This is a list of terms that relate to Family Law.
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Click one of the letters above to advance the page to terms beginning with that letter.
- The formation of a legal parent-child relationship between a child and one or more adults. To be adopted, all parental rights between the child and his or her biological parents must be terminated by court order. Once adopted, the parent-child relationship is the same as that of a child born to a parent. Single parents and same sex parents may adopt a child.
- The Texas Family Code does not use the term, “Alimony.” Instead, the Code has provisions for what is referred to as “Spousal Maintenance” which has a very limited application in Texas family law. Alimony may, however, be agreed to in a Texas divorce as it can be a useful vehicle for division of the community estate. To qualify as alimony under the IRS Code, 1. The payments being made herein are in cash or cash equivalents. 2. The payments made herein are to a former spouse of the Payer. 3. The payments made herein shall be relieved if the Payee dies. 4. The payments made herein are includable in the gross income of the Payee and allowable as a deduction to the Payer. And, 5. The Payer and the Payee do not reside in the same household.
- Attorney General Child Support Division
- This division the the Texas Attorney General’s Office is charged with setting and collecting child support in cases where a Texas resident has received governmental assistance, such as AFDC or WIC, and is not receiving child support. The Attorney general has the power to prosecute parents for non-payment of child support and to seek enforcement by contempt of child support orders. The Attorney General represents the State of Texas, and not the parents of the child. The Attorney General is NOT concerned with possession schedules or other parenting issues. If you have a child custody suit, DO NOT seek the services of the Attorney General.
- Best Interest of the Child
- This catch-all phrase is to be the primary consideration for the court in all child custody litigation. While the term is not defined in the Texas Family Code, many published court opinions have tried to provide a non-exclusive list of factors to be considered. Here is an example from a famous termination of parental rights case: (1) the desires of the children; (2) the emotional and physical needs of the children now and in the future; (3) the emotional and physical danger to the children now and in the future; (4) the parental abilities of the individual seeking custody; (5) the programs available to assist the individual to promote the best interest of the children; (6) the plans for the children 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, or potential conservator, that may indicate that the existing relationship is not a proper one; and (9) any excuse for the acts or omissions of the potential conservator.
- Biological Parent
- A biological parent is a man or woman who is the father or mother of genetic origin of a child. Determining “maternity” of a child is simple. Determining “paternity” is more complex. A man is presumed the father of the child if the child was born during marriage, or cohabitation, or if the father and mother have executed an acknowledgement of paternity. In contested cases, DNA testing is necessary to clearly establish paternity.
- Collaborative Law
- Collaborative Law is an exciting alternative to the litigation model used in divorces for many years. Rather than pitting divorcing spouses against one another, the collaborative model relies on direct, face to face meetings between spouses with the counsel of their attorneys, and neutral financial and mental health professionals. As long as the collaborative process is being applied, neither party can set a hearing in court. If the collaborative process fails, the parties must discharge their attorneys and hire litigation counsel. These requirements eliminate the fear of court add a “buy-in” to the process for clients.
- Community Property
- Community property is subject to division by a court in a divorce. Separate property is divisible upon divorce. Community property consists of the property, other than separate property, acquired by either property during marriage. All property of the marriage is presumed to be community property.
- This term refers to a series of fact finding vehicles used in civil litigation, including family law. Understand that there is no “trial by ambush” and that your opponent is entitled to “discover” your legal theories, factual contentions and critical documents. Discovery tools include interrogatory questions, requests for production of documents; requests for admission of facts and even depositions.
- The legal dissolution of a marriage by a court or other competent body. In Texas a divorce will include division of community assets and debts. This division is to be “just and right, having due regard for the rights of each party and any children of the marriage.” Note, this does not say “equal.” In some cases, the division may be “disproportionate” depending on circumstances. If there are children of the marriage, custody must be decided in divorce.
- Drug Testing
- Drug testing is very common in child custody cases so if you are planning for a divorce, or know you’ll be in a child custody case, don’t do it! Even a little recreational marijuana usage on the weekend can result in you having limited times of possession with your children. If you test positive for methamphetamine, plan on supervised visitation with your children and a trip to rehab. The industry standard is the hair follicle test which can detect drug usage up to 90 days prior to testing.
- A family law court has full power to enforce its own orders. The most powerful weapon at the court’s disposal is contempt of court. A contempt finding by a court is serious and can, in some cases, result in incarceration, payment of a fine, or both. Most enforcement actions pertain to the payment of child support, or the violation of orders for the possession of a child.
