The adoption process can be extremely complex. Our firm only handles stepparent adoptions of minor children and most adoptions of an adult. If is very important to have an experienced lawyer on your side to help your adoption go smoothly. David S. Hughey has extensive experience in handling stepparent adoptions and can handle all of the legal issues so you can focus on your family. Prior to the court granting the adoption to a stepparent, the parental rights of the biological or court ordered parent must be terminated. Termination can be done voluntarily by an Affidavit of Relinquishment that meets the statutory requirements or involuntarily by “clear and convincing” evidence of any of the named statutory grounds. A stepparent may proceed with the adoption provided the child has resided with the party seeking the adoption at least 6 months, the managing conservator has consented to the adoption and an approved social study with requisite background report recommends the adoption. Despite all the vigorous details that we would expect for the protection of minor children, a stepparent adoption is a very rewarding process for both the parent and the child as it often is a defining legal moment for a relationship that has already been a natural parent/child relationship.
Alimony / Spousal Maintenance / Temporary Spousal Support
Many states use the term alimony but in Texas it is defined as "maintenance". Spousal maintenance is designed to provide the lower-income spouse with money for living expenses over and above the money provided by child support. Temporary Spousal Support is more commonly awarded while the divorce is pending. Spousal maintenance, if awarded, is for a defined period of time following the date of divorce. There is no guarantee of spousal maintenance or temporary spousal support in Texas. There are many different factors that go into determining whether or not you or your spouse will be eligible for spousal maintenance or into determining the maintenance amount. The decision is ultimately at the judge's discretion.
Custody is the charge and control of a child, including the right to make all major decisions such as residence, medical, legal, education, training, health and welfare. Custody is a combination of physical and legal custody. Many factors influence an award in custody and the way a case is presented in court can have a large impact on the result you and your children can obtain.
The phrase “child custody” is really what the Texas Family Code addresses as “Conservatorship, Possession and Access” in Chapter 153, TFC. The very first section begins with the public policy of the State of Texas regarding parents and their minor children which is to (1) Assure that children have frequent and continuing contact with their parents (provided said parent has shown the ability to act in the child’s best interest) (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 divorce or separation.
David S. Hughey is often retained by parents that desperately want to provide their lawyer relevant evidence but are unsure, confused, or overwhelmed. A good rule of thumb concerning relevant evidence for a “custody” dispute is David S. Hughey’s “nanny rule”. Try to imagine that you were hiring a full-time nanny to care for your child. Everything you would want to know about the proposed nanny’s background is in many ways identical to the process a judge goes through in making decisions about conservatorship, possession and access. The primary consideration in the entire process is the “best interest of the child”. Children 12 years of age or older will be interviewed by the court to determine which parent they wish to determine their primary residence. The court “may” interview children of younger ages or for other issues. There are many other statutorily defined fact patterns that will have a significant impact on the outcome of your case and may result in more limited access or supervised visitation: history of domestic violence, neglect, physical abuse, emotional abuse, sexual abuse, and/or substance abuse. However, the Texas Family Code requires that at the onset the trial court "presume" that it is in the child's best interest that the parents be appointed Joint Managing Conservators.
The Texas Family Code also requires that the trial court “presume” that for children 3 years of age or older, the noncustodial parent “reasonable minimum possession” is Guideline Standard Possession. This presumption can be rebutted by the custodial parent by evidence showing that standard possession is inappropriate, unworkable or otherwise not in the child’s best interest. In determining an appropriate possession schedule for children under 3, the Family Texas Code lists numerous relevant factors that the trial court is required to consider.
In Texas, it is “rebuttably presumed” that it is in the child’s best interest that statutory guidelines contained in T.F.C. Chapter 154, subchapter C, are a reasonable amount of periodic support. There are 17 listed factors for the court to consider, with the last factor being essentially any other reasonable factor. The court will use the guidelines to determine a parent’s “net resources” and apply a percentage (%) to calculate monthly child support. If a “payor” or the parent being ordered to pay child support has minor children from another household, the state guideline percentage will be lowered somewhat. The child support guidelines also permit the trial court to award “Retroactive child support” and require the “Medical and Dental” support of a child as well. (T.F.C. §154, Subchapter D.)
