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You have just finished a long bench trial in your divorce and you do not feel that the trial court was correct in its division of your assets and liabilities.  In fact, you feel that the judge was completely wrong and you got the short end of the stick.  So, you wonder what you can do about it.  You absolutely can appeal, but you have a short window frame in order to do so and it is imperative you take certain steps in appealing.

The 7th District Court of Appeals in Amarillo makes this fact abundantly clear in Kenneth Dale Rodgers, Appellant vs. Mary Elaine Rodgers, Appellee in determining whether or not (a) “the trial court abused its discretion in the division of the property” which (b) “materially affected a just and right division of the marital estate.”   In that case, the husband was very unhappy with the property division and he appealed.  However, the husband failed to request findings of fact and conclusions of law from the trial court within the required amount of time. Therefore, the appellate court had no idea what the basis of the trial court’s ruling was and was forced to go along with it.  This is because, as the Court of Appeals held, you must request findings of fact and conclusions of law from the trial court and the trial court must then file those within a certain period of time. This allows the Court of Appeals to determine why the trial court held what it held.  The record sometimes helps, but findings of fact and conclusions of law are obviously more solid and preferred by the appellate courts.

When you have a bench trial (trial before judge, not jury), Texas Rules of Civil Procedure Rules 296 and 297 mandate that you must file your request for findings of fact and conclusions of law from the trial court “within twenty days after the judgment is signed” and then the trial court must “file its findings of fact and conclusions of law within twenty days after a timely request has been made.”  If you fail to do this, then “the trial court is presumed to have made all findings of fact necessary to support its judgment, and it must be affirmed on any legal theory that is supported by the evidence.” Rodgers v. Rodgers.

The moral of the story—you need an attorney at all times.  There are specific deadlines that must be met when preparing to appeal a trial court’s decision.  In addition to the findings of fact and conclusions of law, you also must have your appeal on file by a certain date.   There are too many deadlines to delay, contact an attorney as soon as your divorce is finalized and if there is any doubt in your mind regarding the trial court’s order.

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You have a final decree of divorce and you were either ordered to surrender a certain asset to your ex-spouse and you have not or you are the ex-spouse who is the recipient of the asset and have not received it yet.  Regardless of which situation you are in, one can be pretty certain that an enforcement action is in your near future.  The question becomes what type of relief can be sought on this type of case.  This question is answered clearly as a big “no” in In re Cherilyn Ann Kinney, Relator by the Fifth District Court of Appeals in Dallas.

In some suits for enforcement (most commonly in suits to enforce child support), one means of relief sought is jail time–confinement of up to 60 days in county jail to be exact.  However, in suits for enforcement of property division where one spouse was ordered a certain amount of money in the decree for a debt, lien, retirement division, etc. then jail time is not appropriate.  In this particular case, the wife was awarded one of the homes and to compensate the husband he was awarded$40,000.00 secured by an owelty lien on the residence awarded to wife which the wife had to pay within six months of signing the decree.   Needless to say, she did not pay the $40,000.00 within the time ordered and so her ex-husband filed an enforcement to make her do so.  Unfortunately, they asked for jail time and the trial judge did just that and the wife was arrested on the spot and placed in the county jail.

On appeal, the Court of Appeals held that the “Texas Constitution provides, ‘No person shall ever be imprisoned for a debt’.” Tex. Const. art. 1, §18.  In fact, the Texas Family Code is specific as to what property divisions are enforceable by contempt and that contempt does not mean imprisonment.  Specifically, Texas Family Code Section 9.012(b) states “A court may not, enforce by contempt an award in a decree of divorce or annulment of a sum of money payable in a lump sum or in future installments payments in the nature of debt, except for (1) a sum of money in existence at the time the decree was rendered; or (2) a matured right to future payments.  Therefore, the Court of Appeals did a legal analysis and concluded that the only way to determine if contempt is an option in an enforcement action, the decree must be specific enough—“the divorce decree must indicate the funds existed at the time the decree was rendered or specify particular community funds from which the amount is to be paid.”

