With the ICWA Hanging in the Balance, How will the Native American Children of Texas be Affected

On October 4, 2018, United States District Judge Reed O’Connor declared that several provisions of the Indian Child Welfare Act (ICWA) are unconstitutional. One provision deemed to be unconstitutional ensures that “in any adoptive placement of an Indian child under State law, a preference shall be given, in the absence of good cause to the contrary, to a place with: (1) a member of the child’s extended family;(2) other members of the Indian child’s tribe; or (3) other Indian families.” 25 U.S.C.S. § 1915. This battle began a year ago when Texas, Indiana, Louisiana, and several individuals filed suit requesting that courts declare named sections of the ICWA to be unconstitutional.  Several tribes including the Cherokee Nation, Oneida Nation, and Quinalt Nation, responded to this suit. In the aftermath of Judge O’Connor’s determination, the same tribes are requesting a stay that would delay the implementation of his ruling until an appeal is heard.

 

 

How did we get to this point? According to congressional findings at the time of the ICWA’s passage in 1978 an “alarmingly high” percentage of Indian families were disrupted by the “often unwarranted” removal of children by nontribal entities. 25 U.S.C.S. § 1901. At the time some studies listed the number of Indian children removed from their families as 25%-35%.  Congress further noted that States often “fail to recognize the essential tribal relations of Indian people and cultural and social standards prevailing in Indian communities and families.” 25 U.S.C.S. § 1901.  Fast forward forty years to the present day and states are claiming that the child custody provisions of ICWA offer Native Americans preferential treatment and violate the due process clause of the United States Constitution.

How could this affect Native-American children in Texas? In response to this ruling several Indian Nations submitted a brief to the Court essentially requesting a pause on implementation of repeal until an appeal is heard. In their brief they reported potentially devastating consequences. Among these consequences were the loss of statutory rights in state proceedings.  This could mean that Indian parents no longer receive notice before parental-rights termination proceedings are initiated, they may also lose their right to challenge child placement in these proceedings. Ultimately, the Nations assert that the same problems that Congress intended to solve by enacting ICWA would be exasperated by its repeal.

Increasing Awareness of Domestic Violence

Domestic violence is more complicated and prevalent than most would think. Just this past April, a man was caught on camera physically assaulting his girlfriend late at night in a Dallas neighborhood. In addition to the beatings that could be seen in the footage, the police report also stated that the boyfriend “banged the victim’s head against the floor several times, had his hand pressed against victim’s throat holding her head against the floor, and choked her.” Despite the incredibly gruesome act, the woman did not press charges. This highlights the depth and complexity of abusive relationships.

In Texas, “Family Violence” is defined as “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.” The definition also includes child abuse and dating violence.

A finding of family violence by a Texas court has a number of implications. Chiefly, victims of family violence are entitled to a protective order, which could protect the individuals victims or any children relevant to the aggressor. However, exposing domestic violence is not always so simple, and it often goes unreported. Women often feel trapped in violent relationships because they fear that consequences would be worse if they reported the activity. An aggressor could come back for the woman after serving his time, for example. And while the victims of domestic violence are often female, it affects countless males as well.

Approximately 1 in 3 women and 1 in 4 men have been victims of some form of physical violence by an intimate partner within their lifetime. Moreover, 1 in 4 women and 1 in 7 men have been victims of severe physical violence by an intimate partner in their lifetime. About 1 in 15 children are exposed to intimate partner violence each year, and 90% of these children are also eyewitnesses to this violence. Clearly, this issue is more widespread than one might think.

It is important to have open discussions about this topic, so that individuals everywhere know that they deserve better, and are not alone. Overall, it is clear that we need to make people aware of the resources they have to help them achieve freedom. If you or someone you know might be a victim of domestic violence, please see the following resources:

National Domestic Violence Hotline

1 (800) 799-7233

Genesis Women’s Shelter

4411 Lemmon Ave #201, Dallas, TX 75219

1 (214) 389-7700

www.genesisshelter.org

The Family Place

1 (214) 941-1991

www.familyplace.org

Emergency Shelter for Both Women and Men available

 

Written By: Andrea Hunter

Non-Parent? No Problem

In order to bring a suit seeking conservatorship or visitation of a child, the Texas Family Code requires individuals to have standing to file a Suit Affecting the Parent-Child Relationship (“SAPCR”). Tex. Fam. Code Ann. § 102.003 (West). On June 15, 2018, the Texas Supreme Court resolved a hotly contested issue regarding when a nonparent has standing under Texas Family Code Section 102.003(9). In Interest of H.S., 550 S.W.3d 151 (Tex. 2018).

