SAPCR Overview: Presumptions, Burdens, Statutes, and Case Law

SAPCR OVERVIEW:
PRESUMPTIONS, BURDENS, STATUTES, AND CASE LAW

State Bar of Texas
ADVANCED FAMILY LAW COURSE
August 4-7, 2014
San Antonio, TX

TABLE OF CONTENTS

  1. General Presumptions and Standards
  2. Best-Interest Standard
  3. Standard of Proof
  4. No Discrimination Based on Sex or Marital Status
  5. Conservatorship
  6. Parental Presumption for Joint Managing Conservatorship
  7. Sole Managing Conservatorship
  8. Possessory Conservatorship
  9. Rights and Duties
  10. Primary Residence and Geographic restriction
  11. Possession Schedule
  12. Standard Possession Order
  13. Under Age Three
  14. Social Science Consensus for Under-4 Parenting Plans
  15. Siblings
  16. Child Support
  17. Guidelines
  18. Intentional Underemployment
  19. Retroactive Child Support
  20. Health Insurance and Uninsured Medical
  21. Disabled Child
  22. Temporary Orders
  23. Default Judgments
  24. Federal Issues Relating to Conservatorship
  25. Federal Tax
  26. First Amendment
  27. Family Violence
  28. Presumptions
  29. “Going Behind a Prior Order”
  30. Non-Parents / Grandparents
  31. Original Suits
  32. Confusion About Standard/Burden of Proof
  33. Bhan v. Danet
  34. Modification Suits
  35. Modification
  36. Conservatorship and Possession
  37. Child Support
  38. Res Judicata, Collateral Estoppel, and “Going Behind the Prior Order”
  39. Enforcement
  40. Interstate
  41. UIFSA
  42. UCCJEA
  43. International
  44. Texas Family Code
  45. Hague Convention
  46. Professionals
  47. Social Study
  48. Psychological Examination
  49. Amicus / Ad Litem
  50. Parenting Coordinator / Parenting Facilitator
  51. Unmarried Parents
  52. Parentage
  53. Paternity
  54. Maternity
  55. Change of Name
  56. Termination and Adoption
  57. Termination
  58. Indian Child Welfare Act
  59. Adoption
  60. Assisted Reproduction
  61. Maternity
  62. Paternity
  63. Donors
  64. Surrogates and Gestational Agreements
  65. Award of Embryos upon Divorce

1.       General Presumptions and Standards

A.      Best-Interest Standard

The trial court’s primary consideration when deciding conservatorship issues is the best interest of the child.[1] The Texas Supreme Court has identified a non-exhaustive list of factors that a court can consider in determining what is in a child’s best interest.[2] The Holley factors include the following:

(1) the desires of the child,

(2) the emotional and physical needs of the child now and in the future,

(3) the emotional and physical danger to the child now and in the future,

(4) the parental abilities of the individuals seeking custody,

(5) the programs available to assist those individuals to promote the best interest of the child,

(6) the plans for the child by these individuals,

(7) the stability of the home,

(8) acts or omissions of the parent which may indicate that the existing parent-child relationship is not a proper one, and

(9) any excuse for a parent’s acts or omissions. Id.

The U.S. Supreme Court has expressly recognized that the “best interest of the child” is the proper standard for resolving disputes between parents on custody issues. Reno v. Flores, 507 U.S. 292, 303-04 (1993); In re H.D.O., 580 S.W.2d 421, 424 (Tex.App.-Eastland 1979, no writ) (holding “best interest of the child” standard does not violate federal constitutional principles); see also In re R.D.Y., 51 S.W.3d 314, 324 (Tex.App.-Houston [1st Dist.] 2001, pet. denied) (mother not denied due process of law or equal protection of law based on court’s finding that child’s best interest weighed against mother’s possession for overnight visitation).

B.      Standard of Proof

Generally, the standard of proof in a suit affecting the parent-child relationship is a preponderance of the evidence:

Tex. Fam. Code § 105.005. Findings. Except as otherwise provided by this title, the court’s findings shall be based on a preponderance of the evidence.

In the Sanchez[3] case, the father argued that the use of a preponderance of the evidence standard, rather than a clear and convincing standard, was a violation of his due process rights under the 14th Amendment of the United States Constitution. He contended that because he has a fundamental liberty interest in the care and custody of his children, the Constitution mandates the use of a higher standard of proof on issues of conservatorship and residency restrictions. The Sanchez court held that, because decisions relating to issues of conservatorship, possession, and support are revocable and subject to relitigation, the Constitution does not require a higher burden of proof. Because orders may be modified or changed from time to time, and because the parent still retains some rights in and control over a child, there is not such a serious loss of rights so as to require a stricter burden of proof than that set forth in section 105.005.

The Sanchez decision raises the issue of the purpose of a standard of proof. The Addington[4] case, a U.S. Supreme Court case arising out of a Texas decision, contains a useful discussion of the function of a standard of proof and which types of cases require increased burdens:

The function of a standard of proof, as that concept is embodied in the Due Process Clause and in the realm of fact-finding, is to instruct the fact-finder concerning the degree of confidence our society thinks he should have in the correctness of factual conclusions for a particular type of adjudication. The standard serves to allocate the risk of error between the litigants and to indicate the relative importance attached to the ultimate decision. Generally speaking, the evolution of this area of the law has produced across a continuum three standards or levels of proof for different types of cases.

Civil Standard.[5] At one end of the spectrum is the typical civil case involving a monetary dispute between private parties. Since society has a minimal concern with the outcome of such private suits, the plaintiff’s burden of proof is a mere preponderance of the evidence. The litigants thus share the risk of error in roughly equal fashion.

Criminal Standard.[6] In a criminal case, on the other hand, the interests of the defendant are of such magnitude that historically, and without any explicit constitutional requirement, they have been protected by standards of proof designed to exclude as nearly as possible the likelihood of an erroneous judgment. In the administration of criminal justice, our society imposes almost the entire risk of error upon itself. This is accomplished by requiring under the Due Process Clause that the state prove the guilt of an accused beyond a reasonable doubt.

Intermediate Standard.[7] The intermediate standard, which usually employs some combination of the words “clear,” “cogent,” “unequivocal” and “convincing,” is less commonly used. One typical use of the standard is in civil cases involving allegations of quasi-criminal wrongdoing by the defendant. The interests at stake in those cases are deemed to be more substantial than the mere loss of money and some jurisdictions accordingly reduce the risk to the defendant of having his reputation tarnished erroneously by increasing the plaintiff’s burden of proof. Similarly, the U.S. Supreme Court has used the “clear, unequivocal and convincing” standard of proof to protect particularly important individual interests in various civil cases, including deportation, denaturalization, and involuntary commitments. The individual should not be asked to share equally with society the risk of error when the possible injury to the individual is significantly greater than any possible harm to the state.

In Texas family law, the intermediate standard is used for the involuntary termination of parental rights, as discussed infra, but not for normal custody determinations. There is confusion in the law in some areas where the statutes or common law speak of a “strong preference,” yet do not require an intermediate standard of proof. The cases somehow require “clear and compelling evidence” at the same time that they speak of following a preponderance of the evidence standard. These murky areas include non-parent access and the separation of siblings, also discussed infra.

C.      No Discrimination Based on Sex or Marital Status

Previously, it was common in family law to have a preference for mothers on custody issues.[8] On November 7, 1972, Texas voters approved the Equal Rights Amendment to the Texas Constitution. This provision states that “[e]quality under the law shall not be denied or abridged because of sex, race, color, creed, or national origin.”[9] The 1989 Texas Supreme Court case of In re McLean[10] held that then-existing provisions of the Family Code constituted impermissible sex-based discrimination in violation of the Equal Rights Amendment. The McLean case involved an unmarried father whose suit for legitimation was denied. He appealed, claiming violations of the U.S. and Texas Constitutions, because he bore the burden of proving that legitimation would be in the child’s best interest. The McLean court’s analysis is restated as follows:

When a child is born to a woman not married to the child’s father, she automatically exercises all of the rights, duties, and privileges of the parent-child relationship.

Circumstances are different for a man who is not married to the child’s mother:  the father has all of those parental rights, duties, and responsibilities only if the mother consents. Should the mother deny her consent, she pits the acknowledged father against the state:  he must convince the trier of fact that legitimation best serves the child’s interest if his paternity is to be legally recognized.

But, a man seeking to terminate a mother’s parental rights finds the burden placed on him to prove that the child’s best interest compels severing the child’s relationship with the mother. Without maternal consent or meeting a higher burden of proof, the father has no rights in regard to his own child.

Mothers are never subjected to such a proceeding; a woman, until her rights are terminated, exercises her parental prerogatives regardless of the father’s veto. This is a gender-based distinction because only men are required to satisfy the “best interest” test before being recognized as a parent.

Having determined that the challenged statute discriminates on the basis of gender, we next focus on whether such discrimination is prohibited by the Equal Rights Amendment. We choose not to adopt a per se standard which would automatically invalidate gender-based distinctions, but rather find that the amendment elevates sex to a suspect classification. The appropriate standard is thus one which recognizes that the Equal Rights Amendment does not yield except to compelling state interests. Under our model of strict judicial scrutiny, such discrimination is allowed only when the proponent of the discrimination can prove that there is no other manner to protect the state’s compelling interest.

In this case, the state no doubt has a significant interest in protecting the welfare of a child born to a mother not married to the child’s father. Nevertheless, the state’s interest can be protected without discriminating solely on the basis of sex. The state goal of protecting children’s welfare is better served by keying that interest to the father’s relationship to the child. A father who steps forward, willing and able to shoulder the responsibilities of raising a child should not be required to meet a higher burden of proof solely because he is male.

We reverse the judgment of the court of appeals and remand this cause to the trial court so that it can declare the father’s parental rights, if any, and resolve the conservatorship issue without regard to sex.

In 1995, the Legislature amended the Texas Family Code to clarify that there should be no sex-based preferences in custody determinations:

Tex. Fam. Code § 153.003. No Discrimination Based on Sex or Marital Status. The court shall consider the qualifications of the parties without regard to their marital status or to the sex of the party or the child in determining:

(1) which party to appoint as sole managing conservator;

(2) whether to appoint a party as joint managing conservator; and

(3) the terms and conditions of conservatorship and possession of and access to the child.

Section 153.003 has not been held, however, to bar a court from considering the effect of a parent’s lifestyle and lifestyle choices upon the children when deciding matters of custody, which can include evidence of marital status.[11]

Fathers have argued that possession schedules that give them less than equal access to a child violate their due process rights. However, as long as there is some evidence relating to the Holley[12] factors discussed above, appellate courts have supported trial courts’ determinations regarding possession schedule, right to determine primary residence, etc.[13]

2.       Conservatorship

A.      Parental Presumption for Joint Managing Conservatorship

In 1995, the Texas Legislature also modified the Family Code to provide a presumption that both parents be appointed joint managing conservators, rather than the previous system of one parent being appointed sole managing conservator and the other parent having to be appointed possessory conservator.

Section 153.131 codifies the “parental presumption”–the legal and constitutional presumption that it is in the best interest of a child to be with a natural parent unless the appointment would impair the child’s physical health or emotional development.[14]  It further specifies that the parental presumption is in favor of both parents jointly.

Tex. Fam. Code § 153.131. Presumption That Parent to be Appointed Managing Conservator

(a) Subject to the prohibition in Section 153.004 [history of domestic violence or sexual abuse], unless the court finds that appointment of the parent or parents would not be in the best interest of the child because the appointment would significantly impair the child’s physical health or emotional development, a parent shall be appointed sole managing conservator or both parents shall be appointed as joint managing conservators of the child.

(b) It is a rebuttable presumption that the appointment of the parents of a child as joint managing conservators is in the best interest of the child. A finding of a history of family violence involving the parents of a child removes the presumption under this subsection.

The statutory presumptions to appoint a parent as a managing or possessory conservator do not apply to alleged fathers.[15]

A rebuttable presumption shifts the burden of producing evidence to the party against whom it operates.[16] Once that burden is discharged and evidence contradicting the presumption has been offered, the presumption disappears and is not weighed or treated as evidence.[17] The evidence is then evaluated as it would be in any other case, and the presumption has no effect on the burden of persuasion.[18]

The parental presumption can be rebutted by showing that the appointment of the parent would significantly impair the child’s health or development.[19] Chapter 153 also provides that the parental presumption is rebutted if a parent has “voluntarily relinquished actual care, control, and possession of the child to a nonparent” for one year or more and the appointment of a nonparent as managing conservator is in the best interest of the child.[20]

Interestingly, the Texas Supreme Court has held that, because the Legislature codified this presumption in Chapter 153 (original suits) and not in Chapter 156 (modifications), the parental presumption does not apply in a modification suit.[21] This is discussed further in the section relating to non-parent access, infra.

B.      Sole Managing Conservatorship

A parent who requests appointment as sole managing conservator, rather than joint managing conservator, has the burden to rebut the presumption contained in Tex. Fam. Code § 153.131 by showing that the factors listed in 153.134(a) do not support joint managing conservatorship.[22] Tex. Fam. Code § 153.134(a) states:

the court may render an order appointing the parents joint managing conservators only if the appointment is in the best interest of the child, considering the following factors:

(1) whether the physical, psychological, or emotional needs and development of the child will benefit from the appointment of joint managing conservators;

(2) the ability of the parents to give first priority to the welfare of the child and reach shared decisions in the child’s best interest;

(3) whether each parent can encourage and accept a positive relationship between the child and the other parent;

(4) whether both parents participated in child rearing before the filing of the suit;

(5) the geographical proximity of the parents’ residences;

(6) if the child is 12 years of age or older, the child’s preference, if any, regarding the person to have the exclusive right to designate the primary residence of the child; and

(7) any other relevant factor.

In deciding to appoint one parent sole managing conservator instead of appointing joint managing conservators, courts have considered evidence relating to conflict between the parents, distance between the parents, the behavior of a parent during separation, an inability of the parents to work together in the best interests of the children, a parent’s judgment and ability to make prudent decisions, the parents’ ability to share in decision-making, and each parent’s ability to promote a positive relationship between the children and the other parent.[23]

C.      Possessory Conservatorship

If a court does not appoint a parent as a joint managing conservator, there is an additional presumption that that parent be appointed as a possessory conservator:

Tex. Fam. Code § 153.191. Presumption that Parent to be Appointed Possessory Conservator. The court shall appoint as a possessory conservator a parent who is not appointed as a sole or joint managing conservator unless it finds that the appointment is not in the best interest of the child and that parental possession or access would endanger the physical or emotional welfare of the child.

The Walters[24] case explains that a court should not completely exclude a possessory conservator from possession:

When a trial court appoints a parent possessory conservator, it can conclude that unrestricted possession would endanger the physical or emotional welfare of the child, but that restricted possession or access would not. The court can also conclude that access would not endanger the physical or emotional welfare of the child, but that access is not in the best interest of the child.

It cannot conclude, however, that access, even restricted access, would endanger the physical or emotional welfare of the child, because such a conclusion would prevent the trial court from appointing the parent possessory conservator.

Therefore, a trial court has two options regarding possession and access when it appoints a parent possessory conservator and decides that the standard possession order is not in the best interest of the child:

(1) fashion an order that restricts possession or access so as to eliminate any danger to the physical or emotional welfare of the child; or

(2) deny that parent possession and access.

However, because appointment of a parent as possessory conservator implies a finding that access by that parent will not endanger the physical or emotional welfare of the child, complete denial of access is limited to those situations in which the parent’s access will not endanger the physical or emotional welfare of the child, but is not in the best interest of the child. So while it may be technically correct that a trial court may appoint a parent possessory conservator but deny that parent access to the child if it is in the best interest of the child to do so, complete denial of access should be rare.

This presumption in favor of possessory conservatorship only extends to a “parent” as defined in the Family Code, and therefore it does not extend to a merely alleged or biological father.[25]

D.      Rights and Duties

The Family Code defines joint managing conservatorship in the context of parental rights and duties:

Tex. Fam. Code § 101.016. Joint Managing Conservatorship. “Joint managing conservatorship” means the sharing of the rights and duties of a parent by two parties, ordinarily the parents, even if the exclusive right to make certain decisions may be awarded to one party.

The trial court retains broad discretion in crafting the rights and duties of each conservator in effectuating the best interest of the child.[26] Even in joint managing conservatorship, one parent is usually given slightly greater powers than the other parent.[27] Although this section of the Family Code references “two parties,” that has not prevented courts from appointing more than two joint managing conservators.[28]

If parents are appointed as joint managing conservators, the court will allocate those rights and duties between the parties:

Tex. Fam. Code § 153.134(b)(4). In rendering an order appointing joint managing conservators, the court shall allocate between the parents, independently, jointly, or exclusively, all of the remaining rights and duties of a parent as provided by Chapter 151.[29]

No case addresses whether there exists any presumption for or against independent, joint, or exclusive rights.  Therefore, it is likely that this decision is discretionary based on the court’s determination of a child’s best interest.[30]

If a parent is appointed as a sole managing conservator, that parent will have certain exclusive rights and duties, unless the court determines otherwise:

Tex. Fam. Code § 153.132. Rights and Duties of Parent Appointed Sole Managing Conservator. Unless limited by court order, a parent appointed as sole managing conservator of a child has the rights and duties provided by Subchapter B and the following exclusive rights….

It is not error for a court to place restrictions on the rights allocated to a sole managing conservator – the Legislature has made it clear that the itemized rights are not absolute but rather subject to limitation.[31]  However, one court has held that the Family Code does not contemplate a sole managing conservator paying child support to a possessory conservator, and that such an order is improper.[32]

3.       Primary Residence and Geographic restriction

Texas law does not articulate specific presumptions or burdens regarding the geographic area for the primary residence of children.

Tex. Fam. Code 153.134(b). In rendering an order appointing joint managing conservators, the court shall:

(1) designate the conservator who has the exclusive right to determine the primary residence of the child and:

(A) establish, until modified by further order, a geographic area within which the conservator shall maintain the child’s primary residence; or

(B) specify that the conservator may determine the child’s primary residence without regard to geographic location;

Section 153.134 is silent as to factors a trial court should consider when determining whether a domicile restriction is in the best interest of the child.[33] The Texas Supreme Court has addressed this issue in the Lenz[34] case, as restated and summarized below:

The Legislature has made clear that the best interest of the child shall always be the primary consideration of the court in determining the issues of conservatorship and possession of and access to the child. Yet, the Family Code does not elaborate on the specific requirements for modification in the residency-restriction context, and we have no specific statute governing residency restrictions or their removal for purposes of relocation. Neither have Texas courts articulated any specific standards to apply in this context. Nonetheless, the Legislature has provided a basic framework upon which we may build guidelines for reviewing a modification that removes a residency restriction for purposes of relocation.

Family Code § 153.001 outlines this framework by pronouncing our public policy for all suits affecting the parent-child relationship:

(a) The public policy of this state is to:

(1) assure that children will have frequent and continuing contact with parents who have shown the ability to act in the best interest of the child;

(2) provide a safe, stable, and nonviolent environment for the child; and

(3) encourage parents to share in the rights and duties of raising their child after the parents have separated or dissolved their marriage.

We must endeavor to give meaning to these public policy imperatives as we interpret the Family Code modification standards in the relocation context.

Several jurisdictions have enumerated considerations at issue when a primary custodial parent seeks to relocate. Historically, courts have disfavored removing a child from the jurisdiction issuing the original custody decree. Recently, however, courts have reassessed the standards for relocation, moving away from a relatively strict presumption against relocation and toward a more fluid balancing test that permits the trial court to take into account a greater number of relevant factors. Increasing geographic mobility and the availability of easier, faster, and cheaper communication have in part accounted for this shift in perspective.

The Legislature’s expressed public policy considerations guide our analysis of the positive-improvement and best-interest standard in the relocation context, but no bright-line test can be formulated. Suits affecting the parent-child relationship are intensely fact driven, which is why courts have developed best-interest tests that consider and balance numerous factors. Given the many relevant factors, courts have explicitly rejected formulaic tests in relocation cases.