Therefore, the Court of Appeals issued a bright line rule as to what remedy is available to the trial court in an enforcement action of this nature.  Specifically, the Court held that “A trial court may invoke its contempt power only to enforce delivery of specific property or an award of a right to future property or the delivery of a sum of money in existence at the time the decree was rendered or a matured right to future payments.”   Basically, the Court can order that the property be delivered or the payments be made and possibly award some attorneys’ fees.  But, in order to seek contempt you must fit within this rule the Court issued recently.

If you have a piece of property or sum of money that is owed to you from your divorce decree, do not wait to contact an attorney.  There is a 2 year statute of limitations and you need to know the options you have. Contact a family law attorney at Guest & Gray today for a free consultation.

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There are several courts within Kaufman County, but only two of them hear divorce, custody, Child Protective Service (CPS), and IV-D or Attorney General cases.  If you file for divorce or custody in Kaufman County, the case would be filed in the Kaufman County District Clerk’s office and then the clerk randomly assigns the cases between the 86th Judicial District Court and the 422nd Judicial District Court.  Because of this random assignment, you cannot choose which court your case will be assigned in.

While some CPS and IV-D cases are heard by our district judges, most are heard by the Associate Judges.  Judge Snarr is the current Associate Judge on the CPS cases and Judge Martinez is the current Associate Judge on the IV-D cases.  IV-D or Attorney General cases are all child support cases started by the Attorney General’s office meaning the Attorney General is the petitioner.  The courtroom for CPS and IV-D is the same one and it is located at the South Campus in Kaufman County, not the actual courthouse on the square.

As you can imagine, all four of the judges have different policies/standards in these types of cases.

Contact information for each court is as follows:

Kaufman County Courthouse: 100 W Mulberry, Kaufman, Texas 75142

South Campus Courthouse: 3003 S. Washington, Kaufman Texas 75142

86th Judicial District Court, Telephone 972-932-0251

422nd Judicial District Court, Telephone 972-932-0257

CPS Court Administrator, Telephone: 903-645-5695

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You are divorced and in your final orders you were awarded spousal maintenance on the basis of your disability and inability to earn sufficient income.  So, you went through all of the stages of proving your disability and proving that you could not earn the money that you need to meet your minimum reasonable needs and the judge ordered that your ex-spouse a certain amount per month to you for a certain period of time.  As you know, spousal maintenance is governed by Chapter 8 of the Family Code and with respect to a disabled spouse, it does state that maintenance can be ordered for as long as the disability persists (longer than the statutorily limited period of time).  If it is nearing the ending date of your receipt of the monthly spousal support payments, you are becoming worried because you do not know what you are going to do at this point.  Can you seek further maintenance from the Court because you are still disabled and need the money to survive?

This question was directly addressed in Stephanie Ann Novick v. Andrew A. Shervin by the Fifth District Court of Appeals in Dallas.  There, the trial court held that the wife was “presently disabled” and ordered that the husband should pay her “$2000 per month for 24 months.”  When the time was drawing near for the husband’s payments to cease, the wife filed a motion to modify to continue the support payments and the trial court dismissed that claim to which the wife appealed.  Therefore, the Dallas Court of Appeals had to determine whether or not the trial court erred in failing to honor the wife’s request in continuing the spousal support payments.  In doing do, the Court reviewed a few other appellate cases involving this particular issue to seek guidance which led the Court to render a bright line rule to determine whether or not the support payments could be continued.

The Court held, “An award of spousal maintenance in a divorce decree is properly the subject of a motion for continuance only if the decree indicates the trial judge intended to make the award pursuant to section 8.054(b) rather than 8.054(a).”  Section 8.054(b) allows a trial court to find the spouse disabled (giving guidance as to how and what it means) and in finding the spouse to be disabled, the trial court will make an award of maintenance.  This award can be made subject to periodic request based upon the request of either party and also subject to a motion to modify.  However, Section 8.504(a)  places a duration limit on how long the court can award the maintenance for (5 years) and states that a trial court must render the shortest period possible unless the spouse’s ability to earn income is totally diminished by physical or mental disability.    The key for this Court was that you can seek continuance of the maintenance if the award was under Section 8.054(b).  An example of this type of award would be where a spouse is found to be permanently disabled, awarded spousal maintenance for longer than 5 years, and the Court also order that the spouse receiving support can seek continuance beyond the court-ordered termination date.