Nonparents who have had “actual care, control, and possession of the child for at least six months” qualify for standing under this statute. Additionally, during this six month period the nonparent must have shared a principal residence with the child. In determining exactly who this statute applies to, the Court examined the plain meaning of “actual care” and “actual control.”

In family law cases, the word “care” means the “provision of physical or psychological comfort to another.” As such, a nonparent is taking, “actual care” of a child when he or she takes daily responsibility for ensuring that the child is fed, clothed, and emotionally nurtured. In In re H.S., the fact that the child’s grandparents paid for her food, clothes, and daycare indicated they were the child’s primary caregivers, and therefore were taking actual care of their grandchild.

The word “control” is commonly defined as “the power or authority to manage, direct, or oversee.” Therefore, a nonparent is exercising “actual control” over a child when he or she consistently makes the kinds of day-to-day decisions associated with raising a child. These kinds of decisions include when the child gets up and goes to bed, how much television the child watches, whether the child gets dessert, and when the child needs to go to the doctor.

The statute does not require the nonparent to have ultimate legal authority to control the child. There is also no requirement that the child’s parents need to have wholly ceded or relinquished their own parental rights and responsibilities. This is because the statute focuses on the nonparent’s role in the child’s life, rather than the actions and conduct of the child’s parents.

In short, a nonparent has standing under the Family Code to file a SAPCR seeking conservatorship of a child if, for the requisite six-month time period, the nonparent served in a parent-like role by (1) sharing a principal residence with the child; (2) providing for the child’s daily physical and psychological needs; and (3) exercising guidance, governance, and direction similar to that typically exercised on a day-to-day basis by parents with their children. The Court’s decision to employ this new standard will simplify the process for determining whether or not someone can bring this type of suit. This interpretation of the Family Code’s standing statute will help individuals other than a child’s parents to get a foot in the door and have a chance at their day in court.

Written by: Jordan Williams

Pre-Nuptial Prisons

Pre-nuptial agreements (often called “pre-nups”) have likely been controversial since their inception.  When many people think about pre-nuptial agreements, they envision a document that essentially prepares a couple to divorce before they get married. The picture is often painted that a pre-nuptial agreement is a backup plan, which prompts a discussion about love, and whether those that are truly in love should ever plan for divorce. Pre-nuptial agreements, however, aren’t necessarily plans for “when we divorce”, but helps set things in order in the event of a divorce before possible animosity sets in. Yet, many people have questions concerning pre-nups. What if you change your mind after you get married? What if you later realize that something is unfair or was not initially disclosed to you? What if you did not get a pre-nup before you got married, but desire something similar now that you are married? The answers to these questions and more are below.

Pre-nuptial agreements are discussed in chapter four of the Texas Family Code (TFC). They are officially defined as agreements between prospective spouses that are made before marriage intended to impact marriage (TFC 4.001).  In order to be valid, a pre-marital agreement must: be a writing, signed by both parties who have received (or had an opportunity to receive) a full disclosure of the other party’s financial standing. Furthermore, if the agreement deals with a party’s land, it must be notarized (TFC 4.002). Under TFC 4.003, a variety of things can be included in a pre-marital agreement, including, but not limited to: each person’s rights concerning either or both of their properties, the right to manage & control (buy, sell, use, mortgage, etc.) property, disposition (who will get what in the event of divorce or death), spousal support (or an agreement to not have spousal support), death benefits in life insurance policies, a required creation of a will or trust, and child support (though it cannot be reduced below the guideline standards). Couples have the option to include other provisions in their agreements, as long as they do not violate public policy.

Why would a couple desire a pre-marital agreement? What purpose does it serve? Well, there are a variety of reasons and purposes. These agreements can set or eliminate alimony obligations, set each parties rights & duties in a marriage, preserve inheritances for children that were from a prior relationship, or determine what property belongs to which party. Pre-marital agreements can also provide tax clarifications. For example, it can determine how taxes will be filed during the marriage, and who will be responsible for any liabilities.

