Vanessa Gonzalez – VanSickle Family Law Clinic

Tips for Remote Hearing

Texas courts started having virtual hearings last spring due to COVID-19, but even after the pandemic virtual hearings might continue in some cases. Remote hearings after the pandemic can be beneficial to court efficiency and allow for increased access to the courts. Additionally, judges have reported they are seeing greater participation from litigants during remote hearings. Since remote hearings may stick around in certain cases, it is important for individuals to understand how to prepare for them. In general, you should treat a remote hearing the same way you would treat an in-person hearing.

Tips for Remote Hearing

Test your internet speed, video, and sound before the call.
Be on time
Make sure you join the call with Audio and Video
Dress how you would for a regular court appearance. Do not wear shorts, tank tops, flip-flops, or hats.
Turn on your video and choose a neutral background that is not distracting.
Position your camera at eye level and look at the camera when you speak.
Keep yourself muted until it is your time to speak.
Watch remote court hearings beforehand so you know what to expect.
- A list of Texas Court Live Streams can be found here: http://streams.txcourts.gov/

Written by: Sydney Hope, 3L

Surrogacy in Texas

What is surrogacy? How do the parents and the carrier of the child make arrangements? Who is technically the mother? Are there laws for this? These are just a few of the many questions that come to mind regarding surrogacy.

Surrogacy has found its way into the news more and more due to popularity among celebrities and high-profile families. Their stories make the whole process seem effortless, when in reality, behind the scenes there is a lot of time and energy and money that goes into a surrogacy arrangement.

In the US, each state differs in approach to the law applying to surrogacy. The vast majority of states recognize gestational agreements and allow for monetary compensation, although there is still some variance based on exact location within the state. Texas is one of the states that recognizes gestational agreements as legally valid and binding, as long as it meets the requirements outlined in the law.

The specific law that applies to surrogacy and gestational agreements is found in Texas Family Code Chapter 160, Subchapter I. Texas has a number of requirements that must be included in the agreement in order for it to be valid and therefore legally binding. Tex. Fam. Code Ann. § 160.754. This includes an agreement that the gestational carrier and her husband, if she is married, agree to give up all parental rights and duties regarding the child, and that the intended parents will be the parents of the child. Tex. Fam. Code Ann. § 160.754(a). The statute specifically indicates that the intended parents must be married. Id. (b). However, there is evidence that in Texas some courts do not strictly adhere to this, allowing some unmarried couples to be intended parents (Creative Family Connections). There also must be a statement that the doctor used by the parties and will perform the procedure informed them of all the potential risks and effects. Tex. Fam. Code Ann. § 160.754(d). In terms of timing, this agreement must be entered into 14 days prior to the transfer of the embryo for purposes of conception or implantation. Id. (e). After the agreement is entered into by all parties, there must be a petition to validate the agreement, followed by a hearing to validate the agreement. Tex. Fam. Code Ann. §§ 160.755-56.

The above is only a brief summary, and the exact guidelines and requirements can be found in the Texas Family Code. Surrogacy agreements are serious and should not be entered into lightly. When all the parties are aligned and everything is legally valid, surrogacy can be a wonderful option for many families in the journey to expand their families.

Written by: Montana McWilliams, 3L

Fit Parent Presumption

Just how strong IS the fit parent presumption in Texas? Before June 26, 2020, it was fairly strong but the Texas Supreme Court delivered an opinion that day that made the fit parent presumption almost impossible to overcome. In a unanimous decision, the Texas Supreme Court held that the fit parent presumption is “deeply embedded in Texas law.” The court stated that it was the fit parent’s decision, NOT the court’s to decide if it was in the best interest of the child to have access to a non-related third party.

In this particular case, there was a pending modification of custody suit when the child’s mother died in an unfortunate car accident. The father had requested that the suit be dismissed afterwards, and the maternal grandparents along with the mother’s fiancé intervened to obtain joint managing conservatorship.

There was no evidence presented to show that the father was an unfit parent. There was testimony provided from a therapist of the child who said there was concerning behavior from the father, such as spanking the child, but the court found the father was certainly a fit parent. Ultimately, the court decided that it was a parent’s fundamental right to make decisions for the child, including who the child has access to see. The court did not award custody to either the mother’s fiancé or the maternal grandparents. Prior to this, there was a strong parental presumption, but there was not guidance such as this from the Texas Supreme Court. Since this heavily anticipated ruling came out, this case has been heavily cited to, supporting a very strong fit parental presumption which has become extremely difficult to overcome especially for related third-parties and non-related third parties.

Reference: In re C.J.C., 603 S.W.3d 804 (Tex. 2020).

Written by: Shereen Baig , 3L

Case of the Text

One Tuesday night while cooking dinner, Sally notices her husband Bob’s phone that was charging on the counter beside her light up with a text notification. The contact states “Rachel” and is surrounded by heart emojis. Confused and curious, Sally enters Bob’s password and finds several explicit text conversations between Bob and Rachel. Sally screenshots the messages and sends them to her friends for advice. A few months later, Sally files for divorce. In a meeting with her attorney, Sally reveals the screenshots.

