Beecher Law Firm Blog
Family Law Posts

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'Commission on Judicial Appointments: Dec 10, 2014' found at https://flic.kr/p/qk2c15 by California Courts (https://flickr.com/people/californiacourts) used under Creative Commons Attribution License (http://creativecommons.org/licenses/by/2.0/)
'Commission on Judicial Appointments: Dec 10, 2014' found at https://flic.kr/p/qk2c15 by California Courts (https://flickr.com/people/californiacourts) used under Creative Commons Attribution License (http://creativecommons.org/licenses/by/2.0/)

Harmful Misconceptions About Handling A Child Support Case Through The Attorney General's Office

An inexpensive manner to obtain child support for a child is to seek assistance through the attorney general's office. The attorneys in the AG's office will establish paternity, seek child support, back child support, medical support and even locate an absent parent without seeking any fees. However, problems often arise because of misconceptions surrounding the attorney general's office.

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'Radisson Blu Mountain Resort & Residences, Trysil' found at https://flic.kr/p/aUh5Dn by Destinasjon Trysil (https://flickr.com/people/trysil) used under Creative Commons Attribution License (http://creativecommons.org/licenses/by/2.0/)
'Radisson Blu Mountain Resort & Residences, Trysil' found at https://flic.kr/p/aUh5Dn by Destinasjon Trysil (https://flickr.com/people/trysil) used under Creative Commons Attribution License (http://creativecommons.org/licenses/by/2.0/)

What To Do When Your Ex Won't Move Out

Nothing is sweeter than the feeling of new love. The air seems fresher, you constantly have a smile on your face, and life simply seems rosier because of how your new love makes you feel. But what happens when the person who was responsible for your joy is now making your daily living arrangements a living hell and the only joy that remains is two of you are not spouses. What does one do to remove a live-in paramour when the relationship has soured? How does one remove an ex, when divorce is...

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Eliminate Arguments During The Custody Exchange

A common problem among newly separated or divorced parents is how to handle seeing each other outside of the courtroom. While a court order may have made decisions on what happens in their day to day lives with their finances, their living arrangements, and/or their interaction with their children the complex emotional underpinnings involved in their separation are often unresolved. Seeing each other outside the courtroom becomes a tinderbox of emotions waiting to erupt. The time-frame where...

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Failure To Pay Child Support Could Spell Big Trouble For Your Texas License

Kay finally managed to turn her life around. After years of drug abuse and jail stints, she found her peace with fishing. Fishing allowed her to conquer her demons. She rebuilt her life and is on the cusp of getting her plumbing license. However, her years of drug abuse took its toll on her family. Her husband was killed in a drug deal gone bad while Kay was serving time for a drug possession case. A court gave custody of her twins Leona and Leon to her husband's mother Ruth. Ruth dislikes...

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Dad Has A Right To Be A Parent Too

Paola entered her three bedroom home after working a twelve hour shift at the Community Hospital. She was exhausted but happy to be home. She walked in to find her eighteen year old son Martin waiting for her in the living room. She was surprised to see him up. Usually after he worked the late shift at the diner, he would be asleep by the time she got home. She was happy to see him but she noticed his demeanor was different. She greeted him and told him about the persons she encountered in...

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A TEXAS SAPCR EXPLAINED

A SAPCR (pronounced sap sir) is a Suit Affecting the Parent Child Relationship. The suit will deal with the issues of a person's right to parent a child and can mark the beginning or end of a parent/child relationship. A court in a SAPCR lawsuit will make decisions concerning a person's ability to have access, control, and/or possession to a child. The suit can also address the issues of child support.

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Genetic Testing's Role in Texas Paternity Cases

There was always talk that Fred was the daddy. However, each time Fred asked to see his purported daughter Jillian, her Mom Patricia, would not allow it. There was always some excuse and Fred heard it all. “We have plans that weekend.” “Jillian would be at grandma's.” “Jillian does not know him and was too young to spend time with a stranger.” “Jillian and/or Patricia was ill.” “It was way too cold to carry a child that age out.” “It was way too hot to carry a child that age out.” The excuses...

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Waiting Periods to Divorce and Remarry in Texas

Things could not have been more different for Kelly. Exactly one year ago, she was on her own with no money, no place to stay and a broken heart. Her husband Pete took up with a new girlfriend 25 years his junior. He threw her belongings out on the lawn and locked her out of their home. Kelly suspected he was having yet another affair but did not think a break-up was in their future. During their fourteen years together, she looked the other way on Pete's infidelities because she did not have...

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No Agreement Needed To Get A Texas Divorce

Charlie: I am tired of this. We argue over money, our faith, the dog, even the silly thermometer. I am tired of living in strife. This situation is maddening and I can't take it anymore. This is not working Susan, I want a divorce.

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YOU'RE TELLING ME MY 12 YEAR OLD CAN CHANGE MY TEXAS CUSTODY ORDER?

Allison was dropped off from her school bus. She opened the door to her home, walked in the kitchen, grabbed an orange to snack on and then headed to her bedroom to login to her laptop. She planned to login to her Facebook account to chat with friends about the days events at her middle school. She walked in her room and began screaming atop her lungs.

Harmful Misconceptions About Handling A Child Support Case Through The Attorney General's Office

'Commission on Judicial Appointments: Dec 10, 2014' found at https://flic.kr/p/qk2c15 by California Courts (https://flickr.com/people/californiacourts) used under Creative Commons Attribution License (http://creativecommons.org/licenses/by/2.0/)

An inexpensive manner to obtain child support for a child is to seek assistance through the attorney general's office. The attorneys in the AG's office will establish paternity, seek child support, back child support, medical support and even locate an absent parent without seeking any fees. However, problems often arise because of misconceptions surrounding the attorney general's office.

Misconception 1: The Attorney General's Office Represents Me.

In child support cases, the attorney general does not represent any parent or the child in the lawsuit but rather represents the State of Texas. One of the duties of the attorney general's office is to ensure each parent fulfills their financial duty to their child. Although a parent may be the party to initiate contact with the Attorney General's office for assistance, that does not mean that parent now has legal representation. Actually, once proceedings are filed in court, each parent will be named as a respondent. A party who files a suit is the petitioner and a party who must answer to the suit is the respondent. The attorney general's filing of the child support case would make them the petitioner. Each parent must answer, appear, and/or present evidence in the suit in some manner and this makes each parent a respondent. This dynamic can create a dangerous expectation from the party who initiated contact with the attorney general's office. Simply initiating contact does not mean that party will win or will get everything that they asked the attorney general's office to address.

Misconception 2: Once I Contact The Attorney General's Office For Child Support, They Will Work on My Case

Child support cases initiated through the attorney general's office belong to the attorney general. When a person hires an attorney, they expect their attorney to represent their interests with a goal of getting their expressed desired outcome. This is a reasonable expectation, as attorneys have a fiduciary duty to zealously represent their clients' interests. Many parents who seek obtaining child support through the AG's office go there with the mind set that all that they seek in relation to paternity, custody, child support, back child support, medical support and visitation will be what the attorney general's office will fight for on their behalf. However, the attorney general's fiduciary duty to zealously represent their client's interest is owed to the State of Texas not the parent. Their aim is to ensure each parent upholds their emotional and financial obligation to their children and to reduce the costs to the State for public assistance. As such, since the AG is actually filing the lawsuit for child support, they decide what claims and request for relief, if any, will be made. Those claims may or may not coincide with the desires of the parent who initiated contact with the AG's office. If any parent wishes to challenge any or all of the relief sought by the attorney general's office, they must do so on their own.

Misconception 3: I Risk Nothing Taking Care of This Myself

A parent representing themself in court risks losing their interests and/or desired outcomes in a child support case. In the event, a parent's desired outcome is contrary to the attorney general's office, they are going against an attorney familiar with the Texas Family Code, who was trained in the rules of evidence from years of law school and practice before a court of law, and who knows the in and outs of the courts. The situation is akin to bringing a knife to a gun fight. A person with no legal training, who is not familiar with rules of evidence, and who may not know what court they are going to much less have the requisite knowledge of a judge's previous rulings and their significance to their case, is not properly equipped to successfully fight against an attorney who has this backing. Furthermore, if the other parent is also fighting for custody, the attorney general's office cannot assist you. Federal funding does not allow the attorney general's office to provide legal services for custody and visitation disputes. Quite frankly, they will not seek a designated parent to be named as conservator but rather will ask the court to make an appropriate determination on conservatorship. Thus, any parent unable to properly introduce evidence to convince a judge to grant the relief they want, risks losing their desired relief.

