What is Alternative Dispute Resolution (ADR)?

ALTERNATE DISPUTE RESOLUTION

Several statutory provisions are designed to encourage the use of alternate dispute resolution (“ADR”) procedures in dissolution of marriage proceedings (in particular, division of the couple’s community estate in divorce actions) and in Suits Affecting the Parent Child Relationship (“SAPCR”) (in particular, issues of child custody, child support and visitation rights).  The objective is to reduce the costs and animosity engendered by a contested trial of these issues.

Types of Alternate Dispute Resolution

1. Arbitration

–       On written agreement of the parties, the court may refer a suit for dissolution if the marriage to arbitration.  The agreement must specify whether the arbitration is to be binding or nonbinding.

2. Mediation

–       On written agreement of the parties or on the court’s own motion, the court may refer a suit for dissolution of the marriage to mediation.  A mediated settlement agreement is binding on the parties if it:

o      Provides that the agreement is not subject to revocation;

o      Is signed by each party to the agreement; and

o      Is signed by each party’s attorney who was present when the agreement was signed

–       Mediation is almost mandatory in all family law cases to promote settlement.  However, if an agreement cannot be reached through mediation then the court will decide any disputed issues.

3. Collaborative Law Procedures

–       Parties may agree to use collaborative law procedures, under which the parties and the attorneys agree in writing to use their best efforts and make a good faith attempt to resolve their dispute without judicial intervention, except to have the court approve the parties’ settlement agreement and sign the orders required to give effect to the agreement.

–       Collaborative law seeks to create an environment in which the parties, with the aid of their attorneys, can address the issues presented as problems to be solved, rather than contests to be won.

Penalties for Not Paying Child Support

POSSIBLE PENALTIES FOR NOT PAYING CHILD SUPPORT

The state of Texas has enacted numerous enforcement mechanisms to ensure that child support payments are paid.  If they are not paid, or they are untimely, then there can be serious consequences.  A basic overview of some of the child support enforcement mechanisms are listed below.

Contempt

After notice and hearing, a court order for child support may be enforced by contempt, punishable by confinement in the county jail for up to six months, a $500 fine, or both.  If the contemptor fails to appear for the hearing, a capias (a writ authorizing custody) can be issued for their arrest.  The capias is treated the same as a misdemeanor arrest warrant, meaning that law enforcement officials can arrest the respondent if they encounter him in the regular course of their duties (i.e. traffic violation).

Suspension of Driver’s License, Hunting or Fishing License, Occupational or Professional License

A court can issue an “order suspending license” if the person who owes child support (1) is three months in arrears; (2) has been provided an opportunity to make payments toward arrearages under an agreed repayment schedule; and (3) has failed to comply with the repayment schedule.  This procedure is available with respect to a delinquent obligor’s driver’s license, hunting or fishing license, and license to engage in a profession, occupation, or business.  The statute lists 56 state agencies that grant licenses that are subject to suspension for non-support.  The list of professions and activities affected is global, and includes attorneys, barbers, CPA’s, chiropractors, doctors, liquor store owners, nurses, optometrists, realtors, and plumbers.

Delinquent Obligor Cannot Obtain State Grants, Loans, or Contracts

An obligor who is more than 30 days delinquent on child support, and a business entity of which the delinquent obligor is a sole proprietor, partner, shareholder, or owner with more than a 25% interest, is not eligible to receive loans, grants, or contracts from the state of Texas.

Money Judgment for Child Support Arreages

Any periodic child support payment not timely made automatically constitutes a final judgement for the amount due and owing.  Upon motion, after notice and hearing, the court shall confirm the amount of child support in arrears and shall enter an order against the obligor for the amount determined, plus attorneys’ fees, court costs, and interest at 6%.  This judgment may be enforced by any means generally available for the enforcement of judgments for debts.

Child Support Lien for Arreages

A statutory lien arises by operation of law for all amounts of overdue support, even if the arrearages have not been reduced to a judgment.  The lien attaches to all of the obligor’s real property (other than homestead property), and to all personal property that is not exempt from creditors’ claims.  The lien automatically attaches to property acquired in the future, as well as the obligor’s existing property, including claims for negligence or personal injury.

Delinquent Obligor Must Pay Court Costs and Attorney’s Fees for Person Enforcing Order

In an enforcement proceeding, if the court finds that a non-indigent obligor failed or refused to make child support payments, the court shall order the obligor to pay court costs and the movant’s attorneys’ fees, unless the court makes a specific finding that the obligor is not required to make such payments and states the reasons in support of that finding.