Therefore, there is no express test or presumption for or against a geographic restriction; rather, the court must balance numerous factors, including the public policy of assuring that children have frequent contact with both parents. In the absence of legislatively imposed statutory presumptions in relocation cases, the moving party in a modification is required to prove a change in circumstances.[35]

It is not error to restrict a child’s residence to one county without including contiguous counties.[36]

Jury. Geographic restriction is an issue that may be tried to a jury:

Tex. Fam. Code § 105.002(c)(1). In a jury trial a party is entitled to a verdict by the jury and the court may not contravene a jury verdict on the issues of:

(D) the determination of which joint managing conservator has the exclusive right to designate the primary residence of the child;

(E) the determination of whether to impose a restriction on the geographic area in which a joint managing conservator may designate the child’s primary residence;

A trial court cannot contravene a jury verdict giving a parent the exclusive right to establish a child’s primary residence by imposing a geographical restriction on the child’s primary residence.[37]

Constitutional Right to Travel. The U.S. Constitutional right to travel embraces three different components:  (1) the right to enter and leave another State; (2) the right to be treated as a welcome visitor while temporarily present in another State; and, (3) for those travelers who elect to become permanent residents, the right to be treated like other citizens of that State.[38] Courts have held that a domicile restriction does not interfere with these components, so it does not violate the Constitution.[39] However, another court suggested that the court should explicitly conduct a balancing test to weigh a parent’s right to travel against the importance of having frequent and continuing contact with the other parent.[40]

Increased Expenses. The Family Code does contain a provision that a parent who moves is responsible for increased costs due to the move:

Tex. Fam. Code § 156.103. Increased Expenses Because of Change of Residence

(a) If a change of residence results in increased expenses for a party having possession of or access to a child, the court may render appropriate orders to allocate those increased expenses on a fair and equitable basis, taking into account the cause of the increased expenses and the best interest of the child.

(b) The payment of increased expenses by the party whose residence is changed is rebuttably presumed to be in the best interest of the child.

(c) The court may render an order without regard to whether another change in the terms and conditions for the possession of or access to the child is made.

4.       Possession Schedule

A.      Standard Possession Order

The Texas Family Code contains a rebuttable presumption in favor of the standard possession order:

Tex. Fam. Code § 153.252. Rebuttable Presumption. In a suit, there is a rebuttable presumption that the standard possession order in Subchapter F:

(1) provides reasonable minimum possession of a child for a parent named as a possessory conservator or joint managing conservator; and

(2) is in the best interest of the child.

If there is sufficient evidence to rebut this presumption, the trial court may deviate from the standard possession order.[41] When deviating from the standard possession order, the trial court may consider:

Tex. Fam. Code § 153.256. Factors for Court to Consider. In ordering the terms of possession of a child under an order other than a standard possession order, the court shall be guided by the guidelines established by the standard possession order and may consider:

(1) the age, developmental status, circumstances, needs, and best interest of the child;

(2) the circumstances of the managing conservator and of the parent named as a possessory conservator; and

(3) any other relevant factor.

In determining the issues of conservatorship and possession of a child, the trial court is given wide latitude in determining the best interest of the child and will be reversed only for an abuse of discretion.[42] A reviewing court’s holding that a trial court did not abuse its discretion implies that the evidence contained in the record rebutted the presumption that the standard possession order was reasonable and in the child’s best interest.[43] A parent does not have a constitutional right to 50% of parenting time with a child, and the standard possession order does not interfere with the fundamental right to parent.[44]

Alternative Beginning and Ending Possession Times. Section 153.252 does not conflict with Section 153.317 (setting forth additional or extended visitation that may be available to the possessory conservator of school-age children).[45]

Special Findings. If a court does vary from the standard possession order, there is a specific procedure for requesting relevant findings:

Tex. Fam. Code § 153.258. Request for Findings When Order Varies From Standard Order. Without regard to Rules 296 through 299, Texas Rules of Civil Procedure, in all cases in which possession of a child by a parent is contested and the possession of the child varies from the standard possession order, on written request made or filed with the court not later than 10 days after the date of the hearing or on oral request made in open court during the hearing, the court shall state in the order the specific reasons for the variance from the standard order.

If a party does not follow this procedure, the trial court is not required to enter such findings and an appellate court will infer that the trial court made all the necessary findings to support its judgment.[46]

B.      Under Age Three

There is no presumptive standard possession schedule for children under age three:

Tex. Fam. Code § 153.254(a). The court shall render an order appropriate under the circumstances for possession of a child less than three years of age. In rendering the order, the court shall consider evidence of all relevant factors….

Special Findings. Similar to the procedure for variances from a standard possession order, there is a procedure for requesting relevant findings relating to an under-three possession order:

Tex. Fam. Code § 153.254.

(b) Notwithstanding the Texas Rules of Civil Procedure, in rendering an order under Subsection (a), the court shall make findings in support of the order if:

(1) a party files a written request with the court not later than the 10th day after the date of the hearing; or

(2) a party makes an oral request in court during the hearing on the order.

(c) The court shall make and enter the findings required by Subsection (b) not later than the 15th day after the date the party makes the request.

Prospective Possession Order. Even when an under-3 possession order is rendered, the standard possession order is presumed to take effect upon the child’s 3rd birthday:

Tex. Fam. Code § 153.254(d). The court shall render a prospective order to take effect on the child’s third birthday, which presumptively will be the standard possession order.

C.      Social Science Consensus for Under-4 Parenting Plans

Although not a legal presumption, attached to this paper as Appendix B is a consensus report approved by one hundred and ten researchers and practitioners providing empirically-supported guidelines regarding parenting plans for children under the age of four years whose parents live apart. The summary of the paper is as follows:[47]

A broad consensus of accomplished researchers and practitioners agree that, in normal circumstances, the evidence supports shared residential arrangements for children under 4 years of age whose parents live apart from each other. Because of the well-documented vulnerability of father-child relationships among never-married and divorce parents, the studies that identify overnights as a protective factor associated with increased father commitment to child rearing and reduced incidence of father drop-out, and the absence of studies that demonstrate any net risk of overnights, policymakers and decision-makers should recognize that depriving young children of overnights with their fathers could compromise the quality of developing father-child relationships. Sufficient evidence does not exist to support postponing the introduction of regular and frequent involvement, including overnights, of both parents with their babies and toddlers. The theoretical and practical considerations favoring overnights for most young children are more compelling than concerns that overnights might jeopardize children’s development.

D.      Siblings

There is a statutory “preference” for keeping siblings together:

Tex. Fam. Code § 153.251(c) It is preferable for all children in a family to be together during periods of possession.

This is referred to as a “preference,” not a “presumption” or “burden,” and that has given rise to conflicting interpretations of this provision. Some courts have held that “clear and compelling” reasons are required,[48] while others have held that there is no heightened burden of proof.[49]

The De La Pena[50] case held that this preference amounts to an increased burden of proof:

Where it is possible for siblings to be kept together and reared as a family, it is not in the best interest of the children that they be separated. Siblings are not to be separated except upon a showing of clear and compelling reasons. The record reflects that [the children] are full-blooded siblings, sharing the same biological father and mother. That being the case, it was [the mother’s] burden to present clear and compelling reasons that the separation of [the children] was in [a child’s] best interest.

In contrast, the Gardner[51] case explicitly held that the preference is not an increased burden of proof:

Relying on opinions that state children of the same marriage should remain together during periods of possession absent “clear and compelling reasons,” [Mother] argues the evidence did not meet that standard. Section 153.251 of the Texas Family Code, titled “Policy and General Application of Guidelines,” states a general preference, based on public policy, that “all children in a family . . . be together during periods of possession.” However, the Code contains no requirement that a party show or a trial court find “clear and compelling reasons” for separating children during periods of possession. Rather, the trial court’s primary consideration in deciding the issue of possession is the best interest of the child. The policy favoring keeping children together during periods of possession is simply a factor the trial court considers in deciding what is in the child’s best interest. We decline to impose a higher burden than that required by the Family Code.

Without addressing the burden issue, the Coleman case held that a trial court abuses its discretion in ordering the separation of children without articulating clear and compelling reasons for separating the children based on the record.[52]

5.       Child Support

A.      Guidelines

The Texas Family Code contains a rebuttable presumption that application of the statutory child support guidelines is in the best interest of children:

Tex. Fam. Code § 154.122. Application of Guidelines Rebuttably Presumed in Best Interest of Child

(a) The amount of a periodic child support payment established by the child support guidelines in effect in this state at the time of the hearing is presumed to be reasonable, and an order of support conforming to the guidelines is presumed to be in the best interest of the child.

(b) A court may determine that the application of the guidelines would be unjust or inappropriate under the circumstances.

A court may determine that the application of the guidelines would be unjust or inappropriate based on evidence that rebuts the presumption:

Tex. Fam. Code § 154.123. Additional Factors for Court to Consider

(a) The court may order periodic child support payments in an amount other than that established by the guidelines if the evidence rebuts the presumption that application of the guidelines is in the best interest of the child and justifies a variance from the guidelines.

(b) In determining whether application of the guidelines would be unjust or inappropriate under the circumstances, the court shall consider evidence of all relevant factors, including:  [lengthy list]

The Family Code contains a lengthy list of equitable factors that attempt to balance the needs of the obligor, the obligee, and the children involved. A recent case upheld an award of no formal child support based on findings that both parents directly provided support to the child, together with evidence that benefits for the special needs child would be reduced by court-ordered child support.[53]

The factors listed in § 154.123 can justify an increase or decrease in the amount of support ordered, but they cannot increase the support above the maximum guideline amount.[54] In other words, if an obligor’s net resources are less than $8,550 per month, the court may order the obligor to pay child support above what the percentages would specify, based on the seventeen statutory factors. However, if an obligor’s net resources exceed $8,550 per month, the court cannot order child support above the percentage guidelines, except based on the proven needs of the child:[55]

Tex. Fam. Code § 154.126. Application of Guidelines to Additional Net Resources

(a) If the obligor’s net resources exceed the amount provided by Section 154.125(a), the court shall presumptively apply the percentage guidelines to the portion of the obligor’s net resources that does not exceed that amount. Without further reference to the percentage recommended by these guidelines, the court may order additional amounts of child support as appropriate, depending on the income of the parties and the proven needs of the child.

(b) The proper calculation of a child support order that exceeds the presumptive amount established for the portion of the obligor’s net resources provided by Section 154.125(a) requires that the entire amount of the presumptive award be subtracted from the proven total needs of the child. After the presumptive award is subtracted, the court shall allocate between the parties the responsibility to meet the additional needs of the child according to the circumstances of the parties. However, in no event may the obligor be required to pay more child support than the greater of the presumptive amount or the amount equal to 100 percent of the proven needs of the child.

This provision is discretionary, so the court can decline to award additional support even if a party conclusively proves the needs of a child.[56] The proven needs of the child include more than the bare necessities of life, but they are not determined by the parents’ ability to pay or the lifestyle of the family.[57] In a modification, § 154.126 does not require evidence of an increase in proven needs of a child compared to the circumstances at the time of the prior order; the section only requires the court to consider the income of the parties and the proven needs of the child at the time of the modification.[58]

The term “net resources” is defined in § 154.062 of the Family Code, and it includes all the income received by the obligor, but not her losses.[59] Where an obligor’s income fluctuates significantly, a court may average such income for purposes of calculating child support obligations under the statutory guidelines.[60]

Spouse’s Resources. The J.C.K. [61] case describes how a court may consider the resources of an obligor’s spouse:  A court should not consider the resources of a non-obligor spouse as a basis to vary from the support guidelines under section 154.123. Permitting the court to deviate from child support guidelines because the obligor’s new spouse contributes to their joint living expenses allows the court to do indirectly what the statute directly prohibits.[62] The resources of a non-obligor spouse should not be the sole basis to vary from the guidelines. However, if the obligee presents evidence that the obligor has intentionally or voluntarily reduced his earnings or earning potential, then the best interest of the child may dictate that the resources of a non-obligor spouse should be considered in deciding whether to vary from the guidelines. No portion of the income generated by community property subject to the sole management and control of the spouse of a child support obligor should be included in calculating the obligor’s net resources, absent evidence which would justify a variance from the child support guidelines.

Minimum Wage. If the obligor has no net resources, the court can impute income equal to minimum wage:

Tex. Fam. Code § 154.068. Wage and Salary Presumption. In the absence of evidence of a party’s resources, as defined by Section 154.062(b), the court shall presume that the party has income equal to the federal minimum wage for a 40–hour week to which the support guidelines may be applied.

The burden is on the obligor to put on evidence of a lack of resources, otherwise the trial court must presume the minimum wage. In the Neal[63] case, an incarcerated obligor contended that the record showed “it was obvious” that his total assets at the time he was incarcerated consisted of two cars and clothing, and that he had no income or assets that could produce income. However, he did not present any evidence that he was without financial resources. When the evidence is insufficient to establish an obligor parent’s net resources, the trial court must apply a presumption that the party has wages or salary equal to the federal minimum wage for a 40-hour week. Incarceration alone will not rebut the minimum wage presumption, and there is no legal presumption that an inmate has no assets.

Special Findings. Similar to the special provisions for findings for variances from the standard possession order and for under-age-three possession orders, there is a special provision for findings relating to child support:

Tex. Fam. Code § 154.130(a). Findings in Child Support Order. Without regard to Rules 296 through 299, Texas Rules of Civil Procedure, in rendering an order of child support, the court shall make the findings required by Subsection (b) if:

(1) a party files a written request with the court not later than 10 days after the date of the hearing;

(2) a party makes an oral request in open court during the hearing; or

(3) the amount of child support ordered by the court varies from the amount computed by applying the percentage guidelines under Section 154.125 or 154.129, as applicable.

The court still has an obligation to make findings under (a)(3) even if the party does not request the findings within the times provided in (1) or (2). This language is mandatory, and a trial court’s failure to make written findings upon request is reversible error.[64] Because above-guideline child support is not calculated based on the percentage guidelines, this section does not apply to above-guideline child support.[65] Courts have also held that this provision only applies to the rendering of a child support order, and therefore it does not apply to the denial of a requested modification.[66]

B.      Intentional Underemployment

If a parent’s actual income is significantly less than what she could earn because of intentional unemployment or underemployment, the court may apply the child support guidelines to her earning potential:

Tex. Fam. Code § 154.066(a). If the actual income of the obligor is significantly less than what the obligor could earn because of intentional unemployment or underemployment, the court may apply the support guidelines to the earning potential of the obligor.

In effect, the court can prevent a parent from evading child support by treating the parent’s earning potential as an element of her net resources.[67]

Previously, most Texas courts required a specific showing that the parent reduced her income for the purpose of decreasing child support payments:[68]

The traditional interpretation, however, requires a finding that the reduction in income must have been effectuated with a design to reduce the child support payments.[69] Thus, in order for a court to find that a parent is intentionally underemployed or unemployed under Tex. Fam.Code § 154.066, there must be evidence that the parent reduced his income for the purpose of decreasing his child support payments. There is no presumption that simply because a parent is no longer as lucratively employed as he was during his marriage, he is intentionally underemployed or unemployed. The requisite intent or lack thereof, however, may be inferred from such circumstances as the parent’s education, economic adversities and business reversals, business background, and earning potential. In addition, we must be cognizant of a parent’s right as a citizen to the pursuit of happiness and to the freedom to live where he chooses. And it is axiomatic that although a parent’s financial support of his children is of prime importance, so too is his physical presence in their lives. Although we acknowledge no clear authority on this issue, we conclude that in an original proceeding for divorce, once the parent obligated to pay child support has offered proof of his current wages, the obligee has the burden to show that the obligor is intentionally underemployed or unemployed.

However, in 2011, the Texas Supreme Court addressed this issue, holding that nothing in the statute requires proof of the motive or purpose behind the unemployment or underemployment.[70]

There must be a finding that the obligor is intentionally unemployed or underemployed, meaning an obligor consciously chooses to remain unemployed or underemployed. But there is nothing in the statute requiring further proof of the motive or purpose behind the unemployment or underemployment.[71]

The Iliff court went even further, stating that child support could be based on earning potential even without proof of intentional underemployment:

While the trial court may consider whether the obligor is attempting to avoid child support by becoming or remaining unemployed or underemployed as a factor in its child support determination, such proof is not required for a court to be able to set child support based on earning potential.[72]

The Iliff court described the shifting burdens as follows:

The court must engage in a case-by-case determination to decide whether child support should be set based on earning potential as opposed to actual earnings. Once the obligor has offered proof of his or her current wages, the obligee bears the burden of demonstrating that the obligor is intentionally unemployed or underemployed. The burden then shifts to the obligor, if necessary, to offer evidence in rebuttal.[73]

The Iliff opinion contains significant guidance and discussion on intentional underemployment and is a must-read for any attorney encountering this issue.

C.      Retroactive Child Support

The Valadez[74] case discusses the evolution of retroactive child support under Texas law:  The child support we ordinarily deal with, that to be paid in the future, is for raising the child, to provide for clothing, housing, food, school, and the other myriad material needs of childhood. It balances the needs of the child with the ability of the care giver to pay for that child as well as other obligations. It is for the benefit of the child and seeks to meet those needs. “Retroactive child support” is a repayment of monies expended for the care of the child in the past. It represents funds the nonsupporting parent owed to the child, as well as funds owed the supporting parent to discharge his or her proportionate duty of financial support to the child. In awarding retroactive support a trial court considers not only the support the errant parent should have provided to the child, but also the right to reimbursement afforded someone who has supported the child in the meantime. Prior to the legislative enactment of the Family Code section referencing the use of the child support guidelines in determining the amount of retroactive child support, the courts viewed the sum due up to the time paternity was determined to be solely of reimbursement. The question was how much had the mother expended on the child prior to the determination of paternity, with the burden of proof on the mother. With the adoption of the child support guidelines and the application of them to determine the amount the supporting parent should recover from the errant one, the burden of proof on the supporting parent has been greatly eased.

Under the current Family Code, a court has discretion to award retroactive child support with reference to the guidelines:

Tex. Fam. Code § 154.131. Retroactive Child Support

(a) The child support guidelines are intended to guide the court in determining the amount of retroactive child support, if any, to be ordered.

(b) In ordering retroactive child support, the court shall consider the net resources of the obligor during the relevant time period and whether:

(1) the mother of the child had made any previous attempts to notify the obligor of his paternity or probable paternity;

(2) the obligor had knowledge of his paternity or probable paternity;

(3) the order of retroactive child support will impose an undue financial hardship on the obligor or the obligor’s family; and

(4) the obligor has provided actual support or other necessaries before the filing of the action.

(c) It is presumed that a court order limiting the amount of retroactive child support to an amount that does not exceed the total amount of support that would have been due for the four years preceding the date the petition seeking support was filed is reasonable and in the best interest of the child.

(d) The presumption created under this section may be rebutted by evidence that the obligor:

(1) knew or should have known that the obligor was the father of the child for whom support is sought; and

(2) sought to avoid the establishment of a support obligation to the child.

(e) An order under this section limiting the amount of retroactive support does not constitute a variance from the guidelines requiring the court to make specific findings under Section 154.130.

(f) Notwithstanding any other provision of this subtitle, the court retains jurisdiction to render an order for retroactive child support in a suit if a petition requesting retroactive child support is filed not later than the fourth anniversary of the date of the child’s 18th birthday.

Retroactive child support is not mandated by the Texas Family Code when paternity is established, but rather, is left to a factual determination on the part of the trial judge.[75] Section 154.131 does not bind the trial court to the listed factors in determining retroactive child support.[76] It also does not require the trial court to credit an obligor with past support payments.[77] Unlike other sections of Chapter 154, refusal to adhere to the guidelines provided in section 154.131 does not require the trial court to provide specific reasons as to the deviation.[78] In the absence of proof to the contrary, the trial court may presume that the obligor earned the minimum wage from the time of the child’s birth.[79]

In one case, the obligee argued that the failure to order retroactive child support would reward the obligor for his failure to voluntarily pay child support, but the court held that the award of child support is for the child’s best interest and is not intended to be punitive.[80]

Affirmative Defenses – Estoppel and Laches. A parent’s acceptance of lower payments from the other parent does not estop that parent from later requesting additional retroactive support.[81] Laches requires a “good faith change of position by another to his detriment because of the delay” in asserting rights. Since the non-paying parent could not show evidence of a change in position based on the other parent’s delay in seeking child support, that defense failed.[82]  Further, laches is not available in a suit for the enforcement of a statutory legal right.[83]

Equal Protection. In the J.H. case,[84] the obligee claimed that the trial court’s failure to award retroactive child support denied the child equal protection.  The court held that the constitutional problem in the U.S. Supreme Court case cited by the obligee was the denial of a child’s essential right to support from his or her natural father based exclusively on the child’s illegitimate status.[85] A limitation on the amount of retroactive child support awarded under the factors listed in sections 154.123, 154.131, and 160.005 of the Code, not on a child’s illegitimate status, does not raise a constitutional problem. The same factors are applicable in determining whether to award retroactive child support regardless of the marital status of the parents. Therefore, since the child’s illegitimate status was not the basis for the limitation on the amount of retroactive child support awarded, there was no denial of equal protection.

