Family Law FAQ

Table of Contents

The Texas Family Law System
SAPCR's (Suits Affecting the Parent-Child Relationship)

  • Who Can Bring a Suit?
  • Settlement
  • Temporary Orders
  • Best Interest of the Child

Divorce

  • Can be many Lawsuits in One
  • Waiting Period
  • Property Division Basics
  • Spousal Maintenance

CPS Cases
Child Support Enforcement
Suits to Determine Parentage (who is the mother or father)

The Texas Family Law System: Flexible and Complex

Each family is unique and ever-changing; family members have various viewpoints and goals, sometimes good-intentioned and sometimes not, and these viewpoints and goals can be quite fluid, changing by the month or over the course of years. It's no wonder then that family disputes arise frequently, and that the government is often tasked with settling these disputes. Texas, like other U.S. states, has adopted a fairly flexible family law system that accounts for the broad and complex nature of family disputes. It provides set rules and guidelines, of course, but also many ways for parties to come to a resolution without trial.

SAPCR'S

A Suit Affecting the Parent-Child Relationship (SAPCR) is a suit requesting custody of or access to a child, child support, or the establishment or termination of a parent-child relationship. It can be, and often is, filed as part of a divorce.

Who Can Bring Suit?: Standing to bring suit can be a contested issue in SAPCR's. Some of the many parties that can file a SAPCR include:

  • Parents/guardians and legal representatives

  • Men claiming to be the child's father

  • Grandparents in specified instances

  • Close relatives

  • Individuals that have had physical custody of the child for a requisite time-period

While grandparents often bring suit, their right to sue is rather limited: they generally need to show that the child is in imminent danger of physical or emotional harm or that the grandparent has had physical custody for the requisite time-period.

Settlement: In some instances, a SAPCR is not highly contested and the parties can come to an amicable settlement. A Tyler family law attorney can help facilitate settlement through an informal meeting with the opposing party and his or her attorney, through mediation, and by other means.

Temporary Orders: A Tyler family law attorney can help his/her client obtain temporary relief through temporary orders. Temporary orders are meant to be a stop gap, providing for the safety and welfare of the child while a SAPCR is pending and no final order or settlement has occurred. For instance, temporary orders can provide a party temporary child support, custody, attorney's fees, and other protective measures.

Certain temporary orders can be given without notice and a hearing; that is, a judge can grant a request for temporary orders before you've even been heard on the matter. Even if you've been subject to temporary orders rendered without notice, a hearing is typically held within 14 days, at which point the judge will decide which orders he will grant and which he will deny. The judge can also impose orders that were not requested.

Best Interest of the Child: The court's primary consideration in determining custody is the best interest of the child. Innumerable factors can be considered in making this determination, including the emotional and physical wellbeing of the child now and in the future. Because a best interest determination is so broad and subjective, all forms of evidence could be important. A major part of the attorney's job is to find and emphasize favorable evidence while developing a counter-attack that diminishes unfavorable evidence.

Divorce

A divorce suit can include up to five different lawsuits in one:

  • A suit to dissolve the marriage

  • A suit to divide the property of the marriage

  • A suit for spousal maintenance (alimony)

  • A suit affecting the parent-child relationship (SAPCR)

  • A tort or contract action

Waiting Period: Absent a finding of family violence by the other spouse, you cannot be granted a divorce until the sixtieth day after the suit was filed.

Property Division Basics: Property division is often a huge issue in divorce. Texas requires a just and right division of community property (not necessarily a 50/50 split), with the court considering the rights of each party and any children of the marriage. Community property includes things owned (assets) and owed (liabilities). A Tyler family law attorney will work with you to identify and characterize property as either the separate property of you or your spouse or community property.

Separate property consists of:

  • Property owned by you or your spouse before marriage

  • Property acquired by you or your spouse by gift, devise (through a Will), or descent (inherited)

  • Any recovery for personal injuries sustained by you or your spouse during the marriage

Community property is non-separate property that is acquired by either spouse during marriage. The name on the title or the source of the money used to acquire the property is often immaterial. Community property can even include property you or your spouse acquired while living outside of Texas in a state that doesn't follow the community property framework.

No matter how property is characterized, spouses are given great leeway and can enter into agreements making community property separate property and vice versa.

Spousal Maintenance: Sometimes called alimony, spousal maintenance is the exception and not the rule in Texas. To recover, a spouse needs to show that he can't meet his minimum reasonable needs without spousal maintenance and certain other conditions must also be met.

CPS Cases

Texas Child Protective Services (or CPS) can terminate your parental rights in cases of child abuse and neglect. However, there are strict guidelines regarding how and when CPS can terminate or otherwise limit your parental rights. In high stakes cases like this, a Tyler family law attorney can help ensure that proper procedures are being followed and that your perspective is being heard.

Child Support Enforcement

So, you've been ordered to pay child support. What now? Well, first and foremost, you should make sure that you pay it monthly and don't get behind. The Office of the Attorney General enforces child support obligations and has many tools at it's disposal to do so, including:

  • Withholding wages

  • Suspending licenses

  • Filing a Motion to Enforce: The OAG can file this motion when you are behind on child support payments (in arrears). It is often granted unless you can show an inability to pay despite your best efforts. This is a very high standard that typically requires a physical or emotional handicap. If granted, you will likely be placed on civil probation (or community supervision), which has specific terms, such as reporting to a probation officer and paying probation fees.

  • Filing a Motion to Revoke: Failing to abide by the terms of your probation can result in a motion to revoke. If granted, you will likely be placed in jail for 90 days. Smith County is especially strict on probation violators.

Suits to Determine Parentage

Determining parentage, who is the mother or father of the child, is often the first step in many family law proceedings. Parentage, in the case of a man, can be based on one of three prongs: it can be presumed, acknowledged or adjudicated. Until one of these three prongs is established, a man is an alleged father. A presumed or acknowledged father generally has four years to rebut a parent-child relationship, which is often done through genetic testing (DNA). An alleged father, on the other hand, can file a suit to determine parentage at any time.

A man is presumed to be the father if one of several circumstances exist, including if:

  • He is married to the mother of the child and the child is born during the marriage OR before the 301st day after the date the marriage is terminated.

  • He continuously resided in the household in which the child resided for the first two years of the child's life AND represented to others that the child was his own.

  • He married the mother of the child after the child's birth, he voluntarily asserted paternity of the child, and he is voluntarily named on the child's birth certificate.

A man can acknowledge paternity as well, by completing and filing an acknowledgement of paternity (AOP). An AOP, however, can't establish parentage if there is a presumed father, unless the presumed father files a denial of his presumed paternity.

There are many more potential wrinkles involved in determining or challenging parentage. Given that parentage is such a pivotal issue, I urge you to speak to a Tyler family law attorney about any concerns you have.

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