Misconception 4: I Can Just Talk To The Judge and Explain My Side

A typical case not resolved by negotiation between the parties will be heard before a judge on the same day. What often takes place is trial by surprise. Unlike a case where a private attorney is hired and time is taken to do discovery (legal procedure where the parties exchange information to discover claims and evidence held by the other party), many of the claims are heard for the first time during that hearing. This gives no time to prepare for a case. The time frame does not support finding and presenting any physical evidence to support a party's claims or attack the claims of the other party in court. Once the judge's decision is made, and unless timely appealed or modified at some later time, the judgment can last until the child becomes an adult.

Misconception 5: It Will Cost Nothing To Use The Services of the Attorney General

Regardless of who initiates contact with the AG's office, if a judgment is taken against that party, they will typically be responsible for court costs.

Misconception 6: Attorneys Are Not Allowed

Any party is allowed to bring an attorney to represent their interests in negotiations or trial.


Author's Information: Attorney Tracey Beecher practices Family Law in Houston, TX. She represents clients with divorce, child support, child custody, property division in relation to divorce proceedings, and child protective services cases. She appears in courts within Brazoria, Fort Bend, Galveston, Harris, Liberty, Montgomery, and Waller counties.

Legal Disclaimer: Each person's situation and circumstances are unique. As such, this article is given to provide general information only. It is not legal advice nor is it intended as a substitute for legal counsel. Should the reader need legal advice or counsel, it is appropriate to seek the assistance of a licensed attorney.

What To Do When Your Ex Won't Move Out

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Nothing is sweeter than the feeling of new love.  The air seems fresher, you constantly have a smile on your face, and life simply seems rosier because of how your new love makes you feel.  But what happens when the person who was responsible for your joy is now making your daily living arrangements a living hell and the only joy that remains is two of you are not spouses. What does one do to remove a live-in paramour when the relationship has soured? How does one remove an ex, when divorce is not in play? Now granted, it is never wise to move in with another person, regardless of intimacy, without a written agreement that clearly states the responsibilities of each party for rents, utilities, and even what happens in the circumstance should the relationship end.  However, hindsight is 20/20 and life often does not fit in a perfect little box.  Nevertheless, the situation you now face, is you must now figure out some way to get your ex, who now refuses to leave, out of your home.

Now if you were in a divorce, you could seek, temporary orders and/or a divorce decree to get relief and get your ex out of your home.  If you are facing domestic violence, from your now ex- live-in girlfriend or boyfriend, then a protective order can give you the right by judicial order to get the person out of your home and prohibit them from returning.  However, when the situation does not involve spouses or domestic violence, the law is not as clear about what can be done to get a live-in ex-girlfriend or ex-boyfriend to move out.

Why calling the police may not work?

Why can’t you just call the police and report them as trespassing on your property?  It certainly makes sense, because the root of your problem is your live-in ex-girlfriend or ex-boyfriend is in your home, is no longer welcomed and refuses to leave.  After all a trespass occurs when a person enters or remains on property of another without effective consent and the person had notice entry was forbidden or had notice to depart and failed to do so. Furthermore, calling the police will not cost you attorney fees and/or court costs.

But the problem that often arises in this situation is the person reporting the trespassing, must be able to demonstrate their superior right to possession of the home. Police officers have a duty to enforce laws which are clearly defined, written and/or codified. Now upon you calling the police, if your ex can show they get mail at your home, has their personal belongings there, have a copy of the house key or can otherwise show they at least have equal rights to be in your home because of your prior permission allowing them to live there, most police officers will not move further to eject the person.  This is because there is a legal question as to if you have superior right to possession of the home.  Because the right is not clearly on your side, there is no clear duty to enforce the law to remove your ex from the home. Under the Texas penal code, the person requesting an arrest for trespass must also demonstrate a superior right to possession of the property to enforce a request for removal from the property.  

The rights to tenancy your ex may have and the legal complications for you.

Furthermore, your prior permission to allow your then girlfriend or boyfriend to live in your home as arguably now created a tenancy at will under Texas law.  Once a tenancy is created, the person who is the tenant has rights to possession of the property as well. Under Texas law, a tenant at will is a person who had the right to live in the home for no determined period of time with the invitation of the landlord, lessor, or homeowner.  A tenant at will does not have to leave the home unless evicted and is entitled to notice to vacate before eviction proceedings begin.  A tenant cannot be locked out of the home and if the locks are changed, they are entitled to a copy of the keys to the new locks.  It is also unlawful, to shut off utilities, or remove the front doors, to force the person to move.  Failure to follow lawful eviction procedures could result in civil penalties against the property owner equivalent to one month’s rent plus $1000, actual damages, court costs, and/or reasonable attorney’s fees.

The Good News

The good news is a tenancy at will is terminable by either party for any reason upon reasonable notice. Once you give your ex written notice to vacate your home and you post it on the door to your home or mail it three days before filing an eviction suit, you will satisfy this requirement. To show proof in court, if you are going to post it on the door, take a picture with date stamp if possible.  If sending by mail, while it is not required, certified mail will give you proof of your mailed notice.  Your notice to vacate must state the following: 1) date the notice was served on your ex, your ex’s name(s) and your address, 2) the reason for the notice (that your ex no longer has your invitation to live in the home), 3) language that your ex has three days to move out, including the final date and time by which he or she must be out of the property, 4)  notice that you may pursue an eviction lawsuit if they do not move, and 5)   and  language stating how the notice was given to your ex, (did you mail the notice, did you place it on the door etc.).  If they have not moved by the timeframe given in the notice, then you may proceed with filing an eviction suit in your nearest justice of the peace court. To avoid any surprises, look up the filing fees and service fees on the justice peace’s website.  Be prepared to present your proof of the notice to vacate.

Post-Judgment

Once you have obtained your judgment evicting your ex, that should make it amply clear they no longer have the right to live in your home. However, if he or she still will not leave your home, within six days of the eviction order, you can return to the justice court and, go get a writ of possession.  A writ of possession is a court order, ordering a Texas peace officer to obtain possession of your property to remove your stubborn ex-boyfriend or ex-girlfriend and return possession to you the homeowner.

Life After Eviction

Now this article does not take into consideration if children are involved between you and your ex.  In that situation, you do not want to repeat past mistakes.  It is best to come to a clear agreement about, how possession and access to your children will work in the future, once the two of you no longer live together.  Also make an agreement about child support, medical insurance or medical support, payment amount, date of first payment and how each payment should be made thereafter.  Make sure that each of you have a written agreement that is signed by each of you, and preferably filed in a court of law.  If you are unable to reach an agreement, make sure, you at least get an address where your child(ren) will be living if not with you.  Then, seek the assistance of a family lawyer or the office of attorney general to get a written order entered in a court of law.  It would be unwise to leave these issues unaddressed because they could subject you to no support if the child(ren) are in your care, and if not in your care, a nasty surprise for back child support in the future.  Worst case scenario, ignoring these issues now could also lead to not knowing the whereabouts of your child(ren) and having no ability to see them in the foreseeable future.

Eliminate Arguments During The Custody Exchange

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A common problem among newly separated or divorced parents is how to handle seeing each other outside of the courtroom.  While a court order may have made decisions on what happens in their day to day lives with their finances, their living arrangements, and/or their interaction with their children the complex emotional underpinnings involved in their separation are often unresolved.  Seeing each other outside the courtroom becomes a tinderbox of emotions waiting to erupt. The time-frame where children are exchanged between the custody of one parent to the other is fraught with this emotional dilemma.  This time-frame provides the perfect storm for disagreements and arguments to surface.  Unfortunately, the disagreements and arguments are often witnessed by their children while the exchange is occurring.

Granted not all couples fight the same.  However, when the cycle of fighting involves insults, shouting, physical altercations, and even the cold shoulder, children notice that tension.   When children are exposed to dysfunctional fighting on a consistent basis it can lead to stress.  That stress can reveal itself it what seems to be unrelated behavioral problems or illness.  A stressed child could also be fearful and anxious in social situations, exhibit bed-wetting, and/or sleep problems.  Stress can even take the form of a withdrawn child or a child who frequently reports of having aches and pains. Children learn  how to interact with their outside world from the behavior of their parents.  Often parents don’t realize that a cycle of dysfunctional fighting teaches their children how to handle disagreements with their friends, siblings and even their future partners.