Couples also have the option to revoke or amend their pre-marital agreement during their marriage through a written agreement signed by both parties (TFC 4.005). However, it’s important to remember that if the couple never marries, the agreement never takes effect. If, during the marriage, a party decides that they want to contest the pre-marital agreement, they have the option to do so during the first four years of their marriage, by pleading one of the defenses listed in TFC 4.006: unconscionability or involuntary execution. An agreement that is unconscionable is essentially one that is unfair, or weighs heavily on one party. If a party can prove that an agreement is unconscionable if before they signed it, they: did not receive fair or full information concerning all of the other party’s property or financial condition, did not voluntarily or expressly waive a right to get this information, and did not know (and could not have known) the information regarding the other party’s finances or property. The other defense, involuntary execution, requires proof that the pleading party did not sign the agreement voluntarily, because of the advice of counsel (or lack thereof), misrepresentation, the amount of information provided, or the significance of the information that was withheld.

Sometimes, circumstances in a marriage may change (for better or worse), and parties who initially did not have a pre-marital agreement may desire one after they have said their vows. In these instances, couples have the option of creating a post-marital agreement, which can convert separate property (property owned by a party before marriage or inherited during the marriage) into community property (property of both parties equally), and vice versa.

Every marriage is different, and couples are free to decide what is best for them. However, without these agreements, Texas will make various presumptions concerning a couple’s property, spousal support, and child support in the event of a death or divorce. Whatever the decision, and whenever it is made, there are options for couples that empower them to make their own decisions concerning their marital property and its classification. It is your property; you and your spouse have the power to determine who has power over it!

Written by: Valencia Campbell

Tyga vs. Travis: Who’s Your Daddy?

On February 1, Kylie Jenner gave birth to her first daughter, Stormi – and as with all things Kardashian, her pregnancy didn’t end without a juicy scandal. Kylie’s long-time ex, Tyga, recently made a few bold statements claiming Stormi is his daughter and demanded Kylie take a paternity test. Although the couple split in early April of last year – ten months prior to the birth – Tyga claims the two were sexually active as recently as nine months ago. If true, this makes a plausible case that Tyga is Stormi’s biological father. The only issue: Kylie is currently dating rapper Travis Scott, who she claims is the true father. This sets the stage for a turbulent battle for parental rights if Tyga makes good on his claim of paternity. So how might Tyga go about seeking parental rights for Stormi?

For purposes of this hypothetical, we will assume all parties are residents of Texas and their dispute will be governed under Texas law. In order to establish paternity, Tyga has three possible avenues to take. First, he may fill out an Acknowledgment of Paternity (AOP) at one of many field offices of the Office of the Attorney General Child Support Division, the local birth registrar, or any other certified entity. An AOP is a legal form admitting to biological paternity of a child and with it comes both rights and duties. Tyga stands to be granted rights such as possession of and access to Stormi, but also stands to bear duties such as the payment of child and medical support. Although this is one of the cheapest and simplest routes to establish paternity, there is one major drawback for Tyga: Kylie Jenner must also sign the AOP. For most this is not an issue, but Kylie is unlikely to consent to Tyga’s AOP when she has so ardently asserted that Travis Scott is Stormi’s  true father. Unfortunately, Tyga must take one of the two remaining avenues to establish paternity.

Tyga’s second option is to contact the Office of the Attorney General about filing a suit to establish his parent-child relationship with Stormi. This option will only cost him a nominal fee, making it a good choice were he in dire financial straits. The principal downside to this approach is that the Office of the Attorney General is not allowed to represent you in a paternity proceeding. They can assist you in seeking paternity, but at the end of the day they do not owe you a fiduciary duty like a private attorney does and they may not advocate for your position as zealously, either. Moreover, the Office of the Attorney General may proceed with the case at a snail’s pace as they handle thousands of cases per year; they are constantly backlogged with child support and paternity suits. This makes the Office of the Attorney General a good option for individuals who are limited financially, but less than optimal for those who can afford an attorney that will give them the intimate attention that every case deserves.