Interestingly, this case implies that a court could award retroactive support in a case where the parents of a child were married, and that retroactive support is not limited to cases where paternity is established after the birth of a child.

D.      Health Insurance and Uninsured Medical

Tex. Fam. Code § 154.064. Medical Support for Child Presumptively Provided by Obligor. The guidelines for support of a child are based on the assumption that the court will order the obligor to provide medical support for the child in addition to the amount of child support calculated in accordance with those guidelines.

In the Melton case,[86] the obligee argued that the trial court abused its discretion in failing to order the obligor to pay for the child’s health insurance under § 154.064. However, the court found that this statutory provision simply explains that if a trial court orders an obligor to pay for medical support, such payments are in addition to any amount of child support the obligor is required to pay, and that it did not support the obligee’s argument.

In the H.J.W. case,[87] the obligor argued that, because the disability benefits received for the children were almost double the amount of his child support obligation, the trial court should have also abated his medical support. The appellate court held, based on this provision, that the amount of medical support is separate and distinct from the amount required pursuant to the child support guidelines. Unlike section 154.132, which requires the trial court to deduct the amount of disability payments the children receive from the amount due under the child support guidelines, the family code has no similar provision relating to medical support.

E.      Disabled Child

Chapter 154, subchapter F, of the Texas Family Code sets out the procedures for determining support of an adult disabled child. There are no specific presumptions or burdens relating to the amount and duration of the support. However, the Code requires that the disability exist, or the cause of the disability is known to exist, on or before the 18th birthday of the child.[88] This means that, for example, if a nineteen year old were to become disabled in a car crash, the Family Code would not provide for child support.

6.       Temporary Orders

There is no relevant caselaw interpreting the following provision, so its meaning appears to be clear.

Tex. Fam. Code § 105.001(g). The rebuttable presumptions established in favor of the application of the guidelines for a child support order and for the standard possession order under Chapters 153 and 154 apply to temporary orders. The presumptions do not limit the authority of the court to render other temporary orders.

7.       Default Judgments

Under the Craddock[89] test, a default judgment should be set aside and a new trial ordered in any case in which

(1) the failure of the defendant to answer before judgment was not intentional or the result of conscious indifference on his part, but due to a mistake or accident; provided the motion for new trial,

(2) sets up a meritorious defense, and

(3) is filed at a time when the granting thereof will occasion no delay or otherwise work an injury to the plaintiff.

Although the Craddock test has been routinely applied to suits affecting the parent-child relationship by appellate courts in Texas, some courts have expressed discomfort in doing so.[90] The concurring opinion in the Martinez[91] case discusses several reasons the Craddock test is ill-suited for resolving issues in suits affecting the parent-child relationship:

1. Craddock was designed to apply to traditional civil litigation involving only two competing interests. In cases involving the parent-child relationship, three interests often are involved: the mother’s, the father’s, and the child’s.[92]

2. Craddock does not give the court the flexibility to even consider the one interest of paramount importance in a suit involving the parent-child relationship: the child’s best interest.[93]

3. Craddock assumes an adversarial context, yet the Family Code has shed its adversarial trappings.

4. The second prong of Craddock requires the court to determine if the defendant has a meritorious defense to the suit. That determination does not fit well in the parent-child context for, in a custody dispute, there are no true defenses. The goal of the court is to reach an outcome that is in the best interests of the child.[94]

Until the Legislature or the Texas Supreme Court adopts a new rule for use in suits affecting the parent-child relationship, courts remain bound to apply Craddock, but they will do so liberally in the context of children.[95]

8.       Federal Issues Relating to Conservatorship

A.      Federal Tax

A court cannot award a child dependency exemption or any other tax benefit contrary to the Internal Revenue Code.[96] Income tax exemption is an area of federal law that has preempted state law and must be determined according to applicable federal statutes.[97] The trial court may not take away a person’s entitlement to a federal tax exemption.[98] Specifically, state courts have no power to interfere in this area.[99]

Practice Tip:  IRS rules permit parties to agree to allocate the exemption.[100] If a party has agreed to execute the documents required by the IRS to release an exemption to the other parent, then this contractual obligation is enforceable.

B.      First Amendment

Despite considerable discretion vested in courts to issue orders for the safety and welfare of the child, a court cannot act to infringe on a party’s constitutional rights.[101] The First Amendment mandates governmental neutrality between one religion and another, as well as between religion and nonreligion.[102]

The Knighton[103] case discusses the relevance of the First Amendment to child custody cases:

The First Amendment to the United States Constitution, in its pertinent part, provides:

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof.

That clause is applicable to the states through the Fourteenth Amendment.

These constitutional provisions mandate a zealous protection of an individual’s untrammeled right to religious belief so long as the teachings and practice of that religious belief are neither illegal or immoral. Accordingly, the courts of this state would have no more power to, directly or indirectly, attempt to effectuate by decree a conformance to, or condemnation of, certain religious teachings or practices, than would the Legislature or the Congress have the power to establish a state religion by law. As relevant here, that means that one’s religious beliefs, teachings, and practices, per se, are not grounds for depriving a parent of his or her children unless the teachings and practice of such beliefs are illegal or immoral.[104] Thus, it is beyond the power of a court, in awarding the custody of a child or children to prefer the religious views or teachings of either parent, even though the beliefs and practices of one parent might be more “normal” or more in accord with majority religious views or practices.[105] Therefore, as this Court earlier stated in the first appeal of this case, it is a fundamental principle that the State cannot prefer the religious views of one parent over the other in deciding the best interest of a child.[106] This principle, we believe, must also be subject to the qualification that if the religious doctrines and practices of an applicant for custody do in fact seriously threaten the physical or mental well-being of the child, or would lead the custodian to neglect such a child, this might be a basis for favoring a different custodian.

In the Knighton case, the father’s position was that, because of the deviation from the norm of the mother’s religious beliefs, the best interest of the children required the vesting of their custody in him. However, the court held that, other than his conclusory statements, there was no supporting direct evidence, that the mother’s beliefs and practices were such as to cause serious bodily or mental injury to the children or that those beliefs had or would cause her to neglect the children. Without that supporting evidence, the evidence produced led to a constitutionally impermissible trial of the orthodoxy of the mother’s religious beliefs. The court went on to state:

As the Supreme Court said in West Virginia State Board of Education v. Barnette, 319 U.S. 624, 642, 63 S.Ct. 1178, 1187, 87 L.Ed. 1628 (1943):

[F]reedom to differ is not limited to things that do not matter much. That would be a mere shadow of freedom. The test of its substance is the right to differ as to things that touch the heart of the existing order.

If there is any fixed star in our constitutional constellation, it is that no official, high or petty, can prescribe what shall be orthodox in politics, nationalism, religion, or other matters of opinion or force citizens to confess by word or act their faith therein. If there are any circumstances which permit an exception, they do not now occur to us.

Similarly, a father’s belief as a Jehovah’s Witness that one should not salute the flag should not have been an issue as to his custody of his daughter.[107] Further, even a neutral order that explicitly granted father possession on his Jewish holidays while almost completely blocking mother from possession time that would allow her to practice her religion with the children violated the mother’s rights under the First Amendment.[108]

However, a decree that allowed mother to pick up the children during father’s time for religious training recently survived a challenge. The Roberts[109] court held that the decree at issue did not favor either spouse’s religious preference or preference for no religion, and gave the father additional time to compensate for the periods when mother picked up the children for religious classes. Further, the Roberts decree provided that both parents had the right to direct the children’s moral and religious training during their times of possession.

Jury Instruction. A party is entitled to a jury instruction on how the jury should weigh a parent’s religious practices. The Alaniz court stated that the real issue in deciding what is in the best interest of a child or children is whether the religious beliefs, teachings, and practices of the parents constitutes relevant evidence and if so, how should the jury be instructed to consider that evidence without doing violence to a party’s rights under the constitutional guarantees of religious freedom.[110] That court reversed, based on the jury instruction given, and recommended the following:

the trial court should give a substantially correct instruction to the jury concerning the manner in which they should consider any evidence of the party’s religious beliefs, teachings, and practices. In order for a party to be able to appeal any adverse finding and have the appellate court evaluate the jury’s findings, it seems advisable to submit a question which inquires if the jury recommendation as to who should be appointed as managing conservator is based in part upon the religious beliefs, teachings, and practices of the party not so recommend. And if so, a checklist inquiring as to whether the jury concluded that such the beliefs, teachings, or practices of the adversely affected party was either illegal, immoral, or harmful to the child.[111]

Waiver. The Knighton court held that because evidence regarding the mother’s religious beliefs admitted in a child custody case was of constitutional dimension, error was not waived by failure to object to the testimony.[112] However, the Rutland court declined to follow Knighton and held that even constitutional errors may be waived by the failure to object.[113] The best practice would be to continue to object to testimony about religious practices.

Free Speech. In denying a petition for habeas corpus arising out of a contempt order, a court found that an order providing that neither party may communicate with the other in a coarse or offensive manner did not amount to an unconstitutional prior restraint on speech.[114]

The Grigsby[115] case discusses the requirements for a pre-trial gag order in a custody case:

In a child custody modification proceeding, the trial court enjoined the father and mother “from communicating with any person about the other party in a derogatory manner either in person or by and through their attorneys using such terms as pedophile or other derogatory or defamatory words except when discussing the case with the counsellors or experts.” When the father moved to have the mother’s attorney held in contempt for violating the gag order, the mother moved to have the order vacated.

Gag orders in civil judicial proceedings are valid only when an imminent and irreparable harm to the judicial process will deprive litigants of a just resolution of their dispute, and the judicial action represents the least restrictive means to prevent that harm.[116] Such order must be supported by evidence and specific findings. The trial court in this case made no attempt to comply with the requirements of Davenport, either before or after the order issued. The order is overly broad. It prohibits the parties and perhaps their attorneys (although the order is not clear), from “communicating with any person about the other party in a derogatory manner”. As the parties have little to say about one another that is not derogatory, the order essentially prohibits them from speaking about one another at all.

While the Family Code does give trial courts broad powers in family cases, it does not authorize them to invade constitutional guarantees. The Texas Supreme Court held that the trial court could have adopted an order which complied with Davenport, but it failed to do so, which was a clear abuse of discretion.

Interestingly, the Sanner[117] case distinguished a pre-trial gag order from a final order containing injunctions restricting the parties’ speech based on the best interest of the child, holding that the latter is permitted.

9.       Family Violence

A.      Presumptions

If there is a history or pattern of abuse, several presumptions regarding conservatorship come into effect. First, a court may not appoint joint managing conservatorship, and there is a presumption against the abusing parent being appointed sole managing conservator:

Tex. Fam. Code § 153.004. History of Domestic Violence or Sexual Abuse

(b) The court may not appoint joint managing conservators if credible evidence is presented of a history or pattern of past or present [abuse, sexual assault, child neglect, etc.] It is a rebuttable presumption that the appointment of a parent as the sole managing conservator of a child or as the conservator who has the exclusive right to determine the primary residence of a child is not in the best interest of the child if credible evidence is presented of a history or pattern of past or present child neglect, or physical or sexual abuse by that parent directed against the other parent, a spouse, or a child.

A single act of violence or abuse can constitute a “history” of physical abuse for purposes of section 153.004(b).[118] Where parties testify to different versions of the same encounter, the trial court is the sole judge of the weight and credibility of the evidence.[119] The court may also consider whether one parent is attempting to manufacture an abuse case in order to obtain custody of the children.[120]

A court may not appoint joint managing conservators if there is a history or pattern of abuse, but a court is not required to modify a prior order in which parents were already appointed JMCs to remove such a parent as JMC.[121] Because modification cases raise different policy concerns, Chapter 153 presumptions, including this one, do not apply to Chapter 156 modification cases.[122]

Tex. Fam. Code § 153.004(d). The court may not allow a parent to have access to a child for whom it is shown by a preponderance of the evidence that:

(1) there is a history or pattern of committing family violence during the two years preceding the date of the filing of the suit or during the pendency of the suit; or

(2) the parent engaged in conduct that constitutes an offense under Section 21.02, 22.011, 22.021, or 25.02, Penal Code, and that as a direct result of the conduct, the victim of the conduct became pregnant with the parent’s child.

Tex. Fam. Code § 153.004(d–1). Notwithstanding Subsection (d), the court may allow a parent to have access to a child if the court:

(1) finds that awarding the parent access to the child would not endanger the child’s physical health or emotional welfare and would be in the best interest of the child; and

(2) renders a possession order that is designed to protect the safety and well-being of the child and any other person who has been a victim of family violence committed by the parent and that may include [various requirements].

As discussed above, in the section on possessory conservatorship, the appointment of a parent as possessory conservator implies a finding that access by that parent will not endanger the physical or emotional welfare of the child.[123] It would be interesting to see how a court would reconcile this with the inability to appoint joint managing conservators and the presumption against appointing the abuser as a sole managing conservator. If a court found that access would endanger the physical or emotional welfare of the child, is the court then precluded from appointing that person as any type of conservator? If so, must the court terminate parental rights in that circumstance?

Tex. Fam. Code § 153.004(e). It is a rebuttable presumption that it is not in the best interest of a child for a parent to have unsupervised visitation with the child if credible evidence is presented of a history or pattern of past or present child neglect or physical or sexual abuse by that parent directed against the other parent, a spouse, or a child.

B.       “Going Behind a Prior Order”

The Brownlee[124] case discusses how pre-decree evidence relating to family violence may be admissible in post-decree protective order hearings:

Acknowledging that all issues set forth in the decree regarding conservatorship are res judicata of that issue at the time of the decree, it is axiomatic that a post-decree protective order, issued after conservatorship has been established, must be based on evidence adduced after the decree was entered. This result is logical, given the fact that even the court of continuing, exclusive jurisdiction is not permitted to relitigate matters of conservatorship absent a material and substantial change in circumstances after the rendition of the decree. Here, the decree, with its conservatorship provisions, is res judicata of what was in the best interests of the children at the time of the divorce. We do not conclude, however, that the use of pre-decree evidence in the hearing for the protective order amounts to a collateral attack on the decree.

The legitimate and nonbarred issues at play in the protective order proceeding were whether family violence occurred after the final decree was issued and whether such family violence was likely to occur in the future. True, the trial court heard evidence of pre-decree family violence, admitted without objection at trial. Such evidence may be used to corroborate evidence of post-decree family violence. Because evidence of post-decree family violence was admitted at trial, the pre-decree evidence of family violence was properly considered to corroborate this evidence.

10.    Non-Parents / Grandparents

A.      Original Suits

In original suits affecting the parent-child relationship filed under Chapter 153 of the Family Code, there is a parental presumption in favor of a child’s parents and against non-parent conservatorship or access.

Fundamental parental rights under the U.S. Constitution. The United States Supreme Court addressed the parental presumption in Troxel v. Glanville in 2000. The parental presumption arises out of the substantive due process protections of the Fourteenth Amendment, which provide heightened protection against government interference with certain fundamental rights and liberty interests.[125] The due process clause leads to a presumption that fit parents act in the best interests of their children:  so long as a parent adequately cares for his or her children there will normally be no reason for the state to inject itself into the private realm of the family to further question the ability of that parent to make the best decisions concerning the rearing of that parent’s children.[126] The due process clause does not permit a state to infringe on the fundamental right of parents to make child rearing decisions simply because a state judge believes a “better” decision could be made.[127] The Supreme Court did not rule on whether the due process clause requires all nonparental visitation statutes to include a showing of harm or potential harm to a child as a condition precedent to granting visitation, holding that the constitutionality of any standard for awarding visitation turns on the specific manner in which the standard is applied.[128]

Texas parental presumption. The Taylor[129] case discusses the application of the parental presumption under Texas law:

For a court to award managing conservatorship to a non-parent, the non-parent must prove by a preponderance of credible evidence that appointing the parent as a managing conservator would result in serious physical or emotional harm to the child. Evidence must be presented to support the logical inference that some specific, identifiable behavior or conduct of the parent will probably cause that harm. This link between the parent’s conduct and harm to the child may not be based on evidence that merely raises a surmise or speculation of possible harm. When a non-parent and a parent are both seeking managing conservatorship, “close calls” go to the parent.

Past conduct. The Taylor[130] case also discusses how a parent’s past conduct may weigh on the parental presumption:

An adult’s future conduct may be somewhat determined by recent past conduct. In and of itself, however, evidence of past misconduct may not be sufficient to show present unfitness. Further, it is wholly inadequate simply to present evidence that a non-parent would be a better choice as custodian of the child. The non-parent must offer evidence of specific acts or omissions of the parent that demonstrate an award of custody to the parent would result in physical or emotional harm to the child. Specific acts or omissions of a parent implicating a significant impairment to a child’s emotional development may be inferred from direct evidence.

The Texas Supreme Court held that Family Code requires the nonparent to offer evidence of specific actions or omissions of the parent that demonstrate an award of custody to the parent would result in physical or emotional harm to the child.[131]

The Rodriguez case distinguished the cases requiring evidence that specific acts or omissions by the parent are required. The Rodriguez court held that the only standard that applied was whether the appointment of the natural father as the child’s managing conservator was not in her best interest because it would significantly impair her physical health or emotional development.[132] In that case, the mother had placed the child at birth with potential adoptive parents, and had told the father that he was not the father. When she later admitted he was the father, he sought custody. The court appointed the adoptive parents as managing conservators, appointed the father as possessory conservator, and provided for visitation. The child was two years old and had only seen the father for two short visits. The father argued that Texas law required the non-parents to prove not only that child would be significantly impaired if the father were named her managing conservator, but also that the impairment would be caused by some act or omission by the father, and there was legally and factually insufficient evidence of this fact. The appellate court held that the standard set forth in Tex. Fam. Code § 153.131, and not the Lewelling case, was the relevant standard. The court further held the jury’s finding that naming the father managing conservator would not be in the child’s best interest because it would significantly impair her emotional development was supported by some evidence, and it was not so against the great weight and preponderance of the evidence as to be manifestly unjust.

Texas parental presumption applied to grandparent access. Prior to Troxel, the Family Code permitted grandparent access if it was in the best interest of the child.[133] Following Troxel, in 2005, the Texas Legislature substantially amended the grandparent access statute to include a presumption that a parent acts in his child’s best interest, and it permits grandparents to obtain court-ordered access to a grandchild only if they show that denial of access will significantly impair the child’s physical health or emotional well-being.[134] Therefore, to succeed on a claim under the grandparent access statute, the grandparent must overcome the statutory presumption that denying the children access to her would significantly impair the children’s physical health or emotional well-being.[135]

Options for grandparent access. Grandparents can seek managing conservatorship under Tex. Fam. Code § 102.003, they can intervene for possessory conservatorship under Tex. Fam. Code § 102.004(b), or they can seek possession or access under Tex. Fam. Code § 153.433. In each instance, in an original suit, the grandparents would have the burden to overcome the parental presumption that a parent acts in the best interest of the parent’s child by proving by a preponderance of the evidence that denial of possession of or access to the child would significantly impair the child’s physical health or emotional well-being.[136] The decision on which appointment to seek would be based on the grandparents’ wishes as to how much responsibility they want to have for the child. It is always important to closely read statutes providing for standing. For example, “grandparent” in the grandparent access statute refers to biological or adoptive grandparents, and therefore a step-grandparent does not have standing to seek possession or access under 153.433.[137] Interestingly, because a “presumed father” is not necessarily a biological father, the presumed father’s parents do not automatically qualify as biological grandparents for purposes of this section.[138]

Whether parental presumption extends to primary possession. One court has held that “Section 153.131 clearly states the presumption applies only to determinations of conservatorship” and “do[es] not address or contemplate application of the presumption to the issue of primary possession….”[139]  However, another court held:

If the right of primary possession is at the very core of managing conservatorship, it appears to us that the parental presumption must apply here as well… If the court [appoints a non-parent as joint managing conservator with a parent], the parent shall be awarded primary possession unless such an order would not be in the best interest of the child because it would significantly impair the child’s physical health or emotional development. To hold otherwise would permit the court to apply the presumption in appointing the parent a joint managing conservator but nevertheless choose the primary residence of the child on the basis of a heads-up best interest test, with the court determining which of the parties is the “better” choice. This results in the appointment of a parent as a managing conservator in name only, a paper title which eviscerates the purpose of the statute.[140]

Voluntary surrender rebuts parental presumption. The parental presumption can be overcome without a showing of significant impairment to the child’s physical health or emotional well-being if the parents have voluntarily surrendered the child for one year or more:

Tex. Fam. Code § 153.373. Voluntary Surrender of Possession Rebuts Parental Presumption

The presumption that a parent should be appointed or retained as managing conservator of the child is rebutted if the court finds that:

(1) the parent has voluntarily relinquished actual care, control, and possession of the child to a nonparent, licensed child-placing agency, or authorized agency for a period of one year or more, a portion of which was within 90 days preceding the date of intervention in or filing of the suit; and

(2) the appointment of the nonparent or agency as managing conservator is in the best interest of the child.