- Evidence is testimony, a document, or other tangible object offered by a party in a divorce or custody hearing. Not everything that is offered by a party is admitted into evidence by the court. First, to be admissible, the evidence must be relevant to the case. In short, it must tend to make the existence of any fact more or less probable than it would be without the evidence. Next, the offered evidence must not be subject to exclusion under the Texas Rules of Evidence. For instance, hearsay, while relevant, is inadmissible.
- Foster Parent
- A foster parent is someone licensed by TDFPS to care for children who are in the legal conservatorship of the State of Texas. A foster parent must meet strict licensing guidelines and typically receives a subsidy payment for fostering a child. In certain situations, a foster parent has the right to intervene in pending CPS custody litigation to seek termination and adoption of a child.
- Genetic Testing
- Also known as DNA testing, such testing is used in cases where paternity of a child is disputed. Such tests are taken as reliable by the courts and basically end all arguments as to paternity. Testing is done by taking a swab of tissue from the cheek from the child and the suspected father. It is painless and the results are complete within two weeks.
- A grandparent has the right to file a suit for managing conservatorship of a child if the child’s conditions with a parent will significantly impair a child’s physical health or emotional development. In short, a grandparent has the right to step in and raise a grandchild if a parent is unable to maintain a proper environment for the child. This is not to be confused with “grandparent access” which is essentially a meaningless legal remedy.
- Guardian Ad Litem
- When CPS files a case alleging child abuse or neglect, the court will appoint a guardian ad litem to protect the interests of the child. A guardian ad litem has great power in a CPS case because he or she is charged with recommending to the court what is in the child’s best interest. While the guardian is to meet the child and take his or her wishes into consideration, the guardian is not obligated to follow the child’s wishes and may make an independent recommendation to the court.
- One of the most common evidence objections, hearsay is a statement other than one made by the witness while testifying at a hearing, offered in evidence to prove the truth of the matter asserted. Hearsay is not admissible in evidence, but there are a number of exceptions to the general rule. Hearsay often comes into play in child custody hearings when a parent tries to testify what the child told him or her. For instance, “Johnny came home and told me his father spanked him with a belt.” Unless this statement falls within a hearsay exception, it will not be allowed into evidence by the court.
- When a custody suit is filed, whether it be a divorce, CPS, or modification, other persons with a connection to the child may have the right to join in, or “intervene” in the suit. Most commonly, we help foster parents and grandparents intervene in ongoing CPS cases to protect their relationship with the child. In order to intervene you must show you are related to, or have had significant past contact with the child.
- Joint Managing Conservators
- This is one of the most misunderstood terms in family law. The Texas Family Code presumes that divorcing parents shall be named as Joint Managing Conservators of their children and that the residence of the children will be establish within a particular geographic location. “Joint” refers to the exercise of parental rights, duties, and powers. Consent to invasive medical procedures and educational decisions are two such parental rights. It does not mean that parenting time with the children will be equally divided between parents.
- In the Texas Family Code, this is referred to as “interference with child custody” and it gives rise to both civil and criminal penalties. A person who takes or retains possession of a child or who conceals the whereabouts of a child in violation of the possessory right of another person may face civil liability and be required to pay costs of recovering possession of the child as well as money damages. To prove the commission of an offense under the Texas Penal Code, the withholding of a child in direct violation of a custody order and while knowing that a divorce or custody case was pending must be committed “knowingly.”
- This isn’t so much a legal term as one that often comes up in the CPS cases we handle. Often, CPS will consider placing a child outside the home with a “kinship” placement rather than placing a child into state foster care. A “kinship” placement doesn’t necessarily have to be related to the child and can even be someone such as a neighbor or close family friend. Remember that a kinship placement has to pass a CPS homestudy to take temporary custody of a child so always make sure that the kinship does not have either a criminal history or CPS background.
- Licensed Child Placing Agency
- A licensed child placing agency is a person, private association, or corporation approved by the Texas Department of Family and Protective services to place children for adoption. While a lawyer is not a licensed child placing agency, he can help families through the adoption process where a match has already occurred between a birth mother and a prospective adoptive family.
- Mediation is required in almost all divorce and custody cases pending in Dallas/Fort Worth. Mediation is even required in abuse cases brought by CPS. Mediation is a process, led by a mediator, wherein the parties negotiate to achieve settlement of their dispute. The mediator is a neutral third party and cannot impose a ruling on the parties. Rather, the mediator facilitates the settlement discussion. If the mediation results in an agreement, a mediated settlement agreement is prepared and signed by the parties. Such an agreement cannot be revoked and will be upheld in court.
