FAMILY LAW LEGISLATIVE UPDATE

 FAMILY LAW SECTION

HOUSTON BAR ASSOCIATION

JULY 6, 2011

WILLIAM W. MORRIS 

ELLIE P. NATENBERG 

Looper, Reed & McGraw, P.C.1300 Post Oak Blvd., Suite 2000

Houston, Texas 77056713-986-7000

82nd Regular Session140 days ending Monday, May 30, 2011

1st Special Session30 days - Began Tuesday, May 31,

2001Lasts no longer than 30 days

Amended to allow appointment of a person, including an employee of the court, who serves without compensation in hardship cases.

Family Code §§ 153.609(d) and 153.6091

Importance? Passed House by vote of 146-0 with 1 present

and not voting Passed Senate 31-0 Signed by Governor on June 17, 2011 Effective: Immediately Be certain to check when a bill or portion

thereof is effective.

A spouse who spends time out of the county of residence and the state “…while accompanying the domiciliary’s spouse in the spouse's service of the armed forces or other service of the United States or of this state, is considered residence in this state and in that county.”

Family Code §§ 6.303 and 6.304Effective Immediately

Creates a new Title 1-A and Chapter 15

Applies only to suits under Title 1 and Title 5

Many things the same, many differences

Creates specific requirements for a Collaborative Family Law Participation Agreement

Provides for emergency court appearances by Collaborative Law attorney

Imposes many duties on counsel that were not in the previous statutes

Even if participation agreement not valid, after a hearing, the court may enforce the agreement, impose disqualifications, or impose privilege if it finds the parties signed a record indicating an intent to do Collaborative Law and reasonably believed they were participating in Collaborative Law.

If one party opposes arbitration court examines agreement to see if valid.

Provision does not apply to (1)a court order;(2)agreed parenting plan(3)mediated settlement agreement;(4)collaborative law agreement(5)written informal settlement agreement;

or(6)any other agreement approved by court. Family Code §§ 6.6015 and 153.00715

Effective immediately

The clerk of the court will no longer send a person who signed a waiver a copy of the decree. The person will only get a notice that a copy is available at the clerks office.

Family Code § 6.710Effective immediately

Attempt to clarify Schleuter v. Schleuter, 975 S.W.2d 584 (Tex. 1998)

“Reconstituted estate" means the total value of the community estate that would exist if an actual or constructive fraud on the community had not occurred.

If the trier of fact finds actual or constructive fraud on the community, court calculates the value by which the community was depleted, finds the amount of the “reconstituted estate”, and then divides that estate.

In making a just and right division the court may:(1)  award to the wronged spouse an appropriate share of the community estate remaining after the actual or constructive fraud on the community;(2)  award a money judgment in favor of the wronged spouse against the spouse who committed the actual or constructive fraud on the community; or(3)  award to the wronged spouse both a money judgment and an appropriate share of the community estate.

Family Code § 7.009

Spousal maintenance first enacted in 1997

This is the first expansion since then Change standards to qualify: Spouse seeking maintenance (Payee)

must “lack sufficient property, including the spouse’s separate property, on dissolution of the marriage to provide for the spouse’s minimum reasonable needs and:

(1) Payor spouse was convicted of or received deferred adjudication for act of family violence within 2 years of filing or during the suit; or

(2) Payee: (a) is unable to earn sufficient income to

meet Payee’s minimum reasonable needs because of physical or mental disability ; or

(b) has been married to Payor for 10 years or longer and lacks the ability to earn sufficient income to meet Payee’s minimum reasonable needs; or

(c) is the custodian of a child of the marriage of any age who requires substantial care and personal supervision because of a physical or mental disability that prevents the spouse from earning sufficient income to provide for the spouse's minimum reasonable needs.

Marital misconduct including adultery and cruel treatment and a history or pattern of family violence have been added as factors for the court to consider.

Now court may order the lesser of $5,000 or 20 percent of Payor’s average monthly gross income. Gross income is now defined in very similar but somewhat expanded terms as the definition of Resources under Family Code § 154.062

A. Duration of payments extended to 5 years if:(1) Payee and Payor were married less than 10 years and eligibility is base on family violence provisions in 8.051(1); or (2) the parties were married more than 10 but less than 20 years; orB. Duration is extended to 7 years if the parties were married at least 20 years but less than 30 years; orC. Duration is extended to 10 years if the parties were married 30 years or more.

