[s] must the crt find to exist before it may grant a judicial bypass?
3 prong test – one of these must be proved by preponderance of the evidence
i. Mature and sufficiently well informed to make this decision without notification, OR
1. Sufficiently well informed –
a. Minor must obtain information regarding all possible risks
b. Pregnancy test, sonogram, and counseling with a nurse to talk about her options
c. Must understand that father has to pay child support.
d. Must be aware of the emotional/psychological aspects
2. Mature – (hard to demonstrate for a 13/14 year old girl)
a. Capable of reasoned decision making and her decision is not a product of impulse. Age, education, grades, extracurricular activities, future plans, etc. are all relevant to maturity.
ii. Not in best interest to notify her parents, OR
1. This could be missed opportunities or just damage to relationship with parents
2. Consider and balance
a. M’s emotional or physical needs
b. The possibility of emotional or physical danger to the minor
c. The stability of the M’s home and whether notification could cause serious and lasting harm to the family structure
d. The relationship between the parent and M and the effect of notification on the relationship.
e. Would parent withdraw emotional/financial support from the minor?
i. She’ll have no home if she tells her parents?
iii. Notification to her parents would lead to physical, emotional, or sexual abuse.
1. This is higher and more egregious than the second prong
2. Has CPS ever been involved with the family?
3. What other sorts of punishments has the M been subjected to for other infractions?
a. If have harsh punishment to mundane aspects of teenage life, the parents are likely to react badly to the pregnancy.
4. Crt must only find that she “may suffer” such abuse not that she will for sure.
5. If she will be kicked out of her house if she tells, that is considered emotional abuse. It is emotionally abusive to kick a minor out of her home.
Are there any time deadlines for a trial crt to issue a ruling in a judicial bypass case? If so, what are they? What happens if the trial crt fails to meet the deadlines? What deadlines, if any, apply to appellate crts on these cases? What about the Supreme Crt?
a. The trial crt must decide by 5pm on the second business day after the application is filed.
b. The Crt of appeals has the same deadline – must rule on the appeal by 5pm on the second business day after the notice of appeal is filed with the trial crt that denied the application.
c. If the minor requests an extension, the crt must grant it. Furthermore, the crt has until 5pm on the second business day to issue their ruling from the date that the minor decides to proceed.
d. Appeal to S Ct is allowed. The only deadline is “as soon as possible.”
e. If trial crt or crt of appeals fails to rule w/in the time period, the bypass is considered granted.
What restrictions, if any, apply to the number of times you may file a judicial bypass application for the same minor relating to the same pregnancy?
You may re-file the application in another crt if the first crt denies the application. There is no limit on the number of crts in which the application can be filed.
What is the status of same sex marriages in TX?
Non-existent. TX does not allow same-sex marriage.
Discuss all age requirements relating to a formal marriage.
Unless granted by crt order or a showing of a prior marriage, you have to be 18 years old to marry
If under 16 years of age may not marry unless granted by crt order.
If applicant is between the ages of 16 – 18 a marriage license can be granted if:
i. Parental Consent:
1. Written declaration on form provided by clerk in which person consents to the marriage and swears they are parent of minor.
2. If parent lives in another state, they can consent before a clerk in that state.
3. Must be given at time of application for marriage or not earlier than 30th day preceding date application is made.
4. Person commits offense if knowingly provides consent and they are not parent of minor. Also, if they knowingly provide consent for minor they know is younger than 16 or if they know the minor is married to someone else.
ii. Crt order
1. Minor may petition crt in minor’s own name for an order to grant marriage. Must be filed in county where parent or guardian resides, if none of those then in county where minor resides. Petition must include:
a. statements for reasons minor wants to marry
b. statement whether each parent is alive or dead
c. name and residence address of each living parent
d. statement of whether crt has awarded person other than parent of minor the right to consent to marriage for minor.
2. The crt shall appoint an amicus attorney or an attorney ad litem to represent the minor in the proceeding.
3. If after a hearing the crt, sitting w/out a jury, believes marriage to be in the best interest of the minor, the crt, by order, shall grant the minor permission to marry.
iii. Proof of a prior marriage that dissolved
Discuss all age requirements relating to an informal marriage.
Must be 18 years old. A person under 18 cannot enter into an informal marriage. No exceptions.
What must you show to establish the existence of an informal marriage?
Agreement to be married
Holding selves out as H&W to others
Cohabitation in TX
Are there any time deadlines applicable to such a claim?
If a proceeding in which this marriage is to be proved is not commenced before the second anniversary of the date on which the parties separated and ceased living together, there is rebuttable presumption that parties did not enter into agreement.
What is a putative spouse?
Person who has cohabited w/ another to whom he is not legally married in the good faith belief that he was married to that person. It is a marriage entered into in good faith, but invalid due to a legal flaw.
In a suit to declare a marriage void, a putative spouse may be awarded maintenance if otherwise qualified to receive maintenance under the code.
Can you be denied a marriage license bc you failed to pay your child support?
No, you cannot be denied a marriage license bc you failed to pay child support.
Can you be denied a marriage license if you refuse to take a blood test?