CHANGE WHO DOES THE CUSTODY EXCHANGE

It is best to eliminate the opportunity for friction between parents during the custody exchange.  Those opportunities may already be in the custody order made by the court. Many parents miss that their order may allow for the exchange to occur between any competent adult trusted by the parents.  So, if it is more conducive for the exchange to occur between another family member or trusted friend, that could eliminate arguments in front of the children.

CHANGE WHERE THE CUSTODY EXCHANGE OCCURS

If the decree or order is not helpful, parents can make a different agreement on where the custody exchange occurs.  Parents frequently think that the divorce decree or SAPCR order is set in stone. However, the decree or custody order governs what happens when the parents cannot come to an agreement.  If parents can come to some other arrangement that works for them and limit the opportunity for fighting between them, they are free to do so.  Arrange for the exchange in very public places (McDonald's, Chuck E Cheese, police station) to avoid disagreements that become loud or physical.   Better yet, if it is better for the parents to avoid interaction altogether, make an agreement for pick up at the child’s school once classes are dismissed and drop off when school resumes. Another option, if the framework for your home allows and your children are old enough, allow the pick-up and drop off to occur from door to curbside.  That way one parent watches the children from the doorway and the other watches from the car as the custody exchange occurs.

AVOID SITUATIONS RIPE WITH DISCORD

Situations where an issue is likely to get a rise out of the ex-partner, tardiness in the pick-up and/or drop-off of the children or forgetting details of an agreement contrary to the custody order are often ripe for fights or discord to occur.  Exes usually know how to get their ex-partner angry.  However,  custody exchanges are not the time to hash out why an ex insists on taking a certain course of action or neglected to do something.  Parents who discuss these arrangements before or after the custody exchange can often avoid arguing during the custody exchange.  

Houston traffic can lead the well-intended parent to arrive late. However, planning ahead and leaving early can increase the chances for a timely custody-exchange and avoid an argument regarding punctuality. If the tardiness cannot be avoided, let the other parent know as soon as possible.  Now if parents make an agreement that is not in the custody order, such agreement should be memorialized in some manner to avoid future disagreements.  A simple text message after the agreement is made or email detailing the agreement can be enough to prevent future fights over the matter during the custody-exchange.

Finally, adequate preparation before the exchange can reduce the likelihood of fights. Make sure the children have any needed medication and instructions while in the custody of the other parent.  Ensure homework assignments are done or all that is needed to complete the homework is with the child during the custody-exchange. Verify that any items from the other parent’s home is with the children during the custody-exchange.

Author's Information: Attorney Tracey A. Beecher is a family law practitioner. She represents clients with divorce, child support, child custody, property division in relation to divorce proceedings, and child protective services cases. She appears in courts within Brazoria, Fort Bend, Galveston, Harris, Liberty, Montgomery, and Waller counties.

Legal Disclaimer: Each person's situation and circumstances are unique. As such, this article is given to provide general information only. It is not legal advice nor is it intended as a substitute for legal counsel. Should the reader need legal advice or counsel, it is appropriate to seek the assistance of a licensed attorney.

Photo Credit:  Photo by Mabel Amber on Pixabay


Failure To Pay Child Support Could Spell Big Trouble For Your Texas License

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Kay finally managed to turn her life around.  After years of drug abuse and jail stints, she found her peace with fishing.  Fishing allowed her to conquer her demons. She rebuilt her life and is on the cusp of getting her plumbing license. However, her years of drug abuse took its toll on her family. Her husband was killed in a drug deal gone bad while Kay was serving time for a drug possession case. A court gave custody of her twins Leona and Leon to her husband's mother Ruth.  Ruth dislikes Kay with a passion.  She blames Kay for her son's death.  Ruth believes if it had not been for Kay, then her son would not have gotten involved with drugs.

While Kay worked on getting her plumbing license, she took classes to prepare for her licensing exam.  Kay also needed hands on experience as an apprentice working under a master plumber to obtain her license.  She found it difficult to find a paid plumbing apprenticeship because of her criminal history.  She did manage to get an unpaid apprenticeship through her school and acquired the hours needed. Going to school and getting a tradesman's limited plumber license was Kay's pathway to a better income for herself and her kids. Her school and apprenticeship schedule took a great deal of time.  Unfortunately,  she took too much time off from her only paying job at the Chicken Shack and she lost that job. She did not make the court-ordered child support payments to Ruth for a few months and had to stay with friends because she was evicted from her apartment.  Nevertheless, Kay thought once she got a paid plumbing gig she could make more money than the minimum wage she earned at the Chicken Shack.  This would  allow her to pay Ruth more child-support to help with Leon and Leona.  Things started to look promising when her instructor, Jerry, promised her a job at his plumbing company upon her obtaining her tradesman license. Kay said she would get back on track with the child-support just as soon as she got a job with Jerry.  Kay tried to tell Ruth that was her plan but any time she attempted to talk to her the two ended up in an argument.  Ruth was not hearing what Kay had to say.  

It was not Ruth's intention in her retirement years to be the primary care-taker of two young kids but she was willing to because she loves her grandchildren. Nevertheless, Ruth thought, Kay brought those kids into the world so she should at least pay something to take care of them.  Kay did not pay child support for over six months.  It was not as though Kay was ordered to pay a great deal of money from her job.  Ruth was furious Kay could not even do that minimum and pay the child-support.  She decided to take steps to fix the situation and contacted the Attorney General's Office for help.

 Kay went to renew her car registration because it expired the month before.  Kay completely forgot about the registration due the stress of taking her licensing exam during that time. She was surprised when the Harris county clerk told her she could not renew her car registration and she needed to contact the Attorney General's Office. She thought to her self “what does my car registration have to do with the Attorney General's Office.”  She got home and her friend gave her a letter that arrived in the mail that day from the Texas Plumbing Board.  Kay thought finally some good news, “ I finally got my tradesman-plumber license.”  Unfortunately, she was unpleasantly surprised.  The letter indicated the Texas Plumbing Board could not issue her license due to unpaid child-support and she would have to contact the Attorney General's Office.  She got the letter late on Friday afternoon so she would have to wait until Monday to speak with someone.  However, her nerves were frazzled and she was quite upset.  She needed something to calm her down.  On Saturday, she thought she would go fishing to clear her head and get some perspective.  She went to her local Walmart to renew her fishing permit but was turned away again because as a retailer for the Texas Parks and Wildlife,  they were not allowed to give her a permit.  You see the Texas Parks and Wildlife Department received a request from the Attorney General's Office to not issue or renew any fishing permits to Kay because she was delinquent in her child support payments. Kay was fuming.  She thought, “how could the Attorney General's Office do this?”  What does a plumbing license, a fishing permit or car registration have to do with child-support anyway?  Isn't this beyond their reach?

The Link Between Your Child-Support Obligation and Your Texas Licenses

In the fictional illustration given above, Kay is wrong.  Kay mistakenly believes there is no link between her plumbing license, fishing permit or car registration and her failure to pay child support. The Texas Family Code provides many tools to get the attention of a party who is not paying child support in accordance with court orders.  Most persons know they can be found in contempt and receive free room and board at the county jail if they fail to pay their court ordered child support.1 However, jail time is not the only possible consequence for not paying child support.  Any license,  issued by the state of Texas is subject to suspension, revocation, non-renewal or termination for failing to comply with a child support order.2 Potential suspensions can be broad and affect all aspects licensed or permitted by any agency, commission, board, office or department of Texas or any of its political subdivisions.3

When Can a License Be Suspended, Revoked or Terminated?

Once child-support debt is owed for three months or greater, proceedings to suspend an obligor's Texas license can be initiated.  The proceedings may be initiated by either a Texas child-support agency or an obligee.4 Either a Title-IV D court,5 the court of continuing and exclusive jurisdiction or tribunal in which the child support order was registered may hear and decide the case. 6 After a determination is made that the obligor has:

a) failed to make payments that is equal to or greater than three months of child-support in accordance with a court order;

b) was given opportunity to come in compliance with an agreed or court-ordered repayment schedule; and

c) has failed to comply with the repayment schedule,

then either a court or a Title-IV D agency7 may issue an order suspending an obligor's license.8 However, if an obligor received notice of hearing for the suspension of their license, and does not timely respond to the notice, then a default order without further hearing will be granted.  Essentially, the petition filed seeking license suspension will be deemed as admitted by the obligor.9

How Is A License Suspended?