Therefore, based upon these sections, the Court held that they have to look to final decrees in each case to determine how the trial court awarded the maintenance.   If this test outlined is not met, then the continuation cannot be granted.   In the present case, the Court denied the wife’s appeal stating that the trial court held she was “presently disabled” and limited the duration to 24 months which was less than the maximum amount of time of duration and did not expressly provide a provision that would allow for the wife to file a motion to seek continuance of the maintenance.

Appellate cases are important because they provide looking glasses into the future as to what would happen if you do not take care of your case while still in the trial court phase.  Thus, as you determine from this article, it is imperative to ensure that your rights are protected in the final order that is rendered by the trial judge—it is imperative that you ensure that the correct language is used so that you are not completely limited in the future.  If you believe that you might have a spousal maintenance claim or have already been awarded spousal maintenance and need assistance in determining whether you can seek a continuation, contact Guest & Gray for a free consult.

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Unfortunately, there are several horror stories about parties appearing pro se (without legal representation) in divorce, child custody, child support, etc. cases.  In fact, most of the time people make the mistake thinking that they can take care of the case themselves and then realize after the fact that they completely screwed it all up.  They then come to hire an attorney to unscrew those problems, which is most of the time easier said than done.  The best advice that can be given is to hire an attorney right at the beginning to ensure that you are fully protected and correctly advised throughout the entire proceeding.  You do not want to go through an entire divorce and then realize that you did something very bad and then try to appeal it, also on your own.  Because it can almost be guaranteed that if you attempt the second feat, appealing a case, on your own it will most definitely not go in your favor.

This issue was directly addressed in In the Interest of C.M., A Child by the 5th District Court of Appeals in Dallas.  In that case, the mother and father appeared and agreed to the terms of their divorce, including the child custody terms.  The Court, on the record, ensured several times that the mother understood what she was agreeing to and that this was in fact the final hearing and final orders to which the mother replied that she did understand.  Unfortunately, the mother realized what she had agreed to post-prove up and realized that basically stripped her of parental rights and left her with only supervised visits.  Therefore, without representation she thought she would appeal the divorce orders with respect to custody stating that she did not understand and she did not consent to the terms as they were based on “false accusations that were not proven.”  However, the Court of Appeals revealed the record of testimony (which is made at all prove ups) and discovered that she did consent to the terms, several times, and even stated she understood several times.

What most people do not understand when they represent themselves is that they do have a right, when facing a consent judgment or agreed order, to withdraw your consent at any time before the judgment is rendered by the court.  So, the problem in this case was that mother had failed to do that and was trying to withdraw her consent post-divorce which the Court of Appeals held cannot happen.  In fact, the Court stated, “Agreed judgments, once rendered, are contracts between the parties that excuse error and operate to end all controversy between the parties.” Pate v. Pate, 874 S.W.2d 186, 188 (Tex. App.—Houston [14th Dist.] 1994, writ denied.   Therefore, the Court held that they believed the mother’s appeal “was intended to constitute a withdrawal of her consent to the terms agreed upon at the bench trial” which was improper.  In the Interest of C.M., at page 11.

The Court held that while they do treat pro se litigants’ briefs liberally, they do not hold pro se litigants to a lower threshold of standards.  Therefore, based upon the fact that the mother did not meet her burden, her appeal was denied.  It is possible, had she had an attorney throughout this process, that things might have ended a little more positive in her favor.

If you are facing a family law issue, do not wait until it is too late.   Do not become a part of the statistics of pro se litigants who need help after the fact.  Schedule a free consult today with Guest & Gray, our family law team is ready to help.  We look forward to working with you.