Uniform Interstate Family Support Act

Texas has enacted the Uniform Interstate Family Support Act (UIFSA).  The primary purposes of UIFSA are (1) to simplify and expedite the procedures for interstate enforcement of support orders and income-withholding orders, and (2) to eliminate the practice of multiple support orders being issued by the courts of several states.  Basically, this act allows support orders from Texas to be enforced in other states and vice versa.  If you have a support order from another state and you now reside in Texas, it is important to register the other state’s order with the state of Texas so it may be enforced as if it were a Texas order.

Child Support Modification

CHILD SUPPORT MODIFICATION

The Texas Family Code provides three possible grounds for modifying child support:

1. Parties’ Agreement

a.     The court can modify a child-support order if the parties agree to the modification and the modification is in the child’s best interest.

2. Three-year Modification Rule

a.     The court can modify a child-support order if it has been three years since the order was rendered or last modified and the monthly child-support obligation differs by either 20% or $100 from the amount that would be awarded under the current child-support guidelines.

i.     Even if the requirements for the three-year modification rule are met, the court still has discretion on whether to modify the order and to follow the child-support guidelines.

ii.     The three-year modification rule is not available to parties who agreed to a child-support obligation different from the amount that would have been awarded under the child-support guidelines when the order was rendered.  If this is the case, either the parties must agree to a modified amount or the petitioner must plead and prove a material and substantial change in the circumstances of a person affected by the order.

3. Material and Substantial Change in Circumstances

a.     The court can modify a child-support order if the circumstances of either the child or a person affected by the order have materially and substantially changed since the earlier of: (1) the date the order was rendered or last modified; or (2) the date the parties signed a mediated or collaborative-law agreement on which the order was based.

i.     Although not specifically stated as a requirement for modifying child support based on material and substantial change, courts have held that the primary consideration in determining child support is the child’s best interest.

b. Types of Material and Substantial Changes

i.     Statutory—these are changes that the Texas Family Code specifically identifies as material and substantial changes.

1. Parent Released From Incarceration

a.     Under the Family Code, a material and substantial change occurs when a parent who owes child support is released from incarceration if that parent’s child-support obligation was abated, reduced, or suspended during incarceration.

2. Not Military Service

a.     Military service is no longer a material and substantial change for the purpose of modifying child-support under the Family Code.  In 2009, the Texas Legislature repealed Family Code §156.410, which stated that a parent being called into or returning from military service was a material and substantial change.  However, if a court temporarily modifies possession of or access to a child for military service, the temporary order may be sufficient to constitute a material and substantial change.

ii.     Common Law—these are changes that are not defined by statute to be material and substantial but defined in case law.  The determination of whether a change is material and substantial is a fact-intensive inquiry that is decided on a case-by-case basis.  Below are some instances where courts have found a material and substantial change:

1. Change in Parent-Child Relationship

a.     Change in Conservatorship—A change in conservatorship may be a material and substantial change if it also involves altering the child’s primary residence and the level of care provided to the child by the parties.  Without these additional changes, a change in conservatorship alone may not be sufficient to establish a material and substantial change.

b.     Change in Paternity—A court’s determination that an obligor is not the biological father of a child may be a material and substantial change.  For instance,  a court decided a father could not modify his child-support payments to zero even though DNA tests proved he was not the biological father—he had to wait until the court overturned paternity judgment.

2. Change in Residence and Care Provided

a.     A change in physical residence may be a material and substantial change in circumstances if the parent who had possession of the child no longer provides the same level of care to the child as she did when she lived with the child.  For instance, a court decided that a daughter moving out of her mother’s home to live with her boyfriend was a substantial change but modification was denied. Alternatively, a court decided that a child moving out of mother’s home into father’s home was a substantial change and modification was granted.

3. Change in Child’s Needs

a.     A substantial increase in the necessary expenses of a child may be a material and substantial change in circumstances.  For instance, expenses for clothes, school supplies, and extracurricular activities increased as children became teenagers.

