Monday, February 09, 2009
terminations and adoptions in Texas part 1
Before anybody can adopt a child, either one or both biological parents must have their parental rights terminated. That means that if a step-father wants to adopt his step-child, the biological father's rights must be terminated. The point is, there can only be one father and one mother for each child whether that is biological or legally (through adoption).
A termination in Texas can only be completed by having "grounds" for the termination. Put simply "grounds" are reasons for the termination. You do not get to determine the reasons, the Texas legislature has set up the reasons for you. If you will look to the right, there is a link to my website. Please click on that link and go the the "resource links". There you can find the Texas Family Code. Specifically you need to look at Chapter 161, Section 161.001. There you will find your reasons. THERE ARE NO OTHERS! I can see the posts now...."can i terminate the father's rights cause he never visits". Is it in the list is just referenced? Then no. "Can I terminate the mother's rights cause she is crazy and talks to the walls." Is it on the list? Then no you cannot terminate for talking to walls.
The two most common reasons to accomplish a termination that I see are failure to support the child for one year or the signing of an affidavit of relinquishment. These are not the only ones, as you can see from the list, just the most common. Any of the others will work as well if they are applicable.
Failure to support a child is pretty obvious. That means that the parent has not financially supported their child. This can be failure through a court order or not. Bottom line, if you don't support your child, your rights can be terminated. The failure to support has to be recent (within 6 months of filing the petition to terminate). This means that you cannot use a parent's failure to support a child that occurred 5 years ago if the parent supports the child now.
The second is the affidavit of relinquishment. This is basically an agreed termination as the biological parent has agreed to terminate rights. The form for this is very specific and probably needs to be obtained from an attorney. This alone, as seen from the list, is grounds for termination.
In the first reason, or in any other reason other than the affidavit, you are going to have to go through a court hearing to get the rights terminated. That means filing a lawsuit, serving the party you are trying to terminate and setting a hearing where a judge will decide the issue.
With the affidavit, there is typically not the need for a full blown termination hearing as the parent has agreed to terminate. In some cases, this moves you straight to the adoption. I say in some cases because there are certain times when a person agrees to terminate their rights, but the court will not do it. I will discuss this below.
In any case, you have to complete the termination before you can complete the adoption. If you have to have a trial, then that needs to proceed and conclude before the adoption can proceed. If the affidavit is used and you do not run into the problem discussed below, then you are ready to proceed with the adoption.
Just because a biological parent agrees to sign an affidavit of relinquishment does not mean the court will terminate. The court is primarily concerned about the best interests of the child. One of the major interests the court protects is the support of the child. They will not allow a parent to terminate to avoid paying child support. They also will not allow a parent to terminate another parent's rights unless it is shown that there is someone to step in and take the place of the support provided or owed by the terminated parent or unless the parent seeking the termination of the other parent's rights can establish to the court that they can adequately meet the needs of the child financially. Even upon this showing, they still may not terminate. A parent is obligated to support their children and the court does not take this lightly. If there is someone out there who can support the child, the Court wants them supporting the child.
One more note regarding child support. While a termination of a parent's parental rights will terminate all future child support payments, it will not terminate amounts owed in the past. Those amounts have already accrued and cannot be undone.
This concludes Part 1. See you in Part 2!
The information contained in this blog is provided for informational (and sometimes entertainment) purposes only and should not be construed as legal advice on any subject matter. I can guarantee you that I am not covering every facet of the family code, and there may be hidden gems in the Family Code that could make or break your case based upon your specific fact situation. No recipients of content from this blog, retained client or otherwise, should act or refrain from acting on the basis of any content included in this blog without seeking the appropriate legal or other professional advice. ALL CASES ARE DIFFERENT BECAUSE OF THE FACTS PARTICULAR TO YOUR CASE; THEREFORE YOU NEED A LAWYER TO DISCUSS THOSE SPECIFIC FACTS. I expressly disclaim all liability in respect to actions taken or not taken based on any or all of the content of this blog. Talk to a lawyer first, preferably me, it is that simple!
Monday, October 27, 2008
oops i forgot to mention....
Now that is some cheap legal advise!
Thursday, October 23, 2008
it lives!
Tuesday, September 09, 2008
i'm still alive
Wednesday, June 04, 2008
holding parents feet to the fire
Once the court enters those orders, they expect you to follow them. If you do not, the aggrieved (pissed off) parent, can sue the other parent for contempt of court.