The relinquishment must be voluntary throughout the one-year period—a relinquishment is no longer “voluntary” under section 153.171 once a temporary restraining order is issued that precludes the parent from contacting the child in custody of a nonparent.[141]

Temporary Orders – Mandamus Review. The Derzapf[142] case held that temporary orders that improperly grant access to a non-parent are reviewable by mandamus. The reasoning is restated as follows: A grandparent’s rights are generally subordinate to a parent’s. Statutory rights extended to grandparents and other relatives can create a substantial burden on a parent’s traditional role in a child’s upbringing. It is cardinal that the custody, care and nurture of the child reside first in the parents. The interest of parents in the care, custody, and control of their children is perhaps the oldest of the fundamental liberty interests recognized by the Supreme Court of the United States. Where temporary orders divest a fit parent of possession of his children, in violation of Troxel‘s cardinal principle and without overcoming the statutory presumption that a parent is acting in his children’s best interest, such a divestiture is irremediable, and mandamus relief is appropriate.

B.      Confusion About Standard/Burden of Proof

In a suit affecting the parent-child relationship, the standard of proof is a preponderance of the evidence. However, Troxel states that the parental presumption arises out of fundamental constitutional rights and liberty interests. Courts have struggled with the tension between these concepts—that a non-parent must overcome the parental presumption by showing a significant impairment to the child, but the burden of proof remains a preponderance of the evidence.

For nonparents, the standard of proof is merely preponderance of the evidence, not clear and convincing evidence.[143] The Lewelling case attempts to explain this confusing system:

The amendatory language requiring a showing that appointment of the parent would significantly impair the child’s physical or emotional development creates a strong presumption in favor of parental custody and imposes a heavy burden on a nonparent. The nonparent must affirmatively prove by a preponderance of the evidence that appointment of the parent as managing conservator would significantly impair the child, either physically or emotionally.[144]

The parental presumption is a rebuttable presumption. In the law, a rebuttable presumption shifts the burden of producing evidence to the party against whom it operates.[145] Once that burden is discharged and evidence contradicting the presumption has been offered, the presumption disappears and is not weighed or treated as evidence.[146] The evidence is then evaluated as it would be in any other case, and the presumption has no effect on the burden of persuasion.[147]

C.      Bhan v. Danet

The First District Court of Appeals in Houston recently released a decision on the parental presumption in a case called Bhan v. Danet.[148]

At the original trial, a jury appointed two non-parent men as managing conservators and appointed the natural mother as possessory conservator. The appellate court held that the evidence was legally insufficient, reversed, and rendered an order appointing the natural mother as sole managing conservator. The full opinion is attached as Appendix A to this paper. Both the majority opinion and the lengthy dissent contain in-depth analyses of the parental presumption, and the case is a must-read on that issue.

The Texas Supreme Court requested full merits briefing on October 18, 2013, and the case is now pending on merits briefs before that court.

D.      Modification Suits

The Texas Supreme Court has held that, because of the differing public policies in an original suit compared to a modification, the parental presumption does not apply in any modification suit. The reasoning of the V.L.K.[149] case is restated as follows:

There is a difference between an original conservatorship determination and a modification: Because a change of custody disrupts the child’s living arrangements and the channels of a child’s affection, a change should be ordered only when the trial court is convinced that the change is to be a positive improvement for the child. Courts of appeals have consistently recognized that the parental presumption does not apply in modification suits.[150] These cases emphasize the policy concern that trial court should not change custody unless it is a positive improvement because of the child’s need for stability.

The parental presumption disappears even if the parties to the modification are not the same as the parties in the original suit. The courts’ decisions do not depend upon the parties’ identities as a basis for not applying the parental presumption in a modification suit. Likewise, the Family Code does not provide that the presumption is affected by the parties involved in the suit. Rather, the Legislature included the presumption in Chapter 153 which governs original proceedings, but did not include the presumption in Chapter 156 which governs modifications.

Chapter 153 and Chapter 156 are distinct statutory schemes that involve different issues. Chapter 156 modification suits raise additional policy concerns such as stability for the child and the need to prevent constant litigation in child custody cases. The Legislature has determined that the standard and burden of proof are different in original and modification suits. Compare Tex. Fam.Code § 153.134 with Tex. Fam.Code § 156.101. A natural parent has the benefit of the parental presumption in an original proceeding, and the nonparent seeking conservatorship has a higher burden. However, the Legislature did not impose different burdens on parents and nonparents in modification suits. When we construe a statute, our primary objective is to give effect to the Legislature’s intent. Because the Legislature did not express its intent to apply the presumption in Chapter 156 modification suits, courts should not apply the presumption in those cases. In a modification suit, the court should instruct the jury by tracking the language of Family Code 156.101, which requires the parties to show that (1) circumstances of a party affected by the order have materially and substantially changed; and (2) modification would be a positive improvement for the child.

11.    Modification

As discussed above, the legal regime for modifying an order is different from the legal burdens and presumptions for establishing an original order.

A.      Conservatorship and Possession

Under the Texas Family Code, there are three grounds to modify a SAPCR order:

Tex. Fam. Code § 156.101. Grounds for Modification of Order Establishing Conservatorship or Possession and Access.

(a) The court may modify an order that provides for the appointment of a conservator of a child, that provides the terms and conditions of conservatorship, or that provides for the possession of or access to a child if modification would be in the best interest of the child and:

(1) the circumstances of the child, a conservator, or other party affected by the order have materially and substantially changed….;

(2) the child is at least 12 years of age and has expressed to the court in chambers as provided by Section 153.009 the name of the person who is the child’s preference to have the exclusive right to designate the primary residence of the child; or

(3) the conservator who has the exclusive right to designate the primary residence of the child has voluntarily relinquished the primary care and possession of the child to another person for at least six months.

The most frequent ground for modification is that the circumstances of a party affected by the order have materially and substantially changed; and the requested modification would be in the best interest of the child

When a conservatorship order has been implemented, the concept of res judicata attaches, and the order establishes what was in the child’s best interest at the time of the divorce.[151] A determination of whether a material change in circumstances has occurred is not guided by rigid rules, but is, instead, fact-intensive.[152] A movant is required to show the conditions as they existed at the time of entry of the prior order.[153] Once such conditions have been established, the movant must show what material changes have occurred in the intervening period.[154] This evidence must be put into the record even in a default judgment where the responding party fails to answer or appear, or the modification order may be reversed as an abuse of discretion.[155] Material changes may be established by circumstantial evidence.[156] Courts have found the following to be material changes:  (1) marriage of one of the parties, (2) poisoning of the child’s mind by one of the parties, (3) change in the home surroundings, (4) mistreatment of the child by a parent or step-parent, or (5) a parent’s becoming an improper person to exercise custody.[157]

B.      Child Support

The Family Code also provides grounds for the modification of child support which require a material and substantial change in circumstances.[158] However, a change is presumed if it has been three years since the order was rendered or last modified and the monthly amount of the child support differs by 20% or $100 from the amount that would be awarded in accordance with the guidelines.[159] In a proceeding to modify child support, the movant has the burden to show the requisite material and substantial change in circumstances since the entry of the previous order.[160] For example, if the movant thinks the respondent’s current net income was necessary for the success of his petition, it was his responsibility to present evidence on this issue at the time of the hearing.[161]

C.      Res Judicata, Collateral Estoppel, and “Going Behind the Prior Order”

A common objection in modification cases is that an attorney attempting to introduce evidence is “going behind the prior order.” There is no section in the rules of evidence or the Family Code that expressly prohibits “going behind a prior order”—the objection is really a way of raising the affirmative defenses known as res judicata and collateral estoppel.

“Res judicata,” also known as “claim preclusion,” can be translated to mean “a thing decided.” Res judicata precludes relitigation of claims that have been finally adjudicated, or that arise out of the same subject matter and that could have been litigated in the prior action.[162] It requires proof of:

(1) a prior final judgment on the merits by a court of competent jurisdiction,

(2) identity of parties or those in privity with them, and

(3) a second action based on the same claims as were raised or could have been raised in the first action.[163]

Once a conservatorship order has been implemented, that order is res judicata of the best interest of a minor child as to then-existing conditions.[164] The concept of res judicata attaches and the conservatorship order establishes what was in the best interest of the children at the time of the divorce.[165] This concept is recognized by the requirement that a party attempting to modify a prior order entered in a suit affecting the parent-child relationship must establish that there has been a material and substantial change in circumstances since the date of rendition of the prior order.[166] Even the court of continuing, exclusive jurisdiction is not permitted to relitigate matters of conservatorship absent a material and substantial change in circumstances after the rendition of the decree.[167]

However, this does not mean that an attorney is prohibited from introducing evidence from before the prior order. The rule of res judicata has a well-recognized exception where prior acts of misconduct are offered in evidence to corroborate similar acts in a proceeding subsequent to the original decree and especially is this true where the custody of a minor is involved.[168] The introduction of evidence of a parent’s conduct previous to the prior valid custody decree is permitted, provided such evidence tends to corroborate the evidence of subsequent conduct of a like nature.[169]

Collateral estoppel and res judicata are sometimes used interchangeably.  The Barr[170] case discusses the difference:

Broadly speaking, res judicata is the generic term for a group of related concepts concerning the conclusive effects given final judgments. Within this general doctrine, there are two principal categories: (1) claim preclusion (also known as res judicata); and (2) issue preclusion (also known as collateral estoppel). Res judicata, or claim preclusion, prevents the relitigation of a claim or cause of action that has been finally adjudicated, as well as related matters that, with the use of diligence, should have been litigated in the prior suit. Issue preclusion, or collateral estoppel, prevents relitigation of particular issues already resolved in a prior suit.

Collateral estoppel requires that:

(1) the same fact issue is sought to be litigated in the second suit;

(2) the fact issue was essential to the judgment in the first suit; and

(3) the parties were cast as adversaries in the first suit.[171]

When an attorney in a modification suit objects that the other attorney is going behind the prior order, she is probably intending to raise both res judicata and collateral estoppel objections.

12.    Enforcement

In an enforcement suit, the Family Code provides for several affirmative defenses. The burden is on the respondent to prove the affirmative defense by a preponderance of the evidence.

Tex. Fam. Code § 157.006. Affirmative Defense to Motion for Enforcement.

(a) The issue of the existence of an affirmative defense to a motion for enforcement does not arise unless evidence is admitted supporting the defense.

(b) The respondent must prove the affirmative defense by a preponderance of the evidence.

The respondent may plead as an affirmative defense to contempt for failure to comply with an order for possession or access to a child that the movant voluntarily relinquished actual possession and control of the child and the obligor provided actual support.[172] An obligor may plead “inability to pay” as an affirmative defense to an allegation of contempt or of the violation of a condition of community service requiring payment of child support.[173]

An obligor may also plead as an affirmative defense to a motion for enforcement of child support that the obligee voluntarily relinquished to the obligor actual possession and control of a child.[174] Courts can reasonably presume that the court-ordered support amount is the proper measure of an offset, and that an obligor with actual possession is not required to make an exact accounting of actual expenditures.[175] Other courts have held that the obligor to a more precise accounting.[176]

If an obligor’s spouse or another person claims an interest in property that is subject to an enforcement, then the non-obligor has the burden to prove the extent of his or her ownership interest:

Tex. Fam. Code § 157.326(c) In a proceeding under this section, the spouse or other person claiming an ownership interest in the property has the burden to prove the extent of that ownership interest.

Further, the Family Code also contains presumptions relating to the amount of bond presumed reasonable to release an obligor who is subject to a capias for failing to appear:

Tex. Fam. Code § 157.101. Bond or Security for Release of Respondent

(b) An appearance bond or security in the amount of $1,000 or a cash bond in the amount of $250 is presumed to be reasonable. Evidence that the respondent has attempted to evade service of process, has previously been found guilty of contempt, or has accrued arrearages over $1,000 is sufficient to rebut the presumption. If the presumption is rebutted, the court shall set a reasonable bond.

13.    Interstate

A.      UIFSA

Texas adopted the Uniform Interstate Family Support Act (UIFSA) in 1993. UIFSA is designed to streamline and expedite interstate and intrastate enforcement of support decrees. It addresses both the duties of the state that originally issues a decree, the “issuing state,” and the state in which the obligee seeks to enforce a decree, the “responding state.” The Link[177] case discusses the jurisdictional requirements of UIFSA:

A party seeking to modify a support order from another state must establish jurisdiction pursuant to the Uniform Interstate Family Support Act. Jurisdiction under the Uniform Interstate Family Support Act rests upon the concept of continuing, exclusive jurisdiction to establish and modify the levels of child support due a particular child. Thus, once a court enters a support decree with jurisdiction, it is the only body entitled to modify it so long as it retains continuing, exclusive jurisdiction under the Act. Another state, while required by UIFSA to enforce the existing decree, has no power under that Act to modify the original decree or enter a support order at a different level, as long as one of the parties remains in the issuing state.

UIFSA contains specific burdens for proving a defense to the enforcement of an out-of-state order:

Tex. Fam. Code § 159.607. Contest of Registration or Enforcement

(a) A party contesting the validity or enforcement of a registered order or seeking to vacate the registration has the burden of proving one or more of the following defenses:

(1) the issuing tribunal lacked personal jurisdiction over the contesting party;

(2) the order was obtained by fraud;

(3) the order has been vacated, suspended, or modified by a later order;

(4) the issuing tribunal has stayed the order pending appeal;

(5) there is a defense under the law of this state to the remedy sought;

(6) full or partial payment has been made;

(7) the statute of limitation under Section 159.604 precludes enforcement of some or all of the alleged arrearages; or

(8) the alleged controlling order is not the controlling order.

(b) If a party presents evidence establishing a full or partial defense under Subsection (a), a tribunal may stay enforcement of the registered order, continue the proceeding to permit production of additional relevant evidence, and issue other appropriate orders. An uncontested portion of the registered order may be enforced by all remedies available under the law of this state.

(c) If the contesting party does not establish a defense under Subsection (a) to the validity or enforcement of the order, the registering tribunal shall issue an order confirming the order.

The NCCUSL comments give some context for interpreting section 159.607: The burden is on the nonregistering party to assert narrowly defined defenses to registration of a support order. If the obligor is liable for current support, in the absence of a valid defense under Subsection (b), the registering tribunal must enter an order to enforce that obligation. Proof of arrearages must result in enforcement; under the Bradley Amendment, 42 U.S.C. Section 666(a)(10), all States are required to treat child support payments as final judgments as they come due (or lose federal funding). Therefore, such arrearages are not subject to retroactive modification. Subsection (c) provides that failure to successfully contest a registered order requires the tribunal to confirm the validity of the registered order. Although the statute is silent on the subject, it seems likely that res judicata requires that both the registering and nonregistering party who fail to register the “true” controlling order will be estopped from subsequently collaterally attacking the confirmed order on the basis that the unmentioned true order should have been confirmed instead.

The introduction of a facially valid foreign order creates a prima facie case for its recognition and enforcement.[178] A Texas court must recognize (and may not modify) a properly-proven judgment from another state and must give the judgment “effect coextensive with that to which it is entitled in the rendering state.”[179] However, even if a Texas court must confirm an out-of-state order, the Texas court still may interpret the terms of the order if they are ambiguous.[180] If a respondent can prove that the order is invalid under the issuing state’s law, then it will be void for purposes of a Texas enforcement, and the court may properly refuse to enter judgment on it.[181]

If, after a hearing, a child support order is entered without change, then the hearing is presumed to have been requested for delay and the movant is entitled to recover attorney’s fees from the respondent:

Tex. Fam. Code § 159.313(c) The tribunal shall order the payment of costs and reasonable attorney’s fees if it determines that a hearing was requested primarily for delay. In a proceeding pursuant to Sections 159.601 through 159.608, a hearing is presumed to have been requested primarily for delay if a registered support order is confirmed or enforced without change.

B.      UCCJEA

Chapter 152 of the Texas Family Code contains Texas’s adoption of the Uniform Child Custody Jurisdiction & Enforcement Act (UCCJEA). Forty-eight other states, the District of Columbia, Guam, and the United States Virgin Islands have also adopted the Act. The Dean[182] case discusses the purposes behind Texas’s adoption of the UCCJEA:

The Act encourages national uniformity in child custody disputes and addresses the increasing mobility of American families. Previously, state courts modified custody determinations each time a child moved from one state to another, and those orders often conflicted. To minimize these conflicts, the Act provides guidance on how to determine which state has jurisdiction over all subsequent child custody proceedings. The Act makes the child’s “home state” the primary factor in this equation. The Act sought to eliminate the inconsistent state interpretations and prioritize home state jurisdiction when child custody determinations are involved. It establishes clear bases for a court to take jurisdiction and discourages competing child custody orders among different states.

The determination of a child’s “home state” is critical to jurisdiction under UCCJEA. The recent Dean[183] opinion by the Texas Supreme Court addressed the constitutionality of the home state provisions of the UCCJEA. In that case, a pregnant wife moved from Texas to New Mexico without notifying her husband.  The husband filed for divorce in Texas several months later, and had the wife served in New Mexico. The wife gave birth to the child in New Mexico and petitioned a New Mexico court to determine custody.  The courts conferred and New Mexico deferred to Texas on jurisdiction. The wife mandamused this grant of jurisdiction, and the Texas Supreme Court held that since New Mexico was the home state of the child, Texas did not have jurisdiction. The husband appealed on several constitutional bases. The court’s holdings are restated as follows:

Jurisdiction for Custody versus Divorce.

Whether the Texas divorce action was filed first is irrelevant in determining jurisdiction over custody matters, as the two proceedings involve different inquiries. A trial court’s jurisdiction to hear divorce action does not automatically give it authority to decide child custody issues as well. Jurisdiction over custody determinations is governed by the Act, regardless of whether there is an ongoing divorce. That is not to say the divorce proceedings are irrelevant, as they may influence a home state’s decision about its forum’s convenience. The home state is permitted to decline jurisdiction if it is an inconvenient forum. But one state may have jurisdiction over custody even if the divorce is decided by another state’s court. The home state cannot be determined before a child is born.

Constitutional Challenges.

The husband contends that if the UCCJEA gives New Mexico exclusive jurisdiction, it is unconstitutional. He argues that the home state jurisdiction provision violates the separation of powers doctrine and the open courts provision of the Texas Constitution, as well as the Texas Equal Rights Amendment and the Equal Protection Clause of the Fourteenth Amendment to the United States Constitution. We find these arguments unpersuasive.

Separation of Powers.

The separation of powers doctrine prohibits one branch of government from exercising a power belonging inherently to another. The doctrine is violated only when the functioning of the judicial process in a field constitutionally committed to the control of the courts is interfered with by the executive or legislative branches. The Texas Constitution provides that district court jurisdiction consists of exclusive, appellate, and original jurisdiction of all actions except in cases where exclusive jurisdiction may be conferred by this Constitution or other law on some other court.

Richard argues that because the home state jurisdiction provision of the UCCJEA states that a Texas court has jurisdiction “only if” one of the four statutory scenarios exists, the Legislature has, in essence, prevented the Texas district court from making custody determinations before a child is born. We disagree.

By enacting the UCCJEA, the Legislature did not encroach upon the judiciary’s power to interpret laws, nor did it decide whether the Texas trial court had jurisdiction. These determinations, still within the province of the courts, are simply subject to a rationally based policy that appreciates the multi-state arena in which custody determinations often occur. The UCCJEA does not violate the separation of powers doctrine.

Open Courts Provision.

The husband also contends that the home state jurisdiction provision of the UCCJEA violates the open courts provision of the Texas Constitution, which provides, “[a]ll courts shall be open, and every person for an injury done him, in his lands, goods, person or reputation, shall have remedy by due course of law.” But the right to a remedy by due course of law does not require that the remedy be available in Texas.

To establish an open courts violation, the husband must show that (1) he has a well-recognized common law cause of action that is being restricted and (2) the restriction is unreasonable or arbitrary when balanced against the statute’s basis and purpose.