- When a court enters a final order regarding the conservatorship or support of a child, it retains continuing, exclusive jurisdiction over the child. Hence, the court has the power to modify its prior orders based upon a showing of a “material and substantial” change of circumstances and that the requested relief is in the best interest of the child. Often when custody orders are entered for young children, circumstances will change, requiring a later modification by the court. As for child support, the increase or decrease in income must be either 20% or $100.00 to warrant a modification by the court.
- In CPS investigations, “neglect” means the leaving of a child in a situation where the child would be exposed to a substantial risk of physical or mental harm, without arranging for necessary care for the child, and the demonstration of an intent not to return by the parent. A finding of neglect by CPS can result in the child being removed from the home, or being “voluntarily” placed outside the home under a Safety Plan.
- Unless it’s called a temporary order, an order is presumed to be a final order. Sometimes an order is called a “decree” or a “judgment” but the legal implications are the same. Once a final order is entered, it is… final… and cannot be altered absent a material and substantial change of circumstances. In rare cases, a motion for new trial can be granted if it is requested within 30 days of the entry of the order.
- A legal parent-child relationship between mother and child is created by the mother giving birth to the child (Duh!). The parent-child relationship between a man and a child is a little more complex. Under certain instances, a man is “presumed” to be the father of the child. For instance, if the child is born during his marriage to the mother, or even if he is cohabitating with her, paternity is presumed. If he is named on the birth certificate or named in an Acknowledgement of Paternity, paternity is presumed. The only way to rebut one of these presumptions is by the court declaring someone else to be the father AFTER proper genetic testing has been completed.
- Permanent Managing Conservator
- While the concept of a PMC is not defined by the Texas Family Code, the term is often used in CPS cases to suggest a conservatorship designation is indeed “permanent.” In a PMC order, the parents of the child are not terminated and retain their parental rights. Accordingly, the parents retain the right to modify the PMC order at a later time and upon a showing of changed circumstances… so the order may not be “permanent.” Such orders are common when the child is placed with a relative or when the children are over 12 years of age and remain in CPS custody.
- A Qualified Domestic Relations Order is a specialized order prepared by an attorney and signed by the court to permit an employer to divide a retirement plan upon divorce. Plans such as a 401(k) or pension are regulated by federal law, and the division order must be approved by the plan administrator. Once the division occurs, the non-employee spouse is awarded a portion of the plan to be administered by the Plan or rolled-over to another qualified plan.
- Most family law attorneys request a “retainer” be paid prior to beginning representation in a case. A retainer is an advance payment, made by a client, to be applied towards attorney’s fees incurred in a case. The State Bar of Texas requires that such retainer payments be held in a separate client trust account, separate from an attorney’s operating account. In other words, the retainer is not earned by the attorney until work is performed on the case. At Schreier & Housewirth, we provide our clients with a monthly billing statement itemizing fees incurred and showing how the retainer is being applied towards payment of those fees.
- Safety Plan
- A Safety Plan is an agreement made between CPS and a parent. These plans are not governed by law, but instead are used by CPS to address concerns of child abuse or neglect. Such a plan may include “voluntary” placement of the child outside the home with another caretaker. A Safety Plan is not a court order and may be revoked after careful consideration of the consequences. Almost all Safety Plans are based upon coercion and false threats by CPS caseworkers. Often, a caseworker will threaten to remove a child from the home if the plan is not agreed to by a parent.
- Separate Property
- Separate property is not subject to division by a divorce court. But, the size of a spouse’s separate estate may be considered by the court when dividing the community estate. Separate property is the property owned or claimed by a spouse before marriage; property acquired during marriage by gift, devise, or descent; or recovery obtained for personal injuries except for lost wages. Separate property is to be proved by “clear and convincing ” evidence.
- Standard Possession Order
- This is the often referred to possession schedule spelled out in the Texas Family Code. It is a presumed minimum. In short, it is the first, third, and fifth weekend of each month with allotments for holidays and 30 days continuous possession in the summer. Parents may always agree to do otherwise, and in successful post-divorce relationships, they often do agree to other plans depending on the circumstances.
- Suit Affecting the Parent-Child Relationship
- This is a suit in which the appointment of a managing conservator, possessory conservator, access to or support of a child , or establishment or termination of the parent-child relationship is requested. In other words, a suit for custody, visitation, or support of a child. Every divorce with children includes a suit affecting the parent-child relationship.