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You have a pending case involving a child (divorce, SAPCR, modification) and child support has been established.  However, like most parents you are concerned about the future—what happens when the children go to college, how will I afford their expenses then?  Most people say that you can “save the child support” but that is not ideal.  Children are expensive and it is highly likely that you will spend all of the child support and then some with all of the things that come up throughout their lives until they turn 18 or graduate from high school.  Child support ends on “removal of the child’s disabilities for general purposes, the marriage or death of a child, or a finding by the court that the child is 18 years of age or older and is no longer enrolled in high school or a high-school equivalent program.”  In the Interest of W.R.B. and B.K.B., Children.  So, what are your options to ensure that your children can get a college education and have support from the other parent?

This issue is addressed in In the Interest of W.R.B. and B.K.B., Children from the 5th District Court of Appeals in Dallas.     There, the Dallas Court of Appeals addressed the issue of post-majority support which is defined as applying “only to a non-disabled child who is 18 years of age or older and is no longer enrolled in high school or a high-school equivalent program” Tex. Fam. Code Section 154.001(a).  Therefore, this creates or allows for a specific scenario in which the other parent would still be required to make support payments.  In this case, the Court held that the trial court cannot order post-majority support on its own volition but the parties can agree to post-majority support in writing.  In the agreed modification orders, the parties had done just that.  Therefore, the Court of Appeals held that it was proper for the trial court to render the order of post-majority support.  However, the issue then became that the obligor parent stopped paying the post-majority expenses and so the recipient or obligee parent filed an enforcement action seeking reimbursement of all of the expenses, attorneys’ fees and interest.

The Dallas Court of Appeals held that for post-majority support, this is after the child ages out and was based purely upon the parties’ agreement and so therefore it is not enforceable in a family law court under the Texas Family Code.  Rather, the proper avenue is breach of contract.  This is because the agreed orders, with respect to the post-majority support, are considered a contract because it is an agreement of the parties not based upon legal authority.   This is unlike the issue of child support that was ordered which remains enforceable even post-aging out of the children because the Court still maintains jurisdiction over that issue as it was awarded under the family code.

With respect to consequences of breaching the contract, the Court held that it would be ideal if the parties not only agreed to the post-majority support but also agreed to the consequences if said support was not paid.  This would distinctly provide a source of remedies for a court to look to on the breach of contract claim.  In this particular case, the parties failed to do so and therefore it was difficult for the Court to ascertain what the proper remedies should be—this case is not like a typical enforcement case where, if in fact found to be in arrears, the conduct is punishable by contempt which could be confinement or suspension of confinement, confirmation of arrears, and award of attorneys’ fees.  Therefore, it is clear that this Court made a suggestion for future cases involving post-majority support—create a bright line rule in your orders as to what happens if either party violates that agreement.

Also, the Court offered guidance for future cases involving reimbursement claims of this nature where there are actual child support arrears and post-majority support arrears.  If you have a case of this nature, for the child support your avenue is enforcement. However, for the post-majority arrears you must separate that into a separate breach of contract cause of action and also distinctly separate the expenses out for the court.  You want the court to be able to look at your itemized spreadsheets and be clear on all expenses and totals being claimed; otherwise, you might have your entire case thrown out and not recover the funds.

Clearly, this is a unique issue that should not be taken lightly.  It is one that you have to ensure you get the language in the court order just right to ensure that you can in fact have a remedy if the order is violated.  If you are facing a case in which you think you would require post-majority support OR a case in which you need to sue for arrears on post-majority support, please call us today at Guest & Gray for your free consult.

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Chapter 8 of the Texas Family Code governs spousal maintenance, Texas’ own form of “alimony”.   Spousal maintenance is not easily obtained by divorcing parties; in fact, the legislature has created a pretty high threshold.  But, the issue becomes what if you have an out of state decree that speaks to spousal support and then you have the spouse ordered to pay subsequently wanting to get out of that arrangement?  This is the exact issue that the Fifth Circuit Court of Appeals addressed in In the Interest of L.T.H., R.R.H., and A.W.H., Minor Children.