Even assuming that the husband can satisfy the first requirement, he has not established the second. A statute that otherwise withdraws well-recognized common law remedies will be sustained only when it is reasonable in substituting other remedies but will not be sustained when it is arbitrary or unreasonable.

Here, the husband argues that if New Mexico is the child’s home state, the Act deprives him of a remedy in Texas. While this is true, requiring Richard to pursue his custody claim in New Mexico rather than Texas preserves a reasonable alternative. Richard may pursue his custody claims in New Mexico, and he has neither pleaded nor proved that New Mexico is an inadequate forum. The UCCJEA does not violate the open courts provision of the Texas Constitution.

Equal Protection.

Lastly, the home state jurisdiction provision of the UCCJEA violates neither the husband’s equal protection rights under the Texas Equal Rights Amendment nor the Fourteenth Amendment to the United States Constitution. The Texas Equal Rights Amendment provides that “[e]quality under the law shall not be denied or abridged because of sex, race, color, creed, or national origin.” The husband asserts that the home state rule violates this provision because a woman controls where she lives prior to giving birth, and that denies the father the right to participate in prenatal decisions. We have already determined that this contention is not before us, as the wife has already given birth. But the husband also complains that “home state jurisdiction” unconstitutionally deprives him of immediate post-birth involvement.

We have applied a three-step evaluation to determine whether the Amendment has been violated. First, we consider whether equality under the law has been denied. If it has, we must determine whether equality was denied because of a person’s membership in a protected class. If so, the challenged action cannot stand unless it is narrowly tailored to serve a compelling governmental interest.

The husband has not shown that he is denied equality under the law. The relevant provision in the UCCJEA is a procedural mechanism for determining jurisdiction. The statute defines home state to establish where the proceedings should take place, without a bias for either parent. The place of birth is not the relevant consideration. Instead, we look to “the State in which the child lived from birth with [a parent or person acting as a parent].” Residence is determinative, and it favors neither women nor men. A child could live “from birth” with his father or his mother, and sections 152.102(7) and 152.201(a) would apply with equal force in either scenario.

For the same reasons, we conclude that the statute does not violate the husband’s equal protection rights under the Fourteenth Amendment to the United States Constitution. Allowing the New Mexico court to exercise jurisdiction as provided in each state’s adopted UCCJEA does not deny the husband equality under the law.

14.    International

A.      Texas Family Code

Chapter 153, Subchapter I of the Texas Family Code addresses measures for the prevention of international parental child abduction. The sections discuss various risk factors and measures that may be evaluated by a court.

The statute does not specify the number of factors on which a court must make an affirmative finding.[184] In addition, the statute lists these factors in the disjunctive.[185] No particular quantum of risk factors is required.[186] Therefore, the application of the abduction prevention measures set forth within the statute is within the discretion of the court.

B.      Hague Convention

The Hague Convention on the Civil Aspects of International Child Abduction is also referred to as the Hague Abduction Convention. The A.V.P.G.[187] case provides an excellent overview of the burdens and presumptions associated with a Hague Convention case:

In 1980, various nations, including the United States, agreed to the Hague Convention in order to protect children internationally from the harmful effects of their wrongful removal or retention and to establish procedures to ensure their prompt return to the State of their habitual residence. The Hague Convention has several purposes, including: 1) to preserve the pre-abduction status quo custody arrangements of the parties, and 2) to deter a parent from crossing international boundaries in search of a more sympathetic court.

A petitioner establishes wrongful removal by proving, by a preponderance of the evidence, that the removal of the child was made in breach of the rights of custody of the petitioner under the law of the country in which the child habitually resided immediately before the removal. Under the Convention, the court has the authority to determine the merits of an abduction claim, but not the merits of the underlying custody claim. The Convention is premised on the principle that the country where the child is a habitual resident is in the best position to decide upon questions of custody and access.

In 1988, the United States Congress implemented the Hague Convention by enacting the International Child Abduction Remedies Act. The ICARA establishes specific burdens of proof for the parent seeking return under the Convention, and for the parent who opposes the child’s return. The degree of proof required to establish an exception varies with the defense. Certain defenses must be established by a preponderance of the evidence, including:

1) the person having care of the child was not actually exercising the custody rights at the time of removal or retention; or

2) the person having care of the child has acquiesced in the removal or retention of the child, or

3) the child objects to being returned and has attained an age and degree of maturity at which it is appropriate to take account of its views, or

4) the proceeding was commenced more than one year after the removal of the child and the child has become “well-settled” in his or her new environment; or

5) the person seeking return has consented or subsequently acquiesced in the removal or retention.

Other defenses must be shown by clear and convincing evidence. For instance:

1) that there is a grave risk that the return of the child(ren) would expose it (them) to physical or psychological harm, or

2) that the return of the children would not be permitted by fundamental principles of the requested state relating to the protection of human rights and fundamental freedoms.

15.    Professionals

A.      Social Study

Texas Family Code section 107.051 gives the trial court discretion to order the preparation of a social study into the circumstances and condition of the child and of the home of any person requesting managing conservatorship or possession of the child. The social study is designed to compare the circumstances and conditions of all individuals seeking managing conservatorship or possession of a child, and to make recommendations to the court regarding the best interest of the child.[188] If the court orders the preparation of a social study pursuant to section 107.051, the social study evaluator must submit a report detailing his or her findings and conclusions. Only after each basic element of the social study is completed may the social study evaluator testify as to his or her opinion regarding conservatorship of a child.[189] The fact-finder is not bound by the conclusions and recommendations of the social study.[190]

B.      Psychological Examination

In the Scheller[191] case, the Texas Supreme Court addressed whether a court may appoint a psychological expert:

A trial court’s appointment of an evaluative expert does not infringe on a parent’s rights because such an appointment is allowed by law; the order entered by the Court does not interfere with the parental relationship, but rather seeks to determine the best interests of the children; and no conflict exists between appointing the evaluating psychologist as guardian ad litem.

The Family Code specifically provides for this type of appointment. A suit for access to a child is a suit affecting the parent-child relationship (SAPCR) in which the principal consideration is the child’s best interest. In SAPCRs, a trial court may appoint a psychologist or psychiatrist to conduct a mental examination of the parties and children subject to the suit.[192] A trial court additionally has discretion to appoint a guardian ad litem in a suit for access to a child if it finds that the appointment is necessary to ensure the determination of the best interests of the child. Psychologists are one class of professionals qualified under the Family Code to serve as a guardians ad litem. In using these finite resources at the trial court’s disposal to determine the best interests of the children, the trial court did not abuse its discretion.

Also, nothing on the face of the order indicates that the trial court erred in appointing the same person to serve as expert psychologist and guardian ad litem. The role of the psychologist in evaluating the children and parties is consistent with the role of a guardian ad litem because the psychologist gives the court recommendations about the children’s best interests.

The father argues that this specific order violates his constitutional rights. Generally, a trial court would commit error by requiring a party to adhere to expert recommendations in violation of a party’s constitutional rights. However, in this case, the trial court did not abuse its discretion or commit an error of law by appointing an expert to evaluate the parties and children, represent the children’s best interests, and make recommendations to the court as to whether depriving the non-parent of access would significantly harm the girls’ emotional well-being or physical health. The father argues this order violates his constitutional rights because it orders his children to participate in counseling. Trial courts may order parties to participate in counseling with a mental health professional if they have a history of conflict in resolving an issue of access to the child.[193] But it is clear from the order that the trial court did not intend to require counseling, but instead intended to have an expert psychologist assist the court in making factual determinations regarding whether depriving the grandfather of access to and possession of his grandchildren would significantly impair their physical health or emotional well-being.

The father’s argument is unpersuasive given the content of the temporary order appointing the expert, whose dual role as guardian ad litem and evaluative psychologist facilitates the court’s factual inquiry into the children’s best interest and physical and emotional welfare. The trial court appointed the expert “to evaluate the circumstances surrounding the relationship between the Petitioner, Respondent, and the children, and to make recommendations to the court regarding whether denial of possession and access to the children by Petitioner would significantly impair their physical health or emotional well-being.” The parties are only ordered to “follow the recommendations of [the expert] and otherwise cooperate in her evaluation of the circumstances surrounding the basis of th[e] suit, including but not limited to, making the children available for any interviews, joint sessions, individual sessions, or other contact deemed necessary by [the expert] in performance of her duties….” Further, the court will hold a hearing if party objects to the recommendations relating to whether an evaluation should be performed on a party or child. Accordingly, the expert’s role as demonstrated by the trial court’s order does not interfere with the father’s constitutional rights.

C.      Amicus / Ad Litem

In a termination suit filed by a governmental entity, the Family Code provides for several mandatory appointments:  guardian ad litem for the child,[194] attorney ad litem for the child,[195] an attorney in the “dual role,”[196] and an attorney ad litem for a parent.[197] There is a presumption that a parent who is determined to be indigent remains indigent through appeal unless the court finds a material and substantial change in the parent’s financial circumstances.[198]

The Texas Family Code gives courts discretion to appoint an attorney ad litem, amicus attorney, or guardian ad litem in suits other than termination suits filed by a governmental entity.[199]

Further, the court also has the discretion to appoint a charitable organization of volunteer advocates (frequently known as CASA).[200]

D.      Parenting Coordinator / Parenting Facilitator

The appointment of a parenting coordinator or parenting facilitator is discretionary.[201] However, the court must find that the case is a high-conflict case or there is good cause shown and the appointment is in the best interest of the child.[202] The Family Code contains rebuttable presumptions that parenting coordinators and parenting facilitators act in good faith.[203]

A party may object to the appointment of a parenting coordinator or facilitator on the basis of family violence.[204] The court may not appoint such a professional unless the court finds that a preponderance of the evidence does not support the objection.[205] Strangely, even after the court has found that the objection is not supported, the court is required to order appropriate measures to ensure the physical and emotional safety of the objecting party.[206]

The main differences between a parenting facilitator and a parenting coordinator are as follows:

Parenting coordinator – confidential and must follow guidelines for mediators,[207] may only report whether parenting coordination should continue,[208] required qualifications include a degree in a related field or a license as an attorney.[209]

Parenting facilitator – may report recommendations (other than conservatorship or possession),[210] may monitor compliance with court orders,[211] must be licensed in Texas as a social worker, counselor, therapist, psychologist, or attorney.[212]

16.    Unmarried Parents

Under federal law, it is not a violation of an unmarried father’s due process rights to deny him standing to litigate the paternity of a child with a presumed father.[213] Under former Texas law, biological fathers’ rights were limited. The J.W.T.[214] case discusses the rights of unmarried fathers under former Texas law:

If, when a child is born, the mother is married to someone other than the biological father, her husband is “presumed” to be the child’s actual father, and this “marital presumption” may not be attacked by any party outside the marriage except a government entity.

Several provisions of the Family Code operate in tandem to prevent a man claiming to be a child’s biological father from suing either to rebut the marital presumption or to claim parental rights by establishing his paternity. A biological father has standing to sue under the Family Code only if the child he claims has no presumed father. The marital presumption is irrebuttable and only the husband or wife may deny the husband’s paternity of a child born during their marriage.

Thus, a biological father of a child with a presumed father is given the opportunity for a hearing before a court to establish parental rights only at the request of another party; he may not himself initiate such proceedings. With the husband’s paternity of the child denied by neither the wife nor himself, the husband remains the legally recognized, “presumed” biological father. Under the provisions of the Family Code, the biological father is completely barred from asserting his paternity and claiming any relationship with his apparent natural son.

Of all the parties granted standing under the Family Code, only an alleged biological father’s standing depends on the absence of a presumed father. The State, for example, has standing to enforce parental obligations against the biological father of a child born with a presumed father; it can disestablish the presumed father’s paternity, introduce evidence to rebut the marital presumption, and institute a paternity suit against the biological father. In short, the biological father asks why he cannot assume for himself a responsibility that can be imposed on him by the State, his child, or that child’s mother.

However, Texas’s adoption of the Equal Rights Amendment to its constitution provides more protections to biological fathers.[215] The J.W.T.[216] case further discusses the rights that unmarried fathers should have to litigate their paternity, even when the mother is married to the presumed father of the child:

To determine the extent of procedural rights to which a biological father is entitled, we must consider the public interest in protecting the child along with the father’s constitutional interest in establishing a relationship with his child. In a situation such as that presented here where the biological father does assert his interest near the time of the child’s birth, standing is constitutionally mandated if he both 1) acknowledges responsibility for child support or other care and maintenance, and 2) makes serious and continuous efforts to establish a relationship with the child. There is a genuine public interest in securing stable homes and supportive families for children, in distinguishing between the father who has accepted the legal and moral commitment to the family and the father who has not done so.

To permit proof of such an interest, Texas courts have sought to ensure a fair hearing to a putative father. The biological father of an illegitimate child has the opportunity to prove in which category he falls and to show that he should not be treated differently from fathers legally committed to the mothers of their children. A child’s biological father has such a substantial interest in the adoption proceeding that due process requires he be afforded notice and an opportunity to be heard. The right to be heard does not cease merely because the mother is married.

Under the current Family Code, a biological father has four years or more to bring a parentage action, even if the child has a presumed father.[217] An unmarried biological father has four years to seek paternity, or longer, if he is able to prove that the presumed father did not live with the mother or engage in sexual intercourse during the probable time of conception.

17.    Parentage

A.      Paternity

Establishment of Paternity

A father-child relationship is established in the following ways:

Tex. Fam. Code § 160.201(b) The father-child relationship is established between a man and a child by:

(1) an unrebutted presumption of the man’s paternity of the child under Section 160.204;

(2) an effective acknowledgment of paternity by the man under Subchapter D, unless the acknowledgment has been rescinded or successfully challenged;

(3) an adjudication of the man’s paternity;

(4) the adoption of the child by the man; or

(5) the man’s consenting to assisted reproduction by his wife under Subchapter H, which resulted in the birth of the child.

This section additionally establishes paternity for purposes of estates, wrongful death actions, etc.[218] A court cannot order genetic testing as a physical examination under the TRCP to circumvent the limitations for challenging paternity in the Family Code.[219] The Texas Supreme Court held that language in a default divorce decree stating that the parties were the parents of the three existing children constituted an adjudication that the husband was the father and barred further action to determine the paternity of the children.[220] However, the Texas Supreme Court also held that a failure to deny a husband’s paternity in a divorce suit does not bar the State from later litigating the issue of paternity.[221]

Presumed Father

A “presumed father” is, by operation of law, recognized as the father of the child until that status is rebutted or confirmed in a judicial proceeding.[222] The Family Code provides five presumptions of paternity:

Tex. Fam. Code § 160.204. Presumption of Paternity

(a) A man is presumed to be the father of a child if:

(1) he is married to the mother of the child and the child is born during the marriage;

(2) he is married to the mother of the child and the child is born before the 301st day after the date the marriage is terminated by death, annulment, declaration of invalidity, or divorce;

(3) he married the mother of the child before the birth of the child in apparent compliance with law, even if the attempted marriage is or could be declared invalid, and the child is born during the invalid marriage or before the 301st day after the date the marriage is terminated by death, annulment, declaration of invalidity, or divorce;

(4) he married the mother of the child after the birth of the child in apparent compliance with law, regardless of whether the marriage is or could be declared invalid, he voluntarily asserted his paternity of the child, and:

(A) the assertion is in a record filed with the bureau of vital statistics;

(B) he is voluntarily named as the child’s father on the child’s birth certificate; or

(C) he promised in a record to support the child as his own; or

(5) during the first two years of the child’s life, he continuously resided in the household in which the child resided and he represented to others that the child was his own.

(b) A presumption of paternity established under this section may be rebutted only by:

(1) an adjudication under Subchapter G; or

(2) the filing of a valid denial of paternity by a presumed father in conjunction with the filing by another person of a valid acknowledgment of paternity as provided by Section 160.305.

A presumption of paternity may only be rebutted by the two means listed in (b). The termination of a presumed father’s rights does not rebut or disestablish the presumption of parentage; such termination does not reopen a window for an alleged biological father to petition for paternity if he does not otherwise qualify to do so under the Family Code.[223]

The Family Code provides time limits for contesting a presumed father’s paternity:

Tex. Fam. Code § 160.607. Time Limitation:  Child Having Presumed Father

(a) Except as otherwise provided by Subsection (b), a proceeding brought by a presumed father, the mother, or another individual to adjudicate the parentage of a child having a presumed father shall be commenced not later than the fourth anniversary of the date of the birth of the child.

(b) A proceeding seeking to adjudicate the parentage of a child having a presumed father may be maintained at any time if the court determines that:

(1) the presumed father and the mother of the child did not live together or engage in sexual intercourse with each other during the probable time of conception; or

(2) the presumed father was precluded from commencing a proceeding to adjudicate the parentage of the child before the expiration of the time prescribed by Subsection (a) because of the mistaken belief that he was the child’s biological father based on misrepresentations that led him to that conclusion.

The S.C.L.[224] case describes that the four year limitation does not violate the constitutional rights of an alleged natural father: The Texas Constitution guarantees standing to a biological father who asserts his interest in establishing a relationship with the child near the time of the child’s birth if he (1) acknowledges responsibility for child support or other care and maintenance and (2) makes serious and continuous efforts to establish a relationship with the child. The record in this case shows that although he knew of the mother’s pregnancy, the alleged father did not assert his interest in establishing a relationship with the child near the time of the child’s birth, nor did he thereafter make serious and continuous efforts to establish a relationship with the child. Consequently, we cannot conclude applying section 160.607(a) violates his state due course of law guarantee. The case goes on to state that the limitations in 160.607 apply even if the presumed father’s rights have been terminated.

Genetic Testing

The Family Code contains presumptions relating to genetic testing:

Tex. Fam. Code § 160.505. Genetic Testing Results; Rebuttal

(a) A man is rebuttably identified as the father of a child under this chapter if the genetic testing complies with this subchapter and the results disclose:

(1) that the man has at least a 99 percent probability of paternity, using a prior probability of 0.5, as calculated by using the combined paternity index obtained in the testing; and

(2) a combined paternity index of at least 100 to 1.

(b) A man identified as the father of a child under Subsection (a) may rebut the genetic testing results only by producing other genetic testing satisfying the requirements of this subchapter that:

(1) excludes the man as a genetic father of the child; or

(2) identifies another man as the possible father of the child.

(c) Except as otherwise provided by Section 160.510, if more than one man is identified by genetic testing as the possible father of the child, the court shall order each man to submit to further genetic testing to identify the genetic father.

Section 204 of the Estates Code also provides that the presumptions under Chapter 160 of the Family Code apply to genetic testing for estates purposes.

A trial court cannot grant an order for genetic testing when requested by an individual who has not made a prima facie showing that he is entitled to bring a proceeding to adjudicate parentage or disprove the father-child relationship.[225] A trial court abuses its discretion when a child’s paternity has been legally established and it orders genetic testing before a parentage determination has been set aside.[226]

Burden of Proof for Challenging AOP

Tex. Fam. Code § 160.308(b) A party challenging an acknowledgment of paternity or denial of paternity has the burden of proof.

The Uniform Parentage Act does not authorize a trial court to invalidate an AOP based solely on testimony questioning the male signatory’s paternity absent rescission of, or successful challenge to, the AOP.[227] The testimony must constitute proof of a ground for challenge set forth in section 160.308(a).[228]

Paternity by Estoppel

The Shockley[229] case discusses how a parent may be estopped from contesting paternity:

Estoppel in paternity actions is merely the legal determination that because of a person’s conduct, that person, regardless of biological status, will not be permitted to litigate parentage. It operates both offensively and defensively. In most instances it applies to prevent a party from disestablishing a parent-child relationship, such as an adjudicated father who learns through genetic testing that he is not the biological father and wishes to denounce paternity so he can discontinue paying child support. The application of estoppel in paternity actions is aimed at achieving fairness as between the parents by holding them, both mother and father, to their prior conduct regarding the paternity of the child. Estoppel is based on the public policy that children should be secure in knowing who their parents are. If a person has acted as the parent and bonded with the child, the child should not be required to suffer the potentially damaging trauma that may come from being told that the father she has known all her life is not in fact her father. In determining whether the doctrine should be applied to a particular case, the child’s best interests are of paramount concern. To that end, the courts are more inclined to impose equitable estoppel to protect the status of a child in an already recognized and operative parent-child relationship.

