Saturday, April 27, 2013

Jurisdiction in Family Law: Specialized Family Courts

 Jurisdiction is the most important initial quesiton a practitioner of family law can ask.  Jurisdiction consists of two things: (1) the court's power, conferred by constitutional or statutory authority, to hear a cause alleged in the petition, and (2) the court's power to award the relief requested. 

In the family law context, a court can only hear a suit affecting children if it has been granted jurisdiction in "family-law matters" which include adoptions, divorces, annulments, child welfare, custody, support issues and relationships of the wife and husband and children.

In Texas, district courts are the primary trial courts and all district courts have family law jurisdiction.  However, the Texas Constitution gives the legislature the power to create specialized "family district courts" to help handle the huge caseload in certain counties.  Follows is a list of counties that have family law district courts:

  • Brazoria
  • Dallas
  • El Paso
  • Fort Bend
  • Galveston
  • Gregg
  • Harris
  • Hutchinson
  • Jefferson
  • Midland
  • Nueces
  • Potter
  • Smith
  • Tarrant
  • Taylor
  • Wharton
These courts have the same jurisdiction as general district courts, but they have primary responsiblity for handling family-law matters, including child support.  This does not prevent a general district court from hearing a family law case however.  But family cases in counties that have these specialized courts will almost always be filed in those courts.

Monday, April 22, 2013

Today I am a Man: Removal of Disabilities of a Minor

 A minor under most Texas law is anyone who is either under the age of 18 years, or over 18 with certain conditions and under certain circumstances (for example 18 but still enrolled in high school).   However, in law, we see many occasions when a child is treated as an adult- most notably in the criminal law context.

On rare occasions a sixteen or seventeen year old may desire to have some of the limitations we place on children removed ("disabilities of minority").  This can occur when a 16 or 17 year old is living on his or her own and is seeking to enter into a rental lease or perhaps seeks to purchase a car or other contractual relationship and cannot because those under 18 may not be legally bound to a contract.   Chapter 31 of the Texas Family Code provides an avenue for the removal of the minority status of an individual who is at least  16 years of age. 

The minor can file this suit in their own name and must show the court that they are living separate and apart from a parent, managing conservator or guardian and that they are self-supporting and managing their own financial affairs.

A complicating factor is that the parent, guardian or managing conservator must "verify" the petition.  It is unclear whether this means the petitioner must serve them formally with notice, or merely that they sign the petition with a notary. I think this is up to the judge what this means- so a practitioner would due well to inquire beforehand.  If the parent, guardian or managing conservator cannot be found, or is unavailable then the court may appoint an amicus or attorney ad litem to verify the petition.

Other states call this procedure "emancipated minor" proceedings.  If such a proceeding was obtained in another state, a minor moving to Texas may file a certified copy of the order int the deed records of any county in Texas.

Although the procedure is rather straight forward, most 16 or 17 year olds may need to seek the help of an attorney for this procedure.  This may not be financial feasible.  Remember too that the removal of disabilities of minor only applies to the ability to contract, to get the right to make one's own educational decisions, and the like.  It does not remove other restrictions such as the right to vote, no drinking etc.

It also should be noted that depending on what age the petition is sought, it may not make sense to file this petition.  It take many months to obtain a court date in some courts.  Obviously if the minor turns 18 before or very soon after a court date, the issue becomes moot.

Saturday, April 20, 2013

SAVE Child Support Act Being Pushed


Recently, U.S. Senators Robert Menendez (D-NJ) and Chuck Grassley (R-IA) reintroduced Senate Bill 508, the Strengthen and Vitalize Enforcement of Child Support (SAVE Child Support) Act.
According to the senators' websites, the purpose of the legislation is to provide states with tools and procedures to help them collect child support from parents who are not complying with their payment court orders.
Specifically, the SAVE Child Support Act provides that every state, including Texas, will be able to access a nationwide child support lien registry. The purpose of the lien registry is to allow liens to be placed against property in the event that a person falls behind in child support payments. The lien registry will help states easily identify these liens and where they are located.
Along with the lien registry, this Act also enables states to intercept payments that are made to individuals other than the parent receiving child support, in order to satisfy delinquent child support orders. Moreover, the Act strengthens procedures which allow for the revocation of non-custodial parents' certain licenses, permits, and passports when these parents fail to completely abide by child support orders. This part of the Act will require increased coordination between various child support agencies and license-issuing agencies.
Moreover, the bill also clarifies existing state jurisdictional rules in order to facilitate states' efforts to collect any and all outstanding child support orders, as well as expedites procedures for redirecting child support payments if the child has relocated. Importantly, the bill also improves the ability of the courts to enforce outstanding child support orders.
Along with these important measures affecting state procedures, the proposed legislation also encourages and facilitates coordination among the multiple child support agencies and corrections facilities to assist in managing and collecting on child support orders.
Finally, the bill also helps safeguard non-custodial parents' visitation rights by requiring states to report on any plans to facilitate or improve access to and visitation of children by their custodial and non-custodial parents. It will also implement measures to protect vulnerable families from any harassing or deceptive practices employed by private child support collection agencies. To do so, the bill extends existing federal debt protection laws to include these collection agencies.
This Act is introduced to address the nearly 11.5 million cases of delinquent payments of child support. This statistic comes from the Health and Human Services Office of Child Support Enforcement FY 2011 Preliminary Report. According to this same report, the amount of child support that was due in FY 2009 totaled more than $33 billion and only 62% of that amount was actually collected. To put that in context, over $111 billion in child support was due for all previous fiscal years, but less than $8 billion were collected and distributed in 2011.