Tyga’s last option is to file a paternity action himself. By filing with the Court by himself, Tyga will be seeking a court order adjudicating him to be the biological father of Stormi. In a situation like this, he may request the Court to order DNA testing of the parties involved to establish Tyga’s biological paternity – a request Tyga has already made over social media. Should the DNA testing confirm that Tyga fathered Stormi, Tyga can then go about seeking custody and child support himself. As Tyga is presumably seeking a finding of paternity in order to be involved in his child’s life, having an award of custody is precisely the end goal that Tyga desires. The downside to this approach lies with the complicated procedures involved in any court proceeding. Tyga’s absence of formal legal training might hinder his ability to achieve his various goals. However, this route will only cost Tyga the filing fees involved in seeking paternity and possibly the fees associated with DNA testing. Therefore, this is a fast, relatively cheap option for Tyga.

In the circumstances at hand, it is clear that an Acknowledgment of Paternity is out of the realm of possibility for Tyga, as Kylie would never cooperate with him in that regard. Tyga’s more realistic options are to either request the support of the Office of the Attorney General in establishing a parent-child relationship with Stormi, to take matters into his own hands and represent himself in seeking a paternity determination, or to hire an attorney to represent him. His best course of action depends entirely on his priorities.

Written by: Spencer Page

Safety is Paramount!

Image result for rae carruthIn 1999, first round NFL draft pick Rae Carruth hired a hitman to kill his then-pregnant girlfriend to avoid paying child support. Although she didn’t die at the time, she later died after giving birth from complications of the attempted murder. A son was born with cerebral palsy as a result of trauma he suffered from the shooting. Carruth was found guilty of conspiring to murder the son’s mother in 2001, and sentenced to serve nearly 19 years in prison. He is scheduled to be released October 18, 2018.

Last month, Carruth expressed his remorse for the killing and his intent to seek custody of his son. But is he even “fit” to care for his disabled son? Texas law says no! Texas law public policy dictates that child custody decisions should be made based on the child’s best interest. A disability adds a special consideration to the already substantial weight of best interest. That consideration is the safety of the disabled child.

When looking to the best interest of a child, courts have traditionally considered about 9 factors announced in Holley v. Adams, 544 S.W.2d 367 (Tex. 1976). However, the best interest of a child could literally mean anything and everything. For this case with Rae Carruth seeking custody of his disabled son, the primary consideration here should be the concern for the safety of the child. Under Texas law, Carruth would be subject to involuntary termination of his parental rights under 161.001(b)(1)(T)(i) because he was convicted of murdering the child’s mother.

The fact that his rights would be subject to termination defeats his argument for gaining custody of his son. Further, from a best interest of the child standpoint, would it ever be in the best interest to place a child with the parent who is responsible for the death of the other parent? I say that it would not be. There are three factors in particular that would defeat any attempt by Carruth to establish that it is in the best interest of his son to be place with him. Those factors are: (1) the emotional and physical needs of the child now and in the future, (2) the emotional and physical danger to the child now and in the future, and (3) the stability of the home or proposed placement. The child’s emotional wellbeing would significantly be impaired by being placed with his father and it could create a really dangerous precedent in the law. This child should not be subjected to a constant reminder of the person who murdered his mother. This consideration goes hand and hand with the concern of his physical wellbeing. It has been established that the cause of the child’s disability was caused by the father’s actions. The child suffered an immense strain during his mother’s pregnancy when his father attempted to murder his mother. None of these circumstances point to a placement with Rae Carruth being in the best interest of his son. Lastly, there is a good chance that the father’s home will not be a stable place for the child. Carruth is currently serving a jail sentence for his role in the death of the son’s mother. He literally hired a hit man to kill her because she did not obey his wishes to terminate the pregnancy that resulted in his son. In my opinion, an individual that would go to such lengths is not a very stable person. The child would likely suffer immensely in the home of such an unstable person. Therefore, it would be contrary to the best interest of the son to be placed with Carruth.

Rae Carruth should not be allowed to seek custody of his son. Although this case will likely be heard under North Carolina law, reviewing it under a Texas Law standard,  Rae Carruth’s parental rights would have likely already been terminated. Further, it is contrary to the best interest of the child to place him with his father. Rae Carruth’s request should be denied.