After receiving an order for suspension, a Texas licensing authority shall first determine if they have issued a license to the person named in the order, immediately record the suspension of the person's license, report the suspension of the license as appropriate and demand the return of the license to the appropriate Texas authority. 10 Any person who continues to operate with the use of a suspended license will be subject to any applicable civil and/or criminal liability of an unlicensed person or that of a suspended license-holder.11 No further hearing by the Texas licensing authority shall be necessary. Although it is not required, a licensing authority may send notice to the affected licensee and/or others affected by the suspension.12

When Can Denial of A License's Issuance or Renewal Occur?

Any Texas license may also be denied issuance or renewal upon the request of the Texas Attorney General's office if a person fails to pay court-ordered child-support for six months or greater. 13 Any licensing authority who receives this notice, must refuse the issuance or renewal of a license. 14 No hearing or court-order is required prior to this. However, once notice is sent to the licensing authority, the Attorney General's Office must send notice to the license-holder of the request to deny issuance or renewal and the steps that can be taken before license issuance or renewal can occur.  Once notice is received, the obligor may dispute the debt and request an informal review.  If after an informal review takes place via phone or in person, the dispute still exists, the licensee may request hearing to withdraw the Attorney General's request no later than 30 days following receipt of the agency's determination after the informal review.15

This was the penalty applicable to Kay.  She failed to pay child-support for six months or greater and without hearing, her Texas licenses and permits were not issued and renewed.  The Attorney General's Office did not have to do a hearing first.  However, Kay is entitled to notice from the Attorney-General's Office.  If she did not get notice she must bring that to their attention or the court.  The lack of notice could be grounds for contesting the denial of her plumbing license, fishing permit renewal and car registration.   Kay can have an informal meeting with the Attorney General's Office to discuss her child-support debt, her defenses, and come to some resolution. She may contest it altogether if the dispute between her and the child-support office is not resolved.  

A Licensing Authority May Not Lift A Suspension For Failure to Pay Child-Support

A licensing authority may not modify, remand, reverse, vacate, or stay an order to suspend license for failure to pay child-support. Said authority also may not review, vacate or reconsider the terms for a final order to suspend license. 16 The only way for an obligor to fix this is to go through the Attorney General's Office or contest it in court.  The licensee may come in substantial compliance with a repayment schedule established by the Attorney General's order suspending the license and receive a stay17 of the order to regain the license. The Attorney General's Office may vacate or cancel the license suspension order once all outstanding child support is paid in full.  The license suspension may also be cancelled or stayed if the Attorney General's Office deems good cause exists to do so.18

A Texas licensing agency is also prohibited from doing the same where a person's license issuance or renewal is denied. In the event issuance or renewal is denied because of child-support delinquencies, the licensing agency may not grant a issuance or renewal until they have received notice from the Texas Attorney General's Office.  The notice must show the licensee:

a) paid no less than $200 and entered in a repayment schedule with the agency;

b) paid the outstanding child-support in full;

c) was granted an exemption as a part of a court-supervised plan to improve the person's earnings and child-support payments; 

d) successfully contested the denial of issuance or renewal of their license. 19 Thus with the illustration above, Kay cannot try to remedy the issuance and renewal of her license and permits through the agencies that denied them.  She must speak with the Attorney General's Office first.  Her plumbing license, car registration, and fishing permit will not be renewed until she:

(a) pays no less than $200 and enter a repayment schedule with the agency;

(b) pays the child-support in full;

(c) gets an exemption from the court under a court-supervised plan to increase her earnings and child-support; or

(d) she wins in court when she contests the denied license issuance and renewals.

Persons Who Can Be Affected By This Law

The first persons who come to mind that may be subject to the application of this penalty for past-due child-support are Texas drivers.  That is a fair assumption as driver's licenses and car registrations20 are very common issuances made by a Texas licensing authority.21 However, they are not the only persons who may be subject to this penalty.  Any person who requires a license to practice an occupation or profession is subject to this law as well.22 Thus, whether you are a doctor or a plumber, pharmacist or do pest control, you are subject to this order.23 Persons who enjoy fishing, hunting, or any other recreational activity for which a license or permit is required, take note, you are also subject to this law.24

If your situation is like Ruth's, going after the child-support debtor's licenses and permits is an effective tool to promote compliance with the payment order.  It certainly creates motivation for an obligor to get in compliance when their livelihood, ability to drive, and/or their recreational activities are  in the crosshairs. An obligee, like Ruth, may contact the Attorney General's Office or hire a private attorney to seek this remedy.

If your situation is like Kay, do not ignore any notice regarding your Texas licenses or permits. Your ability to work, drive, or engage in recreational activities licensed by the state is on the line.  An obligor, like Kay, may contact the Attorney General's Office to seek a resolution if their license or permits are in jeopardy.  However, where a person is unfamiliar with the law, procedure and/or defenses applicable to their situation the use of a private attorney to represent them is also an option.

 Author's Information: Attorney Tracey A. Beecher is a family law practitioner. She represents clients with divorce, child support, child custody, property division in relation to divorce proceedings, and child protective services cases. She appears in courts within Brazoria, Chambers, Fort Bend, Galveston, Harris, Liberty, Montgomery, and Waller counties.

Legal Disclaimer: Each person's situation and circumstances are unique. As such, this article is given to provide general information only. It is not legal advice nor is it intended as a substitute for legal counsel. Should the reader need legal advice or counsel, it is appropriate to seek the assistance of a licensed attorney.

1 Enforcing child-support and spousal maintenance orders, pg. 5: http://www.texasbarcle.com/Materials/Events/5832/94472_01.pdf

2 Texas Family Code § 232.001(1)

3 Id. at (2)

4 Id. § 232.004(a)

5 Court created in response to federal requirements to provide an expedited administrative or judicial process to handle child-support cases. See http://www.txcourts.gov/about-texas-courts/specialty-courts/

6 Texas Family Code § 232.004(b)

7 The Office of Attorney General is designated as Texas' Title IV-D agency.  Id. at §231.001

8 Id. at § 232.003(a)

9 Id. at § 232.009

10 Id. § 232.011(a)

11 Id. at (e)

12 Id. at (b)

13 Id. at 232.0135(a)

14 Id. at (b)

15 Id. at (e)

16 See id. at 232.011(c)

17 A stay is a suspension of the terms or requirements of a previous order.

18 Id. at 231.013(a)(1)

19 Id. at 232.0135(b)

20 Id. at 232.0022

21 Id. at 232.001(1)(C)(ii)

22 Id. at 232.001(1)(C)(i)

23 Enforcing Child-support and spousal maintenance orders, pg. 5: http://www.texasbarcle.com/Materials/Events/5832/94472_01.pdf

24 Texas Family Code § 232.001(1)(C)(i)

Dad Has A Right To Be A Parent Too

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Paola entered her three bedroom home after working a twelve hour shift at the Community Hospital.  She was exhausted but happy to be home.  She walked in to find her eighteen year old son Martin waiting for her in the living room.  She was surprised to see him up.  Usually after he worked the late shift at the diner, he would be asleep by the time she got home. She was happy to see him but she noticed his demeanor was different. She greeted him and told him about the persons she encountered in the emergency room that night.  There was a particular lady who came in her pajamas complaining of pain and when she did not get in to see a doctor immediately, started screaming obscenities atop of her lungs. Martin listened, but Paola could tell he had something on his mind.

Paola: Mijo how was your day?

Martin: Interesting

Paola: How so mijo?

Martin:  I waited on a old woman today.  When she arrived, she had a look of despair in her eyes. I spoke with her while waiting her table.  I wanted to just give her a little comfort as she waited on her food. Turns out, she was in Dayton looking for her grandson.  She said she was carrying on the search for the boy since her son could not anymore.  Her son looked for the little boy for fourteen years before his death six months ago from a heart attack.  He spent every bit of his earnings looking for his son. He followed leads from El Paso, Austin and San Antonio looking for him but never found his son. He even ended up living with the old woman and her husband because all that he had, he used to look for his child. Dayton was the last lead he had of where is son may be living.

Paola:  That's weird, those are all places we've lived.  How did the boy become missing?

