1. Legislative Update 2017 – Family Law
Lauren E. Melhart, Kinser & Bates, LLP

2. Title 1 – Marriage Relationship

3. Minors & Marriage TFC 2.003(a)
Applicant must be emancipated if under 18 to get a marriage license
Removes the option of getting a license based on parental consent for minors
Practical impact – look for change in rights & duties section of SAPCR orders
Proof of a prior marriage that has been dissolved has also been removed as a basis for a minor to get a new marriage license / enter into a valid marriage – clerk can only issue a license upon proof of emancipation (i.e. court order). Prosepctive so only applies to marriages or applications after 9/1/17

4. Protective Order Statement
TFC 6.405
In addition to statement on Title 4 protective orders, every divorce petition now has to state whether a CCP Ch. 7A protective order or a CCP Art order for emergency protection is in effect or application is pending
Statement must cover both spouse and any child of a party
Effective date – 9/1/17
“Child of a party” includes children not the subject of the suit; CCP 7A = Protective orders for victims of sexual assault or abuse, stalking, or trafficking; CCP Art – Magistrate’s order for ER protection (happens when someone is arrested for FV)

5. Receivers TFC 6.502(c) BRAND NEW PROVISON
If a receiver is appointed pursuant to (a)(5), court shall issue written FFCL in support of the appointment by the 7th day after the appointment
If no bond is required in connection with the receiver appointment, the FFCL must explain why no bond was required
BRAND NEW PROVISON
Just says “day”…presumably that means calendar day; Effective 9/1/17

6. Temporary Orders During Appeal
TFC 6.709
30 day deadline removed
Now can file a request prior to trial
If seeking an original temporary order, must file before Notice of Appeal is due
Temporary orders are permitted “as considered equitable” by the trial court
Two new expressly permitted options –
Injunction from dissipating or transferring property
Suspending operation of the property division
Modification expressly authorized
1 - Previously you only had 30 days from the date appeal was perfected to request TO during appeal;
2 - no affidavit required to get temp order against dissipation; never have to set for trial date (ie. Indefinite temp order); Temp order against dissipation may NOT prohibit spouse A from using property awarded to B if use is for purpose of suspending enforcement of the prop division that is subject of the appeal (i.e. supsersedeas)
3 – order suspending divison is for the part of the property divison being appealed; only allowed IF TC takes rzbl steps to ensure awarded spuose is protected from possessing spouse’s dissipation

7. Findings of Fact & Conclusions of Law
TFC 6.711
Court must now include findings and conclusions as to value of separate property.
Applies to orders rendered after 9/1/17
Previously value was only for community estate

8. Property Enforcement TFC 9.007(c)
Clarifying / effectuating orders cannot be made during plenary power
If no post-trial motion – deadline is 30 days after decree is signed
If MNT or other motion – deadline is 30 days after date
The order overruling motion is signed OR
the motion is overruled by operation of law
Only applies to orders rendered after 9/1/17; if you need to clarify a decree do it now

9. Title 4 – Protective Orders & Family Violence

10. Applicant’s Mailing Address
TFC
Applicant can request to keep his/her mailing address confidential
BRAND NEW PROVISION
TFC
Notice of application no longer has to include the applicant’s mailing address
Applies to applications filed on or after 9/1/17

11. Duration of Protective Orders
TFC (a-1)
Permanent order can last more than 2 years if court finds Respondent committed a felony involving FV against applicant or applicant’s family/household
Criminal charges/conviction not required
TFC (b)
Respondent under a protective order effective for over 2 years can file a motion to have order reviewed
Only 2 motions allowed

12. Reporting Family Violence
Chapter 93
BRAND NEW PROVISON
Addresses a victim’s rights to prevent disclosure of confidential and privileged communications
If victim authorizes disclosure for the purpose of legal proceedings, TFC (c) expressly requires disclosure to all parties to the proceeding as well

13. Title 5 – Parent-Child Relationships & SAPCRs

14. Standing to Intervene TFC 102.004(b-1)
A foster parent can only intervene if –
Court finds there is substantial past contact
AND
Foster parent has standing to file an original suit under TFC (a)(12) [i.e. 12 month placement]
Must be granted leave to intervene by the court
New

15. Protective Order Statement
TFC
Petition filed after 9/1/17 must include same protective order statement as divorce petitions
Title 4 protective orders, CCP Ch. 7A protective order and CCP Art order for emergency protection
In effect or application pending
Statement must cover all parties to the suit and any child of a party
“Child of a party” includes children not the subject of the suit; CCP 7A = Protective orders for victims of sexual assault or abuse, stalking, or trafficking; CCP Art – Magistrate’s order for ER protection (happens when someone is arrested for FV)