Family Code Chapter 8

Senate Bill No. 116 amends Family Code § 71.0021(a) to add the date of the actor’s former spouse or former date to the definition of victim of dating violence (Effective immediately)

House Bill No. 905 adds Family Code § 84.006 to admit a hearsay statement of a child victim of family violence 12 years of age or younger if taken in accordance with Family Code § 104.006 (SAPCR)

Allows any court to enforce a Protective Order in the same manner as the issuing court without the necessity of transferring the Protective Order. Family Code §81.010

Allows a minor victim of dating violence to be the Applicant and make a statement under oath if the statement complies with Chapter 82. Family Code § 82.009 (b)

Allows the court to stop an ex parte hearing to exclude a party from the residence to allow the respondent to be present but must resume the hearing by the end of work day. Family Code § 83.006 (c)

The court may order a Protective Order for a period that exceeds two years if the court finds that the person who is the subject of the Protective Order:

(1)  caused serious bodily injury to the applicant or a member of the applicant's family or household; or

(2)  was the subject of two or more previous protective orders rendered:

(A)  to protect the person on whose behalf the current protective order is sought; and

(B)  after a finding by the court that the subject of the protective order:

(i)  has committed family violence; and

(ii)  is likely to commit family violence in the future.Family Code § 85.025(a-1)

The bill also amends Family Code § 85.025(b) to allow the person the subject to the Protective Order to file a motion to modify only after a year has expired from the date the court rendered an order on a previous motion.

Evidence of the movant's compliance with the protective order does not by itself support a finding by the court that there is no continuing need for the protective order.

Family Code § 85.025(b)

Adds Family Code § 85.042(a-1) which requires that if the respondent is a member of the state military forces or is serving in the armed forces of the United States in an active-duty status, the clerk of the court to provide a copy of a Protective Order to the military.

Amends Article 5.05, Code of Criminal Procedure to require a peace officer investigating a family violence incident to provide written notice of the incident to the military if the suspect is a member of the state military forces or on active-duty status.

Adds Article 42.0182, Code of Criminal Procedure to require the clerk to notify the military if a person who is a member of the state military forces or on active-duty status is convicted or given deferred adjudication for an offense that constitutes family violence.

Adds a list of relevant factors to Family Code § 153.254 for the court to consider when making an order for possession of a child under three years of age including:…(3)  the availability of the parties as caregivers and the willingness of the parties to personally care for the child;…(6)  the impact and influence of individuals, other than the parties, who will be present during periods of possession;…(7)  the presence of siblings during periods of possession;

…(8)  the child's need to develop healthy attachments to both parents;(9)  the child's need for continuity of routine;…(12)  the ability of the parties to share in the responsibilities, rights, and duties of parenting; and(13)  any other evidence of the best interest of the child.

**It is NOT a set schedule, but a list of factors

Sets procedures for the filing of a rescission of an acknowledgment or denial of paternity. If timely received (earlier of 60th day after signing or a proceeding relating to the child is initiated) the bureau of vital statistic shall void the acknowledgment or denial of paternity and amend the birth records. Family Code § 160.307(c)

Eliminates the four year statute of limitations on bringing an action to set aside an acknowledgment or denial of paternity based on fraud, duress, or material mistake of fact. Suit can be brought any time prior to the issuance of an order affecting the child. Family Code § 160.308(a).

Falsification of a specimen for genetic testing (alter, destroy, conceal, fabricate, or falsify) is a third degree felony. Family Code § 160.512

New Provision Applies to a man who, without genetic

testing, signed an acknowledgment of paternity or was adjudicated to be the father

Must file verified petition to terminate the parent-child relationship alleging facts showing he is not the child’s genetic father and he signed the acknowledgment or failed to contest parentage because of the mistaken belief he was the genetic father based on misrepresentation made at the time.

Suit must be filed within one year of learning facts stated in the petition that support his not being the genetic father.

The court is to hold a pretrial hearing to determine if Petitioner has established a meritorious prima facie claim. If so, the court shall order genetic testing. If the testing excludes the Petitioner the parent-child relationship is terminated.

The termination order ends the Petitioner’s obligation to pay future child support but not any arrearages nor interest on accruing in the future on the past due child support.

The Petitioner may request the court to grant periods of possession with the child.

The court may grant possession only if the court determines that denial of periods of possession of or access to the child would significantly impair the child's physical health or emotional well-being.

The court may (and probably should) order counseling.