Is a Texas judge likely to allow these as evidence? The Dallas Court of Appeals ruled in Miller v. Talley Dunn Gallery LLC No. 05-15-00444, 2016 Tex. App. LEXIS 2280 (Tex.App.– Dallas March 3, 2016, no pet.) that though screenshots of such text messages are not intrinsically inadmissible, they may become inadmissible when obtained by accessing another person’s phone and constitute a violation under Texas’s Harmful Access by Computer Act (HACA).

HACA allows for a civil cause of action for violation of Texas Penal Code Chapter 33 when committed knowingly or intentionally. Miller citing Tex. Civ. Prac. & Rem. Code §143.001(a). Texas Penal Code section 33.02(a) creates an offense when a party accesses a computer (including a cell phone) without effective consent of the owner. Id.

The husband in Miller argued that he did not “access” the cell phone in violation of Texas Penal Code 33.02(a). Id. at 11. Further, the husband argued that even if he did access the computer, he had the effective consent of the owner through marriage because the cell phone was community property. Id. Rejecting this argument, the court reasoned that because the cell phone was password protected and was within the wife’s exclusive control, the husband violated HACA. Id. at 33

But how might a court rule if the phone is not password protected? Though the answer to that question may be unclear, there is little doubt that the conduct is ethically questionable. Perhaps the chance of it backfiring outweighs the potential benefit of offering such screenshots as evidence.

When does micro-cheating become 'actual' cheating? - BBC Three

Written by: Caroline Near, 3L

Is mediation always a good idea?

Generally, judges presiding over divorce proceedings in Texas will require the parties to mediate their disputes before a final trial. Mediation is a form of dispute resolution that occurs outside of the courtroom and is facilitated by an independent party. Typically, in family law cases, the parties are put in different rooms together with each’s attorney. The mediator bounces between the rooms assisting the parties in negotiation. Nearly all that is said within mediation is confidential. If the divorce spouses can reach an agreement as to every issue in mediation, there is no need for a final trial. Mediation offers notable benefits to both the court and the parties. Requiring parties to mediate a divorce clears up the court’s docket, which allows the court to focus on the most contentious issues. While hearings before the court are most often public affairs, mediation offers near complete privacy for the parties. Mediation may also speed up the parties’ divorce which could reduce both the amount each pays in attorneys and the emotional toll of an already exhausting process.

Though mediation is a highly effective method of dispute resolution in many divorce cases, the consequences of meditation in some divorce cases are not so rosy. For cases involving a spouse who suffered emotional abuse or intimidation within the marriage, the benefits of mediation may be outweighed by the risk that such spouse will agree to a settlement that is grossly inequitable. The Texas Family Code provides protection for a divorcing party subject to domestic violence within the marriage by either lifting the mediation requirement or offering extraordinary precautions to ensure the party’s physical safety during mediation. As to the matter of protection for a spouse who has suffered emotional abuse or intimidation within the marriage, the Texas Family Code is, perhaps mistakenly, silent.

Mediator Skills — The Mediation Group

Written by:Caroline Near, 3L

Why You Should Definitely Take a Clinic (And Why You Might Want to Wait)

Should you take an SMU Law Clinic? Absolutely! Moreover, may I recommend the Family Law Clinic as a particularly great experience? In many ways, taking a SMU Law Clinic is what you make of it. It can be a wonderful experience (it certainly was for me) – a person can learn and grow while getting real-world experience with actual clients who are experiencing real-life difficulties. On the other hand, working in the clinic can be incredibly rigorous. It is often full of deadlines and some late nights as you struggle to balance the clinic workload, your work from other classes, and maintaining a personal life with your friends and loved ones. In many cases, both of these sides are true—clinic is wonderful and challenging. Student attorneys may find themselves celebrating victories at times and pouring over files with their third cup of coffee at other times. This is what real world lawyers do too!w

For some, they will come out of a clinic experience eager for the day that they can work with clients again. Others may leave the experience with the realization that a particular area of law is definitely not for them which is invaluable awareness. Nonetheless, the one thing that is certain about Clinic is that every student who takes a clinic will learn, will struggle, will get things wrong, and will learn how to represent a real client before graduating. On the other hand, for some people, it may not be the right time to take a clinic. Aside from the ‘statutory’ requirements of the clinics (such as the completion of 50% of your law school credits), clinic also requires time and commitment as do the practice of law. It requires a person to realize (1) they are a student, and that everything (yes, everything) must be run by the actual attorney first—this is part of your professional responsibility; (2) that these are real clients who have real needs and who deserve time and attention and diligent work, even when you are tired or otherwise busy; and (3) that it’s okay to ask for help, but make sure you’ve tried to do it yourself first (everyone needs help sometimes, but a law student shouldn’t need to be spoon-fed). If you don’t think you can devote the time and attention to ethically represent your client under the close supervision of an outstanding clinical faculty, clinic may not be for you. If you’re not willing to struggle, maybe even sometimes fail, clinic may not be for you. If you’re not willing to be a zealous advocate for your client, clinic may not be for you. But, if you’re read this far, if you’re still interested, you should definitely sign up for a clinic.

