Recent Posts in Child Custody Category
| October 26, 2009 |
| International Family Law Matters in Texas: Necessity Subject Matter Jurisdiction |
| Posted By Elias Lorenzana |
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Section 152.201 of the Texas Family Code, - INITIAL CHILD CUSTODY JURISDICTION.
states as follows:
(a) Except as otherwise provided in Section 152.204, a court of this state has jurisdiction to make an initial child custody determination only if:
(1) this state is the home state of the child on the date of the commencement of the proceeding, or was the home state of the child within six months before the commencement of the proceeding and the child is absent from this state but a parent or person acting as a parent continues to live in this state;
(2) a court of another state does not have jurisdiction under Subdivision (1), or a court of the home state of the child has declined to exercise jurisdiction on the ground that this state is the more appropriate forum under Section 152.207 or 152.208, and:
(A) the child and the child's parents, or the child and at least one parent or a person acting
as a parent, have a significant connection with this state other than mere physical presence;
and
(B) substantial evidence is available in this state concerning the child's care, protection,
training, and personal relationships;
(3) all courts having jurisdiction under Subdivision (1) or (2) have declined to exercise jurisdiction on the ground that a court of this state is the more appropriate forum to determine the custody of the child under Section 152.207 or 152.208; or
(4) no court of any other state would have jurisdiction under the criteria specified in
Subdivision (1), (2), or (3).
(b) Subsection (a) is the exclusive jurisdictional basis for making a child custody determination by a court of this state.
(c) Physical presence of, or personal jurisdiction over, a party or a child is not necessary or sufficient to make a child custody determination.
In the case of ANA MARIA TARQUIS ALFONSO v. MICHAEL SKADDEN, the courts delt with the issue of whether the Texas court had subject matter jurisdiction in a divorce decree that was sought to be enforced four years after an alleged default.
The fact of the case are as follows:
Michael Skadden and Ana Maria Tarquis Alfonso were married in Houston in 1991. In March 1999, Tarquis filed for divorce in Spain, and one month later Skadden (a Houston lawyer affiliated with a Madrid firm) filed for divorce in Harris County, Texas. Each of the parties claimed they were not served in the other’s suit, although Skadden appeared by attorney in Spain and Tarquis was served by publication. When Tarquis failed to appear in Texas, the trial court granted default, divided the property, named both parents managing conservators of their only child, entered a standard possession order, and ordered Skadden to pay child support. By contrast, the Spanish court granted sole custody to Tarquis, denied visitation to Skadden on the basis he had no relationship with the child (Skadden admits he has not seen their child since 1998), and also ordered Skadden to pay child support.
Four years and three months after the Texas decree was signed, Skadden sought to enforce it. Tarquis answered and argued the 1999 judgment was void due to lack of personal jurisdiction because she had not been served, and lack of subject-matter jurisdiction because Texas was not the child’s home state. The district judge — who had heard the 1999 case as an associate judge and recommended the divorce decree — reviewed the 1999 file, heard evidence, and then denied enforcement, finding the absence of an appointed ad litem or statement of evidence rendered service by publication improper. See Tex. R. Civ. P. 244.
While Skadden argued he never had proper notice or a hearing in Spain, his recognition of those proceedings established that Spanish courts had not declined jurisdiction. The trial court refused to enforce the Harris County decree on the basis of lack of subject matter jurisdiction. On appeal, the Texas Supreme Court agreed with the trial court. Subject-matter jurisdiction cannot be waived, and can be raised at any time. Univ. of Tex. Sw. Med. Ctr. at Dallas v. Loutzenhiser, 140 S.W.3d 351, 358 (Tex. 2004). Because the trial court lacked subject-matter jurisdiction to enter the custody provisions in the 1999 divorce decree, it properly refused to enforce that portion of the decree.
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| October 26, 2009 |
| Parent vs. Grand Parents Rights to Child Custody in Texas |
| Posted By Elias Lorenzana |
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A grandparent’s rights are generally subordinate to a parent’s. See Tex. Fam. Code § 153.433(2); see also Troxel, 530 U.S. at 64-65 (plurality opinion) (discussing how statutory rights extended to grandparents and other relatives can create a substantial burden on a parent’s traditional role in a child’s upbringing). As the Troxel plurality stated, “‘[i]t is cardinal . . . that the custody, care and nurture of the child reside first in the parents.’” Troxel, 530 U.S. at 65 (plurality opinion) (quoting Prince v. Massachusetts, 321 U.S. 158, 166 (1944)). Troxel also recognized that “the interest of parents in the care, custody, and control of their children—is perhaps the oldest of the fundamental liberty interests recognized by [the Supreme] Court [of the United States].” Id.