Martin: She said the boy's mother took him, after she broke up with her son.  Her son tried to visit  his son and did so continuously for the first year after their relationship ended. But his break up with his ex was contentious. They fought loudly, often and bitterly.  One day her son went to the apartment to pick up his son and his ex and their son were gone.  She moved and did not tell him where she was going to. Her phone number was disconnected and her family was unwilling to tell him where she went.  He called the police but they were unable to help.  They said because he was not married to his ex and there were no orders establishing a paternity with he and the child, they could not do anything.  

Paola: How sad, but how did this man know the little boy was his?

Martin:  I thought so too, but I did not tell her anything because I did not want to offend the old lady. But she continued her explanation.  She pulled out a picture.  She said when her son went to the cops for help, he showed them the same picture.  She exclaimed, how could they look at her son Manolo and the little boy and not see the resemblance. She showed me the picture. It showed a little boy, about three to four years old, sitting in between her son Manolo and his ex. I must admit when I saw the picture, I was taken aback.  Martin looked at his mother and saw she was ghostly white when he mentioned Manolo. Mama, who is Manolo?

Paola:  What do you mean mijo? Stuttering, I don't know a Manolo?

Martin: Mama, I took the lady's phone number and told her I would call her if I found out anything.  But I only did that so I could talk to you first.  She did not recognize that the grandson she was looking for was standing right before her.  The ex in the picture was you and the little boy was me.  Be honest with me, Manolo is my father, right?

Paola's eyes were now filled with tears.

Paola:  Yes

Martin: Why did you tell me my father died when I was baby?

Paola:  Your father... Your father …. I did not want the type of life he was going to expose you too.  He worked nights at as a club DJ.  There was always a party, always different girlfriends.  That was not the lifestyle I wanted for you.

Martin:  So the old lady lied, he did not want me?

Paola:  No, he took care of you, loved you and played with you.  He would starve before he let you go hungry. He was proud to have you as his son.  But I got tired of the arguing, his false promises of change and his cheating.  He refused to get a day job.  He would not let go of the club life. It was not the environment for a child.  So I left.

Martin: Mama, I get it . He was a horrible boyfriend.  But he was my dad.  Didn't I have a right to know my dad.  Didn't he have a right to be my dad?

 The fictional conversation detailed between Martin and Paola depicts a situation many Texas fathers face. Fathers like Manolo are left to live the nightmare of not knowing where their children are, whether their children are safe and if their children even remember them due to the actions of their children's mother.  Each parent has a constitutional right to the companionship, care, custody and management of their child.1 Yet the recognition that fathers possess the same rights to raise their children and be present in their lives is sometimes tenuous. So fathers like Manolo must take action to protect their interests in being present during their children's lives.

Established Paternity Equals Established Parental Rights

It is one thing to have a strong resemblance to a child or even recognize similar characteristics and traits that you possess that are now demonstrated by the child.  However, unlike mothers where it is easier to know who a child's mother is, fathers must have some legal manner of establishing a parent child relationship in order to exercise their rights as parents.  A court of law and law enforcement cannot help a person to exercise the rights of a parent where the legal relationship of paternity was not already established. Before a man can exercise his rights as a parent, he must first establish paternity. Texas fathers may establish paternity by being the presumed father, signing an acknowledgment of paternity, or obtaining a court order that states they are the father.

Any man married to a child's mother at the time of birth or who was married to the child's mother within the 301 days prior to birth is a presumed father.2 Presumed paternity is also established when a man marries the child's mother after birth and asserts paternity in writing to the Texas bureau of vital statistics, voluntarily admits paternity on the child's birth certificate or in a record promises to support the child as his own.3 A man is also the presumed father where he continuously resides with a child during the first two years of life and presented the child as his own.4

Signing an acknowledgment of paternity is another manner in which a man may establish paternity to a child.5 An acknowledgment is akin to a court order establishing paternity and challenging it is permitted only in limited circumstances. 6 Both mother and father to the child must sign and otherwise authenticate the acknowledgment under penalty of perjury that the man signing the document is the father of the child named in the document and that no other man is the presumed father or adjudicated father of the child. The acknowledgment must also state if paternity testing was done, and if done, that the acknowledgment is consistent with the results of paternity testing.7 Once a valid acknowledgment of paternity is done and filed with the bureau of vital statistics, it gives the man acknowledging paternity all rights and duties of a parent.8

Men may also establish paternity in a suit to adjudicate paternity. Genetic testing can be ordered in such suits to assist the court in making a determination.  At times, paternity lawsuits can be contentious if there is a dispute as to who the father is. Additionally, in situations where a presumed father is in the picture, a man other than the presumed father who is seeking to be adjudicated as the child's father only has four years from the child's birth to seek a court order.9 In said suit, the aim is to obtain a court order adjudicating a person as a father.

I Have the Same Rights As My Child's Mother, Why Can't I See My Child?

Paternity gives a father the same rights as a mother to possession, access, control, and the same duties to support and protect a child. This is not a problem when mom and dad share the same living space and has the same ability to exercise their rights and duties to their child.  The problem arises when living spaces are separated due to a break-up of the parental relationship and/or termination of the familial household.  Where the break-up can influence decision making, one parent can exercise their rights to the detriment and sometimes at the exclusion of the other.  If there is no court order stating what each parent's rights are in that instance, there is nothing a parent can do to enforce their rights as a parent.  A father seeking the assistance of a police officer to possession, access and/or control to their child without a court order will not get aid.  To do so in that circumstance would mean that officer would have to interfere with the parental rights of the mother.  While both mom and dad have the same rights, when it is not clearly defined who has what rights and when and where those rights may be exercised, a officer is powerless to enforce the rights of one parent over the other.  A court order gives law enforcement and the courts a clear pathway of protecting each parents delineated rights to a child. Moreover, a court order is going to give law enforcement express language to enforce the rights of each parent.

Hindsight was 20/20 for Manolo.  However, fathers like Manolo can protect their rights by establishing paternity and obtaining a court order to state their rights to possession, access and control to their child. The sooner this is established, the less likely those rights are to be taken. If you find yourself in a similar situation as Manolo or you wish to avoid Manolo's plight, contact the Beecher Law Firm for a consultation to discuss what steps can be taken to protect your rights.

Author's Information: Attorney Tracey A. Beecher is a family law practitioner. She represents clients with divorce, child support, child custody, property division in relation to divorce proceedings, and child protective services cases. She appears in courts within Brazoria, Chambers, Fort Bend, Galveston, Harris, Liberty, Montgomery, and Waller counties.

Legal Disclaimer: Each person's situation and circumstances are unique. As such, this article is given to provide general information only. It is not legal advice nor is it intended as a substitute for legal counsel. Should the reader need legal advice or counsel, it is appropriate to seek the assistance of a licensed attorney.


1 Wisconsin v. Yoder, 406 U.S. 205,232, 32 L. Ed. 2D 15, 92 S. Ct. (1972)

2 Texas Family Code 160.204(a) (1-3)

3 Id. at (a)(4)

4 Id. at (a)(5)

5 Id. at § 160.302 (a)

6 Id at (a)(5)

7 Id. at (a)(1-4)

8 Id. at 160.305(a).

9 Id. at 160.607(a)

A TEXAS SAPCR EXPLAINED

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What is a SAPCR?

A SAPCR (pronounced sap sir) is a Suit Affecting the Parent Child Relationship.  The suit will deal with the issues of a person's right to parent a child and can mark the beginning or end of a parent/child relationship.  A court in a SAPCR lawsuit will make decisions concerning a person's ability to have access, control, and/or possession to a child.  The suit can also address the issues of  child support.

Who may file a SAPCR lawsuit?

A parent

An authorized court representative

Custodian or person with a out of country or state court-ordered right to visitation or access

Guardian of a child's person or estate

Governmental entity

Department of Family and Protective Services

A licensed child placing agency

A man who alleges himself as the father

A person, other than a foster parent, who has had actual care, possession and control of the child for at least 6 months and ending no more than 90 days prior to filing suit.1

A person designated managing conservator in a revoked or unrevoked affidavit of relinquishment or to whom written consent to adoption was given

A person with whom the child and the child's guardian, managing conservator or parent have resided with for at least 6 months and ending no more than 90 days prior to filing suit, if at the time of filing suit, the child's guardian, managing conservator or parent is deceased.

A foster parent of a child placed by the Department of Family and Protective Services in the person's home for at least 12 months and ending no more than 90 days prior to filing suit.

A person related to the child within the third degree of consanguity if at the time of filing the child's parents are deceased.