4. Change in Parent’s Financial Circumstances

a.     An increase or decrease in a parent’s financial ability to support a child may be a material and substantial change in circumstances.

b.     Parent’s Increase in Salary—A parent’s increase in salary may be a material and substantial change in circumstances.  For instance, a substantial change was found when father had no salary at the time of divorce, he was employed and given home to live in by employer at time of modification

i.     The increase in salary must be more than slight.

ii.     Although an increase in salary alone may constitute a material and substantial change, the court can also weigh the importance of the increase against other factors, such as the other spouse’s increase in salary.

iii.     If either of the parties are remarried, the salary of either the obligor’s or the obligee’s new spouse cannot be considered an increase in either party’s salary.

c.     Parent’s Decrease in Salary—A parent’s decrease in salary may be a material and substantial change in circumstances unless the decrease is a result of voluntary underemployment or voluntary unemployment.

i.     A temporary downward fluctuation in salary is insufficient to create a material and substantial change.

ii.     A decrease in a parent’s salary cannot support a modification of child support if that parent has other assets or sources of income to satisfy the support obligation (i.e. if parent could sell business and personal property to satisfy support obligation).

iii.     If either of the parties is remarried, the needs of either party’s new spouse or the needs of the new spouse’s dependents cannot be considered a decrease in either party’s salary.

d.     Birth of Another Child—The birth of another child may be a material and substantial change in circumstances if evidence of increased expenses can be shown.

i.     The fact that a father had another child, without more evidence was insufficient to establish substantial change.

ii.     The fact that a father had ample financial resources made the existence of an additional child not a substantial change.

iii.     Courts consider a father’s obligation to support the additional child as one factor among many when considering substantial change.

5. Change in Cost to Exercise Possession of and Access to Child

a.     A substantial increase in the cost of exercising rights to possession of and access to a child may be a material and substantial change in circumstances if the increase in cost is not caused by the party incurring it.

i.     For instance, a mother moved child 286 miles away, causing father to make lengthy and costly round-trips to exercise weekend possession.

6. Variance from Child-Support Guidelines

a.     A child-support order’s variance from the child support guidelines does not by itself establish a material and substantial change in circumstances.

b.     The court has discretion to consider the child-support guidelines when determining whether a material and substantial change in circumstances has occurred and whether to modify the order to substantially conform with the guidelines.

General Information and guidelines on Child Support in Texas

CHILD SUPPORT GUIDELINES

The Texas Legislature has promulgated guidelines that are to be followed in determining the proper amount of child support.  The amount of support is determined without regard to whether the child was born in wedlock.  The guidelines apply unless the parties agree on some other amount.  The parties can always agree upon a suitable amount of child support but the agreement is still subject to the court’s approval.

Statutory Guidelines for Child Support

• 1 Child:                        20% of Obligor’s net resources

• 2 Children:                        25% of Obligor’s net resources

• 3 Children:                        30% of obligor’s net resources

• 4 Children:                        35% of obligor’s net resources

• 5 Children:                        40% of obligor’s net resources

• Over 5 Children:            Not less than amount for 5 Children

Factors Considered in Determining Child Support

In determining the proper level of child support, the court is directed to consider:

1.     The statutory guidelines

2.     The needs of the child

3.     The ability of the parents to contribute to the child’s support

4.     Any financial resources available for support of the child

5.     The amount of possession and access to the child

Fixed Percentage of “Net Resources” Depending on Number of Children

The guidelines key the suggested amount of child support to a fixed percentage of the obligor’s “net resources,” taking into account the number of children involved.  There is a rebuttable presumption that a support order tied to these percentages is reasonable and in the child’s best interest.  To deviate from the prescribed percentages, the court must make specific findings as to the reasons that justify the deviation.

“Net Resources” More Expansive than Income

The concept of “net resources” is far more expansive than either net income or “take home pay.”  The objective of the guidelines is to include all sources of cash-flow revenue, including earned income (salary, wages, overtime pay, self-employment income, commissions, tips, and bonuses), passive income (dividends, interest, capital gains, royalty income, and net rental income), and any other income (Social Security, unemployment, disability, and workers’ compensation benefits, pensions, annuities, trust income, and capital gains).

• Intentionally Unemployed or Underemployed Obligor

o      If the obligor parent is intentionally unemployed or underemployed, the child support guidelines are applied to the amount the court determines that the obligor parent could earn if employed consistent with his skills and earning potential.  However, merely taking a lower-paying job (i.e. to be near the children) does not establish underemployment.

• Income of Obligor’s Spouse Not Included

o      If the obligor parent remarries, the spouse’s earnings and investment income from her separate property (the spouse’s sole management community property) are not included in computing the obligor’s net resources.

• Deductions from “Net Resources”

o      In computing net resources, deductions are limited to FICA (Social Security taxes), union dues, expenses of health insurance coverage for the obligor’s children, and the income tax withholding that would be allowed for a single person claiming one personal exemption and a standard deduction.  In most cases, this will be considerably less than the actual withholding from the obligor’s paycheck.  The purpose of this rule is to have a standard, uniform method of calculating income tax withholding, without having to examine a particular taxpayer’s income tax return.