The right of a non-custodial parent to visit or spend time with his or her children is a crucial legal arrangement. Child visitation can take a variety of forms or schedules. Some common arrangements include the following:
- Standard or expanded standard visitation.
- Alternate weekend visitation with the non-custodial parent, including three-day holidays.
- Mid-week visitation with the non-custodial parent.
- Sharing of the child during periods of school recess; winter, spring and summer.
- New Year’s Eve, Easter, Rosh Hashanah and Yom Kippur. Thanksgiving, and Christmas with one parent or the other in alternate years.
- Mother’s Day with mother and Father’s Day with father.
- Alternate years on the child’s birthday.
- Open telephone contact by the parent who does not have actual physical custody of the child.
- Exchange of a few days of visitation as mutually agreed without the need for a change or modification of the court order.
- Schedule based upon a set work schedule. (for example, police officers and pilots)
Common Law / Informal Marriages
Texas recognizes what most people refer to as Common Law Marriage. Texas Family Code Chapter 2, Subchapter E defines them as “Marriages without Formalities” or “Informal Marriage”. These marriages can have a tremendous impact upon the rights of a party in the dissolution of long term relationships, if the statutory requirements are met. It is not uncommon for people to live for years together without any realization that they were “legally” married. A couple can be deemed legally married by recording a certificate or declaration of informal marriage in their county clerk’s office. Likewise and perhaps even more informal, a marriage can be proved by simply showing that “the man and woman agreed to be married and after the agreement they lived together in this state as husband and wife and they represented to others that they were married.” In the event a marriage is proven, it would entitle a spouse to the same rights and duties of a couple married by ceremony such as community and separate property, spousal maintenance if statutory basis is met, division of assets and debts during the marriage, possible insurance coverage, etc.
See discussion above under "Child Custody". This term includes Joint Managing Conservatorship, Sole Managing Conservatorship, Possessory Conservatorship and can be granted by the trial court to nonparents such as grandparents, aunts, uncles, siblings or other court ordered persons.
Contempt / Enforcement
If someone is in violation of an order, you can bring a motion for enforcement or contempt to the court for certain orders. They are often filed if terms of a divorce decree, child custody arrangement, spousal or child support agreement, or a protective order are breached. Remedies for such a violation can also be based upon a prior injunction, temporary restraining order, or a standing order. (T.F.C. Chapter 157).
A court of law is the only way in which one can obtain a divorce decree, dissolution, annullment, or other form of terminating a marriage. Other than the termination of the marital estate, the court also has jurisdiction to resolve other issues that are intertwined in the existing marriage which include, but are not limited to: custody and visitation rights, division of property of the marital estate, spousal support, child support, retraining orders, etc.
The Texas Family Code provides that a trial court may grant a divorce on insupportability (or no fault) or on grounds of fault such as cruelty, adultery, abandonment, conviction of felony, and others. The trial court also has authority to grant an annulment or to even declare a marriage void under certain circumstances.
Grandparents can seek custody or visitation of a child under a variety of circumstances. You, as a grandparent or other non-parent have immediate standing to intervene if the child or the child's parent has lived with you for six months, a court has named you as a guardian, you are able to meet Texas Family Code "standing" requirements based upon the current living conditions or if the people caring for the child or both of the parents have agreed the child should go live with you. The court will look at best interests of the child and decides each case individually but parents are given a presumption that it is better that the child stays with his parent. The fundamental case Troxel v. Granville, 530 U.S. 57, 120 S. Ct. 2054 (2000) has changed and better defined grandparent rights in a custody dispute. A grandparent must be able to prove that living with the parents is very harmful (i.e. significant physical or emotional impairment) to the child to overcome this presumption.