Image result for rae carruth

Written by: Kourtney Malone-Parker

Oh, baby! Surrogacy Laws in Texas

In recent news, it has come out that Kanye West and Kim Kardashian West are pregnant with their third child – but this time, they are pregnant by surrogacy. A surrogate mother is defined as one “who becomes pregnant usually by artificial insemination or surgical implantation of a fertilized egg for the purpose of carrying the fetus to term for another woman.” While many think of surrogate mothers being used by homosexual couples or those struggling with infertility, surrogacy has also become popular over recent years for mothers who, like Kim, are unable to carry a baby themselves due to health reasons. In Kim’s case, her first two pregnancies put her at risk for both preeclampsia and placenta accreta. Subsequently, surrogacy has brought about an entirely new sector of family law. This blog will discuss where surrogacy laws in Texas stand today.

There are two different types of surrogacy – gestational and traditional. In Texas, Section 160 of the Texas Family Code covers surrogacy. In a gestational surrogacy, the woman carrying the embryo is in no way related to it. This is because the egg and sperm that make up the embryo are derived from the so called “intended parents.” However, egg or sperm donors may also be used if necessary. In a traditional surrogacy, the woman carrying the embryo is the embryo’s biological mother. This is because the surrogate mother is artificially inseminated by the intended father’s sperm. In both types of surrogacy, the surrogate carries the embryo until birth and then gives the baby to the intended parents to raise. In Kim and Kanye’s case, a gestational surrogate was used.

It should be noted that Texas and many other states do not allow traditional surrogacy. In Texas, only gestational surrogacy is covered by the Texas Family Code. This is due to the fact that if the surrogate mother is married, her husband is presumed as the father of the child. This causes clear issues in determining the legal parentage of the child.

Section 160.754 of the Texas Family Code lays out the guidelines for entering into a surrogacy agreement. Specifically, a prospective surrogate mother, her husband (if she has one), any sperm or egg donors (if there are any), and each intended parent may enter into a written agreement providing that:

(1) the prospective gestational mother agrees to pregnancy by means of assisted reproduction;

(2) the prospective gestational mother, her husband if she is married, and each donor other than the intended parents, if applicable, relinquish all parental rights and duties with respect to a child conceived through assisted reproduction;

(3) the intended parents will be the parents of the child;  and

(4) the gestational mother and each intended parent agree to exchange throughout the period covered by the agreement all relevant information regarding the health of the gestational mother and each intended parent.

The Texas Family Code also requires that the intended parents be married, that the surrogate mother’s eggs may not be used in the pregnancy (this would make it a traditional surrogacy), and that the child may not be conceived by means of sexual intercourse. The agreement must be entered into before the 14th day preceding the transfer of the embryo (or sperm or egg, if using a donor) occurs for the purpose of implementation (or conception, if using a donor).

The gestational agreement also has strict guidelines regarding what information the physician performing the assisted reproduction procedure must provide to everyone involved in the agreement. These include:

(1) the rate of successful conceptions and births attributable to the procedure, including the most recent published outcome statistics of the procedure at the facility at which it will be performed;

(2) the potential for and risks associated with the implantation of multiple embryos and consequent multiple births resulting from the procedure;

(3) the nature of and expenses related to the procedure;

(4) the health risks associated with, as applicable, fertility drugs used in the procedure, egg retrieval procedures, and egg or embryo transfer procedures;  and

(5) reasonably foreseeable psychological effects resulting from the procedure.

These requirements highlight not only the importance of understanding everything that goes into the complicated process of surrogacy, but also outline important health risks that both the surrogate mother, her husband (if she is married), and the intended parents should be aware of. In fact, section 160.754 of the Texas Family Code continues to state that a gestational agreement may not limit the right of the gestational mother to make decisions to safeguard her health or the health of an embryo. This goes to show that the laws behind surrogacy are in place to promote the health of the mother and the embryo. However, a surrogate mother is not expected to make decisions that would adversely affect her own health. If a mother is using a surrogate mother to carry her baby to safeguard her own heath, she can’t ask the surrogate mother to risk hers.

Kim held a cherry blossom themed baby shower this past Saturday, November 11, showing that although she is not experiencing a “traditional” pregnancy this time around, she is still a mother-to-be and is celebrating bringing a new baby into the world. Kim and Kanye’s surrogate mother is due in January of 2018, and Kim just announced they are having a baby girl. She will join her siblings North West (4) and Saint West (1), whom Kim carried and gave birth to herself.

By: Liz Feeney

Liz Feeney is a 3L student attorney/chief counsel in the SMU VanSickle Family Law Clinic.

