Category: Family Law

Standing Order in Dallas County Family Courts

A divorce or child custody dispute can be an incredibly stressful event, which can make anyone want to act out of anger or anxiety. Once the lawsuit is filed and you begin negotiations or temporary hearings with your spouse, you may feel the urge to trash them on Facebook, burn their belongings or prevent your child from seeing them. But before you give in to such urges, look at the last few pages attached to the back of your Petition. This document is a standing order, adopted by the Court, and applies in all divorce or suit affecting parent-child relationship suits. The standing order outlines both parties’ restrictions during the proceedings. These restrictions address the treatment of children the parties may have together, treatment of pets, conduct between the parties, treatment of property, personal and business records and insurance. Violations of this order aren’t necessarily as extreme as slashing the tires of your spouse’s car. Something as simple as opening your spouse’s mail or deleting a post from your social media that’s relevant to your case, violates the standing order. If you are unsure whether an action may violate the standing order, consult with an attorney.

It is important to thoroughly read and adhere to every requirement within this order. If you do not adhere to even one section within the standing order, and your spouse has a hearing to let the court know, you could be found in contempt of court. Being held in contempt, could lead to fines and even jail time. If there is a part of the standing order that you have issue with, you can request a hearing to contest it. However, this hearing must occur within 14 days of the filing of petition. If no party contests the standing order, it continues as a temporary injunction until further order of the court.

Written by: Savannah Mani, 2L

But That Car Was Mine Before We Got Married?

When you are going through a divorce, the issue of who owns what property may arise.  Marital property is characterized based on when and how it was acquired. This is called inception of title; when a party has first right of claim to the property. In Texas, there is a presumption that property other than separate property acquired by either spouse during the marriage is owned by both spouses and is “community property.”  Separate property is property owned or claimed before the marriage, and property that was inherited by a spouse, gifted to a spouse, or acquired from a personal injury suit.

I’ll answer the title of this blog post’s question above with an example using inception of title, tracing and mutation. Husband and Wife were married for four years. During the marriage, they purchased a brand-new sportscar “together.” When Husband and Wife decided they could not reconcile and needed a divorce, Wife wanted to keep the sportscar.  Husband claimed the sportscar was community property and not Wife’s to keep, because it was purchased during the marriage. But Wife remembered that she sold her truck to purchase the sportscar. Wife’s attorney determined that Wife owned the truck before she was married to Husband and that it was her separate property. Then, Wife’s attorney traced the money from the sale of the truck and found that the money from the sale of the truck was directly used to purchase the sportscar. Therefore, because Wife’s separate property was used to purchase the sportscar, the sportscar is Wife’s separate property. Wife acquired the truck before marriage, sold it during the marriage to purchase the sportscar and used the funds from the sale of the truck to purchase the sportscar.

 

Written by: Jordan Watson, 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

Family Law and Immigration: A Child’s Path to Lawful Status

There has been an increase over the years of unaccompanied immigrant children entering the United States. So, what happens to these kids? Who cares for them? How does the government intervene to aid such vulnerable individuals?

The Office of Refugee Resettlement (ORR) takes over the care of children once they have been detained by U.S. immigration. Some children come alone into the U.S. in search of opportunities they don’t have back home such as economic and safety from abuse, abandonment, and neglect.

Congress established the Special Immigration Juvenile Status (SIJS) as a path to lawful permanent residency by the Immigration Act of 1990. Congress sought to protect immigrant children who suffered abuse, abandonment, or neglect by one or both parents and are in the U.S. without status. It saw that these children were in need of special protection and that without this path to lawful status, they would be even more vulnerable to further exploitation and instability.

There is a 2-step system for obtaining SIJS relief.

The first step involves a state juvenile or family court make a finding that meets the federal definition of a Special Immigrant Juvenile (SIJ). The state court must find that (1) the child is dependent on the court or the court has placed the child in the custody of an individual entity; (2) reunification with one or both parents is not viable due to abandonment, abuse, neglect, or similar basis; and (3) it is not in the best interests of the juvenile to be returned to his or her country of origin. This first step was granted to the states because of their expertise in fact finding in family and juvenile issues. The states are better equipped and act within their usual function of providing and ensuring the safety, welfare, and custody of abused, abandoned, and neglected children.

The second step involves immigration officials who use the findings from the state court to determine if the child is eligible for immigration relief. Eligibility is based on the child being present in the U.S., unmarried, under 21 years of age at the time of filing with the United States Citizenship and Immigration Services (USCIS) and have a qualifying state order. The applicant must submit a certified copy of the state court order along with a Special Immigrant (Form I-360) to USCIS. If the form is approved, the child attains SIJ status and is eligible to apply for adjustment of status to lawful permanent resident by filing an Application to Adjust Status (Form I-485).

But does this mean that a child must be completely alone in order to qualify?

A child under state custody would have a finding by a juvenile court that must declare the child dependent on the court or place the child in custody of an individual agency. However, there is available relief for children even if there is the possibility of reunification with one parent. An updated USCIS Policy Manual (October 2016) notes that the state court must determine the court intends that the child will not reunify with at least one parent until the child reaches the age of majority. SIJS findings can be included in custody and paternity orders, guardianships, adoptions, divorce decrees, etc. This means that children involved in adoption or guardianship proceedings may be able to obtain relief as well.