A person named as a prospective adoptive parent by a pregnant woman or parent of the child in a verified written statement to confer standing

What about Grandparents, do they have the right to file a SAPCR claim?

Any person related to a child within the third degree of consanguity may file a SAPCR claim if the child's parents are deceased at the time of filing.  If the child's parents are alive, grandparents and others related to a child within the third degree of consanguity may file a SAPCR suit seeking managing conservatorship if the court has satisfactory proof that the order is necessary to protect the physical health and/or the emotional development of the child.  Such persons may also file a SAPCR lawsuit if both parents, the surviving parent, or the managing conservator or custodian filed the suit or consented to it. A grandparent or other person may not file an original SAPCR suit seeking possessory conservatorship. However, a court may grant them permission to intervene in a pending suit filed by a person with standing to do so if the grandparent or other person has had substantial contact with the child and the court has satisfactory proof that the appointment of a parent as sole managing conservator or of parents as joint managing conservator would significantly impair the childs physical health or emotional development. 

May I bring my SAPCR case in a Texas court?

A Texas court may make an initial custody determination in a SAPCR case if at the time the suit is commenced the child's home state is Texas. If Texas was the child's home state within six months of filing but the child is now absent from the state and a parent or person acting as parent still lives here, then an initial custody determination may be made here. Home state is the state in which a child lived with a parent or a person acting as a parent for at least six consecutive months immediately before the commencement of a child custody proceeding. In the case of a child less than six months of age, the term means the state in which the child lived from birth with a parent or a person acting as a parent. A period of temporary absence of a parent or a person acting as a parent is part of the period. A Texas court may also make an initial custody determination in the situation where a child does not have a home state or whose home state court has declined to exercise jurisidiction because Texas is a more convenient forum to have the case heard.   Significant contact other than mere presence in the state by the child or child's parent or person acting as parent will be required.  The court will consider if there is substantial evidence available concerning the child's care, training, protection and personal relationships.2

When Can I File A Texas SAPCR Suit?

For most persons who have standing to bring a SAPCR lawsuit there is no deadline on which the lawsuit must be filed.  However for persons whose ability to file suit is reliant on the child living with them for at least six months, the suit should not be filed earlier than after six months of cohabitation.  It should be noted it is not required that the six months of resididing in the same household be continuous and uninterrupted.  Rather the court will be looking to see where the primary residence of the child was during the pertinent time period.3 In the event the child no longer lives with an individual depending on six months of cohabitation to bring suit, the lawsuit must be filed within 90 days of cohabitation with the child ending.

Persons in a SAPCR lawsuit wishing to determine or challenge paternity where a presumed father is involved will have four years from the child's birthday to do so.4 Regardless of the child's age, a presumed father may bring a SAPCR lawsuit at any time if he did not live with or engage in sexual intercourse with the child's mother during the likely time period of conception.  The four year time limit is also inapplicable to a father who was precluded from beginning a suit earlier because another's misrepresentations led the father to mistakenly believe a child to be his own.5      

Author's Information: Attorney Tracey A. Beecher is a family law practitioner. She represents clients with divorce, child support, child custody, property division in relation to divorce proceedings, and child protective services cases. She appears in courts within Brazoria, Chambers, Fort Bend, Galveston, Harris, Liberty, Montgomery, and Waller counties.

Legal Disclaimer: Each person's situation and circumstances are unique. As such, this article is given to provide general information only. It is not legal advice nor is it intended as a substitute for legal counsel. Should the reader need legal advice or counsel, it is appropriate to seek the assistance of a licensed attorney.

Legal References

1 Texas Family Code 102.003 ‘[A]ctual . . . control . . . of the child,’ as used in section 102.003(a)(9), means the actual power or authority to guide or manage or the actual directing or restricting of the child, as opposed to legal or constructive power or authority to guide or manage the child. In sum, these words reflect the Legislature’s intent to create standing for those who have, over time, devel­oped and maintained a relationship with a child entailing the actual exercise of guid­ance, governance and direction similar to that typically exercised by parents with their children.” Jasek v. Texas Department of Family & Protective Services, 348 S.W.3d 523, 533 (Tex. App.—Austin 2011, no pet.); See Coons-Andersen v. Andersen, 104 S.W.3d 630, 636 (Tex. App.—Dallas 2003, no pet.).

 2 Texas Family Code 152.201

  3  Jasek v. Texas Department of Family & Protective Services, 348 S.W.3d 523, 533 (Tex. App.—Austin 2011, no pet.); See Coons-Andersen v. Andersen, 104 S.W.3d 630, 636 (Tex. App.—Dallas 2003, no pet.)  

 4 Texas Family Code 160.607 (a)

 5 Texas Family Code 160.607 (b)

Genetic Testing's Role in Texas Paternity Cases

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There was always talk that Fred was the daddy.  However, each time Fred asked to see his purported daughter Jillian, her Mom Patricia, would not allow it. There was always some excuse and Fred heard it all.  “We have plans that weekend.”  “Jillian would be at grandma's.” “Jillian does not know him and was too young to spend time with a stranger.” “Jillian and/or Patricia was ill.”  “It was way too cold to carry a child that age out.”  “It was way too hot to carry a child that age out.”  The excuses ran the gambit.  However, the excuses at least meant he could speak to Patricia about the matter. There were stretches of time, sometimes weeks, sometimes months, when Fred attempted to reach out to Patricia and she was non-responsive or simply no-where to be found.    The longest stretch lasted 18 months where Fred reached out but had no knowledge of Patricia and Jillian's whereabouts.  Mutual friends of Fred and Patricia indicated she and her husband left Texas.  They eventually resumed communicating again when Patricia and Jillian moved to Fresno, TX.  However, the situation did not change.  He never saw Jillian.  Oddly enough, each time Fred asked for a DNA test between he and Jillian, Patricia became defensive.  She would accuse Fred of insinuating she was a slut and then the arguments and name calling between each would begin. She often told Fred no test was needed because you could look at Jillian and see the resemblance. Fred eventually became frustrated with the situation and gave up communicating with Patricia.  That was until the day, four and half years after Jillian's birth, he opened his mail to find a letter from his local child support office.  The letter requested a sit down meeting between he and Patricia to negotiate an agreement for child support of Jillian.  Fred blew his top he was so mad.  Who did this woman think she was.  He certainly was not going to pay to support a child he could not see or who he even knew was his or not.   He thought about just ignoring the letter but he also could not stand the limbo of the situation.  His mind flashed back to the basketball games he played in high school and the hurt he would feel seeing his teammates' Dads at the game and not knowing who his Dad was much less where he was. That same feeling of hurt and lost was felt each birthday and Christmas he spent with just he and his Mom.  While he was not sure if Jillian was his daughter, in the event she was, he did not want any child of his to know the hurt of having an absent father.  Fred knew he had to do DNA testing to make sure Jillian was his.  However, that would take time and the meeting at the child support office was in a few days.  He was sure that would not be enough time.  Fred questioned what steps to take next.

The Parent-Child Relationship

An established parent-child relationship confers on a person,  the obligation to pay or receive support, the rights to access and possession of a child, the right to access records and exercise decision making authority on the behalf of a child and inheritance rights between parent and child.  The significant rights and obligations created in a parent-child relationship warrants the need for certainty as in the fictional situation of Fred, Patricia and Jillian.  Genetic testing can provide the answers when paternity is unclear.