In that case, the wife appealed a trial court’s ruling to refuse to enforce a California divorce decree modification and the husband’s obligation to pay spousal support.   In California, husband and wife were divorced, subsequently modified the divorce decree in California with a settlement agreement, and entered a reformed decree.  Then, everyone subsequently moved to Texas.  Later, the wife sought to enforce against the husband several times due to his nonpayment of the spousal support and child support.  After the first enforcement, the parties signed a mediated settlement agreement agreeing to certain terms regarding the spousal support (payment was definitely one of those terms) and then an order was subsequently entered.   The wife had to seek a subsequent enforcement due to the husband not paying again pursuant to the orders and in that case, the trial court ordered that they could not enforce the modification of the California decree and ordered that wife take-nothing.  However, the Court of Appeals thought differently and reversed and remanded ruling that they would strictly comply with the parties’ MSA, uphold the MSA and the parties’ agreement.

The Court of Appeals reviewed this case under contract law, which is sometimes unusual when discussing family law cases.  However, most people forget that every agreement entered into (when the proper elements are present), create a contract between the parties that can be enforceable as such.  The Court of Appeals looked to previous appellate decisions to reach this decision such as Schwartz v. Schwartz which held that “When such an agreement is executed by the parties and incorporated into the judgment of a divorce, it is binding upon the parties, and is interpreted under general contract law.”  Schwartz v. Schwartz, 247 S.W.3d 804, 806 (Tex. App.—Dallas 2008, no pet.).   Therefore, the Court would not review the MSA under Chapter 8 of the Texas Family Code stating that this was a contract turned into a court order which did not effectively create court ordered maintenance under the Texas Family Code.

When reviewing an agreement of the parties under contract law, this Court of Appeals held that you have to look to the parties’ intent and looked back to the Reformed California Divorce Decree which contained certain provisions regarding how the parties could in fact modify the terms of the decree.  One of the terms, as you might have guessed, was that the “parties could modify the contractual obligation of spousal support by signing a written agreement”.  Therefore, the subsequent MSA, the Court held, was a valid modification of the terms of the decree.

The Court then reviewed the husband’s arguments and found that he did not have a defense to the contract being enforced.  He tried to argue that the Texas trial court lacked subject matter jurisdiction to modify/enforce the California decree and said that it was a mistake of fact.  However, the Court held that this is a mistake of law, which is not a defense under contract law.  The husband also tried to argue that the wife did not pay any consideration as a part of the agreement (one of the elements to create a contract).  However, the Court overruled that argument as well stating that the wife did in fact “pay consideration” when she agreed to reduce the husband’s arrears down as a part of the MSA.

The Court further held that the trial court erred in trying to modify the parties’ MSA in not granting the wife a judgment against the husband adjudicating that, “Because of the Reformed California Decree and the MSA were founded upon settlement agreements reached by the parties, the trial court had no power to supply terms, provisions, or conditions not previously agreed upon by the parties.”  Ammann v. Ammann, No. 03-09-00177-CV, 2010 WL 4260955, at *3 (Tex. App.—Austin Oct. 28, 2010, no pet.) (mem. op).    Therefore, the Court concluded that the MSA/enforcement was proper due to its allowance by the previous California orders.  Also, the Court concluded that it would strictly comply with the settlement terms and if there was not a particular term within that agreement the trial courts cannot simply just add what they want to make their ruling work.

As a practicing family law attorney, I have had several cases dealing with spousal maintenance issues.  It is one not to be taken lightly and one that everyone deserves to know their rights on.  If you are in the midst of a divorce and need legal guidance, contact Guest & Gray today.

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​Whether you are just now to the realization that you will have to pay child support or whether you have just been ordered, the sinking feeling may be setting in as to the fact that you will be paying this monthly amount for quite some time. The real question is, however, when does your child support obligation end? What if your child moves in with you, what if your child moves out entirely, what if your child gets married before they graduate high school? All questions to be considered when paying monthly child support.

