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iStock-1033856542-300x200A person may rescind a Texas acknowledgement of paternity no later than 60 days after its effective date, or earlier if a court proceeding on an issue relating to the child is initiated.  Once this time passes, the party may challenge the acknowledgement only on the basis of fraud, duress, or material mistake of fact. Tex. Fam. Code § 160.307. Under current law, a proceeding challenging the acknowledgment may be commenced any time before an order affecting the child is issued. Tex. Fam. Code § 160.308. That statute was amended in 2011, however.  Suits challenging acknowledgements signed before September 1, 2011 must be filed within four years of the date the acknowledgement was filed with the state.

In a recent case, a man, identified in the appeals court’s opinion by the pseudonym “William,” attempted to challenge an Acknowledgement of Paternity he had signed and filed in 2005. William petitioned the trial court to set aside the acknowledgment in September 2019 “on the basis of fraud, duress, or material mistake of fact.”  He did not, however, make specific allegations.  The mother argued the petition was time-barred.

Only William testified at the trial.  The mother did not appear or participate.  The trial court found the petition was untimely and denied it.

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iStock-1125625723-300x200When parties to a Texas divorce agree to a property division, the final judgment based on the agreement must strictly comply with it.  The trial court cannot add, change, or leave out material terms.  A final judgment based on a property division agreement  must be set aside if it is not in strict compliance with the agreement, unless the discrepancy is a clerical error.  An appeals court may modify a judgment to correct a clerical error.  A former husband recently challenged the property division in his divorce due to a number of alleged discrepancies.

Husband and Wife Submitted Proposed Property Division

According to the appeals court’s opinion, the parties agreed to a proposed property division, identified as “Exhibit A.” The wife testified the division was fair and just. She agreed to split funds in the husband’s IRA equally after he was credited $90,000 as separate property and to split the funds in his “Edge” and “Smart” retirement plans equally.

The husband initially disagreed with the property division in Exhibit A, but later asked the court to approve it. The trial court admitted the document into evidence, asked the parties to draft and sign an agreed final decree.

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iStock-1163040189-300x200When parents cannot cooperate to make decisions regarding the children in a Texas custody case, the court may give one parent certain decision-making rights, even if the parents are joint managing conservators.  In a recent case, a father challenged a court order requiring him to cooperate in the children’s activities and to pay for half of the children’s tutoring expenses.

The parents were named joint managing conservators of the children in the divorce decree with a modified standard possession order. The mother was granted the exclusive right to designate their primary residence and the father ordered to pay child support.  Each parent was responsible for half of any extracurricular activity the parents agreed upon.

Mother Files Modification Suit

The mother petitioned for modification in 2018, seeking the right to make certain decisions after consulting with the father, continuation of certain extracurricular activities, and therapy for the children.  In a counterpetition, the father asked the court to give him the right to designate the primary residence and receive child support.  He also asked that the mother be required to schedule extracurricular activities only while she had the children.

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iStock-1183307633-300x169Generally, when a parent wants to modify the parent-child relationship over the objection of the other parent, they must show the court that there has been a material and substantial change in circumstances and that the modification is in the child’s best interest.  Often, modifications address major issues, such as where the child lives or the amount of child support. Modifications can address a variety of issues, however, including things like which parent makes medical or education decisions or whether a parent can travel with the child.

A father recently challenged a court order allowing a mother to travel internationally with the child.  According to the appeals court’s opinion, the parents were named joint managing conservators of the child when they divorced in 2017.  The mother was granted primary custody.  The following year, the mother petitioned for a modification, requesting the right to get a passport for the child and take her to visit her maternal grandfather in The Gambia.  The father objected and the trial court denied the request.

Mother Leaves Child with Relative During International Trip

The mother went to see her parents in The Gambia in July 2019.  She testified the father did not respond when she notified him she planned to travel, so she left the child with an aunt in Chicago.

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iStock-1271310078-300x200Under Texas family law, certain close relatives of a child may seek managing conservatorship if they can sufficiently show the child’s current circumstances would significantly impair the child physically or emotionally.  Tex. Fam. Code Ann. § 102.004(a)(1).  A sister recently sought custody of her siblings, asserting standing under § 102.004(a)(1).

Children’s Sister Seeks Custody After Mother’s Death

According to the appeals court’s opinion, the adult sister filed suit seeking to be named the sole managing conservator of her minor siblings a few weeks after her mother’s death.  She claimed she had standing to bring the suit because she was their sister and had “a close and substantial relationship with the children.”

The father asked the court to dismiss the case for lack of standing.  The sister amended her suit to claim standing pursuant to Tex. Fam. Code § 102.004(a)(1).  The sister attached to her brief a copy of her mother’s will, which named the sister and her husband as the children’s guardians.  The father attached a letter to his own brief which showed the Texas Department of Family and Protective Services (“Department”) had ruled out allegations of abuse against him.