It is this theory that underlies Texas Family Code § 160.608 which authorizes a trial court to deny a motion for genetic testing of a child with a presumed father if the court finds by clear and convincing evidence that the conduct of the mother or the presumed father estops that party from denying parentage and it would be inequitable to disprove the father-child relationship. This determination requires the court to consider the best interest of the child and nine enumerated factors, including the length of time during which the presumed father has assumed the role of father.

B.      Maternity

The M.M.M.[230] case explains that there are no presumed mothers:  Nothing in the plain language of section 160.201(a)(1) refers to a rebuttable presumption of maternity when a woman gives birth to a child. If the Legislature had intended that giving birth creates merely a rebuttable presumption, it could have included such language, as it did relative to the provisions for establishing paternity. In fact, Chapter 160 also includes a definition for “Presumed father”: “a man who, by operation of law under Section 160.204, is recognized as the father of a child until that status is rebutted or confirmed in a judicial proceeding.” There is no definition for, or recognition of, the term “presumed mother” in Chapter 160. For further discussion on the establishment of maternity, see the assisted reproduction section, below.

18.    Change of Name

The Guthrie[231] case discusses the presumptions and burdens related to changing a child’s name:

A father has no constitutional right to have his children bear his last name.[232] The only protectable interest a father has in a child’s name recognized by Texas courts is when the mother attempts to change the child’s surname from the father’s.[233]

The standards for changing the name of a minor are controlled by the Texas Family Code. The Family Code provides that the court may order the name of a child changed if the change is in the best interest of the child. The general rule is that courts will exercise the power to change a child’s name reluctantly and only when the substantial welfare of the child requires it.[234] A parent’s interest and desire is only a secondary consideration.[235]

Texas has no statute giving the right to name a child to either parent. However, the name chosen by one of the parents will not be changed unless the dissident parent shows a good reason for such change.[236]

A custom of carrying a father’s surname within the marital relationship has not always been the situation in western societies. And there is no such custom when it comes to adopting a surname for a child born out of wedlock. Those children usually received their mother’s surname. Additionally, there is no Texas statutory requirement that a child receive his or her father’s surname under any circumstance of birth. Further, in Texas any custom or tradition of a child receiving a father’s surname does not override the best interest of the child. Finally, under the Texas Equal Rights Amendment, we must not give preference to one parent’s name over another on the basis of whether the parent is the father or the mother. Texas emphasizes an equality between parents. When parental equality is the law, arguing that the child of unmarried persons should bear the surname of the father because of custom is another way of permitting illegal inequality. Thus, the right of the mother to have the child bear her surname must be recognized as equal to that of the father.

Therefore, we consider the factors that address the best interest of the child, not the needs of a particular parent, or customs or traditions that reflect a constitutionally prohibited inequality. Factors that have been considered proper in a best interest test are:

  • whether the changed name or the present name would best avoid embarrassment, inconvenience, or confusion for the custodial parent or the child;
  • whether it would be more convenient or easier for the child to have the same name as or a different name from the custodial parent, either the changed name or the present name;
  • whether the changed name or the present name would help identify the child as part of a family unit; the length of time the surname has been used;
  • parental misconduct, such as support or nonsupport or maintaining or failing to maintain contact with the child;
  • the degree of community respect associated with the present or changed name;
  • whether the change will positively or adversely affect the bond between the child and either parent or the parents’ families;
  • any delay in requesting or objecting to name change;
  • the preferences of the child;
  • the age and maturity of the child;
  • when the child maintains the mother’s surname, assurances by the mother that she would not change her name if she married or remarried; and
  • whether the parent seeking the change is motivated by an attempt to alienate the child from the other parent.

Thus, the determination of the child’s best interest in a name change is fact specific.

The H.S.B.[237] case also provides an updated discussion on these issues:

The use of a single surname is a well-entrenched custom in the United States, emanating from Anglo-Saxon patriarchal traditions. This custom is perhaps incapable of being gender-neutral for a child born out of wedlock, regardless of whether the paternal or maternal surname is selected for the child. For example, the father argued in the trial court that it is tradition in this country for a child to take his or her father’s surname. This custom developed from various patriarchal notions, including that a man was the head of a family, a woman had no legal rights separate from that of her husband’s, and only legitimate children with their father’s surname could inherit property. The mother testified that it is more traditional for a child born out of wedlock to take the surname of the custodial parent. This custom developed from the view of a woman as the “natural guardian” of a child; yet it was not the result of a right or privilege extended to women, but instead was incidental to the societally imposed duty on her to care for the child. The rationales for both of these naming traditions have been eradicated under modern law:  our society values gender equality, especially in family law disputes when the welfare of a child is concerned. If we were to recognize either tradition as controlling, we would be sanctioning a gender bias in the naming of children. This we cannot do.

But by the very nature of our legal system, we must place a burden of persuasion on parties seeking to do some action. Such a system inherently favors custom and tradition when a parent seeks to change the name of a child because parents often follow custom and tradition when choosing the original surname—most children born out of wedlock receive the mother’s surname, and most children born during marriage receive the father’s surname. In Texas, courts have held that a child’s name should not be changed unless the party seeking the change shows that the original name is detrimental to the child.

Neither the Texas Supreme Court nor this court has identified what factors should be considered when determining if a name change is in a child’s best interest. But appellate courts in Texas and other jurisdictions have identified many such nonexclusive factors. We synthesize the following factors as most relevant in the majority of cases:

  • the name that would best avoid anxiety, embarrassment, inconvenience, confusion, or disruption for the child, which may include consideration of parental misconduct and the degree of community respect (or disrespect) associated with the name,
  • the name that would best help the child’s associational identity within a family unit, which may include whether a change in name would positively or negatively affect the bond between the child and either parent or the parents’ families,
  • assurances by the parent whose surname the child will bear that the parent will not change his or her surname at a later time,
  • the length of time the child has used one surname and the level of identity the child has with the surname,
  • the child’s preference, along with the age and maturity of the child, and
  • whether either parent is motivated by concerns other than the child’s best interest—for example, an attempt to alienate the child from the other parent.

The relative importance of these factors, and other possible factors, will depend on the unique facts and circumstances of each case. We draw guidance on these factors primarily from the Dallas Court’s opinion in In re Guthrie. However, we specifically reject three factors previously enunciated by other courts of appeals. First, in In re Guthrie, the court determined that the embarrassment or inconvenience of the custodial parent was a factor, and in In re M.C.F., the Fort Worth Court considered the “embarrassment, inconvenience, or confusion for the custodial parent” without considering the potential feelings of the child. We find such considerations have no bearing on whether a name change is in the child’s best interest, and they inappropriately shift the inquiry to the parents’ interests.

We also abandon both the factor regarding the delay in requesting or objecting to a name change and the factor that considers a parent’s financial support. These factors have no implications for the best interest of a child. They serve to reward or punish parents for their conduct unrelated to the name change. Although it is surely in a child’s best interest to have involved parents and to receive financial support, our focus is whether a name change is in the child’s best interest. Consideration of a parent’s financial support is generally irrelevant to whether a name change is in the child’s best interest; it merely gives a noncustodial parent an increased naming right in exchange for something that the parent is already required to do. We concur with those courts and commentators that find no significant relationship between support payments and the surname of a child. Further, a child’s best interest may actually be disserved by a policy that considers a child’s name to be the quid pro quo for accepting legal responsibility.

Although we adopt the view that tradition or custom alone may not override the best interest of a child, we cannot ignore the reality that tradition and custom are often implicitly considered through some of the factors used to determine a child’s best interest. For example, tradition and custom may help determine which name would best avoid anxiety, embarrassment, or confusion for the child. Another example is the tradition of associating a child with the level of community respect or disrespect affiliated with a parent’s surname. Although the practice of “corruption of blood” is unconstitutional, the community-respect factor recognizes that society often blames children for the conduct of their parents. Because a best interest determination is a fact-specific inquiry that requires courts to consider all relevant circumstances, evidence of tradition and custom should not be categorically excluded if it would aid a court in determining a child’s best interest.

19.    Termination and Adoption

A.      Termination

The Texas Supreme Court clarified that the facts in an involuntary parent-child termination proceeding must be proved by the clear and convincing evidence standard, rather than the previously-used preponderance of the evidence standard:[238]

The Supreme Court of the United States and this Court have recognized that involuntary termination of parental rights involves fundamental constitutional rights. The Supreme Court stated:

The Court has frequently emphasized the importance of the family. The rights to conceive and to raise one’s children have been deemed “essential,” “basic civil rights of man,” and “rights far more precious than property rights.” It is cardinal with us that the custody, care and nurture of the child reside first in the parents, whose primary function and freedom include preparation for obligations the state can neither supply nor hinder. The integrity of the family unit has found protection in the Due Process Clause of the Fourteenth Amendment, the Equal Protection Clause of the Fourteenth Amendment, and the Ninth Amendment.[239]

The natural right between parents and their children is one of constitutional dimensions. The termination of this right is complete, final, and irrevocable. It divests forever the parent and child of all legal rights, privileges, duties, and powers between each other except for the child’s right to inherit. For these reasons the proceedings below must be strictly scrutinized.

In State v. Addington,[240] this Court recognized the clear and convincing standard of proof. We defined clear and convincing as “that measure or degree of proof which will produce in the mind of the trier of fact a firm belief or conviction as to the truth of the allegations sought to be established.” This is an intermediate standard, falling between the preponderance standard of ordinary civil proceedings and the reasonable doubt standard of criminal proceedings. Although the Addington case applies only to state proceedings to commit an individual for an indefinite time to a state mental hospital, there are compelling reasons to apply the clear and convincing standard to involuntary termination of a parent-child relationship.

The right to enjoy a natural family unit is no less important than the right to liberty which requires at least a clear and convincing standard of proof to inhibit such liberty through involuntary and indefinite confinement in a mental institution. Termination is a drastic remedy and is of such weight and gravity that due process requires the state to justify termination of the parent-child relationship by proof more substantial than a preponderance of the evidence. Hereafter, the “clear and convincing evidence” standard of proof will be required in all proceedings for involuntary termination of the parent-child relationship.

Termination proceedings must be strictly scrutinized, and involuntary termination statutes are strictly construed in favor of the parent.[241]

Affidavit of Voluntary Relinquishment

The B.B.F.[242] case held that an affidavit that contains a waiver of service is not void if it is executed prior to the filing of the suit:

Generally, a waiver of the issuance and service of process is proper only if executed after suit is brought. The Texas Family Code provides that a court may grant a petition requesting termination of the parent-child relationship if the parent has executed before or after the suit is filed an unrevoked or irrevocable affidavit of relinquishment of parental rights as provided by the code. The Family Code explicitly provides that an affidavit may include a waiver of process in a suit to terminate the parent-child relationship. Since execution of an affidavit of relinquishment of parental rights is a proper basis for terminating those rights in a subsequent suit to terminate the parent-child relationship, and a waiver of process may be included in the affidavit, it is clear that a waiver of citation may be signed prior to the filing of suit. Thus, the Family Code provides an exception to the general rule that a waiver of citation is proper only if executed after suit is brought. There is a sound reason for this exception. After executing an unrevoked or irrevocable affidavit of relinquishment of parental rights, a natural parent is no longer an interested party in a suit to terminate the parent-child relationship. Consequently, neither due process nor logic require that a person who has voluntarily relinquished parental rights and waived service of citation be given notice of a subsequent suit to terminate the parent-child relationship.

Further, an affidavit is not defective because it did not affirmatively show the credibility of the attesting witnesses.

Right to Appointed Counsel

Tex. Fam. Code § 107.013 creates a statuory right to counsel for indigent persons in parental-rights termination cases filed by a governmental entity. In the M.S. case, the Texas Supreme Court discussed the right to effective counsel in termination cases:

The Texas Supreme Court held that the statutory right to counsel embodies the right to effective counse—it would seem a useless gesture on the one hand to recognize the importance of counsel in termination proceedings, as evidenced by the statutory right to appointed counsel, and, on the other hand, not require that counsel perform effectively. [243] The appropriate standard for determining whether counsel is effective is the same as the standard applied in criminal cases.[244]

The statute does not include the requirement that an indigent parent affirmatively request appointment of counsel when it appears that the parent opposes the termination suit.[245] Further, there are no magic words to be “in opposition” to a suit for termination.[246]

The Family Code requires the appointment of an attorney for indigent parents only “[i]n a suit filed by a governmental entity under Subtitle E….”[247] There is no right to have an appointed attorney in a private termination suit. [248] Specifically, no statutory right exists to appointed counsel in a private termination suit. The legislature has mandated the appointment of counsel for indigent parents in a termination suit only “in a suit filed by a governmental entity in which termination of the parent-child relationship is sought.” When a parent’s parental rights are terminated pursuant to a private termination suit, the parent possesses no mandatory statutory right to appointed counsel.

Citation by Publication and Failure of Notice

In the E.R.[249] case, the Texas Supreme Court discusses the effect of ineffective service in challenging a termination:

A diligent search must include inquiries that someone who really wants to find the defendant would make, and diligence is measured not by the quantity of the search but by its quality. If it is both possible and practicable to more adequately warn a parent of the impending termination of her parental rights, notice by publication is constitutionally inadequate. A complete failure of service deprives a litigant of due process and a trial court of personal jurisdiction; the resulting judgment is void and may be challenged at any time. Accordingly, the statute cannot place a temporal limit on a challenge to a void judgment filed by a defendant who did not receive the type of notice to which she was constitutionally entitled. Despite the Legislature’s intent to expedite termination proceedings, it cannot do so at the expense of a parent’s constitutional right to notice.

B.      Indian Child Welfare Act

The Indian Child Welfare Act is a federal law that applies to certain child custody proceedings relating to an Indian child. “Indian child” means a minor who is either a member of an Indian tribe or who is eligible for membership in an Indian tribe and is the biological child of a member of an Indian tribe.[250] The ICWA was passed in response to an alarmingly high percentage of Indian families who were broken up by the removal, often unwarranted, of their children from them by non-tribal public and private agencies and the alarmingly high percentage of such children who were being placed in non-Indian foster and adoptive homes and institutions.[251] Foster care placements, terminations of parental rights, preadoptive placements, and adoptive placements must comply with ICWA requirements.[252]

The stated policy underlying the ICWA is as follows:

The Congress hereby declares that it is the policy of this Nation to protect the best interests of Indian children and to promote the stability and security of Indian tribes and families by the establishment of minimum Federal standards for the removal of Indian children from their families and the placement of such children in foster or adoptive homes which will reflect the unique values of Indian culture, and by providing for assistance to Indian tribes in the operation of child and family service programs.[253]

The Yavapi-Apache[254] case gives a detailed description of the history of the ICWA and its application:  The best interests of an Indian child should be evaluated under an Indian framework, not the Anglo-influenced best-interest standard that created the need for the Act in the first place. Authorities have written that the phrase “best interests of Indian children” in the context of the ICWA is different than the general Anglo-American “best interest of the child” standard used in cases involving non-Indian children, and it is drastically different than the state test set by the Texas Supreme Court. Under the ICWA, what is best for an Indian child is to maintain ties with the Indian Tribe, culture, and family.

Since the ICWA is a federal law, it preempts state law to the extent of any conflict.[255] However, the ICWA does not completely divest state courts of their jurisdiction over children of Indian descent.[256] The Act creates concurrent jurisdiction in the case of children not domiciled on a reservation; however, there is a presumption in favor of tribal court jurisdiction.[257]

Under the ICWA, the State has a higher burden of proof and parental rights may not be terminated unless there is proof beyond a reasonable doubt.[258] ICWA also sets out minimum requirements with which a state court must comply before terminating parental rights in a case involving an Indian child.[259]

The ICWA can sometimes apply in private proceedings between a parent and a non-parent.[260]

The ICWA is a specialty practice area, and the detailed application of its policies is beyond the scope of this paper.

C.      Adoption

The Green[261] case discusses the factors that courts must weigh in considering an adoption:

The paramount considerations in adoption proceedings are the rights and welfare of the children involved and these statutes are to be liberally construed in favor of the minor to effectuate their beneficial purpose. A court may decree an adoption only when it is satisfied that adoption is in the best interests of the child. To effectuate this provision, the trial court in adoption cases is invested with broad discretionary power in determining the best interests of the children. The trial judge is better situated to weigh all of the surrounding circumstances and arrive at a judgment which in his discretion will best protect the best interests of the child. No right to a jury exists in an adoption hearing.

The Texas Family Code overrides any preference or presumption in favor of placing a child with a family of the same race or ethnicity:

Tex. Fam. Code § 162.308. Race or Ethnicity

(a) The department, a county child-care or welfare unit, or a licensed child-placing agency may not make an adoption placement decision on the presumption that placing a child in a family of the same race or ethnicity as the race or ethnicity of the child is in the best interest of the child.

(b) Unless an independent psychological evaluation specific to a child indicates that placement with a family of a particular race or ethnicity would be detrimental to the child, the department, county child-care or welfare unit, or licensed child-placing agency may not deny, delay, or prohibit the adoption of a child because the department, county, or agency is attempting to locate a family of a particular race or ethnicity.

(c) This section does not prevent or limit the recruitment of minority families as adoptive families, but the recruitment of minority families may not be a reason to delay placement of a child with an available family of a race or ethnicity different from that of the child.

(d) A state or county employee who violates this section is subject to immediate dismissal. A licensed child-placing agency that violates this section is subject to action by the licensing agency as a ground for revocation or suspension of the agency’s license.

(e) A district court, on the application for an injunction or the filing of a petition complaining of a violation of this section by any person residing in the county in which the court has jurisdiction, shall enforce this section by issuing appropriate orders. An action for an injunction is in addition to any other action, proceeding, or remedy authorized by law. An applicant or petitioner who is granted an injunction or given other appropriate relief under this section is entitled to the costs of the suit, including reasonable attorney’s fees.

No reported case has interpreted this current section, but to understand its source, it is helpful to review several older cases.

In 1967, the Gomez[262] case overturned Texas’s adoption statutes as unconstitutional in violation of the Texas Constitution, as well as the due process and equal protection clauses of the United States Constitution. In the Gomez case, a black man who fathered two children out of wedlock with a Mexican woman applied to legitimize the children through an agreed adoption after he married their mother. The children were Mexican, born in Juarez, and were considered to be “of the white race.” At the time, Texas law stated that “No white child can be adopted by a negro person, nor can a negro child be adopted by a white person.” The law was still on the books in Texas even though the U.S. Supreme Court had condemned the “separate but equal” racial doctrine almost fifteen years earlier.[263] The trial court’s findings included:

the minor girls are proper subjects for adoption and the home of petitioner is a suitable home for said minor girls and such home and children are suited to each other, that such adoption is prohibited by Section 8 of Article 46a of the Vernon’s Ann.Revised Civil Statutes of Texas prohibiting the adoption of a white person by a negro person, and thus denied the petition for adoption. The judgment further recites that this prohibition was the sole reason for denying the petition, and but for such prohibition the petition for leave to adopt the children would have been granted.

The El Paso Court of Appeals invalidated the adoption statutes, citing U.S. Supreme Court precedent, which held:

the Equal Protection Clause demands that racial classifications…be subjected to the ‘most rigid scrutiny,’ and, if they are ever to be upheld, they must be shown to be necessary to the accomplishment of some permissible state objective, independent of the racial discrimination which it was the object of the Fourteenth Amendment to eliminate.[264]

This case did not end issues relating to race and adoption in Texas. In April 1995, the Institute for Justice[265] filed suit in Texas challenging race-matching by state agencies–a practice whereby social workers delayed or denied adoptions when a child’s race did not match that of the adoptive parents. The case sought a ruling that racial discrimination in adoptions was unconstitutional. The Texas Department of Protective and Regulatory Services settled the case in 1996 when it agreed to halt race matching and allowed the Institute for Justice to monitor its adoption records for two years to ensure the practice was discontinued. While the litigation was pending, the Texas legislature passed this section of the Family Code, forbidding race-based adoption preferences.

20.    Assisted Reproduction

Chapter 160, Subchapter H, of the Texas Family Code contains specific laws relating to children of assisted reproduction, including artificial insemination, in vitro fertilization, surrogate or gestational parents, and more. At this point, it is possible for as many as five people to be involved in the creation of a child:  an intended mother, an intended father, an egg donor, a sperm donor, and a gestational mother. This can give rise to many legal issues when some or all of these people disagree about his or her role. With new science allowing the mixing of genetic material from three people to create an embryo, these issues will only get more complicated.[266]

Although Texas adopted these provisions almost fifteen years ago, there are few reported decisions interpreting them. Texas has adopted a version of the Uniform Parentage Act, so the NCCUSL comments are helpful.[267]

A.      Maternity

A woman is established as the mother of a child by giving birth to the child, regardless of whether a donor egg was used and she is not genetically related to the child.[268] This presumption is not rebuttable.[269]

There is an exception discussed below that, with a properly-validated gestational agreement, a woman may be the mother to a child regardless of the fact that a gestational mother gave birth to the child.[270]

B.      Paternity

A husband is established as the father of a child if he consented to assisted reproduction with his wife:

Tex. Fam. Code § 160.703. Husband’s Paternity of Child of Assisted Reproduction

If a husband provides sperm for or consents to assisted reproduction by his wife as provided by Section 160.704, he is the father of a resulting child.