Understand that if nothing out of the ordinary occurs and your child continues to live with the parent receiving the child support, you have a statutory obligation to continue paying your child support. More than likely, you were ordered to pay a certain amount in child support each month due on the first day of each month and every month thereafter. You may have a court order that states the following:
“and a like payment being due and payable on the first day of each month thereafter until the first month following the date of the earliest occurrence of one of the events specified below:
​1.​the child reaches the age of eighteen years or graduates from high school, whichever occurs later, subject to the provisions for support beyond the age of eighteen years set out below;
2.​the child marries;
3.​the child dies;
4.​the child enlists in the armed forces of the United States and begins active service as defined by section 101 of title 10 of the United States Code; or
5.​the child’s disabilities are otherwise removed for general purposes; or
If the child is eighteen years of age and has not graduated from high school, IT IS ORDERED that obligor’s obligation to pay child support to obligee shall not terminate but shall continue for as long as the child is enrolled-
1.​under chapter 25 of the Texas Education Code in an accredited secondary school in a program leading toward a high school diploma or under section 130.008 of the Education Code in courses for joint high school and junior college credit and is complying with the minimum attendance requirements of subchapter C of chapter 25 of the Education Code or
2.​on a full-time basis in a private secondary school in a program leading toward a high school diploma and is complying with the minimum attendance requirements imposed by that school.

Most people think that this obligation is something that can be changed in terms of the length of the obligation. However, the language in your orders (if exactly like the language above) is exactly in line with Texas Family Code Sections 154.001 and 154.002. Therefore, it is not only a court order but also legislation.

In order to ensure that all of your payments are kept on track and documented, it is imperative that you make all payments through the Texas State Disbursement Unit. In doing so, all of your payments will be processed by the Attorney General’s Office of Texas and then they will be distributed to the parent receiving the child support. While there have been instances in the past where problems have arisen, this is still the best way (besides actually paying your child support) to ensure you do not have a child support enforcement action filed against you.

Fast forward and let’s say that you have reached one of the above-listed instances of which your child support obligation should cease but yet your employer is still withholding money from your income and the Attorney General’s Office is still taking it. We have had some cases where parents need to take action on their part to cease the withholding so that they no longer have to pay child support (when in fact their legal duty has ended).

If you have any questions regarding your child support obligation—can it be modified, ceased, etc.—please contact Guest & Gray today to schedule your free consultation.

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You may not think that this distinction is important, but in the world of family law it is imperative that you understand the difference.  It could be the difference between you actually being the father of a child in the eyes of the law as well as differing burdens of how to overcome that label if you are not the child’s biological father.  In fact, if you are in the middle of a divorce or a suit affecting the parent child relationship, knowing your definitions is crucial when it comes to duties to support children and your rights to visiting those children.

Texas Family Code Section 101.0015 defines alleged father as a man who “alleges himself to be, or is alleged to be, the genetic father or a possible genetic father of a child, but whose paternity has not been determined.”  So, if you think that you are the father of a child but it has not been concluded by court ordered genetic testing—then you are an alleged father.  We see this type of scenario come up in situations such as cases involving the Attorney General’s Office of Texas.  If a woman petitions the Attorney General’s Office for child support, then that agency will file a lawsuit and have all of the alleged fathers served.  It is then your duty to ask for genetic testing if there is any doubt in your mind about whether or not you are the father.  Once genetic testing is completed and paternity is established, you then become an adjudicated father.   Adjudicated father is defined in Texas Family Code Section 160.102(1) as a man who is determined to be the father of a child by the Court.  Therefore, once your paternity is established by results of genetic testing then the Court will name you as the father and proceed forward with child support, visitation, etc.