Family Code § 161.005 (c)-(o)

If a petition seeks enforcement of a child custody determination made in a foreign country or enforcement under the Hague Convention and the court orders a warrant to take physical custody of a child the warrant shall have a provision providing for a safe interim placement and imposing conditions to ensure the appearance of the child and the child’s custodian.

Family Code § 152.311(c)

The court may only place the child with a parent or family member if they have significant ties to the jurisdiction of the court. If they do not have significant ties the child is placed with the Department of Family and Protective Services. Family Code § 152.311(c-1)

Giving a false statement relating to a child custody determination made in a foreign country during a hearing under Chapter 152, or Subchapter, Chapter 153, is a third degree felony. Penal Code § 37.14

In a termination suit by a governmental agency a parent who is determined to be indigent is presumed to be indigent for the duration of the suit and any subsequent appeals. Family Code § 107.013

In a suit by a governmental agency the attorney ad litem’s appointment continues until (1) the suit is dismissed, (2) the date all appeals are exhausted or waived, or (3) the date the attorney is relieved or replaced after a finding of good cause. Family Code §107.016

The final order in a suit in which the Department of Family and Protective Services request termination of parental rights or that the department have custody must contain a prominent notice of the right to appeal. Family Code § 263.405(b)

On appeal those cases are handled as an accelerated appeal under the Texas Rules of Appellate Procedure. Family Code § 263.405(c)

No more 15 day motions for new trial or statement of points of appeal.

Clarifies that a person does not need to show a material and substantial change of circumstances other than the military deployment, military mobilization, or temporary military duty to obtain temporary orders during military deployment. Family Code § 153.702(a)

Clarifies that nonparent “designated person” cannot be ordered to pay child support. Family Code § 153.702(c)

Setting out extensive powers and duties. Family Code §§ 107.0131, 107.0132, and 107.0133; Senate Bill No. 1026

Allowing attorney ad-litems to obtain most records without the necessity of a further court order. Family Code §§ 107.006 (a), (c), (d), and (e); House Bill No. 2488 (Effective immediately)

Directing the attorney ad litem to file a statement of compliance. Family Code § 107.004(d); House Bill 3314

Requiring a timely meeting with child. Family Code § 107.004(d-1); House Bill No.3311

Senate Bill 1751 – Allows a deduction in calculating support for nondiscretionary retirement plan contributions if the obligor does not pay social security taxes. Family Code § 154.602(d)

Senate Bill 626 – Requires state to deduct past due child support from lottery winnings. Government Code § 466.407(a-1) (Effective immediately)

Also deduct child support payments from periodic payments to a prize winner. Government Code § 466.4075(c)

Deals with employers, medical support, contempt, liens, etc.

If a movant in an enforcement action attaches a payment record to the motion, the payment record may be updated at the hearing to prove the dates and amounts of payments, accrued interest, arrearage over time, and cumulative arrearage. Family Code §157.162(c)

Authorizes development of a Child Support Arrearage Payment Incentive Program. Family Code § 231.124

Chapter 34 of the Family Code allows agreements between a parent or both parents and a grandparent, adult sibling, or adult aunt or uncle so the relative can authorize certain acts including medical care, get insurance, and many other items. Family Code § 34.002

Bill amends the chapter to state that there can only be one authorization at a time and the second authorization is void. Also adds enhanced notice provisions to the other parent. Family Code §§ 34.002(d) and 34.005(a) and (a-1)

Amends the Government Code. As originally written some provisions applied to Family Law. The final draft exempts family law for the “Early Dismissal of Actions”, “Appeal of Controlling Question of Law”, and “Allocation of Litigation Costs” (Loser Pays). The section titled “Expedited Civil Actions” requires the Texas Supreme Court to adopt rules for the “prompt, efficient, and cost-effective” resolution of civil actions where the claims do not exceed $100,000. The rules may not conflict with a provision of the Family Code. Government Code § 22.004(h)

Concerns:

(1)The Family Code is substantive and the bill requires rules to be adopted.

(2)What is a claim for under $100,000 in a Family Law case? Size of gross or net estate?

(3)Only claims for reimbursement, fraud, or breach of fiduciary duty?

(4)Is there a conflict with case level under discovery rules?

Now can use an unsworn declaration by client in lieu of a written sworn declaration, verification, certification, oath, or affidavit required by statute or required by a rule, order, or requirement adopted as provided by law. Civil Practice and Remedy Code § 132.001(a)

Bill provides a form of jurat and any statement is signed under the penalty of perjury. Civil Practice and Remedy Code § 132.001(c) and (d)