See also Tex. Fam. Code § 160.201(b)(5).

If the husband wishes to dispute his paternity, there are limitations:

Tex. Fam. Code § 160.705. Limitation on Husband’s Dispute of Paternity

(a) Except as otherwise provided by Subsection (b), the husband of a wife who gives birth to a child by means of assisted reproduction may not challenge his paternity of the child unless:

(1) before the fourth anniversary of the date of learning of the birth of the child he commences a proceeding to adjudicate his paternity; and

(2) the court finds that he did not consent to the assisted reproduction before or after the birth of the child.

(b) A proceeding to adjudicate paternity may be maintained at any time if the court determines that:

(1) the husband did not provide sperm for or, before or after the birth of the child, consent to assisted reproduction by his wife;

(2) the husband and the mother of the child have not cohabited since the probable time of assisted reproduction; and

(3) the husband never openly treated the child as his own.

(c) The limitations provided by this section apply to a marriage declared invalid after assisted reproduction.

An unmarried man is established as the father of a child if:

Tex. Fam. Code § 160.7031. Unmarried Man’s Paternity of Child of Assisted Reproduction

(a) If an unmarried man, with the intent to be the father of a resulting child, provides sperm to a licensed physician and consents to the use of that sperm for assisted reproduction by an unmarried woman, he is the father of a resulting child.

(b) Consent by an unmarried man who intends to be the father of a resulting child in accordance with this section must be in a record signed by the man and the unmarried woman and kept by a licensed physician.

C.      Donors

Tex. Fam. Code § 160.702 states that “a donor is not a parent of a child conceived by means of assisted reproduction.” Therefore, a donor can neither sue to establish parental rights, nor be sued and required to support the child.[271] However, several hotly-contested cases have focused on whether an unmarried man who provided sperm for assisted reproduction was merely a “donor” or whether he was an intended father.

The Sullivan[272] case held that a donor had standing to file a suit, as a man whose paternity is to be adjudicated:

Based on the language of the statute, the object sought to be obtained, the circumstances under which the statute was enacted, the legislative history, former statutory provisions, including laws on the same or similar subjects, and the consequences of the different constructions, we conclude that, at a minimum, section 160.602(3) confers standing on a man alleging himself to be the biological father of the child in question and seeking an adjudication that he is the father of that child. We further conclude that under the statute, as drafted, the issue of the man’s status as a donor under section 160.702 is to be decided at the merits stage of the litigation rather than as part of the threshold issue of standing. It is undisputed that [the man] alleges himself to be [the child’s] biological father and that he has filed a parentage proceeding seeking an adjudication that he is [the child’s] father. Based on our interpretation of the relevant statutes and the undisputed facts germane to the issue of [the man’s] standing, we conclude that, as a matter of law, [the man] has standing to maintain a proceeding to adjudicate his parentage of [the child].

However, the H.C.S.[273] case declined to follow Sullivan and held that a donor has no standing to file a parentage suit:

While we acknowledge the scholarly research reflected in the Sullivan opinion, we respectfully disagree with the court’s conclusion that status as a donor is irrelevant to the question of standing to establish parentage. We likewise do not agree that donor status is more appropriately addressed at the merits stage of the litigation. To the contrary, based on the plain language of the Family Code as set forth below, we conclude that [the man], as an unmarried man who provided sperm used for assisted reproduction and who did not sign and file an acknowledgment of paternity, does not have standing to pursue a suit to determine paternity of the child born through the assisted reproduction.

Interestingly, that court seems to leave open the issue of whether a donor could qualify for standing by filing an acknowledgment of paternity.

D.      Surrogates and Gestational Agreements

Chapter 160, Subchapter I, of the Texas Family Code sets out specific procedures for making and validating gestational agreements. This subchapter is largely beyond the scope of this paper, which focuses on burdens and presumptions. However, the following provisions are of note. Intended parents must be married to each other.[274] The gestational mother’s eggs may not be used in the assisted reproduction procedure.[275] A gestational agreement must be validated by a court pursuant to the procedures of Subchapter I.[276] If everything goes according to the procedures in Subchapter I, the court shall render an order confirming that the intended parents are the child’s parents, requiring the gestational mother to surrender the child to them, and causing a birth certificate to be issued that names the intended parents.

E.      Award of Embryos upon Divorce

If a marriage is dissolved before the placement of eggs, sperm, or embryos, the former spouse is not a parent of the resulting child unless the former spouse consented in a record that if assisted reproduction were to occur after a divorce the former spouse would be a parent of the child.[277] The consent of the former spouse may be withdrawn at any time before the placement of eggs, sperm, or embryos.[278]

In overturning a divorce decree awarding frozen embryos to the wife and upholding the parties’ embryo agreement, the Roman[279] case discussed Texas law relating to embryos existing upon divorce:

Noticeably absent from the Family Code is any legislative directive on how to determine the disposition of the embryos in case of a contingency such as death or divorce. Nor is there anything in the case law that is incompatible with the recognition of the parties’ agreement as controlling.

The public policy of this State would permit a husband and wife to enter voluntarily into an agreement, before implantation, that would provide for an embryo’s disposition in the event of a contingency, such as divorce, death, or changed circumstances. Advance directives, subject to mutual change of mind that must be jointly expressed, both minimize misunderstandings and maximize procreative liberty by reserving to the progenitors the authority to make what is in the first instance a quintessentially personal, private decision. These agreements should thus be presumed valid and should be enforced as between the progenitors.

We believe that allowing the parties voluntarily to decide the disposition of frozen embryos in advance of cryopreservation, subject to mutual change of mind, jointly expressed, best serves the existing public policy of this State and the interests of the parties. We hold, therefore, that an embryo agreement that satisfies these criteria does not violate the public policy of the State of Texas.

 

 

[1] Tex. Fam. Code § 153.002; In re V.L.K., 24 S.W.3d 338, 342 (Tex. 2000).

[2] Holley v. Adams, 544 S.W.2d 367, 371-72 (Tex. 1976).

[3] Sanchez v. Sanchez, No. 04-06-00469-CV (Tex.App.—San Antonio Jul. 3, 2007) (memo. op.).

[4] Addington v. Texas, 441 U.S. 418, 423-24, 427 (1979).

[5] Id.

[6] Id.

[7] Id.

[8] Erwin v. Erwin, 505 S.W.2d 370, 372 (Tex.Civ.App.—Houston (14th Dist.) 1974, no writ); Liska v. Hall, 357 S.W.2d 601, 602 (Tex.Civ.App.-Dallas 1962, no writ).

[9] Tex. Const. art. I, § 3a.

[10] In re McLean, 725 S.W.2d 696 (Tex.1989).

[11] In re M.S.F., 383 S.W.3d 712, 717 (Tex.App.-Amarillo 2012, no pet.) (Mother argued that the evidence of material and substantial change of circumstances impermissibly focused on her marital status and religious beliefs).

[12] Holley v. Adams, 544 S.W.2d 367, 371-72 (Tex. 1976).

[13] See, e.g., In re Q.D.T., Jr., No. 14-09-00696-CV (Tex.App.—Houston [14th Dist.] Nov. 4, 2010) (memo. op.); Koenig v. Koenig, No. 09-09-00479-CV (Tex.App.—Beaumont Sept. 9, 2010) (memo. op.).

[14] In re V.L.K., 24 S.W.3d 338, 339 (Tex.2000).

[15] See In re C.M.C., 273 S.W.3d 862, 881 (Tex.App.-Houston [14th Dist.] 2008, no pet.) (op. on reh’g); In re S.C.L., 175 S.W.3d 555, 559 (Tex.App.-Dallas 2005, no pet.). See generally Lehr, 463 U.S. at 262, 103 S.Ct. 2985 (opining that if an unwed father fails to develop an actual parent-child relationship, “the Federal Constitution will not automatically compel a state to listen to his opinion of where the child’s best interests lie”).

[16] In re Rodriguez, 940 S.W.2d 265, 271 (Tex. App.-San Antonio 1997, writ denied), citing General Motors Corp. v. Saenz, 873 S.W.2d 353, 359 (Tex.1993).

[17] General Motors Corp., 873 S.W.2d at 359.

[18] Id.

[19] Tex. Fam. Code § 153.131(a); see also Brook v. Brook, 881 S.W.2d 297, 298 (Tex.1994).

[20] Tex. Fam. Code § 153.373.

[21] In re V.L.K., 24 S.W.3d 338, 343 (Tex.2000).

[22] See, e.g., Lide v. Lide, 116 S.W.3d 147, 152 (Tex.App.-El Paso 2003, no pet.).

[23] See, e.g., Robinson v. Robinson, 16 S.W.3d 451 (Tex. App.—Waco 2000, no pet.); Lide v. Lide, 116 S.W.3d 147, 155 (Tex.App.-El Paso 2003, no pet.).

[24] In re Walters, 39 S.W.3d 280, 286-87 (Tex.App.-Texarkana 2001, no pet.).

[25] In re S.C.L., 175 S.W.3d 555, 559 (Tex.App.-Dallas 2005, no pet.).

[26] London v. London, 94 S.W.3d 139, 150 (Tex.App.-Houston [14th Dist.] 2002, pet. denied).

[27] Albrecht v. Albrecht, 974 S.W.2d 262, 265 (Tex.App.-San Antonio 1998, no pet.).

[28] See, e.g., Ray v. Burns, 832 S.W.2d 431 (Tex. App.—Waco 1992, no writ).

[29] See Tex. Fam. Code § 151.001(a).

[30] See, e.g., Garza v. Garza, 217 S.W.3d 538, 553-54 (Tex.App.-San Antonio 2006, no pet.).

[31] In re A.S., 298 S.W.3d 834, 836 (Tex.App.-Amarillo 2009, no pet.).

[32] Lueg v. Lueg, 976 S.W.2d 308, 313 (Tex.App.-Corpus Christi 1998, pet. denied).

[33] See In re M.A.M., No. 05-09-00396-CV (Tex.App.—Dallas Apr. 15, 2011) (memo. op.).

[34] Lenz v. Lenz, 79 S.W.3d 10 (Tex. 2002).

[35] Bates v. Tesar, 81 S.W.3d 411, 424 (Tex.App.-El Paso 2002, no pet.).

[36] Bates v. Tesar, 81 S.W.3d 411, 440 (Tex.App.-El Paso 2002, no pet.).

[37] See Lenz v. Lenz, 79 S.W.3d 10, 12 (Tex. 2002).

[38] Saenz v. Roe, 526 U.S. 489, 490 (1999).

[39] See Lenz v. Lenz, 40 S.W.3d 111, 118 n.3 (Tex.App.—San Antonio 2000) (aff’d 79 S.W.3d 10 (Tex. 2002)); Morgan v. Morgan, 254 S.W.3d 485, 490-92 (Tex.App.-Beaumont 2008, no pet.).

[40] See Bates v. Tesar, 81 S.W.3d 411, 438 (Tex.App.-El Paso 2002, no pet.).

[41] Niskar v. Niskar, 136 S.W.3d 749, 756 (Tex.App.-Dallas 2004, no pet.).

[42] In re C.R.T., 61 S.W.3d at 65 (citing Gillespie v. Gillespie, 644 S.W.2d 449, 451 (Tex.1982)).

[43] See Gray v. Gray, 971 S.W.2d 212, 216 n. 2 (Tex.App.-Beaumont 1998, no pet.) (citing In Interest of Doe, 917 S.W.2d 139 (Tex.App.-Amarillo 1996, pet. denied)).

[44] In re J.R.D., 169 S.W.3d 740 (Tex. App.—Austin 2005, pet. denied).

[45] In re C.A.P., Jr., 233 S.W.3d 896, 901-02 (Tex.App.-Fort Worth 2007, no. pet.).

[46] Pickens v. Pickens, No. 12-13-00235-CV (Tex.App.—Tyler Feb. 28, 2014) (memo. op.).

[47] Richard A. Warshak, Social Science and Parenting Plans for Young Children:  A Consensus Report, 20 Psychology, Public Policy, and Law 46 (2014).

[48] See Coleman v. Coleman, 109 S.W.3d 108, 113 (Tex. App.-Austin 2003, no pet.) (citing 11 cases as comprising a long line of Texas jurisprudence requiring clear and compelling reasons).

[49] See In re C.S., No. 09-06-211-CV (Tex.App.—Beaumont Mar. 8, 2007) (memo. op.); MacDonald v. MacDonald, 821 S.W.2d 458 (Tex.Civ.App.—Houston [14th Dist.] 1992, no writ) (not favored, but clear and convincing evidence not required).

[50] In re De La Pena, 999 S.W.2d 521, 535 (Tex.App.-El Paso 1999, no pet.).

[51] Gardner v. Gardner, 229 SW3d 747, 754 (Tex.App.-San Antonio 2007, no pet.).

[52] Coleman v. Coleman, 109 S.W.3d 108, 113 (Tex.App.-Austin 2003, no pet.).

[53] In re B.A.L., No. 07-11-00109-CV (Tex.App.—Amarillo Feb. 27, 2012) (memo. op.).

[54] Rodriguez v. Rodriguez, 860 S.W.2d 414, 417 (Tex.1993).

[55] Nordstrom v. Nordstrom, 965 S.W.2d 575, 579, 581 (Tex.App.—Houston [1st Dist.] 1997, pet. denied).

[56] Nordstrom v. Nordstrom, 965 S.W.2d 575, 581 (Tex.App.—Houston [1st Dist.] 1997, pet. denied).

[57] Rodriguez v. Rodriguez, 860 S.W.2d 414, 417 n.3 (Tex.1993).

[58] McCain v. McCain, 980 S.W.2d 800, 801-02 (Tex.App.-Fort Worth 1998, no pet.).

[59] In re Sanders, 159 S.W.3d 797, 801 (Tex.App.-Amarillo

2005, no pet.).

[60] See Norris v. Norris, 56 S.W.3d 333, 341-42 (Tex.App.-El Paso 2001, no pet.) (support based upon average amount of monthly net resources for two-year period); see also In re Sanders, 159 S.W.3d 797, 801 (Tex.App.-Amarillo 2005, no pet.) (upholding trial court’s averaging of obligor’s income for ten-year period in determining retroactive monthly support).

[61]  In re J.C.K., 143 S.W.3d 131, 137 (Tex.App.-Waco 2004, no pet.).

[62] Starck v. Nelson, 878 S.W.2d 302, 306 (Tex.App.—Corpus Christi 1994, no writ).

[63] Neal v. Neal, No. 12-11-00162-CV (Tex.App.—Tyler Jun. 13, 2012) (memo. op.).

[64] Tenery v. Tenery, 932 S.W.2d 29, 30 (Tex.1996).

[65] Yarbrough v. Yarbrough, 151 S.W.3d 687, 692 (Tex.App.-Waco 2004, no pet.); see also Abalos v. Abalos, No. 11-11-00330-CV (Tex.App.—Eastland Nov. 21, 2013) (memo. op.).

[66] In re D.S., 76 SW3d 512, 522 (Tex.App.-Houston [14th Dist.] 2002, no pet.); In re S.B.C., 952 SW2d 15, 19 (Tex. App.-San Antonio 1997, no writ).

[67] DuBois v. DuBois, 956 S.W.2d 607, 610 (Tex.App.-Tyler 1997, no writ).

[68] DuBois v. DuBois, 956 S.W.2d 607, 610 (Tex.App.-Tyler 1997, no writ).

[69] See Starck v. Nelson, 878 S.W.2d 302, 307 n. 10 (Tex.App.—Corpus Christi 1994, no writ); Woodall v. Woodall, 837 S.W.2d 856, 858 (Tex.App.—Houston [14th Dist.] 1992, no writ); Casterline v. Burden, 560 S.W.2d 499, 501 (Tex.Civ.App.—Dallas 1977, no writ); McSween v. McSween, 472 S.W.2d 307, 310 (Tex.Civ.App.—San Antonio 1971, no writ).

[70] Iliff v. Iliff, 339 S.W.3d 74, 80 (Tex. 2011).

[71] Id.

[72] Id. at 81.

[73] Id. at 82.

[74] In re Valadez, 980 S.W.2d 910, 913 (Tex.App.-Corpus Christi 1998, no pet.).

[75] In the Interest of Benjamin I. Valadez, 980 S.W.2d 910, 913 (Tex. App.-Corpus Christi 1998, pet. denied); In the Interest of S.E.W., 960 S.W.2d 954, 955 (Tex.App.-Texarkana 1998, no pet.).

[76] Garza v. Blanton, 55 S.W.3d 708, 710 (Tex.App.-Corpus Christi 2001, no pet.).

[77] In re Sanders, 159 S.W.3d 797, 802 (Tex.App.-Amarillo

2005, no pet.).

[78] Garza v. Blanton, 55 S.W.3d 708, 710 (Tex.App.-Corpus Christi 2001, no pet.).

[79] In re B.R.G., 48 S.W.3d 812, 819 (Tex.App.-El Paso 2001, no pet.).

[80] Garza v. Blanton, 55 S.W.3d 708, 711 (Tex.App.-Corpus Christi 2001, no pet.).

[81] In re M.W.T., 12 S.W.3d 598, 603 (Tex.App.-San Antonio 2000, pet. denied).

[82] Id. at 604.

[83] Id.

[84] In re J.H., 961 S.W.2d 550, 552 (Tex.App.—San Antonio 1997, no writ).

[85] Gomez v. Perez, 409 U.S. 535 (1973).

[86] Melton v. Toomey, 350 S.W.3d 235, 239 (Tex.App.-San Antonio 2011, no pet.).

[87]  In re H.J.W., 302 S.W.3d 511, 514-15 (Tex.App.-Dallas 2009, no pet.).

[88] Tex. Fam. Code § 154.302(a)(2).

[89] Craddock v. Sunshine Bus Lines, Inc., 134 Tex. 388, 393, 133 S.W.2d 124, 126 (1939).

[90] Lowe v. Lowe, 971 S.W.2d 720, 725-26 (Tex.App.-Houston [14th Dist.] 1998, pet. denied) (“Craddock does not inquire into the child’s interests and leaves no maneuvering room for a judge to consider the child’s interests.”). See also Comanche Nation v. Fox, 128 S.W.3d 745, 749-50 (Tex.App.-Austin 2004, no pet.) (“Craddock does not fit well into the context of a consideration of the best interests of the child.”).

[91] Martinez v. Martinez, 157 S.W.3d 467, 472 (Tex. App.-Houston [14th Dist.] 2004, no pet.)

[92] See also Lowe, 971 S.W.2d at 725.

[93] Tex. Fam. Code § 153.002; Lowe, 971 S.W.2d at 725.

[94] Tex. Fam. Code § 153.002; Lowe, 971 S.W.2d at 726.

[95] Martinez v. Martinez, 157 S.W.3d 467, 469-70 (Tex. App.-Houston [14th Dist.] 2004, no pet.); see also Comanche Nation, 128 S.W.3d at 750; Sexton v. Sexton, 737 S.W.2d 131, 133 (Tex.App.-San Antonio 1987, no writ); Little v. Little, 705 S.W.2d 153, 154 (Tex.App.-Dallas 1985, writ dism’d); C. v. C., 534 S.W.2d 359, 361 (Tex.App.-Dallas 1976, writ dism’d).

[96] See Davis v. Fair, 707 S.W.2d 711 (Tex.App.—Eastland 1986, no writ).

[97] In re S.L.M., 293 S.W.3d 374, 375 (Tex. App.-Dallas 2009, no pet.).

[98] Id.

[99] In Interest of J.G.Z., 963 S.W.2d 144, 150 (Tex. App.-Texarkana 1998, no pet.).

[100] See, e.g., IRS Publication 501, Exemptions, Standard Deduction, and Filing Information, available at: http://www.irs.gov/pub/irs-pdf/p501.pdf

[101] In re Scheller, 325 S.W.3d 640, 644 (Tex.2010) (orig. proceeding).

[102] McCreary County, Ky. v. Am. Civil Liberties Union of Ky., 545 U.S. 844, 860 (2005).