In contrast, Texas Family Code Section 160.204 defines a presumed father as follows:

(a) A man is presumed to be the father of a child if:

(1) he is married to the mother of the child and the child is born during the marriage;

(2) he is married to the mother of the child and the child is born before the 301st day after the date the marriage is terminated by death, annulment, declaration of invalidity, or divorce;

(3) he married the mother of the child before the birth of the child in apparent compliance with law, even if the attempted marriage is or could be declared invalid, and the child is born during the invalid marriage or before the 301st day after the date the marriage is terminated by death, annulment, declaration of invalidity, or divorce;

(4) he married the mother of the child after the birth of the child in apparent compliance with law, regardless of whether the marriage is or could be declared invalid, he voluntarily asserted his paternity of the child, and:

(A) the assertion is in a record filed with the bureau of vital statistics;

(B) he is voluntarily named as the child’s father on the child’s birth certificate; or

(C) he promised in a record to support the child as his own; or

(5) during the first two years of the child’s life, he continuously resided in the household in which the child resided and he represented to others that the child was his own.

(b) A presumption of paternity established under this section may be rebutted only by:

(1) an adjudication under Subchapter G1; or

(2) the filing of a valid denial of paternity by a presumed father in conjunction with the filing by another person of a valid acknowledgment of paternity as provided by Section 160.305

As you can imagine, we see this type of scenario in a divorce situation.  It becomes a contested issue when the wife has an affair and becomes pregnant—many men fall into the trap of thinking that they do not have to do anything because the child is clearly not their biological child.  However, that is an unfortunate misconception per the Family Code Section listed above.   You must ensure that you are not adjudicated the father of the child. Also, you cannot get divorced while your wife is pregnant with the other child.  This is because you must go through the genetic testing to prove you are not the child’s father.

Determining which type of father you are is only one of the tasks of our family law team here at Guest & Gray.  Contact us to schedule your free consultation today.  We look forward to helping you in your family law case.

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Many parents, grandparents, and even professionals do not fully understand their duty to report child abuse let alone the consequences for their failure to report.  But what about such duty to report of just an ordinary person?  That is right; ANYONE who has knowledge or reason to believe that a child is being abused in any way must report it to the appropriate agency.  That agency would be the Texas Department of Family and Protective Services, your local law enforcement and even your local district attorney’s office.  The family code does not exclude anyone in the duty to report.  Examples of professionals would be teachers, attorneys, doctors, nurses, and daycare employees.

Chapter 261 of the Texas Family Code encompasses the duty to report, definitions, etc.  Once you have determined what abuse or neglect means in Texas, and you know a child who is being subjected to such acts, you must report it.   Unfortunately, many of the cases we see are children being sexually or physically abused.  Once you learn of this abuse, what do you need to do?

Texas Family Code Section 261.101 legislates and defines those who are required to report as follows:

Sec. 261.101.  PERSONS REQUIRED TO REPORT; TIME TO REPORT.  (a)  A person having cause to believe that a child’s physical or mental health or welfare has been adversely affected by abuse or neglect by any person shall immediately make a report as provided by this subchapter.

(b)  If a professional has cause to believe that a child has been abused or neglected or may be abused or neglected, or that a child is a victim of an offense under Section 21.11, Penal Code, and the professional has cause to believe that the child has been abused as defined by Section 261.001 or 261.401, the professional shall make a report not later than the 48th hour after the hour the professional first suspects that the child has been or may be abused or neglected or is a victim of an offense under Section 21.11, Penal Code.  A professional may not delegate to or rely on another person to make the report.  In this subsection, “professional” means an individual who is licensed or certified by the state or who is an employee of a facility licensed, certified, or operated by the state and who, in the normal course of official duties or duties for which a license or certification is required, has direct contact with children.  The term includes teachers, nurses, doctors, day-care employees, employees of a clinic or health care facility that provides reproductive services, juvenile probation officers, and juvenile detention or correctional officers.

(c)  The requirement to report under this section applies without exception to an individual whose personal communications may otherwise be privileged, including an attorney, a member of the clergy, a medical practitioner, a social worker, a mental health professional, and an employee of a clinic or health care facility that provides reproductive services.

(d)  Unless waived in writing by the person making the report, the identity of an individual making a report under this chapter is confidential and may be disclosed only:

(1)  as provided by Section 261.201;  or

(2)  to a law enforcement officer for the purposes of conducting a criminal investigation of the report.