Possession of or access to a child by a grandparent is governed by the standards established by Chapter 153.” Tex. Fam. Code § 102.004(c). As Texas courts recently recognized, "so long as a parent adequately cares for his or her children (i.e., is fit), there will normally be no reason for the State to inject itself into the private realm of the family.” See In re Mays-Hooper, 189 S.W.3d 777, 778 (Tex. 2006) (quoting Troxel, 530 U.S. at 68); see also Troxel, 530 U.S. at 72-73
The Texas Constitution does not permit a State to infringe on the fundamental right of parents to make child rearing decisions simply because a state judge believes a better decision could be made.
Section 153.433(2) of the Texas Family Code requires that a grandparent seeking court-ordered access overcome the presumption that a parent acts in his or her child’s best interest by proving by a preponderance of the evidence that “denial . . . of access to the child would significantly impair the child’s physical health or emotional well‑being.” Tex. Fam. Code § 153.433(2). A trial court abuses its discretion when it grants access to a grandparent who has not met this standard because “‘[a] trial court has no ‘discretion’ in determining what the law is or applying the law to the facts[,]’ even when the law is unsettled.” See In re Prudential Ins. Co. of Am., 148 S.W.3d 124, 135 (Tex. 2004). |
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| September 19, 2009 |
| Temporary Orders Related to Divorce Cases |
| Posted By Elias Lorenzana |
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Temporary orders as it relates to a pending divorce can normally dictate the terms on the following issues:
1. Child support;
2. Visitation;
3. Use of the homestead;
4. Use of community property, such as cash in bank accounts;
5. Spousal support (as applicable);
6. Freeze on the community debt;
7. all other issues related to a divorce case
Generally, as a matter of rule, temporary orders expire with the entry of a final judgment
and cannot function as a final disposition on an issue. Coke v. Coke, 802 S.W.2d 270, 273 (Tex. App.CDallas 1990, writ denied). However, a trial court may extend a temporary order in its final decree. See In re Lozano, No. 01-06-00655-CV, 2006 WL 2640634, at *3 (Tex. App.CHouston [1st Dist.] Sept. 14, 2006, orig. proceeding); Coke, 802 S.W.2d at 273; see also Mathis v. Mathis, No. 04-95-00386-CV, 1996 WL 668849, at *3 (Tex. App.CSan Antonio Nov. 20, 1996, no writ) (not designated for publication) (holding that trial court had discretion to continue temporary orders, which stated that they would continue in full force until the signing of the final decree or until further order of the court, after entry of decree).
On some occassion, there may be multiple temporary order hearings superseding prior temporary orders as parties attempt to gain better ground for each side of the divorce. This usually occurs with respect to contested child custody issues.
Although a temporary order may not supersede a judgment once the temporary order has expired, a trial court may enter temporary orders independently of the final decree. Coke, 802 S.W.2d at 273; see also Tex Fam. Code Ann. 6.502 (Vernon 2006). Additionally, the rendition of a divorce decree does not itself nullify any temporary order. See Ex parte Shaver, 597 S.W.2d 498, 500 (Tex. Civ. App.CDallas 1980, orig. proceeding); Villarreal v. Villarreal, No. 14-04-00071-CV, 2005 WL 3116218, at 4 (Tex. App.CHouston [14th Dist.] Nov. 23, 2005, no pet.). For example, a temporary order setting child support is superseded as to future child support obligations by a final divorce decree, but the obligation, as fixed by the temporary order, continues unless specifically modified by the provisions of the divorce decree. Shaver, 597 S.W.2d at 500; Villarreal, 2005 WL 3116218, at 4.