[103] Marriage of Knighton, 685 S.W.2d 719 (Tex. App.—Amarillo 1984, no writ) and again 723 S.W.2d 274 (Tex.App.—Amarillo 1987, no writ) (edited for space and clarity).

[104] Frantzen v. Frantzen, 349 S.W.2d 765, 767-68 (Tex.Civ.App.—San Antonio 1961, no writ).

[105] Salvaggio v. Barnett, 248 S.W.2d 244, 247 (Tex.Civ.App.—Galveston 1952, writ ref’d n.r.e.), cert. denied, 344 U.S. 879, 73 S.Ct. 176, 97 L.Ed. 681 (1952).

[106] Matter of Marriage of Knighton, 685 S.W.2d at 722.

[107] Reynolds v. Rayborn, 116 S.W.2d 836 (Tex.Civ. App.—Amarillo 1938, no writ).

[108] Rosenstein v. Rosenstein, No. 02-09-00272-CV (Tex.App.—Fort Worth Aug. 11, 2011) (memo. op.) (decree gave Father all Jewish holidays plus almost every Sunday morning).

[109] Roberts v. Roberts, 402 S.W.3d 833, 841-42 (Tex. App.-San Antonio 2013, no pet.).

[110] Alaniz v. Alaniz, 867 S.W.2d 54, 56 (Tex.App.—El Paso

1993, no writ)

[111] Id.

[112] Knighton, 723 S.W.2d at 283.

[113] In re Marriage of Rutland, 729 S.W.2d 923, 931(Tex.App.—Dallas 1987, writ ref’d nre.)

[114] In re Wallen, 343 S.W.3d 931, 932 (Tex. App.—Waco 2011, no pet.).

[115] Grigsby v. Coker, 904 S.W.2d 619 (Tex.1995) (per

curiam) (edited for space and clarity).

[116] Davenport v. Garcia, 834 S.W.2d 4, 9 (Tex.1992).

[117] In re Sanner, No. 01-09-00001-CV (Tex.App.—Houston [1st Dist.] May 20, 2010 (memo. op.).

[118]  In re R.T.H., 175 S.W.3d 519, 521 (Tex. App.-Fort Worth 2005, no pet.); In re Marriage of Stein, 153 S.W.3d 485, 489 (Tex.App.-Amarillo 2004, no pet.).

[119] Burns v. Burns, 116 S.W.3d 916, 920 (Tex.App.-Dallas 2003, no pet.); Coleman v. Coleman, 109 S.W.3d 108, 111 (Tex.App.-Austin 2003, no pet.).

[120] Alexander v. Rogers, 247 S.W.3d 757, 763-64 (Tex. App.-Dallas 2008, no pet.).

[121] In re R.T.H., 175 S.W.3d 519, 521-22 (Tex. App.-Fort Worth 2005, no pet.).

[122] In re S.E.K., 294 S.W.3d 926, 929 (Tex. App.-Dallas 2009, pet. denied).

[123] In re Walters, 39 S.W.3d 280, 286-87 (Tex.App.-Texarkana 2001, no pet.).

[124] Brownlee v. Daniel, No. 06-11-00136-CV (Tex.App.—Texarkana Jul. 25, 2012) (memo. op.) (edited for space and clarity).

[125] Troxel v. Glanville, 530 U.S. 57, 65 (2000).

[126] Id. at 68-69.

[127] Id. at 72-73.

[128] Id. at 73.

[129] Taylor v. Taylor, 254 S.W.3d 527, 536 (Tex.App.-Houston [1st Dist.] 2008, no pet.) (edited for space and clarity).

[130] Taylor v. Taylor, 254 S.W.3d 527, 536 (Tex.App.-Houston [1st Dist.] 2008, no pet.) (edited for space and clarity).

[131] Lewelling v. Lewelling, 796 S.W.2d 164, 167 (Tex. 1990).

[132] In re Rodriguez, 940 S.W.2d 265, 267 (Tex.App.—San Antonio 1997, writ denied).

[133] In re Derzapf, 219 S.W.3d 327, 333 (Tex. 2007).

[134] Id. at 328.

[135] Id. at 333.

[136] See, e.g., Tex. Fam. Code § 153.433(a)(2).

[137] In re Derzapf, 219 S.W.3d 327, 331-32 (Tex. 2007).

[138] In re Russell, 321 S.W.3d 846, 858 (Tex. App.-Fort Worth 2010, orig. proceeding).

[139] Gardner v. Gardner, 229 S.W.3d 747, 752 (Tex.App.-San Antonio 2007, no pet.).

[140] In re De La Pena, 999 S.W.2d 521, 534-35 (Tex.App.-El Paso 1999, no pet.).

[141] In re S.W.H., 72 S.W.3d 772, 777 (Tex.App.-Fort Worth 2002, no pet.).

[142] In re Derzapf, 219 S.W.3d 327, 334-35 (Tex. 2007).

[143] Taylor v. Tex. Dep’t of Protective & Regulatory Servs., 160 S.W.3d 641, 653 (Tex.App.-Austin 2005, pet. denied).

[144] Lewelling v. Lewelling, 796 S.W.2d 164, 167 (Tex.1990) (emph. added and edited for space and clarity).

[145] In re Rodriguez, 940 S.W.2d 265, 271 (Tex. App.-San Antonio 1997, writ denied), citing General Motors Corp. v. Saenz, 873 S.W.2d 353, 359 (Tex.1993).

[146] General Motors Corp., 873 S.W.2d at 359.

[147] Id.

[148] Bhan v. Danet, 402 S.W.3d 668 (Tex.App.—Houston [1st Dist. 2012).

[149] In re V.L.K., 24 S.W.3d 338, 343 (Tex.2000).

[150] See In re A.D.H., 979 S.W.2d 445, 447 (Tex.App.-Beaumont 1998, no pet.); In re Ferguson, 927 S.W.2d at 768-69; Hogge v. Kimbrow, 631 S.W.2d 603, 604 (Tex.App.-Beaumont 1982, no writ); Allen v. Salinas, 483 S.W.2d 289, 292 (Tex. Civ.App.—El Paso 1972, no writ); Simmons v. Hitchcock, 283 S.W.2d 84, 87-88 (Tex.Civ.App.-El Paso 1955, no writ).

[151] Knowles v. Grimes, 437 S.W.2d 816, 817 (Tex.1969).

[152] In re Z.B.P., 109 S.W.3d 772, 779 (Tex.App.-Fort Worth 2003, no pet.).

[153] In re T.W.E., 217 S.W.3d 557, 559 (Tex.App.-San Antonio 2006, no pet.).

[154] Considine v. Considine, 726 S.W.2d 253, 255 (Tex.App.-Austin 1987, no writ).

[155] See Agraz v. Carnley, 143 S.W.3d 547 (Tex.App.-Dallas 2004, no pet.).

[156] In re A.L.E., 279 S.W.3d 424, 429 (Tex.App.-Houston [14th Dist.] 2009, no pet.).

[157] In re A.L.E., 279 S.W.3d 424, 429 (Tex.App.-Houston [14th Dist.] 2009, no pet.).

[158] Tex. Fam. Code § 156.401(a)(1).

[159] Tex. Fam. Code § 156.401(a)(2).

[160] Cameron v. Cameron, 158 S.W.3d 680, 682 (Tex. App.—Dallas 2005, pet. denied).

[161] Id.

[162] Amstadt v. United States Brass Corp., 919 S.W.2d 644, 652 (1996).

[163] Id.

[164] Knowles v. Grimes, 437 S.W.2d 816, 817 (Tex. 1969); In re S.R.O., 143 S.W.3d 237, 245 (Tex. App.-Waco 2004, no pet.).

[165] Bates v. Tesar, 81 S.W.3d 411, 421 (Tex. App.-El Paso 2002, no pet.) (presumption favoring joint managing conservatorship does not apply in modification proceedings).

[166] Id.

[167] Brownlee v. Daniel, No. 06-11-00136-CV (Tex.App.—Texarkana Jul. 25, 2012) (memo. op.).

[168] Chapman v. Harris, 231 S.W.2d 549, 550 (Tex.Civ.App.-Texarkana 1950, no writ).

[169] Gunther v. Gunther, 478 S.W.2d 821, 829 (Tex.Civ.App.-Houston [14th Dist.] 1972, writ ref’d nre); Wilson v. Elliott, 96 Tex. 472, 73 S.W. 946, 947 (1903); Pennington v. Pennington, 195 S.W.2d 677 (Tex.Civ. App.—Texarkana 1946, no writ).

[170] Barr v. Resolution Trust Corp., 837 S.W.2d 627, 628 (Tex.1992) (edited for space and clarity).

[171] In re T.S.S., 61 S.W.3d 481, 485 (Tex.App.-San Antonio 2001, pet. denied).

[172] Tex. Fam. Code § 157.007(a).

[173] Tex. Fam. Code § 157.008(c).

[174] Tex. Fam. Code § 157.008(a).

[175] In re A.M., 192 S.W.3d 570, 575 (Tex. 2006).

[176] See, e.g., Curtis v. Curtis, 11 S.W.3d 466, 472-74 (Tex.App. — Tyler 2000, no pet.); Buzbee v. Buzbee, 870 S.W.2d 335, 339-41 (Tex.App. — Waco 1994, no writ).

[177] Link v. Alvarado, 929 S.W.2d 674, 676 (Tex.App.-San

Antonio 1996, writ dism’d woj.).

[178] In re G.L.A., 195 S.W.3d 787, 793 (Tex.App.-Beaumont 2006, pet. denied).

[179] Id.

[180] Glass v. Williamson, 137 S.W.3d 114, 119-20 (Tex.App.-Houston [1st Dist.] 2004, no pet.)

[181] Office of the Att’y Gen. v. Buhrle, 210 S.W.3d 714, 719 (Tex. App.-Corpus Christi 2006, pet. denied).

[182] In re Dean, 393 S.W.3d 741, 743 (Tex. 2012) (edited for space and clarity).

[183] Id.

[184] In re Sigmar, 270 S.W.3d 289 (Tex.App.-Waco 2008, orig. proceeding).

[185] Id.

[186] Id.

[187] In re A.V.P.G., 251 S.W.3d 117 (Tex.App.-Corpus Christi 2008, no pet.).

[188] Chacon v. Chacon, 978 S.W.2d 633, 637-38 (Tex. App.-El Paso 1998, no pet.).

[189] Tex. Fam. Code § 107.0514(c).

[190] See, e.g., Halleman v. Halleman, 379 S.W.3d 443, 450 (Tex.App.-Fort Worth 2012, no pet.).

[191] In re Scheller, 325 S.W.3d 640 (Tex.2010) (orig. proceeding) (edited for space and clarity).

[192] Tex.R. Civ. P. 204.4(a).

[193] Tex. Fam. Code § 153.010(a)(1).

[194] Tex. Fam. Code § 107.011.

[195] Tex. Fam. Code § 107.012.

[196] Tex. Fam. Code § 107.0125.

[197] Tex. Fam. Code § 107.013.

[198] Tex. Fam. Code § 107.013(e).

[199] Tex. Fam. Code § 107.021.

[200] Tex. Fam. Code § 107.031.

[201] Tex. Fam. Code §§ 153.605(a) and 153.6051(a).

[202] Tex. Fam. Code §§ 153.605(b)(1) and 153.6051(b)(1).

[203] Tex. Fam. Code §§ 153.607(a) and 153.6071(a).

[204] Tex. Fam. Code §§ 153.605(c) and 153.6051(c).

[205] Id.

[206] Id.

[207] Tex. Fam. Code § 153.606(f).

[208] Tex. Fam. Code § 153.608.

[209] Tex. Fam. Code § 153.610(a).

[210] Tex. Fam. Code §§ 153.6081 and 153.6082(e).

[211] Tex. Fam. Code § 153.6061(a).

[212] Tex. Fam. Code § 153.6101(b).

[213] See Michael H. v. Gerald D., 491 U.S. 110 (1989).

[214] In re J.W.T., 872 S.W.2d 189 (Tex. 1994) (edited for space and clarity).

[215] See In re McLean, 725 S.W.2d 696 (Tex.1989).

[216] In re J.W.T., 872 S.W.2d 189 (Tex. 1994) (edited for space and clarity).

[217] Tex. Fam. Code § 160.607.

[218] See, e.g., In re Dallas Group of America, Nos. 01-14-00230-CV, 01-14-00282-CV (Tex.App.—Houston [1st Dist.] May 1, 2014).

[219] Id.

[220] Dreyer v. Greene, 871 S.W.2d 697 (Tex. 1993).

[221] Attorney General v. Lavan, 833 S.W.2d 952, 955 (Tex. 1992).

[222] Tex. Fam. Code § 160.102(13).

[223] In re S.C.L., 175 S.W.3d 555, 559 (Tex.App.-Dallas 2005, no pet.).

[224] In re S.C.L., 175 S.W.3d 555, 559 (Tex.App.-Dallas 2005, no pet.).

[225] In re Rodriguez, 248 S.W.3d 444, 451 (Tex.App.-Dallas 2008, orig. proceeding).

[226] In re Attorney General, 195 S.W.3d 264, 269 (Tex.App.-San Antonio 2006, orig. proceeding).

[227] In re S.R.B., 262 S.W.3d 428, 431 (Tex. App.-Houston [14th Dist.] 2008, no pet).

[228] Id.

[229] In re Shockley, 123 S.W.3d 642 (Tex.App.-El Paso 2003, no pet.) (edited for space and clarity).

[230] In re M.M.M., No. 14-12-01145-CV (Tex.App.—Houston [14th Dist.] Apr. 10, 2014).

[231] In re Guthrie, 45 S.W.3d 719 (Tex. App.—Dallas 2001, pet. denied).

[232] Newman v. King, 433 S.W.2d 420, 422-23 (Tex.1968); Concha v. Concha, 808 S.W.2d 230, 231-32 (Tex.App.-El Paso 1991, no writ).

[233] G.K. v. K.A., 936 S.W.2d 70, 73 (Tex.App.-Austin 1996, writ denied); see, e.g., Newman, 433 S.W.2d at 423; In re Griffiths, 780 S.W.2d 899, 900 (Tex.App.-Amarillo 1989, no writ); Brown v. Carroll, 683 S.W.2d 61, 63 (Tex. App.-Tyler 1984, no writ); In re Baird, 610 S.W.2d 252, 254 (Tex.Civ.App.-Fort Worth 1980, no writ); Bennett, 544 S.W.2d at 707-08.

[234] Newman, 433 S.W.2d at 423; Bennett, 544 S.W.2d at 707.

[235] In re J.K., 922 S.W.2d 220, 222 (Tex.App.-San Antonio 1996, no writ); Ex parte Taylor, 322 S.W.2d 309, 312 (Tex.Civ.App.-El Paso 1959, no writ).

[236] In re M.L.P., 621 S.W.2d 430, 431 (Tex.Civ.App.-San Antonio 1981, writ dism’d).

[237] In re H.S.B., No. 14-10-00659-CV (Tex.App.—Houston [14th Dist.] Mar. 1, 2011) (memo. op.).

[238] In re G.M., 596 S.W.2d 846 (Tex. 1980) (edited for space and clarity).

[239] Stanley v. Illinois, 405 U.S. 645, 92 S.Ct. 1208, 31 L.Ed.2d 551 (1972).

[240] 588 S.W.2d 569 (Tex.1979).

[241] In re D.S.P., 210 S.W.3d 776, 778 (Tex.App.-Corpus Christi 2006, no pet.).

[242] In re B.B.F., 595 S.W.2d 873, 874-75 (Tex.Civ.App.—San Antonio 1980, n.w.h.) (edited for space and clarity).

[243] In re M.S., 115 S.W.3d 534 (Tex. 2003).

[244] Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984) (First, the defendant must show that counsel’s performance was deficient. This requires showing that counsel made errors so serious that counsel was not functioning as the “counsel” guaranteed the defendant by the Sixth Amendment. Second, the defendant must show that the deficient performance prejudiced the defense. This requires showing that counsel’s errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable.).

[245] In re J.M., 361 S.W.3d 734, 738 (Tex. App.-Amarillo 2012, no pet.).

[246] In re T.R.R., 986 S.W.2d 31, 37 (Tex. App.-Corpus Christi 1998, no pet.).

[247] Tex. Fam. Code § 107.013(a).

[248] In re J.C., 250 S.W.3d 486, 489 (Tex.App.-Fort Worth 2008, pet. denied) (internal citations omitted); see also In re R.A.L., 291 S.W.3d 438, 445 (Tex.App.-Texarkana 2009, no pet.) (“no right exists to appointed counsel in a private termination suit”); In re A.R.D., No. 02-13-00201-CV (Tex.App.—Fort Worth Aug. 7, 2013) (“appellant does not have a statutory right to appointment of counsel because this is a private termination case that was not initiated by the Department of Family and Protective Services”); In re T.L.B., No. 07-07-0349-CV (Tex.App.—Amarillo Dec. 17, 2008) (memo. op.) (“Although indigent, [Appellant] was not entitled to appointed representation in this private termination suit.”).

[249] In re E.R., 385 S.W.3d 552, 565-66 (Tex.2012) (edited for space and clarity).

[250] 25 U.S.C. § 1903(4).

[251] Doty-Jabbaar v. Dallas Cnty. Child Servs., 19 S.W.3d 870, 874 (Tex.App.-Dallas 2000, pet. denied).

[252] 25 U.S.C. § 1903(1).

[253] 25 U.S.C. § 1902.

[254] Yavapai-Apache Tribe v. Mejia, 906 S.W.2d 152 (Tex.App.—Houston [14th Dist.] 1995, no writ).

[255] See In re W.D.H., 43 S.W.3d 30, 35-36 (Tex.App.-Houston [14th Dist.] 2001, pet. denied).

[256] Yavapai-Apache Tribe v. Mejia, 906 S.W.2d 152, 162-63 (Tex.App.—Houston [14th Dist.] 1995, no writ).

[257] Id.

[258] Doty-Jabbaar v. Dallas Cnty. Child Servs., 19 S.W.3d 870, 874 (Tex.App.-Dallas 2000, pet. denied).

[259] Id.

[260] See, e.g., In re E.G.L., 378 S.W.3d 542, 546-47 (Tex. App.–Dallas 2012, pet. denied), cert. denied, 134 S.Ct. 255 (2013).

[261] Green v. Remling, 608 S.W.2d 905, 907-08 (Tex. 1980).

[262] In re Gomez, 424 S.W.2d 656 (Tex.App.—El Paso 1967).

[263] Brown v. Board of Education, 347 U.S. 483 (1954).

[264] Loving v. Com. of Virginia, 388 U.S. 1 (1967).

[265] State of Texas Settles Interracial Adoption Challenge, Agrees to Monitoring, Institute for Justice, available at: https://www.ij.org/state-of-texas-settles-interracial-adoption-challenge-agrees-to-monitoring

[266] See, e.g., “Three-parent baby” available at:  http://en.wikipedia.org/wiki/Three-parent_baby

[267] See Article 7, Uniform Parentage Act, National Conference of Commissioners on Uniform State Laws, available at: http://www.uniformlaws.org/shared/docs/

parentage/upa_final_2002.pdf

[268] Tex. Fam. Code § 160.201(a)(1); see also In re M.M.M., No. 14-12-01145-CV (Tex.App.—Houston [14th Dist.] Apr. 10, 2014) (memo. op.).

[269] Id.

[270] Tex. Fam. Code § 160.753(a).

[271] NCCUSL Comment to Uniform Parentage Act § 702.

[272] In re Sullivan, 157 S.W.3d 911 (Tex.App.-Houston [14th Dist.] 2005, orig. proceeding).

[273]  In re H.C.S., 219 S.W.3d 33 (Tex.App.-San Antonio 2006, no pet.).

[274] Tex. Fam. Code § 160.754(b).

[275] Tex. Fam. Code § 160.754(c).

[276] Tex. Fam. Code § 160.756(a).

[277] Tex. Fam. Code § 160.706(a).

[278] Tex. Fam. Code § 160.706(b).

[279] Roman v. Roman, 193 S.W.3d 40 (Tex.App.-Houston [1st Dist.] 2006, pet. denied) (edit for space and clarity).

Published by

Emily Miskel

Judge Emily Miskel was appointed by Texas Governor Greg Abbott as the first judge of the 470th family district court of Collin County, Texas. She graduated from Stanford University and Harvard Law School and she is board certified in family law by the Texas Board of Legal Specialization. Find Emily on Google+, Facebook, and other social media.

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