Many people fail to report child abuse or neglect because they are afraid of the backlash that they may receive.  In fact, some people talk themselves out of it saying that they cannot be certain about it and they worry about what if they are wrong, what will happen to them.  The definition is clear—“cause to believe”.  Did the child show up at school with bruises on their backside or on their face?  The important thing to know is that you cannot get in trouble if you have a reason to believe that the abuse is taking place.  In fact, Texas Family Code Section 261.106 makes that abundantly clear.

Sec. 261.106.  IMMUNITIES.  (a)  A person acting in good faith who reports or assists in the investigation of a report of alleged child abuse or neglect or who testifies or otherwise participates in a judicial proceeding arising from a report, petition, or investigation of alleged child abuse or neglect is immune from civil or criminal liability that might otherwise be incurred or imposed.

(b)  Immunity from civil and criminal liability extends to an authorized volunteer of the department or a law enforcement officer who participates at the request of the department in an investigation of alleged or suspected abuse or neglect or in an action arising from an investigation if the person was acting in good faith and in the scope of the person’s responsibilities.

(c)  A person who reports the person’s own abuse or neglect of a child or who acts in bad faith or with malicious purpose in reporting alleged child abuse or neglect is not immune from civil or criminal liability.

The worse thing to worry about is what would happen to you if you did not report and someone found out.  We see this arise a lot when it comes to grandparents or even parents.  A court case will begin on instances of abuse; however, the person claiming the abuse failed to make a report to the appropriate agency.  It is a crime, one which can be pursued against you.

Sec. 261.109.  FAILURE TO REPORT; PENALTY.  (a)  A person commits an offense if the person has cause to believe that a child’s physical or mental health or welfare has been or may be adversely affected by abuse or neglect and knowingly fails to report as provided in this chapter.

(b)  An offense under this section is a Class A misdemeanor, except that the offense is a state jail felony if it is shown on the trial of the offense that the child was a person with mental retardation who resided in a state supported living center, the ICF-MR component of the Rio Grande State Center, or a facility licensed under Chapter 252, Health and Safety Code, and the actor knew that the child had suffered serious bodily injury as a result of the abuse or neglect.

The issue arises when people start making reports to spite one another.  For instance, we have had several instances of divorces where parents make sexual abuse claims against the other parent involving one or all of the children part of the divorce.  This happens because both parents might be competing for the exclusive right to designate primary residence.  However, many people do not realize that this is in fact a crime.

Sec. 261.107.  FALSE REPORT; CRIMINAL PENALTY; CIVIL PENALTY.  (a)  A person commits an offense if, with the intent to deceive, the person knowingly makes a report as provided in this chapter that is false.  An offense under this subsection is a state jail felony unless it is shown on the trial of the offense that the person has previously been convicted under this section, in which case the offense is a felony of the third degree.

(b)  A finding by a court in a suit affecting the parent-child relationship that a report made under this chapter before or during the suit was false or lacking factual foundation may be grounds for the court to modify an order providing for possession of or access to the child who was the subject of the report by restricting further access to the child by the person who made the report.

(c)  The appropriate county prosecuting attorney shall be responsible for the prosecution of an offense under this section.

(d)  The court shall order a person who is convicted of an offense under Subsection (a) to pay any reasonable attorney’s fees incurred by the person who was falsely accused of abuse or neglect in any proceeding relating to the false report.

(e)  A person who engages in conduct described by Subsection (a) is liable to the state for a civil penalty of $1,000.  The attorney general shall bring an action to recover a civil penalty authorized by this subsection.

If you have any knowledge of child abuse or neglect, report it today.  Do not wait until you have hard proof, all you need is “cause to believe.”  You may be saving a child’s life.  For your convenience, you can contact the Texas Department of Family and Protective Service’s child abuse hotline at 1-800-252-5400.  If your case involves a situation in which you believe you would want to seek custody of this child, contact us today at Guest & Gray to schedule a free consultation regarding your family law case.  Understand, however, that if you have not reported the child abuse then even our attorneys have the duty to report the said abuse.  It is never too late to make the right decision.  We look forward to helping you.