Different Ways to Get Divorced in Texas

Litigation

Litigation basically means that issues relating to divorce will be settled in a family court. The process typically begins with one party filing an original petition for divorce. The other party will respond by filing an answer or a counter-petition, and both parties typically hire lawyers to assist them in divorce litigation. During the process, both parties and their attorneys will make several appearances in court and in front of a judge. Most divorced people who end up litigating are those in a very high-conflict divorce.  The issues that often end up leading to litigation are spousal support, division of property, child custody, and child support.

Collaborative Divorce

The collaborative divorce approach is a settlement process that focuses on resolving issues without having to go to court. As part of the collaborative law method, both parties hire separate attorneys whose job it is to help them settle the dispute. In collaborative divorce, neither party is allowed to go to court. If that should occur, the collaborative law process ceases and both attorneys are disqualified from any further involvement in the case.  As part of the process, each party signs a contractual agreement, which includes the following terms: disclosure of documents, respect, insulating children, sharing experts, win-win solutions, and agreement to not go to court. Because there is no judge ultimately deciding the parties’ issues, collaborative divorce typically involves a team of professionals who help parties understand and resolve their disputes relating to different issues. This team of professionals may consist of mental health counselors/ coaches for each party, neutral financial advisors, accountants, parenting specialists, child specialists, vocational experts, and appraisers, if needed. In the unlikely event that clients are not able to settle all the issues in their case using the collaborative divorce process, mediation can usually settle any remaining issues. In the few cases that don’t end up settling, litigation attorneys can still take the case to court. Collaborative divorce is beneficial for people who want to move through family law issues as quickly and efficiently as possible, without hurting the other spouse or children.

Mediation

Contrary to what many people believe, mediation is not a stand-alone alternative dispute resolution. Rather, it is a component of the litigation process and usually takes place after a suit for divorce is filed. Mediation is essentially a negotiation facilitated by a neutral third party, a mediator. Mediators do not take sides and their sole role is to help people reach a settlement. The mediator is there to help the parties find common ground and deal with certain expectations that may not be very realistic. The mediator can also help understand concerns, define problems, and offer creative solutions. In most cases, the parties are required by the judge of their case to try to settle their case through mediation before they go to court for trial.

“Kitchen Table” Settlements

This method is the simplest, but arguably requires the most trust for the opposing party. Basically, the parties sit down “at the kitchen table” and come to an agreement about an arrangement that satisfies both of them. After the parties reach an agreement, they can take it to a lawyer to transfer it into a legal format or do it themselves by completing pro-se divorce forms.  This method is easy, inexpensive, and works well for couples that do not have children or complicated assets. Of course, couples do run a risk of making mistakes or leaving out important information without the benefit of legal advice.

Do-it-Yourself Divorce (Pro-se)

Divorce kits are available online at https://texaslawhelp.org or at a local law library for those couples who do not wish to involve attorneys. Divorce kits or forms generally provide instructions and a checklist approach to property and child-related issues, so users are not totally unaware of their options and requirements. These forms may be fine for people with no children or substantial assets, but they are not for everyone.  When children, substantial real estate, or other major assets are involved, the forms may not be detailed or flexible enough to accommodate what the couples are trying to accomplish. They may also leave little room for creativity, in which case it may be beneficial for parties to seek legal advice.

By: Larisa Martirosova

Larisa Martirosova is a 3L student attorney/chief counsel in the SMU VanSickle Family Law Clinic.

 

Different Ways to Get Married in Texas

In Texas, a marriage relationship can be created either through a (1) ceremonial process, (2) an informal or “common law” marriage relationship, or (3) marriage by proxy. Once a marriage relationship is created, it’s presumed to be valid.  This presumption of validity applies to every form of marriage, whether ceremonial or informal, and applies whether the marriage was entered into in Texas, another state, or another country.  Tex. Fam. Code § 1.101.  Unfortunately, many marriages nowadays eventually lead to divorce. Whether a couple has been married for 3 years or 30, wed in a church, in a common law marriage or are a same-sex couple whose marriage is now recognized, the same rules typically apply to all who decide to divorce in Texas. There are several ways to go about the process of getting divorced. A couple may decide that they want to go through litigation, or they may decide to do everything outside of court in a collaborative divorce process. A less formal approach toward divorce is called a “kitchen table” settlement, where the parties come to an agreement without any outside assistance. Lastly, parties who typically cannot afford an attorney or whose divorce is fairly simple can employ a “do-it-yourself” approach and divorce on their own. Each possible approach to marriage and divorce is discussed in more detail below.

