Francesca Blackard, Author at Texas Divorce Attorney Blog

Texas Court Finds Same-Sex Spouse Is Parent of Child Born to Spouse through Artificial Insemination

Published on: February 5, 2020 | by Francesca Blackard

Texas family law was written before marriage between same-sex partners was recognized. Many of the statutes are written in gendered terms that do not contemplate the possibility of marriage between same-sex partners or parents who are the same sex. A recent case considered whether the female spouse of a child’s biological and birth mother was a parent under Texas law.

The appellant had a child at the time of the marriage and the parties discussed having a child together. A friend of the parties agreed to be their sperm donor. They agreed the appellee would carry the child. According to the appeals court’s opinion, the appellant performed the insemination in the parties’ apartment. The appellant accompanied the appellee to most of her doctor’s appointments. She was at the hospital when the baby was born and took family leave to be with the baby. When the parties divorced, the trial court found the appellant was also a parent to the child and ordered her to pay child support. She appealed.

The appellant argued “parents” are defined as a mother and father in the Texas Family Code. The appellee argued that same-sex marriage and related benefits are recognized in the United States pursuant to U.S. Supreme Court decisions and Texas law must be read in light of those decisions.

Texas Appeals Court Won’t Take Piecemeal Approach to Property Division Appeal

Published on: January 8, 2020 | by Francesca Blackard

In a Texas divorce, the division of community property must be just and right. The goal is an equitable, but not necessarily equal, division. A party may not get the specific items that he or she wants, but that does not necessarily mean that the division of property is not just and right. In a recent case, the wife challenged the specifics of the property division.

According to the court’s opinion, the husband’s retirement annuity was worth $234,000 when he retired from his job. There was evidence that he withdrew funds from the account and hid them from the wife. There was evidence that he used the funds for household expenses and expenses related to the couple’s horses. The retirement account was worth approximately $50,000 at the time of trial.

The husband admitted that he did not report the withdrawals on the joint tax returns for several years, resulting in a $20,000 liability to the IRS. After the separation, the wife hired a CPA to seek innocent spouse status for her. She testified that she wanted the husband to pay the $3,000 for the CPA’s services.

SSI Should Not Be Considered in Calculating Texas Child Support

Published on: December 18, 2019 | by Francesca Blackard

In calculating child support, a Texas court must consider each parent’s net resources. The Texas Family Code defines which resources are to be included, and which types of resources are excluded from consideration. In a recent case, a wife challenged an order to pay child support and medical support, partly because the court had improperly considered certain resources.

The husband testified that he lacked health insurance and did not have access to private insurance. Although the wife did not appear at the trial, the husband was previously the trustee of her supplemental social security income (SSI) and testified that he believed that she still received $750 per month. There was no other evidence of her income or ability to work.

The trial court designated the husband as the sole managing conservator of the children and ordered the wife to pay child and medical support. The court calculated the payment based on her SSI.

Texas Court Grants Grandparents Visitation and Access to Grandchildren

Published on: November 20, 2019 | by Francesca Blackard

Under Texas family law, a court may grant grandparents reasonable possession and access to a grandchild if three conditions are met. First, at least one of the child’s parents, whether adoptive or biological, must have parental rights to the child. Second, the grandparent must overcome the presumption the child’s parent is acting in the child’s best interest by showing that denying the grandparent possession or access would result in significant impairment to the child’s health or well-being. Finally, the grandparent must be the parent of the child’s parent, and that parent must have been incarcerated during the past three months, have been found incompetent, be deceased, or not have possession or access to the child. TEX. FAM. CODE ANN. § 153.433.

In a recent case, a father challenged an order allowing the maternal grandparents possession and access to his children. The parents and children stayed with the grandparents while they looked for a house when they moved to Texas from California. The grandparents supported the family so the parents could save up to buy the home. After the parents bought a home nearby, the children regularly visited their grandparents, sometimes overnight. The grandparents would take the children to school and attend school functions. The grandmother testified she felt she had assumed the role of parent.

The grandmother testified both parents were alcoholics. The mother’s friend testified the parents had a tense and unhealthy relationship. There was testimony that the mother sent the children to stay with the grandparents when the situation at home grew tense. The father’s friend testified the father left the children with the grandparents when he went to bars and nudist colonies. He also testified the father told him he often argued with the mother, but did not state the arguments ever turned physical.

Texas Mediated Settlement Agreement May Be Binding Even If Signed Before Divorce Is Filed

Published on: October 30, 2019 | by Francesca Blackard

Texas family law allows the parties to a divorce to enter into a binding mediated settlement agreement (MSA). If the agreement meets certain requirements, a party is entitled to judgment on the agreement. In some cases, however, one party may wish to challenge a mediated settlement agreement. In a recent case, a wife challenged the enforceability of a mediated settlement agreement.

The couple was married for about 10 years when the wife decided to end the marriage. She sought a mediator, and the parties attended mediation without attorneys and executed a written MSA.

The MSA made the parents joint managing conservators, with the husband having the right to designate the kids’ primary residence. The parties agreed the husband would keep the marital home and the wife would not pay child support. The MSA required the wife to file the divorce petition within 10 days. The MSA further provided the case would be finalized any time after May 1, 2015.

The husband filed a divorce petition nine days after the MSA was executed. He asked the court to approve and render judgment consistent with the MSA. The wife filed an answer with a general denial. The husband and his attorney appeared in court, but the wife did not receive notice of the hearing and did not appear. The trial court rendered oral judgment on the MSA at the hearing.