When faced with a relocating custodial parent, a court will generally require that parent to give the other parent a minimum amount of notice prior to the anticipated move. This notice gives the non-custodial parent an opportunity to go to court and seek orders restraining the relocation of the child. These so called "move away cases" have gone back and forth on allowing and disallowing a move by the custodial parent with the minor children for over 20 years. While the best interests of the child have always been central to the decision, the uncertainty has made this area murky. Assistance of counsel is highly recommended if there exists disagreement between the parents. Issues involving two or more states are governed by the Uniform Child Custody Jurisdiction Act (UCCJA) and the Federal Parental Kidnapping Prevention Act (PKPA).
If your divorce has been finalized but circumstances have materially changed, or if there is a concern that your ex-spouse is not abiding by the terms of a custody, support or visitation agreement, you can bring an action for modification to change the terms of the divorce or other court order. A parent, while the modification action is pending, may make requests for a temporary order covering conservatorship, possession, access, child support, health care, injunctions, etc. If you requested temporary order relief to change who determines the primary residence of the child, you have an elevated burden of proof to show the trial court that:
- The child’s present circumstances would significantly impair the child’s physical health or emotional development;
- There was voluntary relinquishment of the child for more than 6 months; or
- A child 12 years of age or older expressed a preference to change in chambers with the judge and it was approved.
On a final hearing, the party requesting the modifications must show the changed circumstances of a parent, or the child, and why it’s modification is in the child’s best interests. There are numerous statutory requirements and limitations that are listed with respect to the particular modification that a party seeks. (T.F.C. Chapter 156, Subchapter B). It is important that you hire a practitioner with experience and provide evidence as to the circumstances that existed on the date of the most current order and a comparison as to how those circumstances exist today.
Our firm can help you change your name and navigate a complicated legal system. As simple as the forms look, they can be confusing and have other statutorily required steps for a successful name change of an adult or a minor. Texas Family Code Chapter 45 sets out what is required and who may file.
Paternity / Parentage
Establishing legal parentage and the rights and duties that accompany it is known as paternity. There can be a difference between a biological father and a legal father. When a child is born, the mother’s name automatically appears on the birth certificate. If she is married, her husband is“presumed” father of the child. Likewise, a father named by a birth certificate is a “presumed” parent. If the parents are not married, it is important for the mother, the father, and above all the child, to establish paternity. Depending on whether or not a child has a presumed father, there can be time limitations on when a person may seek adjudication of parentage. A person seeking the adjudication of parentage, whether it be the mother or father, must file a Petition for Parentage in the appropriate court. “Genetic Testing” or more commonly known as DNA testing can be ordered by the court. (T.F.C. Chapter 160, subchapter F). The trial court has discretion in its award of these costs. Depending on the outcome of the testing, the court may also make decisions on a temporary or final basis concerning conservatorship, possession, access, child support, medical support, name change, etc. The court is also given authority to award retroactive child support essentially based upon evidence concerning the mother’s diligence at informing the father of his child and allowing a relationship and the father’s diligence at maintaining a relationship with the child and proving past support. Parentage suits are by far the most common area of practice where we see parents trying to represent themselves against the other parent or lawyers representing the State of Texas Attorney General's office. There are numerous complex issues that should be discussed with an experienced lawyer prior to any hearing.
Restraining Orders / Family Protective Orders
Sometimes it becomes necessary to file a Family Protective Order to protect yourself or your children. A protective order is an order that is issued to prevent continuing acts of family violence, sexual assault, human trafficking or stalking. Upon proper evidence, a Family Protective Order can dictate that one person cannot make contact with or be within a defined distance of another. (T.F.C. Chapter 85) Violating such an order can result in arrest, jail time and/or a fine.
To be granted a Family Protective Order, one must show:
- A family violence has occurred; and
- Family violence is likely to occur in the future.
A trial court in a pending family law case may also grant a Temporary Restraining Order without bond or Temporary Injunctions on appropriate facts. Many of the counties have simplified the process with “Standing Orders” that act as mutual injunctions while your case is pending. It is imperative that you read and are familiar with these Standing Orders when your suit is filed as they can be enforced by contempt.