CHILDREN

i.     “Child” or “minor” means a person under 18 years of age who is not and has not been married or who has not had the disabilities of minority removed for general purposes.

ii.   In the context of child support, “child” includes a person over 18 years of age for whom a person may be obligated to pay child support.

Paternity

i.     “Parent” means the mother, a man presumed to be the father, a man legally determined to be the father, a man who has been adjudicated to be the father by a court of competent jurisdiction, a man who has acknowledged his paternity under applicable law, or an adoptive mother or father. The term does not include a parent as to whom the parent-child relationship has been terminated.

ii.    Paternity is established through the court system by one of several methods when a child is born and the parents are not married. If a man is identified on the birth certificate, this creates only a presumption that the man named is the father of the child. Paternity testing (genetic testing), welcoming the child into the father’s home, or providing gifts to the child are evidence the court would use in establishing paternity.

iii.  When both parents sign an Acknowledgment of Paternity, the father becomes the legal father. Once paternity has been established, he can be ordered to pay child support and the court can grant him the right to visit his child.

Managing Conservatorship

i.      Joint or sole managing conservatorship (custody) is determined according to the best interests of the child.
a)   The sex of the parents is not a factor for consideration.
b)   The wishes of the child may be considered.
c)    The factors specified in the statute for consideration in decisions regarding joint managing conservatorship are: (1) whether the physical, psychological, or emotional needs and development of the child will benefit; (2) the ability of the parents to give first priority to the welfare of the child and reach shared decisions in the child’s best interests; (3) whether each parent can encourage and accept a positive relationship between the child and the other parent; (4) whether both parents participated in child rearing before the filing of the suit; (5) the geographical proximity of the homes of the parents; (6) if the child is 14 years old or older, the preference of the child; and (7) any other relevant factor.
d)   The court may not award joint managing conservatorship if there is any credible evidence of spousal or child abuse or neglect.

Possessory Conservatorship

The factors to be considered in determining the terms and conditions for possession of a child by the possessory conservator (parent with visitation) are as follows: (1) the age, circumstances, needs, and best interests of the child; (2) the circumstances of the parents; (3) evidence of any spouse or child abuse; and (4) any other relevant factor.

Grandparent Visitation and Access

i.     Visitation may be granted if the grandparent’s child has been incarcerated in jail or prison during the three month period preceding the application, has been determined to be legally incompetent, or is dead

ii.   if the parents are divorced or have been living apart for the three months period preceding the filing of the application or if a suit for dissolution of the marriage is pending;

iii.  if the child has been abused or neglected by a parent

iv.  the child has been adjudicated to be a child in need of supervision or a delinquent;

v.    the grandparent’s child has had their parental rights terminated;

vi.  or if the child has resided with the grandparent for at least six months in the twenty-four month period preceeding the filing of the application.

Child Support

i.     Either or both parents may be ordered to make periodic, lump-sum, or both types of child support payments.

ii.   There are official child support guidelines set out in the statute and these are presumed to be reasonable and in the best interests of the child. The factors for consideration are: (1) the age and needs of the child; (2) the ability of the parents to contribute to the support of the child; (3) any financial resources available for the support of the child; (4) the amount of possession and access to the child; (5) the net resources of the parent to pay support, including the earning potential of the parent to pay support if the actual income of that parent is significantly less than what that parent could earn, if intentionally unemployed or underemployed; (6) any childcare expenses necessary for the employment of either parent; (7) whether a parent has custody of another child and any child support expenses being paid or received for the care of another child; (8) the amount of alimony being currently paid or received; (9) provisions for health care; (10) any educational or health care needs of the child, including college expenses; (11) any benefits a parent receives from an employer; (12) any debts or obligations of a parent; (13) any wage or salary deductions of the parents; (14) the cost of traveling to visit the child; (15) any positive or negative cash flow from any assets, including a business or investments; (16) any provisions for health care or insurance; (17) any special or extraordinary educational, health care, or other expenses of the parents or the child; (18) whether either parent has a car or housing furnished by an employer or other person or business; and (19) any other relevant factor.

iii.  The court may order health insurance coverage to be provided for the child. In addition, the court may order income withholding to secure the payment of child support. [Texas Codes Annotated; Family Code, Chapters 154.001 to 154.309].