Texas Appeals Court Upholds Permanent Injunction Prohibiting Contact Between Father’s Girlfriend and Child

Published on: October 9, 2019 | by Francesca Blackard

Generally, a permanent injunction is difficult to obtain and requires proof that certain requirements are met. In Texas child custody cases, however, a court may be able to issue a permanent injunction, even if those requirements have not been met, if it finds that the injunction is in the child’s best interest. In a recent case, a father appealed an injunction prohibiting him from allowing contact between his girlfriend and his child.

The parents had agreed to temporary orders prohibiting any unrelated adult in a romantic relationship with one of the parents from spending the night in a home with the child. The temporary order also stated that the father’s girlfriend would not be around the child while the father had possession.

Following a mediated settlement agreement addressing all other issues, the trial court held a hearing to address this issue. The trial court granted an “injunction” prohibiting contact between the father’s girlfriend and the child without hearing evidence. The mother’s attorney stated they had been unable to serve the father’s girlfriend with notice of the hearing. The court indicated it was entering a “permanent morality clause” based on the girlfriend not testifying. The father’s attorney argued there was no evidence to support a permanent injunction. The court stated it was a “moral clause,” not an injunction, but then heard evidence from the mother, the mother’s other daughter, and the process server.

Time Limit for Alleged Biological Father to Rebut Husband’s Presumptive Paternity in Texas

Published on: September 18, 2019 | by Francesca Blackard

Under Texas family law, a child’s parents have certain rights and duties regarding their children, including the right of possession and the right to make certain decisions related to them. Parents also have the duties to support, care for, and protect their children. Though in some cases, the parent-child relationship must be established.

In a recent case, a child’s alleged biological father petitioned to establish paternity several years after the child was born. The child’s mother had been married to her husband since 2008. The child was born in July 2010. According to the appeals court’s opinion, the mother also had a sexual relationship with the petitioner for about four years, including the approximate period of the child’s conception. The mother told the petitioner he was the child’s biological father during and after the pregnancy.

The husband believed he was the child’s biological father during the pregnancy and for at least the first four years of the child’s life. The child knows the husband as his father.

Texas Court May Correct Clerical Error in Final Decree

Published on: August 28, 2019 | by Francesca Blackard

In a Texas divorce case, a mediated settlement agreement (MSA) that meets the requirements set forth in the Texas Family Code is binding and cannot be revoked. Furthermore, the parties are entitled to judgment on such an MSA during the court’s plenary power.

In a recent case, a husband challenged a final decree nunc pro nunc issued by the court after the original final divorce decree failed to conform to the MSA. The parties executed a binding MSA, which awarded the husband $50,000 of the wife’s 401(k). However, when the court signed the agreed final decree, it awarded him $100,000 of the wife’s 401(k). The decree noted the agreements were reached in mediation and it was “stipulated to represent a merger of a [MSA]…” No post-trial motion was filed and the court lost plenary power.

The husband later filed a Qualified Domestic Relations Order awarding him $100,000 of the wife’s 401(k). The wife moved for a judgment nunc pro tunc on the grounds a clerical error in the final decree erroneously divided the estate in a way that was not compliant with the MSA. She asked the court to correct that error. The husband argued it was a judicial error that the court could not change. The court signed a final decree of divorce nunc pro tunc awarding the husband $50,000 of the 401(k). The husband appealed.

Texas Court May Not Make Substantive Change When Clarifying a Custody Order

Published on: August 7, 2019 | by Francesca Blackard

Most Texas custody cases are between a child’s parents, but in some cases other family members may be involved. In a recent case, an uncle challenged a modification of the access and possession terms of a court order related to his brother’s child. Although the trial court expressed an intention to clarify the original order, the appeals court found it had improperly made a substantive change.

The child’s father is deceased. In 2016, the father’s brother filed suit to be named as the child’s primary conservator. The uncle and the mother ultimately reached an agreement, which was incorporated by the court’s order. The order gave primary possession to the uncle and periodic possession to the mother. The uncle had the right to request the mother undergo drug testing once a month. She was required to appear for drug testing at a designated location within 24 hours of the uncle sending notice. The uncle was prohibited from sending notice Friday through Sunday at 9:00 a.m. If the mother failed to appear within 24 hours, the results would be deemed positive. If the drug test results were positive or deemed positive, the mother’s periods of possession would be suspended until there was a further court order.

The mother moved to enforce the order a month after it was entered. She alleged the uncle did not make the child available to her during her time. She sought criminal and civil contempt, additional periods of possession, and attorney’s fees. She also asked the court to clarify the original order if it found any part of it was insufficiently specific to be enforced through contempt.

Texas Court May Not Ignore Stipulations in Property Division in a Divorce Case

Published on: July 17, 2019 | by Francesca Blackard

Generally, a trial court in a Texas divorce case has the discretion to divide marital assets. A trial court can, however, abuse its discretion if it divides property without reference to guiding rules or principles and without evidence to support the ruling. An appeals court recently found that a trial court abused its discretion by mischaracterizing separate property as community property and improperly divesting the husband of his separate property.

Both parties had been married previously, and both asserted throughout the trial that they had separate property. They each pled and testified that they had separate property and submitted documentation showing they had separate property. Additionally, each submitted sworn inventories and filed proposed property divisions admitting the other party had separate property. Neither party ever disputed or contested the other’s claims. There were only two disputed issues before the court at the time of the trial: how to divide the wife’s retirement account and whether there were any reimbursement claims against the separate property.

The trial court, however, issued a letter ruling dividing all of the assets as though they were community property, despite the various agreements, stipulations, and uncontested submissions. The husband moved for reconsideration, and the wife filed a short response in opposition. The appeals court noted she had received the majority of the husband’s separate property under the letter ruling.