Written by: Victoria Jones, 3L

Is “Best Interest” Anything the Judge Wants?

When a parent wants to file a suit that affects their rights and duties concerning their children, they file a Suit Affecting the Parent-Child Relationship (also called a SAPCR). A SAPCR must be filed as part of a divorce action, if the spouses have children, because the legal obligations and rights of the parents concerning the children must be established as part of the divorce. Otherwise, a SAPCR can be filed independently of a divorce, to establish the rights and duties of the parents, as is often done when the parents of the child were never married.

In either case, the judge is ultimately charged with deciding how those rights and duties ought to be allocated. For example, a judge must decide what person has the exclusive right to determine the primary residence of the child and must also decide what possession and access the other party (or parties) should have to the child. Other things, such as child support, are also typically determined in a SAPCR. How does the judge decide these things? The Texas Family Code provides some guidelines and presumptions on how this should work. Things like the Standard Possession Schedule give guidance to judges on what arrangements are typically appropriate in most circumstance. Even within these guidelines, however, judges are given broad discretion to determine what arrangement is best. Specifically, many sections of the family code concerning children include a portion that says that a judge must make the determination that the requested relief is “in the best interests of the child”.

So, is “best interest” anything that the judge wants it to be? Well, no, not really. The Texas Family Code provides a number of guidelines to help a judge determine what is best for the children. Nonetheless, the Code doesn’t actually tell the judge precisely how these factors should be weighed against others nor does it contemplate exactly all the factors that might be taken into account. In the end, the final determination is left to the individual judges, with each judge determining on a case-by-case basis how each of these factors (or other factors) should be weighed. Although ‘best interest’ may not mean ‘anything goes’ for the judge, it does mean that the judge has a lot of room to consider a range of factors and weigh those factors however he or she deems is appropriate for the circumstances of the child.

Written by: Victoria Jones, 3L

Exercising To Cope With The Post-Divorce Blues

Divorces can often times be messy. A divorce can, for many people, be one of the most stressful times in a person’s life. Regardless of how emotionally invested you are in a dissolving relationship, it is important to take care of both your physical and mental health.

When grappling with stress, people may turn to food, drugs, alcohol, or even complete isolation. Although many vices may help cope with stress, all of them are not healthy. There is, however, one beneficial way that is proven to help alleviate stress and improve your overall well-being. Physical exercise!

In addition to helping quell some of life’s stresses, exercise helps in the following ways:

Improved respiration, cardiac output, and vascular system;
Increased muscular strength, endurance, and bone density;
Improved flexibility;
Improved digestion and bowel function;
Improved sensory skills;
Decreased stress, insomnia, and depression;
Increased social interaction;

During the Fall 2019 semester, the legal clinics participated in Zumba classes hosted on campus at SMU. Participants were asked about their stress levels both before and after participating in Zumba. All student participants reported that they had high stress levels (mostly due to the rigors of law school), but were much more at ease and relaxed after each class. Each participant remarked on the benefits of exercise with Zumba, and stated that they would like to take up Zumba more regularly as a means to tackle stress in their lives.

Our physical and emotional health should always be a priority, but these warrant special attention during difficult life events such as a divorce. Remember that you are always in control, and that your circumstances need not hold you captive. Take care of yourself, good people.

Written By: Trenton Patterson, 3L chief counsel in the SMU VanSickle Family Law Clinic.

2018’s Impact on Child Support Payments

Two major changes to the Texas Family Code’s (TFC) child support provisions went into effect on September 1, 2018. These changes impact parents ordered to make child support payments, as well as parents seeking to change their current child support agreements.

Dental Insurance Coverage

The TFC requires that the person who pays child support (obligor) is responsible for providing the child with health insurance. Although obligors could cover dental insurance prior to the 2018 modifications, it was not a requirement. The recent modification to the TFC now requires the obligor to pay for all or part of the child’s dental insurance as well. Fortunately for obligors, this expense may be deducted from their total monthly resources available for child support.

Restricting Modification Criteria

Before the changes went into effect, the TFC stipulated that courts could change child support agreements under the following circumstances:

Where the marital status, financial situation, or general circumstances of the child or either parent significantly changed since the child support agreement was initially ordered.
Whether divorced or divorcing parents reconciled child support payments through mediation or another administrative legal proceeding.
The amount of child support paid departs from what the TFC stipulates by at least 20% or $100.

Likely the most significant change to the TFC guidelines is that modification cannot be based on the third circumstance. Consequently, courts can only modify these child support agreements if the circumstances of the individual affected by the order have substantially changed since the date the order was issued.

Conclusion

These new child support provisions will be applied prospectively. For child custody orders placed after September 1, 2018, courts will require that dental insurance be provided under the medical support portion of child support orders. Finally, parents who attempt to modify child support orders after September 1, 2018 are subject to restricted reasons for obtaining a modification.

Written by: Jordan Williams