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
- 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 ß 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 ß 105.002(c).
- Child Support
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 ß 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.
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 ßß 157.311 - 157.326.
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
ßß 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 ß 154.007.
- Child Visitation
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 ß 157.168.
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 ß 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 ßß
107.001, 107.002 & 107.014.
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 ß 161.001.
Texas has some unusual terminology to describe what most
people refer to as custody or
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
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.