- Temporary Restraining Order
- Called a TRO for short, this is an order entered by a court, ex parte, or without notice to the other party. Typically, a TRO contains standard prohibitions regarding the conduct of the parties towards one another, provisions for the safety and welfare of a child, and provisions for the management of property including community funds. A temporary restraining order remains in effect for up to 14 days, after which there must be a full adversarial hearing before the court for entry of temporary orders.
- Termination of Parental Rights
- Called the death penalty of family law, termination forever ends the relationship between parent and child. Generally, termination is disfavored because it is such a harsh remedy. The most compelling reason for seeking termination is to make the child available for adoption by an unrelated adoptive family. In order to terminate parental rights, the petitioner must show the guilty parent has neglected or abused the child and that termination is in the best interest of the child.
- Texas Department of Family and Protective Services (TDFPS or CPS)
- Most commonly called “CPS”, this state agency is charged with investigating allegations of child abuse or neglect. CPS has the power to conduct a full investigation of allegations of child abuse. Such investigation will include interviewing parents, children, and other collateral witnesses. In an emergency, CPS can remove a child from immediate danger without a court order. However, most of the time, CPS is prone to coerce action through threats and misrepresentation.
- Uniform Child Custody Jurisdiction and Enforcement Act
- This uniform act has been adopted in many of the states and specifies in interstate conflicts which court has jurisdiction of a child custody matter. In today’s mobile society, people often move from state to state, making for challenges in child custody litigation. This act has rules to be followed in determining the “home state” of the child for jurisdictional purposes.
- Uniform Parentage Act
- Another uniform act, adopted in many states, specifying rules for determination of parentage. The law contains various parentage presumptions as well as provisions for adjudication of parentage when court intervention is necessary.
- Uniform Premarital Agreement Act
- This is an act, adopted in many states, recognizing the validity and enforceability of a premarital agreement. Prior to marriage, intended spouses can enter into a contract specifying whether community property will be created during the marriage, and if so, how the property is to be managed. Also, there are typically provisions specifying how any community property is to be divided upon divorce.
- Valuation of Assets
- In a divorce case, there is often a need to value the assets of the community estate in order to arrive at a “fair and equitable” division. For most accounts, valuation is easy. It gets more difficult when a portion of the account existed prior to marriage and there is a separate property element. “Market Value” is the measure of value for most real and personal property, that is, what would a willing buyer pay a willing seller for the asset. It is not replacement value or intrinsic value. Courts hate to value personal property and most clients simply divide the property among themselves. Valuation of a business, such as a professional practice becomes difficult due to the fact that the professional goodwill of the spouse is not subject to the division of the court. Usually, a professional valuation firm will be retained to value a business.
- There are 254 counties in Texas and laws governing where a divorce or custody case should be filed. Venue simply refers to where the case is to be filed. Absent venue laws, unscrupulous lawyers would shop for the most friendly court they could find. For most family law cases, venue is set by the residence of the parties or of the child.
- Wage Withholding Order
- In a Texas child support case the court will enter a wage withholding order, directing an Obligor’s employer to “withhold” from the Obligor’s paycheck court-ordered child support. Past-due child support and health insurance reimbursement may also be withheld. Obviously, the purpose of the order is to deny the Obligor any discretion as to whether he or she is going to pay court-ordered child support as the money never touches his or her hands.
- Waiver of Service
- In a simple divorce case, a lawyer will often prepare a waiver of service and ask the respondent to sign it before a notary and return to the court for filing. This eliminates the embarrassment of having papers served by a constable of private process server. Nevertheless, all waivers should be reviewed with a family law attorney to make sure important rights are not being given up.
- In cases of suspected child abuse, X-rays may be taken to detect fresh, or healing bone breaks and/or fractures. Children’s bones are different from adults and X-rays or any other form of diagnostic imaging done on a child should be reviewed by a pediatric radiologist for accuracy. False allegations of child abuse can occur if the imaging is not reliable.
- Youthful negligence or malicious conduct
- An obscure chapter of the Texas Family Code holds that parents can be held liable for the negligent conduct of a child resulting in damages if the damages result from a parent’s failure to control the child. Damages are limited to $25,000.
- A Zygote is a fertilized egg. The Texas Family Code has provisions governing children of assisted reproduction and the complex nexus between Assisted Reproductive Technologies and the law. For instance, if a couple freezes a pre-zygote for future use and then divorces, which spouse owns the zygote? The Code also provides for the creation of gestational agreements to specify the rights of biological parents, sperm and/or egg donors and surrogates.