Termination of Parental Rights

The court may order termination of the parent-child relationship if the court finds by clear and convincing evidence that  (1) the parent has:
a)   voluntarily left the child alone or in the possession of another not the parent and expressed an intent not to return;
b)   voluntarily left the child alone or in the possession of another not the parent without expressing an intent to return, without providing for the adequate support of the child, and remained away for a period of at least three months;
c)    voluntarily left the child alone or in the possession of another without providing adequate support of the child and remained away for a period of at least six months;
d)   knowingly placed or knowingly allowed the child to remain in conditions or surroundings which endanger the physical or emotional well-being of the child;
e)    engaged in conduct or knowingly placed the child with persons who engaged in conduct which endangers the physical or emotional well-being of the child;
f)    failed to support the child in accordance with the parent’s ability during a period of one year ending within six months of the date of the filing of the petition;
g)   abandoned the child without identifying the child or furnishing means of identification, and the child’s identity cannot be ascertained by the exercise of reasonable diligence;
h)   voluntarily, and with knowledge of the pregnancy, abandoned the mother of the child beginning at a time during her pregnancy with the child and continuing through the birth, failed to provide adequate support or medical care for the mother during the period of abandonment before the birth of the child, and remained apart from the child or failed to support the child since the birth;
i)    contumaciously refused to submit to a reasonable and lawful order of a court under Subchapter D, Chapter 261;
j)      been the major cause of:
k)   the failure of the child to be enrolled in school as required by the Education Code; or
l)    the child’s absence from the child’s home without the consent of the parents or guardian for a substantial length of time or without the intent to return;
m)  executed before or after the suit is filed an unrevoked or irrevocable affidavit of relinquishment of parental rights as provided by this chapter;
n)   been convicted or has been placed on community supervision, including deferred adjudication community supervision, for being criminally responsible for the death or serious injury of a child under the following sections of the Penal Code or adjudicated under Title 3 for conduct that caused the death or serious injury of a child
o)   had his or her parent-child relationship terminated with respect to another child based on a finding that the parent’s conduct was in violation of Paragraph (D) or (E) or substantially equivalent provisions of the law of another state;
p)   constructively abandoned the child who has been in the permanent or temporary managing conservatorship of the Department of Protective and Regulatory Services or an authorized agency for not less than six months, and:
q)   the department or authorized agency has made reasonable efforts to return the child to the parent;
r)    the parent has not regularly visited or maintained significant contact with the child; and
s)    the parent has demonstrated an inability to provide the child with a safe environment;
t)    failed to comply with the provisions of a court order that specifically established the actions necessary for the parent to obtain the return of the child who has been in the permanent or temporary managing conservatorship of the Department of Protective and Regulatory Services for not less than nine months as a result of the child’s removal from the parent under Chapter 262 for the abuse or neglect of the child;
u)   used a controlled substance, as defined by Chapter 481, Health and Safety Code, in a manner that endangered the health or safety of the child, and:

1)   failed to complete a court-ordered substance abuse treatment program; or
2)   after completion of a court-ordered substance abuse treatment program, continued to abuse a controlled substance;
3)    knowingly engaged in criminal conduct that has resulted in the parent’s:
4)   conviction of an offense; and
5)    confinement or imprisonment and inability to care for the child for not less than two years from the date of filing the petition;
6)    been the cause of the child being born addicted to alcohol or a controlled substance, other than a controlled substance legally obtained by prescription, as defined by Section 261.001; or
7)   voluntarily delivered the child to a designated emergency infant care provider under Section 262.302 without expressing an intent to return for the child; and that termination is in the best interest of the child.

Adoption

(a)  Subject to the requirements for standing to sue in Chapter 102, an adult may petition to adopt a child who may be adopted.

(b)   A child residing in this state may be adopted if:
(1)  the parent-child relationship as to each living parent of the child has been terminated or a suit for termination is joined with the suit for adoption;
(2)  the parent whose rights have not been terminated is presently the spouse of the petitioner and the proceeding is for a stepparent adoption;
(3)  the child is at least two years old, the parent-child relationship has been terminated with respect to one parent, the person seeking the adoption is the child’s former stepparent and has been a managing conservator or has had actual care, possession, and control of the child for a period of six months preceding the adoption, and the nonterminated parent consents to the adoption; or
(4)  the child is at least two years old, the parent-child relationship has been terminated with respect to one parent, and the person seeking the adoption is the child’s former stepparent and has been a managing conservator or has had actual care, possession, and control of the child for a period of one year preceding the adoption.

