Texas Family Law changes by the Texas Legislature in 2011

Texas Family Law

The Texas Legislature made important changes to Texas Family Law in 2011

2011 was a busy session for the Texas Legislature, with legal changes that will affect many in the area of Texas Family Law. While some legislative changes this year are what I call “clean up legislation,” there are a few items of higher significance and this Blog will address these four topics:

• Termination of parental rights by a father after DNA testing
• New “fraud on the community” statute
• Protective orders enforced anywhere in Texas without transfer
• Guidelines for ordering possession for children under three years

These Texas Family Law changes are currently in effect.

In addition to these four topics, the Texas Legislature made important changes regarding alimony; we will address changes in the alimony statute in a separate Blog.

The Texas Legislature meets every two years. During that period, they consider thousands of pieces of Texas Family Law legislation. Most do not become law, but many do. There is always a fair amount of clean up legislation, where errors have been discovered in existing statutes and those errors are corrected. Sometimes a law is passed that seemed like a good idea at the time, however, in practice it is not workable. In these instances, the statute is usually removed. I will not address all of the Texas Family Law changes in this Blog, and certainly not the clean up legislation unless it results in a significant change to our existing law.

Voluntary termination of parental rights by a man determined to not be the biological parent.

This new law, SB 785, enables a man who has been adjudicated by the Court to be the father of a child, or who willingly executed an affidavit of paternity believing he was the father, to terminate his parental rights after learning that he is not the biological father of a child.

In the past, once a man had been adjudicated as the father of a child, if he found out that he was not, in fact, the child’s father, he had no recourse to terminate his financial obligation to that child. A termination in accordance with this Texas Family Law statute will end any obligation to pay future child support, however, it does not affect past child support. That prior support is considered “owed” and there is no way to recoup money already paid. The suit can be brought only by the man who has been adjudicated the child’s father. The mother cannot bring the suit. As of September 1, 2012, the suit must be brought within one year of the adjudicated father discovering that he is not the biological father. Before that date, a suit may be brought without regard to when the discovery was made.

Fraud on the community.

We now have a new Texas Family Law statute addressing fraud on the community estate. In the event that a spouse defrauds the community estate (e.g., transfers money or other assets to another in an attempt to deprive their spouse of those assets) and the assets cannot be recovered, the Court may create what the statute calls a “reconstituted estate.” The reconstituted estate is the community estate plus the assets that were fraudulently conveyed. The Court can then order a percentage division of that reconstituted estate. What this means is that the Court may award the innocent spouse 60% of the reconstituted estate, which, in effect, may be 90% of the remaining assets.

Protective orders.

In the past, if you wished to enforce a protective order in one county after that protective order was issued in another county, you were required to have the case transferred to the new county. This was a time consuming process in a situation where time was critical. This problem has been corrected with this new Texas Family Law statute that states that a protective order issued in any county in Texas can be enforced in any other county simply by filing a Certified Copy of that Protective Order with the proper Court in the new county.

Guidelines for awarding periods of possession for children under three years of age.

As many of you know, we have had a statute with the minimum recommended periods of possession for the non-possessory parent (the parent who does not have primary custody) for children over three years of age for a long time. It is known as the Standard Possession Order. However, we had no such recommended periods of possession for children under three years of age. Because circumstances are so variable with very young children, the legislature did not believe it appropriate to attempt to develop a “one size fits all” possession order for those children. However, the legislature has now provided the Courts guidelines for determining what periods of possession to award for children under three. These are now set out in §153.254 of the Texas Family Code. The statute requires that the court consider all relevant factors, including:

(1) the caregiving provided to the child before and during the current suit;

(2) the effect on the child that may result from separation from either party;

(3) the availability of the parties as caregivers and the willingness of the parties to personally care for the child;

(4) the physical, medical, behavioral, and developmental needs of the child;

(5) the physical, medical, emotional, economic, and social conditions of the parties;

(6) the impact and influence of individuals, other than the parties, who will be present during periods of possession;

(7) the presence of siblings during periods of possession;

(8) the child’s need to develop healthy attachments to both parents;

(9) the child’s need for continuity of routine;

(10) the location and proximity of the residences of the parties;

(11) the need for a temporary possession schedule that incrementally shifts to the schedule provided in the prospective order under Subsection (d) based on:
– the age of the child; or
– minimal or inconsistent contact with the child by a party;

(12) the ability of the parties to share in the responsibilities, rights, and duties of parenting; and

(13) any other evidence of the best interest of the child.