• Disability Benefits Paid on Behalf of Disabled Obligor

o      If the obligor is disabled and the child receives disability benefits as a result, the amount of child support determined under the guidelines is reduced by the value of the benefits paid to the child.

“Net Resources” Capped at $7,500/Month

The statutory guidelines apply to the obligor’s first $7,500/month of net resources.  If the obligor’s net resources exceed that amount, the court may order additional support only if the child has special needs.  In no event may the obligor be required to pay child support in excess of 100% of the proven needs of the child.

Example:            The fact that the obligor earns $500,000 per year does not, by itself, justify deviation from the child support guidelines.  Only the proven needs of the child warrant a support award tied to more than $7,500/month net resources.  Thus, if one child is involved, the guidelines provide for support of $1,500/month—even if the parent is a millionaire.

Child Support Payments Must be Made to State Disbursement Unit

Child support payments must be made to the “state disbursement unit,” which then transmits the payments to the obligee.  Elimination of direct payments is designed to avoid disputes that might arise if the obligor made direct payment to the obligee and failed to retain a receipt.

Basic Information About Adoption

ADOPTION—BASIC INFORMATION

On entry of a decree of adoption, the parent-child relationship exists between the adopted child and the adoptive parents as if the child were born to the adoptive parents during marriage.

Any Adult (Single or Married) Can Adopt a Child

Any adult, whether single or married, and whether a resident or non-resident, can adopt a child as long as the court finds that the adoption is in the child’s best interest. If a petitioner is married, both spouses must join in the petition for adoption.

When a Child May be Adopted

A child living in Texas may be adopted if: (1) both of the child’s parents have died; (2) the parent-child relationship of each living parent has been terminated; or (3) a step-parent (the spouse of the parent whose parent-child relationship has not been terminated) wants to adopt the child.

Adoption by Former Stepparent

A child may be adopted by a former stepparent if: (1) the child is at least two years old; (2) the parent-child relationship has been terminated with respect to one parent; and (3) the former stepparent has been the child’s managing conservator or has had actual care, possession, and control of the child for at least six months (if the non-terminated parent consents to the adoption), or at least one year (if the non-terminated parent does not consent to the adoption.

Pre-Adoptive Social Study

The court must order a pre-adoptive social study by the TDFPS or some other agency or person “into the circumstances and conditions of the child and of the home of” the adopting parent or parents. The cost of the social study is paid by the person(s) seeking to adopt the child. Except in cases of adoption by a relative of the child, the social study must be completed prior to placement of the child with the prospective adoptive parent(s).

Post-Placement Social Study

The court also must order a follow-up social study, called a post-placement social study, before the final decree of adoption can be entered. The objective of the two social studies is to ensure the best interest of the child, by giving the court a clear picture of the home environment of the adopting parent(s).

Adoption by Stepparent—Only One Social Study Required

In a stepparent adoption, the pre-adoption and post-placement social studies may be combined.

Criminal History Record of Adopting Parent Must be Furnished

The court must order the person seeking to adopt a child to furnish his/her own criminal history record information

When Consent to Adoption is Required

A child age 12 or older must give his/her consent to the adoption in court or in writing. The court may waive this consent requirement if it is in the child’s best interest. Also, a court-appointed managing conservator must consent to the adoption unless, of course, the managing conservator is the petitioner. However, the court may waive this requirement if it finds that the managing conservator’s consent is being withheld without good cause.

Child Must Have Resided with Petitioner for Six Months to Receive Final Adoption Decree

In general, a final decree of adoption of a child cannot be entered until the child has lived in the home of the petitioner for at least six months. However, this requirement can be waived if the court finds that waiver is in the child’s best interest.

Social, Health, Educational, and Genetic History Report

Before placing a child for adoption, the TDFPS, an authorized agency, the child’s parent or guardian, or whoever else places the child for adoption must compile and submit to the court a report containing the information set out below. No adoption can be granted until the report is filed of record. An exception to this rule is if the adopting party is a stepparent, grandparent, uncle, or aunt of the child. However, the validity of a final adoption decree is not subject to attack if the report was not properly filed.

The agency or party that prepares the report must give a summary of the report, “edited to protect the confidentiality of birth parents and their families,” to the prospective adoptive parents as soon as practicable before the first meeting of the child and the prospective parents. The report is to be kept on record by TDFPS for 99 years.