16. Form of Jury Charge in DFPS Suits
TFC (d)
DPFS, Permanent Judicial Commission for Children, Youth & Families, other interested parties
Review and recommend to legislature whether jury charge should be broad-form or specific questions should be required in DFPS-filed suits

17. Child Custody Evaluations
TFC (c)
Order appointing child custody evaluator MUST include –
Name of evaluator
Purpose of evaluation
List of basic elements of evaluation – NEW
List of any additional elements of evaluation required by court to be completed - NEW

18. Child Custody Evaluations
TFC (a)
No opinion on conservatorship is allowed unless –
Each basic element specified in TFC (c) is completed
Each additional element ordered by court is completed
Exception – failure to complete an element is “satisfactorily explained”

19. Child Custody Evaluations
TFC (c) – changes to basic elements
Personal interview of each party seeking conservatorship, possession, access
Child interview only required if child is 4 or older
Evaluation of home environment removed as “basic element” (evaluation of residence can be an additional element added by the court)

20. Child Custody Evaluations
TFC (d) & (b)
Evaluator authorized to request additional oders from the court to address psychometric testing and/or undiagnosed serious mental illness

21. Child Custody Evaluations
TFC
Authorizes the evaluator to obtain records for ANYONE residing in a residence subject to the evaluation
Confidentiality laws cannot be used to block access
Evaluator cannot be forced to produce or disclose the records
Evaluator can disclose information obtained from the records in his/her report but only to extent relevant to the evaluation/recommendation
Not retroactive. Only applies to suits FILED on or after 9/1/17

22. Child Custody Evaluations
TFC (a)
Report is no longer filed with the court
Evaluator files notice that report is complete and gives a copy of the report to attorney(s), pro se litigants, and ad litems/amicus
TFC (a)
Disclosure of contents of report to the COURT is now subject to rules of evidence

23. Temporary Orders During Appeal
TFC
30 day deadline removed
Now can file a request prior to trial
If seeking an original temporary order, must file before Notice of Appeal is due
Modification expressly authorized

24. History of Violence/Abuse
TFC (e)
Rebuttable presumption against unsupervised visitation expanded to cover –
history/pattern of “abuse”
history/pattern of “family violence”
situations where perpetrator is non-parent living in the house or given unsupervised access by parent
Used to say “physical or sexual” – Abuse per expressly include EMOTIONAL
GOING TO BE HUGE with claims of abuse by relatives/paramours

25. MSAs in SAPCRs
TFC (e-1)
Direct response to the allegations of In re Stephanie Lee
Court can refuse to sign judgment conforming to MSA upon finding –
Party to agreement was victim of family violence which impaired ability to make decisions OR
Terms of MSA permit a registered sex offender (or person with history/pattern of physical or sexual abuse against anyone) to reside with child or have unsupervised access
Effective date – 9/1/17 for suits PENDING on effective date or after

26. Certain Findings TFC 153.258 TFC 154.130 TFC 156.005
Clarifies non-standard possession orders include an “under 3” schedule
Party can request findings orally or in writing
Deadline to submit request removed
Court must specify in writing the reasons for the variance
TFC
Request for child support findings can be made before final order is signed but no later than 20 days from rendition
TFC
Finding that modification was filed frivolously or to harass must be stated in the order

27. Modification of Primary
TFC (b)
Heightened burden for temporary orders now applies to requests seeking –
Creation of a primary designation
Change of a primary designation
Creation of a geographic restriction
Elimination of a geographic restriction

28. Child Support Lien TFC 157.137(a)
Lien expressly authorized to attach to proceeds derived from sale of oil or gas production if well is located in Texas

29. Uniform Parentage Act TFC 160.6035
Statement regarding Tile 4 protective orders, CCP CH. 7A protective orders, and CCP Art orders for emergency protection that is required for divorce and SAPCRs petition must be also included in Petition to Adjudicate Parentage

30. Termination of Parental Rights
TFC
New grounds for termination added
Restrictions on evidence that can support termination added

31. Final Orders Signed by AJ
TFC (e)
An order signed before 5/1/17 by an AJ pursuant to TFC (a)(16) is a final order
Rendition is the date the AJ signed the order
Response to cases out of Houston courts of appeals saying order signed by AJ but not confirmed by DJ are not final

32. Texas Family Law Foundation
$120 for annual membership
$1,000 for lifetime membership
$27.77 per month for 3 years
$1,000 plus $250 annually for lifetime sustaining membership
IT IS WORTH EVERY PENNY!

33. The End