A suit in Texas for enforcement of a child support order is relatively simple process. An attorney must simply prove that a set amount was payable on a set date at a set place and time, and that those payment were not made. For example, Dad is ordered to pay $500 per month beginning on June 1, 2007 and each first of the month thereafter to the disbursement unit in San Antonio Texas, address 1234 Main Street. If June 2008 rolls around and Dad has not made those payments it is relatively simple to prove that he is in contempt. He knew when he was supposed to pay, how much to pay, and where to pay it. If he does not do it, he is in contempt.
Enforcement of visitation in Texas can be that simple as well, but it rarely ever is. The reason is that the ticked off parent (parent not receiving their visitation) doesn't do what they are supposed to do. Let me explain by example:
Father is awarded custody of the child. He is ordered to provide the child to the mother for her visitation on the first, third and Friday of each month at his residence at 6:00 p.m. Simple enough, correct? Let's add these facts - mom and dad do not get along (i know that is far fetched, but work with me here) and dad makes mom's visits as difficult as possible. Mom calls dad on the first Friday at about 4:00 p.m. to confirm she is picking up the child (which she is not required to do, but does because it takes her 45 minutes through traffic to get to dad's house) and dad says don't bother showing up because the child and I won't be there. The mom makes a note of this and decides to forego the traffic and mess. She'll wait until the next visitation on the third Friday. Same thing happens on third Friday, so mom makes a note of it. She decides if he does it again she is going to sue his pants off. Fifth Friday comes and dad does same thing. Mom decides to sue for enforcement or contempt for the father violating the court's order.
Ruling? Father is not in contempt! WHAT?!! He didn't provide the child, how can he not be in contempt? He is not in contempt because MOM failed to follow the Court's order too! For mom to hold dad in contempt, she needs to appear on the first, third and fifth Friday of each month at dad's house at 6:00 p.m., regardless of whether the child is there or not. That is what the court order said and that is what mother must do. If she follows the court's order, and then dad does not, dad is in contempt.
While my example references a common situation, this same logic applies to other areas of decrees or orders of the court. FOLLOW THE ORDER, NOT WHAT YOUR EX-SPOUSE OR MOM OR DAD OF YOUR CHILD TELLS YOU. If you are unclear how to follow your order or what to do, call a lawyer. Most lawyers will offer free consultations or charge a small fee to speak with them. I do divorces in Plano, Frisco, McKinney (Collin County), and in Dallas, Richardson, Carrollton (Dallas County). I also handle modifications and enforcements of orders.
Moral of the story: If you follow the decree, and ignore what people tell you, you should be well on your way to holding the other parent's feet to the fire!
The information contained in this blog is provided for informational (and sometimes entertainment) purposes only and should not be construed as legal advice on any subject matter. I can guarantee you that I am not covering every facet of the family code, and there may be hidden gems in the Family Code that could make or break your case based upon your specific fact situation. No recipients of content from this blog, retained client or otherwise, should act or refrain from acting on the basis of any content included in this blog without seeking the appropriate legal or other professional advice. ALL CASES ARE DIFFERENT BECAUSE OF THE FACTS PARTICULAR TO YOUR CASE; THEREFORE YOU NEED A LAWYER TO DISCUSS THOSE SPECIFIC FACTS. I expressly disclaim all liability in respect to actions taken or not taken based on any or all of the content of this blog. Talk to a lawyer first, preferably me, it is that simple!
Friday, May 16, 2008
danger danger
Monday, April 14, 2008
journaling in texas divorce and modification cases
The information contained in this blog is provided for informational (and sometimes entertainment) purposes only and should not be construed as legal advice on any subject matter. I can guarantee you that I am not covering every facet of the family code, and there may be hidden gems in the Family Code that could make or break your case based upon your specific fact situation. No recipients of content from this blog, retained client or otherwise, should act or refrain from acting on the basis of any content included in this blog without seeking the appropriate legal or other professional advice. ALL CASES ARE DIFFERENT BECAUSE OF THE FACTS PARTICULAR TO YOUR CASE; THEREFORE YOU NEED A LAWYER TO DISCUSS THOSE SPECIFIC FACTS. I expressly disclaim all liability in respect to actions taken or not taken based on any or all of the content of this blog. Talk to a lawyer first, preferably me, it is that simple!