Category: Uncategorized

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

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

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 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

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