Genetic Testing

A party in the establishment of a parent-child relationship has the right to request genetic testing.  Quite frankly, should a party in a suit to determine parentage request it, a court shall order a child and designated individuals to submit to genetic testing.1 A report of a genetic testing expert is admissible as evidence as the truth of facts asserted in the report. 2 The only time a genetic testing report will be inadmissible in a paternity proceeding is where a child has a presumed, acknowledged or adjudicated father and mother and said father has not given consent for genetic testing or a court has not ordered genetic testing.3 A man whose test results show he is the genetic father to a child shall be adjudicated the father of the child.  A man whose test results show he is excluded as the genetic father to a child shall be adjudicated as not being the father of the child. 4

Time Limits to Request Genetic Testing

Fred's request for genetic testing could be denied if Jillian has a presumed or acknowledged father.  If another man was adjudicated as dad or signed an acknowledgment of paternity, then a non-signatory or non-party to the paternity proceeding will have up to four years after the acknowledgment or adjudication to challenge it.5 As stated above, Patricia and Jillian disappeared for a few months out of Fred's life because she moved with her husband.  If Jillian was born during Patricia's marriage to her husband, he is Jillian's presumed father.  A suit to adjudicate paternity must be brought no later than the fourth anniversary of the child's birth.6  Jillian is four and a half. Thus, if there is a presumed father in the picture, a suit to adjudicate Fred as the father could be barred due to the time it is brought.  However, a paternity suit to adjudicate Fred as Jillian's dad could still proceed even if Jillian has a presumed father and other conditions exist.  For example, if a court determines the child's mother, Patricia, and the presumed father did not live together or engage in sexual intercourse during the probable time of conception, than a paternity suit may be maintained at any time. 7 Another situation where Fred would be allowed to seek genetic testing to adjudicate himself as Jillian's father would be if the presumed father in the picture was precluded from contesting his paternity of Jillian before her fourth birthday because he mistakenly believed he was the father due to misrepresentations from Jillian's mother Patricia.8

If a child does not have any other presumed, acknowledged, or adjudicated father, then a proceeding to adjudicate paternity may be brought at anytime.9 Thus, if Jillian has no presumed, acknowledged, or adjudicated father, nothing precludes Fred from seeking genetic testing to determine his paternity to her.

Court's Authority to Deny Genetic Testing

A court could deny a motion for genetic testing if it determines the mother's conduct or the presumed father's conduct estops them now from denying paternity. A court could also deny a motion for genetic testing if it would be inequitable to disprove the father-child relationship between the presumed father and a child.10

Who Pays for Genetic Testing

The cost for initial genetic testing must be advanced by a support enforcement agency if the agency is providing services in the proceeding.11 However, if an individual is rebuttably proved to be the father in genetic testing, the enforcement agency may seek reimbursement for the costs of genetic testing.12 Thus, in the fictional situation above, because the office of attorney general is providing services in the proceeding, the OAG office will bear the initial responsibility to bear the costs. However, if Fred is rebuttably proven through genetic testing to be Jillian's father, the OAG's office could seek reimbursement from Fred for the initial costs.  A party must also pay the initial costs for genetic testing where they request genetic testing, as per agreement between the parties or as otherwise ordered by a court.13

If you are in a similar situation as Fred, Jillian and Patricia and would like legal advice or  assistance in seeking genetic testing to prove or disprove a parental relationship, visit our contact page to find out how you may schedule a consultation.

Author's Information: Attorney Tracey A. Beecher is a family law practitioner. She represents clients with divorce, child support, child custody, property division in relation to divorce proceedings, and child protective services cases. She appears in courts within Brazoria, Fort Bend, Galveston, Harris, Liberty, Montgomery, and Waller counties.

Legal Disclaimer: Each person's situation and circumstances are unique. As such, this article is given to provide general information only. It is not legal advice nor is it intended as a substitute for legal counsel. Should the reader need legal advice or counsel, it is appropriate to seek the assistance of a licensed attorney.

 Bibliography

1 Texas Family Code § 160.502 (a)

 2 Texas Family Code § 160.621 (a)

 3 Id. at  (c)

 4 Texas Family Code §160.631 (c-d)

 5 Texas Family Code § 160.609 (b)

 6 Texas Family Code § 160.607 (a)

 7 Texas Family Code § 160.607 (b)(1)

 8 Id. at (b)(2)

 9 Texas Family Code § 160.606

 10 Texas Family Code § 160.608

 11 Texas Family Code § 160.506 (a)(1)

 12 Id. at (b)

 13 Id. at (a)

Waiting Periods to Divorce and Remarry in Texas

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Things could not have been more different for Kelly.  Exactly one year ago, she was on her own with no money, no place to stay and a broken heart.  Her husband Pete took up with a new girlfriend 25 years his junior.  He threw her belongings out on the lawn and locked her out of their home. Kelly suspected he was having yet another affair but did not think a break-up was in their future.  During their fourteen years together, she looked the other way on Pete's infidelities because she did not have to work and Pete always took care of her.  Unlike a prior relationship Kelly endured while she was 16, Pete never laid a hand on Kelly.  More importantly to Kelly, he always came home to her and they otherwise had a good relationship.   Pete proposed and married Kelly eight years ago.  She agreed to move into Pete's house so they could save up, sell his current home and get a new home together.  However, that day never came.  While she thought, the cheating would stop after they were married, it did not. She knew Pete liked younger women.  After all, she started dating Pete when she was 18 and he was 36. But there it was, 14 years after her first date with Pete, her stuff was on the lawn for the entire neighborhood to see.  

Kelly moved back in with her parents in Spring Branch. Her Dad was good friends with the station manager at a local TV station and he got her a job as a make up artist for the morning anchors.  Kelly was always good with applying makeup and in her new job she excelled.  Her position during the year went from part-time, to full-time and she even received a raise.  With her raise she was able to move out of her parents home and closer to the TV station in her own condo.  Kelly meet Dave three months after her breakup with Pete.  She had fun with Dave, felt safe, and he gave her room to be herself. The two fell madly in love and discussed marriage.  Unlike Pete, Kelly's family loved Dave. During new years eve at Kelly's parents home, Kelly and Dave were outside watching the fireworks. Dave dropped on one knee and proposed to Kelly. Kelly was ecstatic to get married to Dave and could not wait to start their new lives together as husband and wife.  However, she was still married to Pete.  She and Dave wanted to get married on their joint birthdays on February 12th .  January 3rd, they met with a divorce attorney so they could start the process of getting Pete and Kelly divorced.  Kelly really wanted a clean break and she would do anything to close the book on that relationship and start her life with Dave.  The most important thing to her is she could marry Dave on February 12th.  Dave and Kelly told the attorney their plans, to their surprise they found out their would be a snag.

Waiting Period to Divorce

Parties who have filed for divorce must wait at least 60 days before a court will grant a divorce.1

Thus, a person must let 60 days elapse after the divorce is filed, and on the 61st day can request the court to grant their divorce.   In the fictional scenario above, Dave and Kelly want to get married on February 12th. Even if the divorce attorney files a petition for divorce on January 3rd, by February 12th, the divorce would only be on file for 40 days and the requisite sixty day waiting period would not have elapsed for the court to grant the divorce.  This sixty day waiting period is not required if a party seeks to annul a marriage or declare a marriage void.2 A court may grant a divorce earlier than sixty days after filing if

a.  The respondent in a divorce was convicted of or received deferred adjudication for an offense of family violence against the petitioner or a member of petitioner's household; or

b.  Petitioner has a protective order or a magistrate's emergency order, against the respondent because of a finding of family violence committed during the marriage.3

However, in the fictional depiction, Pete did not engage in domestic violence against Kelly.  So Kelly's divorce from Pete would not fall into one of those exceptions.

Waiting Period to Remarry

Parties once divorced must wait thirty days before they can remarry another person unless they obtain a waiver from the court.4 Once Kelly divorces Pete, she must also wait for 30 days to elapse and on or after the 31st day after her divorce she may marry Dave. Her only way to avoid the 30 day wait after her divorce is to obtain a waiver from the court.

If you are in a similar situation as Kelly, Pete and Dave and wish to discuss obtaining a divorce in the most efficient manner, contact our offices to schedule a consultation with our attorney.

Author's Information: Attorney Tracey A. Beecher is a family law practitioner. She represents clients with divorce, child support, child custody, property division in relation to divorce proceedings, and child protective services cases. She appears in courts within Brazoria, Fort Bend, Galveston, Harris, Liberty, Montgomery, and Waller counties.

Legal Disclaimer: Each person's situation and circumstances are unique. As such, this article is given to provide general information only. It is not legal advice nor is it intended as a substitute for legal counsel. Should the reader need legal advice or counsel, it is appropriate to seek the assistance of a licensed attorney.

Photo: Taken by Pete Smithies on https://pixabay.com/en/users/petesmithies-825377/ 

Bibliography & Sources 

1 Texas Family Code § 6.702(a)

 2 Id. at (b)

 3 Id.  at (c)

 4 Texas Family Code 6.801 and 6.802


No Agreement Needed To Get A Texas Divorce

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Charlie:  I am tired of this.  We argue over money, our faith, the dog, even the silly thermometer.  I am tired of living in strife.   This situation is maddening and I can't take it anymore. This is not working Susan, I want a divorce.

Susan:  Charlie, get over yourself. Married people argue!  That's just like you,  things get hard, you want to bail. You're such a quitter.   Plus I'm the one who looks the other way on your stupidity.  If anyone has the right to get a divorce its me.