SIJS is a form of relief that brings humanitarian protection to children in vulnerable situations. This protection is found under Immigration and Nationality Act (INA) §101(a)(27)(J) and 8 U.S.C. §1101(a)(27)(J).

Written by: Jaqueline Obregon

Same-Sex Marriage in Texas: A Constellation of Benefits?

In June of 2015, the Supreme Court issued an opinion in Obergefell v. Hodges which dramatically challenged and overturned the status quo regarding marriage throughout the United States, and particularly in Texas, by declaring that, “The Constitution . . . does not permit the State to bar same-sex couples from marriage on the same terms as accorded to couples of the opposite sex.” Among the reasons for the decision, the Court cited that “same-sex couples are denied the constellation of benefits that the States have linked to marriage. This harm results in more than just material burdens.” Among the “constellation of benefits” cited by the Court are property rights, hospital access, adoption rights, worker’s compensation benefits, and health insurance, among others.

Following the Obergefell opinion, many states – Texas included – found that their pre-existing structures for providing spousal benefits had to be adapted to account for the possibility of same-sex marriage. One such case arose out of Arkansas. In Arkansas, as in most states, when a woman in an opposite-sex marriage gives birth, her husband’s name is placed on the birth certificate as the child’s father, unless the woman, her husband, and the child’s actual biological father all swear that the husband is definitely not the child’s father.

After the legalization of same-sex marriage, however, married lesbian women who gave birth found that their spouses were not listed on their child’s birth certificate, despite their request that their wives be listed as legal parents. In Pavan v. Smith, the U.S. Supreme Court declared the practice unconstitutional, noting that the decision not to list a mother’s female spouse on her child’s birth certificate “denied married same-sex couples access to the ‘constellation of benefits that the state has linked to marriage.’”

One interpretation of Pavan v. Smith is that states may not deny benefits to same-sex couples that they extend to opposite-sex couples. In Texas, however, the Texas Supreme Court has taken a different interpretation – namely, that each benefit must be individually reviewed and decided on a case-by-case basis. In late 2013, the City of Houston began making spousal benefits available to city employees’ same-sex spouses where the couples had married outside of Texas. That same year, a citizen sued to challenge the extension of benefits to same-sex spouses; Obergefell was decided while the suit was still being litigated. Ultimately, four days after the decision Pavan was issued, the Texas Supreme Court ruled that Obergefell did not hold that states “must provide the same publicly funded benefits to all married persons.” The Texas Supreme Court did not, however, address Pavan in their decision.

At current, it remains unclear whether, in Texas, same-sex couples are entitled to the same rights and benefits as opposite-sex couples. Pavan v. Smith implies that they are, but the Texas Supreme Court has held otherwise, and there are several statutes still on the books in Texas that limit same-sex couples’ rights to the benefits of marriage that opposite-sex couples have access to, such as the right to have both spouses named on an original or amended birth certificate, or the right to receive spousal benefits when one spouse works for the Texas government at any level.

 

Written by: Nita Hight

Pets: Property or Part of the Family?

Divorces are usually an emotional roller-coaster for both parties. Not only are the parties parting ways, but they might also be parting with property. But what happens when that “property” is part of the family?

Family units keep evolving and therefore so should the law. More and more couples opt for pets instead of children or pets first, then maybe children. These pets then become part of the family or are seen as an additional child. But if this pet is more than just “property” what happens to it during a dissolution of marriage? There is not a Suit Affecting Parent-Child Relationship (“SAPCR”) for pets like there is for children. So then how do you “split” a pet when both parties have an interest in keeping it?

There are currently, 3 states in the U.S. that have adopted custody laws that allow judges to consider the best interest of the animal. This means that judges in Alaska, Illinois, and California won’t simply consider the pet a piece of property any longer but may determine who can keep the family pet. Animals feel pain and love and as such should have their best interest taken into consideration. When making a decision, judges may take into consideration factors that could affect the welfare and well-being of the pet such as who cares for, trains, walks/plays with it, and whether one neglects or even mistreats the animal. There are also protection orders, commonly used in domestic violence cases, that can be put in place while the divorce is pending.

Current California law AB 2274 was signed on September 27, 2018 and went into effect on January 1, 2019, specifically, it provides for joint custody of pets. Before, animals were not treated differently than inanimate objects, but AB 2274 now differentiates companion animals from other types of property. Although these animals are still classified as personal property, California law is adapting to the way people view pets as family. Would this then mean that in the future enforceable pet support and medical support and decisions could also be in play?

It is likely that these states will provide guidance and encouragement for other states to incorporate similar laws involving the best interest of pets. Unfortunately, the current laws only apply to divorce proceedings and not to roommates.

Once an animal is welcomed into a home and becomes part of the family, it is difficult for someone to accept that they might have to part ways from it. Families build meaningful relationships with pets that should be taken into consideration during the dissolution of a marriage. Family units keep evolving and therefore so should the law.

Written by: Jaqueline Obregon

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.

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.