Adoption of Adults

Texas permits any adult resident of the state to petition to adopt another adult. A petition filed by a married person must be joined in by the spouse. The adult adoptee must consent to the adoption in a writing acknowledged before a notary public. An adult adoptee can inherit from and through the adopting parents, but may not inherit from or through his biological parents, and the biological parents may not inherit from the adopted adult.

On the theory that adults are capable of making their own decisions, the court is not required to make a finding that the adoption is in the adoptee’s best interest. The court’s only duty is to make certain the adoptee consents to the adoption, which is established by the adoptee’s written, acknowledged consent and by his appearance at the adoption proceeding.

General Information on Modifying Child Custody

MODIFICATION OF CONSERVATORSHIP, POSSESSION, OR ACCESS

The Family Code divides up the grounds for modifying child custody into three distinct types: (1) the general grounds for modifying conservatorship, possession, or access; (2) the grounds for modifying possession or access brought by a grandparent; and (3) the grounds for modifying access brought by a sibling.

Modification of Custody—Generally

The Family Code provides four grounds for modifying custody:

1. Parties’ Agreement + Best Interest of the Child

a. The court can modify a custody order if the parties agree to the modification and the modification is in the child’s best interest.

b. To determine the best interest of the child the court will look at different factors, including but not limited to, the child’s need for stability, the need to prevent constant litigation in child custody cases and the child’s need for frequent contact with a parent to develop a close and continuing relationship.

2. Child’s Preference + Best Interest of the Child

a. The court can modify a custody order if (1) the child is at least 12 years old and expresses to the court during an in-chambers interview the name of the person who is the child’s preference to be primary conservator; and (2) the modification is in the child’s best interest.

3. Voluntary Relinquishment + Best Interest of the Child

a. The court can modify a custody order if (1) the conservator with the exclusive right to designate the child’s primary residence has voluntarily relinquished primary care and possession of the child for at least six months; and (2) the modification is in the child’s best interest.

i. A conservator does not voluntarily relinquish possession of a child by designating a person under Family Code 153.703 to temporarily exercise the conservator’s right of possession during military duty.

4. Material and Substantial Change in Circumstances + Best Interest of the Child

a. The court can modify a custody order if (1) the circumstances of a child, a conservator, or another party affected by the order have materially and substantially changed since the earlier of the date the order was rendered or the date the settlement agreement that the order was based on was signed; and (2) the modification is in the child’s best interest.

b. Types of Material and Substantial Changes:

i. Statutory

1. Conviction or deferred adjudication for sexual abuse

2. Conviction for continued sexual abuse

3. Conviction or deferred adjudication for family violence

a. A party commits a Class B Misdemeanor by filing a suit to modify based on an accusation that the other party has either been convicted of or received deferred adjudication for child abuse of family violence when the party filing suit knows the accusation is false.

4. Military Duty—NOT material and substantial change

ii. Common Law

1. Violation of Order or Agreement

a. A material and substantial change can occur when a party violates a term of conservatorship, possession, or access.

b. For instance, a mother’s permanent relocation of children in violation of divorce decree was material and substantial change.

2. Parental Alienation

a. A material and substantial change can occur when a conservator exposes the child to hostility directed at another conservator or seeks to minimize or thwart contact between the child and another conservator.

b. For instance, a mother disparaged father and his parents in front of children and court found material and substantial change.

3. Home Environment

a. A material and substantial change can occur when the child’s home environment changes (i.e. repeated changes in home environment can be grounds for redesignation of conservators).

b. Examples: remarriage of conservator, new stepparent, frequent moves, new siblings, new sexual partners.

4. Child’s Age and Needs

a. A material and substantial change can occur when a child’s age and needs change.

b. For instance, a change in a child’s age combined with desire to participate in summer sports activities was material and substantial. Some courts have held that a change in a child’s age from toddler to school-age is, by itself, material and substantial.

5. Parental Conflict

a. A material and substantial change can occur if severe conflict arises between the child’s parents and escalates to the point that the parents no longer have the ability to reach shared decisions about the child and are unwilling to communicate with one another.

6. Relocation

a. A material and substantial change can occur when a conservator wishes to move. Not every move will constitute a material and substantial change.

b. Courts will consider: the distance between the parties after the relocation, the proximity, availability, and safety of travel arrangements, the quality of the relationship between the non-primary conservator and the child, the nature and quantity of the child, the possibility that the relocation would deprive the non-primary conservator of regular and meaningful access to the child, the impact of the move on the quantity and quality of the child’s future contact with the non-primary conservator, and the feasibility of preserving the relationship between the non-primary conservator and the child through suitable visitation arrangements.

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