TX does not require a physical or blood test to acquire a marriage license.
The clerk is merely required to inform you of the availability of voluntary blood tests.
Must you appear in person to obtain a marriage license? To get married? Discuss.
Each person must appear before the county clerk in order to apply for a license.
However, there are certain exceptions for an Absent Applicant
i. If an applicant is unable to appear in person to get a license, any adult person or the other applicant may apply on behalf of absent applicant.
ii. The clerk may not issue a marriage license for which both applicants are absent unless the person applying on behalf of each absent applicant provides to the clerk an affidavit of the applicant declaring that the applicant is:
1. On active duty as a member of the armed forces of the United States or the state military forces; or
2. Confined in a correctional facility
An absent applicant can also appoint a proxy (any adult other than the other applicant) to fill in for him at the ceremony.
Discuss the degree of consanguinity that applies to valid marriages in the state of TX.
3rd Degree of Consanguinity
A man and woman cannot be issued a marriage license if they are:
i. an ancestor or descendant, by blood or adoption;
ii. a brother or sister, of the whole or half blood or by adoption;
iii. a parent's brother or sister, of the whole or half blood or by adoption;
iv. a son or daughter of a brother or sister, of the whole or half blood or by adoption;
v. a current or former stepchild or stepparent; or
vi. a son or daughter of a parent's brother or sister, of the whole or half blood or by adoption
1. first cousins are out, but second cousins are okay
A TRO is good for how many days?
TRO, lasts 14 days (will expire at midnight on the 14th calendar day after it is signed by the crt).
May it be extended? If so, for how long?
Yes. It may be extended for a like period but there may be no more than one extension granted unless subsequent extensions are unopposed.
Discuss any venue requirements for filing a new divorce action.
In TX, proper venue for the divorce action is in the District Crt w/in a county in which the residency requirements (discussed below) are met.
One spouse must be a domiciliary of the State of TX for at least six months, and a resident of a county for at least ninety days, before a divorce can be filed.
i. Either spouse (even the non-domiciled spouse can file in that state)
the parents of a child are deceased, the crt may consider appointment of a parent, sister, or brother of a deceased parent as a MC of the child, but that consideration does not alter or diminish the discretionary power of the crt.
If they meet the standing requirements then they can sue based on significant past contact.
Can a non-parent ever be ordered to pay child support? If so, what are the circumstances?
General Rule: In TX, only parents, including adoptive parents, pay child support.
Exception: A non-parent can be ordered to pay child support if their status as a non-parent is a result of their parental rights being terminated, but an adoption has not yet been granted.
What relatives, if any, have standing under the family code [by virtue of their legal relationship w/ the child] to seek access to that child?
Grandparents, aunts and uncles, and some circumstances adult siblings
Discuss any issues relating to geographic restrictions in JMC orders.
The crt can establish the geographic area w/in which the primary JMC shall maintain the child’s primary residence or specifies that conservator may designate primary residence w/out regard to geographic location.
Best interest of the child and frequent contact w/ both parents is state’s overall public policy on what is best for child so can impose geographic restrictions on primary residence.
Parent can file motion to modify to remove geographic restriction or to relocate child
In a JMC, must the parents’ rights be identical?
No, the duties and rights of the parents are decided by the crt, including geographic restrictions on the primary residence, whatever is best to encourage a positive relationship between the child and the parents, care, support, and education.
The crt also allocates between the parents, independently, jointly, or exclusively all of the remaining rights and duties.
In a JMC, must the parents’ time be identical?
No, equal possession between the parents is not required in a JMC.
Discuss all provisions relating to a crt’s ability to interview a child in chambers.
In a nonjury trial or at a hearing, on the application of a party, the amicus attorney, or the attorney ad litem for the child, the crt SHALL interview in chambers a child 12 years of age or older and MAY interview in chambers a child under 12 years of age to determine the child's wishes as to conservatorship or as to the person who shall have the exclusive right to determine the child's primary residence. The crt MAY also interview a child in chambers on the crt's own motion for a purpose specified by this subsection.
In a nonjury trial or at a hearing, on the application of a party, the amicus attorney, or the attorney ad litem for the child or on the crt's own motion, the crt may interview the child in chambers to determine the child's wishes as to possession, access, or any other issue in the suit affecting the parent-child relationship.
Interviewing a child does not diminish the discretion of the crt in determining the best interests.
In a jury trial, the crt may not interview the child in chambers regarding an issue on which a party is entitled to a jury verdict.
In any trial or hearing, the crt may permit the attorney for a party, the amicus attorney, the guardian ad litem for the child, or the attorney ad litem for the child to be present at the interview.
On the motion of a party, the amicus attorney, or the attorney ad litem for the child, or on the crt's own motion, the crt shall cause a record of the interview to be made when the child is at least 12.
List the ways a child can “testify” in a SAPCR w/out being physically present in the courtroom.
Prerecorded Statement of Child 12 or younger in an abuse case.
i. As long as attorneys were there and person who recorded is available to testify.
Prerecorded Videotaped Testimony of Child allowed upon motion of a party to the proceeding
Remote Televised Broadcast of Testimony of Child 12 or younger in abuse case.