However, for most cases, if the final decree addresses all issues in a divorce case, then temporary orders usually are superseded by the final decree. Consult a Texas Family Law Attorney for your individual divorce and custody case evaluation. The Austin Texas divorce and family law attorneys of the Lorenzana Law Firm, P.C. can assist you in navigating your divorce or family law case. |
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| August 21, 2009 |
| Mediated Settlement Agreements On Child Custody and Marital Property |
| Posted By Elias Lorenzana |
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Contested divorce cases frequently revolves around spousal disputes about the custody of the child or children of the marriage and or the proper division of the marital estate. In lieu of an all out contested divorce cases where the parties battle each other in open court, an alternative option is for the parties to enter into mediation, whose outcome is genreally the mediated settlement agreement. However, the question posed is, what happens if there is a mediated settlement agreement, however, one spouse decides to cancel the agreement and go to court instead?
This is what happened in the case of Brooks v. Brooks. Generally speaking in Texas and under Texas Family Code Section 6.602(b), and 153.0071(d), mediated settlement agreements are binding in suits affecting the parent-child relationship, as well as suits involving only marital property. Id, 6.602(b)B(c), 153.0071(d)B(e); Boyd, 67 S.W.3d at 402; Spinks v. Spinks, 939 S.W.2d 229, 230 (Tex. App.- Houston [1st Dist.] 1997, no writ). Tex. Fam. Code Ann. '' 6.602(b), 153.0071(d) (Vernon 2002 & Supp. 2007).
Texas has a public policy of encouraging the peaceful resolution of disputes, particularly those involving the parent-child relationship, and the early settlement of pending litigation through voluntary settlement procedures. See Tex. Civ. Prac. & Rem. Code Ann. § 154.002 (Vernon 2005); Boyd v. Boyd, 67 S.W.3d 398, 402 (Tex. App.- Fort Worth 2002, no pet.).
Trial and appellate courts are charged with the responsibility of carrying out this public policy. Tex. Civ. Prac. & Rem. Code Ann. § 152.003 (Vernon 2005); Boyd, 67 S.W.3d at 402; Adams v. Petrade Int'l, Inc., 754 S.W.2d 696, 715 (Tex. App.-Houston [1st Dist.] 1988, writ denied) (op. on reh'g).
The Texas Family Code also furthers this policy by providing that a mediated settlement agreement is binding on the parties if the agreement :
(1) provides, in a prominently displayed statement that is in boldfaced type or capital letters or underlined, that the agreement is not subject to revocation;
(2) is signed by each party to the agreement; and
(3) is signed by the party's attorney, if any, who is present at the time the agreement is signed.
Ordinarily, settlement agreements arising from mediation are not binding when one party timely withdraws consent to the agreement, unless the other party successfully sues to enforce the settlement agreement as a contract that complies with rule 11 of the Texas Rules of Civil Procedure. See Tex. Civ. Prac. & Rem. Code Ann. ' 154.071(a) (Vernon 2005); Padilla v. LaFrance, 907 S.W.2d 454, 461B62 (Tex. 1995); Boyd, 67 S.W.3d
at 402. Unilateral withdrawal of consent does not, however, negate the enforceability of a mediated settlement agreement meeting the requirements of 6.602(b), and a separate suit for enforcement of a contract is not necessary. Boyd, 67 S.W.3d at 402; Alvarez v. Reiser, 958 S.W.2d 232, 234 (Tex. App.- Eastland 1997, writ denied). Rather, section 6.602 creates a procedural shortcut for the enforcement of mediated settlement
agreements in divorce cases. Boyd, 67 S.W.3d at 402; Cayan v. Cayan, 38 S.W.3d 161, 166 (Tex. App.- Houston [14th Dist.] 2000, pet. denied). Thus, a mediated settlement agreement that meets the requirements of section 6.602(b) is binding, and a party is entitled to judgment on the agreement notwithstanding rule 11 or another rule of law. Tex. Fam. Code Ann. § 6.602(b) (c); Boyd, 67 S.W.3d at 402.
Contact an experienced divorce attorney in Austin, Texas before entering into a mediated settlement agreement.
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| August 21, 2009 |
| Lorenzana Law Firm Launches New Family Law Blog! |
| Posted By Elias Lorenzana |
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Lorenzana Law Firm Launches New Family Law Blog!
In an effort to provide information related to Texas family and divorce cases, the firm has launched its third legal related blog.
The contents of this blog are purely for general informational purposes only. Niether the content or the blogs themselves create any attorney client relationship and is not intended to give legal advice. Individuals should consult a Texas family law attorney or divorce lawyer about their individual famliy law or divorce case. |
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