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1997 Texas Biennial Legislative Session

The Texas Legislature meets every other year, in odd-numbered years. The 1997 legislative session concluded in June 1997. In that session, the legislature recodified Title 1 of the Family Code (dealing with marriage and divorce), thus finishing the recodification begun during the 1995 session, when old Title 2 became Title 5 (dealing with the parent-child relationship). As in 1995, recodification was to be non-substantive. Time will tell.

Family Code Title 1 - Marriage and Divorce

The 1997 legislature made few changes to Title 1 of the Family Code. Among these changes were the following:

  • Common Law Marriage

    It used to be that you could be common-law married even if you were only 16 or 17. No more - must be 18. Family Code 2.401(c).
  • Marriage License

    When you apply for a marriage license, you must respond, under oath, either true or false to the following statement: I am not presently delinquent in the payment of court-ordered child support. However, a true response does not prevent issuance of the license. Family Code 2.004.

Family Code Title 5 - The Parent-Child Relationship

Most of the 1997 legislative changes to the Family Code occurred in Title 5, the title governing the parent-child relationship. These changes include:

  • Custody Jury Trials

    Prior to this session, parties had a right to a binding jury verdict on the question of which parent should be sole managing conservator or whether the parents should be joint managing conservators. Given the statutory presumption that the parents should be JMC's, and the fact that a child's primary residence is to be set by the court when the parties are JMC's and do not agree on residence, in effect the custody decision was given to the court. The 1997 legislature returned that power to the jury by stating that a party is entitled to a binding jury verdict on the child's primary residence. Family Code 105.002(c).
  • Child Support Changes
    • Amount

      As a new ground for modification of child support - either up or down - a Movant may prove that (a) it has been three years since a child support order was rendered, and (b) the monthly amount due under that order differs by either 20% or $100 from the amount that would be awarded under the child support guidelines. Family Code 156.401(a)(2).

      In other words, if you're getting $500 or more, and what you would get now would be at least $100 more, you're eligible for an increase if child support hasn't changed in the past three years. Conversely, if you're paying $500 or more, and what you would pay now would be at least $100 less, you're eligible for a decrease if child support hasn't change in the past three years.
    • Liens

      A lien for back child support now arises by operation of law without any court proceedings at all. The lien must be perfected by recording and notice. No foreclosure action is required to execute on the lien so long as there has been either a judgment or administrative determination of arrears after notice to the obligor and an opportunity to be heard. These amendments provide powerful tools for the collection of overdue child support. Family Code 157.311 - 157.326.
    • Withholding

      Earnings subject to withholding has been broadly redefined as a payment to or due an individual, either periodic or lump-sum. Of course, earnings include wages, commissions, bonuses, etc., but they now also include interest income and payments made under pensions and annuities, as well as worker's compensation, disability and retirement programs. Employer has been similarly redefined to mean any entity that pays or owes earnings to an individual. Thus, an independent contractor's payments are now earnings, as are interest paid by a bank or retirement benefits. Family Code 101.011 & 101.112.

      An income withholding order now must be signed in every case. It need not be issued in every case, but it must be in the file so that it is available when needed without the necessity of further court proceedings to get one signed. Family Code 154.007.
  • Child Visitation
    • Make-Up

      If you are wrongly denied court-ordered visitation, a court has the power to order you caught up. If the court exercises that power, you are entitled to the same type and duration of access denied, which may include weekends, holidays, and summer time. Make-up visitation must occur within one year of the date a court finds that you have been denied court-ordered visitation. Family Code 157.168.
    • Wednesdays

      It used to be that Wednesday night possession during the school year could occur from 6:00 to 8:00 p.m. under the Standard Possession Order when the parents lived within 100 miles of each other. Now, unless the court finds that it is not in the child's best interest, Wednesday night possession is all night - the visitation parent takes the child to school Thursday morning. Family Code 153.312(a)(2).
  • Ad Litems

    Guardian ad litem now required, in addition to an attorney ad litem, to represent the children subject of the suit in termination proceedings brought by the state. The legislature also notes the potential for conflicts of interest when an attorney ad litem also is the guardian ad litem; when a conflict occurs, the attorney must withdraw as guardian ad litem but continue as attorney ad litem. The legislature also mandates certain actions on the part of the attorney ad litem during the course of representation of the children. Family Code 107.001, 107.002 & 107.014.
  • Termination

    The legislature has enacted a number of additional grounds for involuntary termination of the parent-child relationship. To summarize, the additional grounds include conviction of various crimes; failure to follow court orders requiring certain actions to regain custody of one's child; abusing controlled substances; being imprisoned for two years or more; and being the cause of a child being born addicted to alcohol or controlled substances. Family Code 161.001.

Some Vocabulary

Texas has some unusual terminology to describe what most people refer to as custody or visitation.

Custody in Texas is called conservatorship. There can be sole managing conservatorship in one parent, which means sole custody; or joint managing conservatorship, which means joint custody. When one parent is the sole managing conservator, usually the other parent is the possessory conservator, or has visitation rights.

Possession of or access to a child means when the child is with you. In other words, possession of or access to a child means visitation.

Conservatorship technically refers to the rights and duties you have as a parent. It does not necessarily have anything to do with possession of or access to the child, which means when you and the other parent are entitled to have the child with you, or in other words, visitation.

Even when the parents are joint managing conservators, the child ordinarily stays with one of them most of the time. This is the child's primary residence.

The Standard Possession Order is the default visitation schedule. It is detailed, but the main points are that the parent who has visitation takes the child every first, third and fifth (when there is one) weekend and Wednesday nights. Major holidays either are split or alternate between the parents. The parent with visitation gets a large block of time with the child each summer.


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