Charlie:  Then get it!  What are you waiting on? Susan we are always at each others throats. Literally, we wake up and we argue until the sun goes down.  This is no way to live.  I want out.

Susan:  You may want out Charlie but I am not giving it to you.  I'm not letting your failures mess up my faith. You are going to have to figure out how to make this work because I am not agreeing to divorce you. Good luck getting a divorce without my agreement.

In the fictional conversation above, Susan is wrong to assume spouses must agree to get a Texas divorce.  A court may grant a no fault divorce on the petition of either party to a marriage.1 Furthermore, a spouse is not required to show who caused the disagreements between the parties.  They are only required to show that discord exists and it makes the marriage relationship insupportable.2 A party who tries to prevent a divorce on basis that a divorce would interfere with the exercise of their faith is also in for a disappointment.  Regardless if a couple views their marital union as religious or secular, the State of Texas governs all aspects of their union.3The courts have found the rights, duties and obligations given at the beginning of a marriage are created through the laws of the state of Texas. As such, the state of Texas shall govern the termination of those rights, duties and obligations once a marriage ends.4

Regardless of agreement to divorce, a court may also grant a divorce to a party upon the grounds of:

  1. adultery;

  2. conviction of a felony;

  3. cruel treatment by one spouse to the other;

  4. confinement to a mental hospital; and/or

  5. spouses living apart for three years or greater5

If you are in a similar situation as Charlie, you do not need the other parties agreement to obtain a divorce. Contact our firm for a consultation to discuss how to proceed in protecting your rights and interests during divorce.

Author's Information: Attorney Tracey A. Beecher is a family law practitioner. She represents clients with divorce, child support, child custody, property division in relation to divorce proceedings, and child protective services cases. She appears in courts within Brazoria, Fort Bend, Galveston, Harris, Liberty, Montgomery, and Waller counties.

Legal Disclaimer: Each person's situation and circumstances are unique. As such, this article is given to provide general information only. It is not legal advice nor is it intended as a substitute for legal counsel. Should the reader need legal advice or counsel, it is appropriate to seek the assistance of a licensed attorney.

 Bibliography

1 Texas Family Code § 6.001

 2 Phillips v. Phillips, 75 S.W. 3d 564, 571 (Tex. App. – Beaumont 2002, no pet.)

3 Waite v. Waite, 150 S.W. 3d 797, 802 (Tex. App. – Houston [14th Dist.] 2004, pet. denied.)

 4 See Id. (quoting Maynard v. Hill, 125 U.S. 90 197, 211-12 (1888)).

 5 Texas Family Code §§ 6.002 -6.007

YOU'RE TELLING ME MY 12 YEAR OLD CAN CHANGE MY TEXAS CUSTODY ORDER?

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Allison was dropped off from her school bus.  She opened the door to her home, walked in the kitchen, grabbed an orange to snack on and then headed to her bedroom to login to her laptop.  She planned to login to her Facebook account to chat with friends about the days events at her middle school.  She walked in her room and began screaming atop her lungs.

Allison: Mom we've been robbed! All of my things are gone.  Where is my laptop?  My phone and X-Box are gone!

Allison's mom Chaundra answered her.

Chaundra: We were not robbed Allison.

Allison walked out of her room and noticed nothing else in her home was out of place.  She walked back to her room and noticed her jewelry and books were still in the room.  Her posters remained on the wall. The only thing missing were her phone, X-Box and laptop. She walked back out her room and into her mom's home office to find her mom.

Allison: Mom where is my stuff?

Chaundra: Your history teacher called me today to discuss your behavior in his class. I was surprised to learn that he sent notices home about your behavior in his class several times in the past few months.  Those notices were for me to sign and acknowledge I received his notice of your behavior.  Even more interesting though, was he got signatures from me on notices I never saw or knew existed. He was kind enough to email those signed notices to me. Well lo and behold, the signature that was purportedly mine, was in your handwriting. When you learn to stop lying and playing around in class Allison, you will get your things back. 

Allison: But they're not yours!  Dad bought them for me. You have no right to take them.

Chaundra: Excuse me little girl! You're skating a thin ice.  You live under my roof and you will abide by my rules. You are cutting up in class. I told you before if your school contacted me about your behavior again you would be grounded.  So you took it up on yourself to lie when they contacted me by hiding their notices and forging my name on them to avoid trouble with me.  Lying is not a behavior I will tolerate Allison.  When you change your behavior, you will get your things back.

Allison: You are so mean! I am tired of living here! I want to move in with Dad.  

Chaundra: You're Dad will say and do anything right now to appear as the good guy.  I know one thing for sure, I am not raising a liar.  Until you change your behavior Allison, you are not getting those things back.

Allison: Ugh! You are so unfair. Dad said, since I am now 12, all I have to do is tell a judge I want to live with him and I can move in with him. I am tired of living under the gestapo!

Chaundra: Well, I am happy to hear between passing notes with friends and being the class clown, you actually picked up something from history class.

Allison stormed off and slammed the door to her now barren bedroom.  Chaundra played it cool in front of Allison but she was worried her twelve year old daughter could tell a judge she wanted to live with her ex-husband and change the current custody order.  Chaundra wondered, how could this be real?  How could a twelve year old have that much power in a custody case?

A Twelve Year Old's Preference Can Be Grounds To Modify A Texas Custody Order

The fictional conversation between Chaundra and Allison is meant to show a dynamic that can play out between a parent and a child. A child who is at least 12 years of age can tell a court in chambers their preference on who should have the exclusive right to designate their primary residence and can change a prior custody order.1 The in chambers interview can occur upon application of a party, amicus attorney, attorney ad litem for the child or on the court's own motion.2 The interview may occur for a non-jury trial or hearing only.3 The court may not interview a child in chambers regarding an issue on which a party is entitled to a jury verdict.4

Preference Is Not Limited To Custody Modification and Can Be From Kids Younger Than Twelve

While a court shall consider the in chamber interview of children twelve or older if properly requested, a court may consider the preference of a child younger than the age of twelve.5 The court may also interview a child in chambers to determine the child's wishes as to possession, access or any other issue in a suit affecting parent-child relationship.6

The Child's Best Interests Must Be Considered As Well

Modification of a current custody order because of the preference of a child twelve years or older is subject to limitations.  Sometimes children desire a change which would not serve their best interests. As such, while a court must consider the preferences of a child twelve or older, a court may only modify a order if it would be in the best interests of the child.7 Interviewing a child does not diminish the court's discretion in determining the child's best interest.8 In determining best interests, the court will consider a child's physical, emotional, social, mental, educational, moral, disciplinary welfare and development.  The court will consider the applicable non-exhaustive list of factors established in Holley v. Adams to determine the child's best interests.  The factors include but are not limited to:

  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 these individuals to promote the best interest of the child;

  6. the plans for the child by these individuals or by the agency seeking custody;

  7. the stability of the home or proposed placement;

  8. the acts or omissions of the parent that may indicate that the existing parent-child relationship is not a proper one; and

  9. any excuse for the acts or omissions of the parent.9

Modification of a custody order because of a child's preference will involve many factors. Presenting such a case before a court is seldom an easy task. Whether initiating this type of case or defending it, use of a skilled lawyer to bring all points of consideration to the court's attention would be best.  If you need legal assistance because your child expresses a desire to modify a current custody order, contact our firm to find out how we can assist you.

Author's Information: Attorney Tracey A. Beecher is a family law practitioner. She represents clients with divorce, child support, child custody, property division in relation to divorce proceedings, and child protective services cases. She appears in courts within Brazoria, Fort Bend, Galveston, Harris, Liberty, Montgomery, and Waller counties.

Legal Disclaimer: Each person's situation and circumstances are unique. As such, this article is given to provide general information only. It is not legal advice nor is it intended as a substitute for legal counsel. Should the reader need legal advice or counsel, it is appropriate to seek the assistance of a licensed attorney.

Sources

1 See Texas Family Code 156.101 (a)(2)

2 Texas Family Code 153.009(a)

3 Id.

4 Id. at (c)

5 Texas Family Code 153.009 (a)

6 Id. at (b)

7 Texas Family Code 156.101(a)

8 Texas Family Code 153.009 (c)

9 Holley v. Adams, 544 S.W. 2d  367 (Tex. 1976)

10 Image by MoteOo on Pixabay