Ceremonial Marriage

A ceremonial marriage is the traditional marriage that one thinks of and that complies with the statutory requirements listed in Family Code for obtaining a marriage license and participating in a marriage ceremony. This is the most common form of marriage in Texas.  To enter into a ceremonial marriage, a person must obtain a marriage license and voluntarily participate in a marriage ceremony.  First, individuals who want to get married must get a marriage license from the county clerk of any county in Texas. A person who is 18 years or older can get a marriage license.  There are ways that a person under the age of 18 can get married in Texas, but it’s best to consult an attorney in that situation. In Texas, a person cannot get a license to marry a relative, a person currently married, and a person that has been divorced within the last thirty days.  Generally, a person who has recently been divorced in Texas cannot remarry for thirty days after the divorce was signed.  As of 2015, same sex marriage is allowed.

Common Law Marriage

            A valid common law marriage in Texas, also called informal marriage, is a legal marriage where individuals become spouses without getting a marriage license and having a marriage ceremony. In Texas, there are two ways to establish a common law marriage.  A couple may establish a common law marriage by signing a declaration of their informal marriage, which must be certified by and filed with the county clerk. Another way to establish common law marriage is to agree to do the following three things: a couple must agree to be married, after the agreement, the couple must live together as spouses in Texas, and lastly, the couple must represent to others that they are married. All three requirements must be met in order to have a common law marriage. Proving a common law marriage does not depend on how long you have been living together or whether you have children together. Once proved, a common law marriage has no lesser status, which means that it is as legally valid as a formal marriage.

Marriage by Proxy

A proxy marriage is when the marriage is performed despite one party, or both parties of the marriage, are not physically available at the ceremony. There are several reasons why a proxy marriage or wedding may occur. This option tends to be the last resort of sorts when partners want to marry each other but either one or both of them are unable to be in attendance. Generally, some reasons why couples cannot be present include military service or travel limitations. In Texas, Section 2.203 of the Texas Family Code guides proxy marriages. This section states that upon receiving an unexpired marriage license, an authorized person may conduct the marriage ceremony as provided by this subchapter. The 72-hour waiting period after receiving the marriage license still applies in proxy marriages, just like it does in a ceremonial marriage. The second part of the statute states that a person may agree to marriage by the appearance of a proxy appointed in the affidavit if the person is: (1) a member of the armed forces of the United States stationed in another country in support of combat or another military operation; and (2) unable to attend the ceremony. Thus, the individual requesting the proxy by marriage must be serving in the military and stationed outside of the country. In 2014, an outcry of public opinion prompted a change in policy to allow Texas prisoners to get married by proxy, thus prisoners in Texas are now allowed to marry someone on the outside.  In most of the United States, marriage by proxy is not allowed, but a small handful of states still permit it, including Texas.

By: Larisa Martirosova

Larisa Martirosova is a 3L student attorney/chief counsel in the SMU VanSickle Family Law Clinic.

It’s An Unjust World After All: The Legal Analysis to Innocent Until Proven Guilty? Not in the NFL.

Background: It can probably be ascertained by the title that this blog post is a follow up from an earlier post. Before writing this post Liz and I had a discussion about the case. Liz was firmly of the opinion that Ezekiel Elliot was wronged and the suspension was, for lack of a better word, bogus. Her opinion didn’t reach the merits of the case, rather it ridiculed the way the NFL went about the investigation that led up to Elliott’s suspension. I, however, was not easily persuaded. I have a big advocate for domestic violence and found it hard to take Elliot’s story as truth. So, like any lawyer or law student, I delve into the facts and conducted approximately two weeks of research. I combed through articles, read opinions, and watched videos on the subject. My opinion changed only slightly. However, looking at the investigation, from the Ohio prosecutor to the NFL, it was plagued with injustice. By the end, I had to agree with Liz. Not for the merits but for the injustice and truly appalling nature of the investigation.