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iStock-545456068-300x184A party may challenge a judgment as void through either a collateral or direct attack. Generally, a Texas divorce decree is only subject to collateral attack if the court lacked jurisdiction over the parties or subject matter.  Other errors must be challenged through a direct attack.  A direct attack can be either a pleading filed in the original case while the trial court still has plenary power or a timely-filed bill of review under a new cause number.  A bill of review is generally the only appropriate method of direct attack after the trial court’s plenary power has expired.

Husband Seeks to Set Aside Divorce Decree

In a recent case, a husband filed a separate lawsuit seeking to have the divorce decree set aside, arguing the marriage and decree were both void due to the wife’s bigamy.

A trial court had denied the husband’s request for annulment based on fraud, but granted his petition for divorce in March 2019.  The court also awarded the wife certain assets.  The following month, the wife was indicted for bigamy.  The indictment alleged she had still been married to someone else when she married the husband in 2017. The husband was ordered to pay her attorney’s fees and spousal support in June 2019.  In July, the wife petitioned for enforcement.

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2018_10_agreement-300x165People commonly obtain life-insurance policies and name their spouse as the beneficiary. They do not always remember to update the beneficiary designation when they get divorced.  Under Texas law, designation of a spouse as beneficiary before a divorce will only remain effective after the divorce in certain circumstances.  Generally, either the court or the insured must designate the former spouse as beneficiary, or the former spouse must be designated to receive the proceeds in trust for a child or dependent’s benefit.  In a recent case, an ex-wife challenged a court awarding a life-insurance policy on the ex-husband to the ex-husband many years after the original divorce.

Insurance Policy Not Divided in Divorce

During the marriage, the parties obtained a life insurance policy on the husband with the wife named as beneficiary.  The policy was not addressed in the divorce decree in 2009.  The husband subsequently filed a bill of review, and the parties agreed to be co-owners of the policy.  They agreed the wife would receive half of the proceeds and the rest would go into a trust for their children. The court ordered the parties to split the policy into two, but the insurance company was unable to do so.

The husband then filed for declaratory judgment, seeking to be named the sole owner of the policy.  He also asked for a temporary restraining order against both the wife and the insurer. Alternatively, he sought to divide undivided property.  The wife’s counter-petition also sought a declaratory judgment that the policy was her separate property and to divide undivided assets.

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iStock-1033856542-300x200Under Texas family law, a mother’s husband is presumed to be the father of a child born during the marriage.  This presumption can be rebutted by an adjudication of parentage or by a valid denial of paternity filed by the presumed father along with a valid acknowledgement of paternity filed by another person.  Tex. Fam. Code § 160.204. If a child has a presumed father, a suit to adjudicate the child’s parentage may not be brought after the child’s fourth birthday unless an exception applies.  Tex. Fam. Code § 160.607.

Presumed Father Challenges Paternity Adjudication

A presumed father recently challenged a court’s adjudication that another man was the child’s father, arguing the suit was time-barred.  The child was born in May 2014.  The mother and her husband separated that October.  The mother began cohabiting with the alleged father the following October. The mother and her husband divorced in August 2016.  The divorce order provided for visitation by the husband of all four children born during the marriage.

The mother and alleged father got married.  The alleged father petitioned for adjudication of parentage after a DNA test showed a 99.96% probability he was Lucy’s biological father.  The mother’s ex-husband conceded that the alleged father was likely the child’s biological father based on the DNA test.  He argued, however, that the alleged father was time-barred from seeking adjudication of parentage.

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iStock-952098878-300x200When child support goes unpaid, Texas child-support cases can sometimes go on for years after the obligation would otherwise have terminated. A Texas appeals court recently considered what happens when one parent dies before the past-due child support has been paid.

The parents had a daughter together during their marriage and divorced in 1976.  The father failed to pay child support as ordered at times.  The trial court found him in contempt in 1987 and ordered him to pay $200 per month in support with additional amounts for a specified time going toward the arrearages.

Adult Daughter Files Child-Support Suit After Mother’s Death

In 2010, the adult daughter filed a petition regarding the unpaid support after her mother’s death. She asked the court to render judgment for the past due child support and to make her the obligee for the arrearages.

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iStock-1331374129-300x200When a parent is intentionally unemployed, a court may order Texas child support based on that parent’s earning potential.  Tex. Fam. Code 154.066(a). A mother recently challenged a court’s finding she was intentionally unemployed, arguing instead that her mental health concerns prevented her from being employed.

When the parents divorced in 2010, the court ordered the mother to pay $150 in child support.

She sought to modify the custody order in 2018, and the other party responded by asking for more child support.  The mother asked the court to eliminate her child-support obligation altogether.

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