(c)  If an affidavit of relinquishment of parental rights contains a consent for the Department of Protective and Regulatory Services or a licensed child-placing agency to place the child for adoption and appoints the department or agency managing conservator of the child, further consent by the parent is not required and the adoption order shall terminate all rights of the parent without further termination proceedings.

Name Change for Minors

A parent, managing conservator, or guardian of a child may file a petition requesting a change of name of the child in the county where the child resides.

(a)  A petition to change the name of a child must be verified and include:
(1)  the present name and place of residence of the child;
(2)  the reason a change of name is requested;
(3)  the full name requested for the child; and
(4)  whether the child is subject to the continuing exclusive jurisdiction of a court under Chapter 155.

(b)  If the child is 10 years of age or older, the child’s written consent to the change of name must be attached to the petition.

Removal of Disabilities of Minority

(a)  A minor may petition to have the disabilities of minority removed for limited or general purposes if the minor is:
(1)  a resident of this state;
(2)  17 years of age, or at least 16 years of age and living separate and apart from the minor’s parents, managing conservator, or guardian; and
(3)  self-supporting and managing the minor’s own financial affairs.

(b)  A minor may file suit under this chapter in the minor’s own name. The minor need not be represented by next friend.

Emergency Provisions Concerning Children

(a)  A governmental entity with an interest in the child may file a suit affecting the parent-child relationship requesting an order or take possession of a child without a court order.

(b)  In determining the reasonable efforts that are required to be made with respect to preventing or eliminating the need to remove a child from the child’s home or to make it possible to return a child to the child’s home, the child’s health and safety is the paramount concern.

(c) A person who takes possession of a child without a court order is immune from civil liability if, at the time possession is taken, there is reasonable cause to believe there is an immediate danger to the physical health or safety of the child.

An original suit filed by a governmental entity that requests permission to take possession of a child without prior notice and a hearing must be supported by an affidavit sworn to by a person with personal knowledge and stating facts sufficient to satisfy a person of ordinary prudence and caution that:

(1)  there is an immediate danger to the physical health or safety of the child or the child has been a victim of neglect or sexual abuse and that continuation in the home would be contrary to the child’s welfare;
(2)  there is no time, consistent with the physical health or safety of the child, for a full adversary hearing under Subchapter C; and
(3)  reasonable efforts, consistent with the circumstances and providing for the safety of the child, were made to prevent or eliminate the need for the removal of the child.

Civil and Criminal Liabilities Concerning Children

Liability for Interference with Possessory Right

(a)  A person who takes or retains possession of a child or who conceals the whereabouts of a child in violation of a possessory right of another person may be liable for damages to that person.
(b)  A possessory right is violated by the taking, retention, or concealment of a child at a time when another person is entitled to possession of or access to the child.

Aiding or Assisting Interference with Possessory Right

(a)  A person who aids or assists in conduct for which a cause of action is authorized by this chapter is jointly and severally liable for damages.

(b)  A person who was not a party to the suit in which an order was rendered providing for a possessory right is not liable unless the person at the time of the violation:
(1)  had actual notice of the existence and contents of the order; or
(2)  had reasonable cause to believe that the child was the subject of an order and that the person’s actions were likely to violate the order

Frivolous Suit

A person sued for damages as provided by this chapter is entitled to recover attorney’s fees and court costs if:
(1)   the claim for damages is dismissed or judgment is awarded to the defendant; and
(2)   the court or jury finds that the claim for damages is frivolous, unreasonable, or without foundation.

Habeas Corpus – Returning the Child

(a)  Subject to Chapter 152 and the Parental Kidnapping Prevention Act (28 U.S.C. Section 1738A), if the right to possession of a child is governed by a court order, the court in a habeas corpus proceeding involving the right to possession of the child shall compel return of the child to the relator only if the court finds that the relator is entitled to possession under the order.
(b)  If the court finds that the previous order was granted by a court that did not give the contestants reasonable notice of the proceeding and an opportunity to be heard, the court may not render an order in the habeas corpus proceeding compelling return of the child on the basis of that order.