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In recent weeks Ezekiel Elliot, running back for the Dallas Cowboys, has gone through litigation over being accused of committing domestic violence against an alleged ex-girlfriend last year in Ohio. Ironically, the Ohio prosecutor and law enforcement officials decided not to criminally prosecute Elliot due to the “conflicting and inconsistent information across all incidents.” Shocking to some and unsurprising to others, the National Football League (NFL) mounted an investigation and sentenced Elliot to a six-game suspension. Elliot appealed the NFL’s decision to an arbitrator. The arbitrator ruled in favor of the NFL. Elliot appealed the ruling to the United States District Court in the Eastern District of Texas, Sherman Division. In the appeal, Elliot argued the fairness of the arbitration hearing, and asked the court to determine whether Elliot received a fundamentally fair arbitration hearing. The merits of the case, which would determine whether there was credible evidence of domestic abuse, were not addressed to the court. Interestingly enough, whether you feel that suspension was warranted or not, there is a stench of injustice that seeps out of the NFL investigation and the arbitration.

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When the NFL mounted its investigation they enlisted Kia Roberts, Director of Investigations, and Lisa Friel, Senior Vice President and Special Counsel for Investigations, to preside over the investigation. Roberts and Friel assembled the NFL Investigation Report (“Report”). Roberts’ role in the investigation was to speak with various witnesses, including interviewing the accuser and accused and reviewing some of the documentary evidence. Roberts interviewed Elliot and the accuser and claims that Friel took more of a supervisory role. Friel stated that she interviewed the two doctors and Elliot. However, Friel admits that the she never interviewed the accuser. At the end of the investigation Roberts and Friel compiled their reports. Each, Friel and Roberts, developed an opinion on the evidence and the credibility of the witnesses. Roberts’ opinion was that there was insufficient evidence to corroborate the allegations of the accuser. Roberts communicated the opinion to Friel. However, Friel concluded that there was sufficient evidence to corroborate the allegations. Suspiciously, in a departure of past investigations, neither opinion from Friel or Roberts were included in the report. Friel, surprisingly, with counsel and with not Roberts, made the joint decision to exclude the opinions from the report.

After Commissioner Goodell received the Report, he met with NFL personnel, including Friel, but uncharacteristically excluded Roberts. During this meeting, Friel communicated her opinions. However, Roberts’ opinions were, plainly stated, not shared. It would be safe to say that Roberts’ crucial and contradictory opinion was not shared with the Commissioner Goodell or his advisors.

While preparing for the arbitration, Elliot and his counsel requested that the arbitrator, Harold Henderson, order the NFL to provide the accuser for cross-examination, along with the investigative notes. Henderson denied the request, stating, “the commissioner’s decision in the case was based on affidavits, statements, and interview reports, all available to Mr. Elliot.” Additionally, Elliot’s legal team asked Henderson to order the NFL to provide Roberts to testify about his opinion and investigation, which was granted. After a three-day arbitration, Henderson concluded that the suspension should be upheld. It is curious that the arbitrator would deny a motion that is so pertinent to the arbitration. Under the law, arbitrators must ensure that each party has all relevant documentary evidenceSee Universial Comput. Sys., Inc. v. Big Bell 21, LLC, No.13-cv-00702, 2014 WL 12603178, at *4 (S.D. Tex. Jan. 29, 2014) (emphasis added). While arbitrators do have discretion to the denial of witnesses and documents, it is hard to make a logical argument when key witnesses and documents are intentionally left out. What this basically amounts to is signing up for a class, but not being given the book the teacher is using to teach the class.

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As it stands, not looking to whether he did it or not, we have to ask ourselves whether justice was served? In my opinion, and that of Judge Mazzant, it was not. I do not go as far as to say that my opinion on the merits of the case and the facts contained in the report are in line with Elliot or the NFL. I merely state that the fairness that must be provided within arbitration failed. I agree with the court in their decision to grant the injunction because Elliot was denied a fundamentally fair hearing by Henderson’s refusal to allow the accuser and Goodell to testify at the arbitration hearing. Elliot is free to play until the court system works through this issue. The NFL believes that it will find favor in the circuit court because of the favor they received in the “de-flate gate” scandal, however, Judge Mazzant distinguished Brady I and Brady II by highlighting the fact that the evidence and testimony precluded was not material, pertinent or critically important. These facts suggest that favor in the circuit court could be hard fought and not as simple as the NFL may think. For now, Elliot plays and it looks like he will continue to play the entire season, and the NFL may have an uphill battle to uphold the suspension.

By: Jourdan J. Dukes

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