Dallas Divorce Lawyer & Attorney : Verner & Brumley Law Firm : Serving Dallas, Plano, Fort Worth, Texas

When parents relinquish their parental rights for purposes of adoption, or the State convinces a court to take away those parental rights in cases of abuse, the parents' rights are said to be "terminated."   These cases are called termination cases.

Termination cases cannot occur in a vacuum.  They must be accompanied by appointment of the State, or of an adoption agency or prospective adoptive parents, as temporary conservators of the child.  If parental rights were terminated without further action, then there would be no one in charge of the child.

In adoption cases where a biological parent changes his or her mind about termination, or in termination cases brought by the State because of child abuse, the terminated parent may appeal the trial court's decision on termination.  There has been a dispute among Texas' Courts of Appeals whether reversing the trial court on its termination decision automatically reverses the appointment of a conservator.  Some courts have held that a parent need attack only the termination decision, while other courts have ruled that a parent must appeal both the termination and the conservatorship decisions. 

The Texas Supreme Court, in In re: J.A.J., has resolved the issue:  The Court ruled that on appeal, a parent must challenge both the decision to terminate and the decision to appoint a conservator if the parent wants his or her child back. 

The Court rested its decision on two grounds.  First, the Court first noted that the grounds for termination are not the same as those warranting appointment as a conservator, so reversing a termination decision is not necessarily inconsistent with leaving a conservatorship order in place. 

Second, the Court observed that the burden of proof for the two issues is different:  Termination of parental rights must be proved by clear and convincing evidence, while a preponderance of the evidence governs conservatorship decisions.  Thus, it would be possible to conclude the the evidence did not warrant termination but did justify retaining a third person or entity as the child's conservator.

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In a case called In re: A.S., a divided Beaumont Court of Appeals affirmed a trial court's termination of parental rights without a reporter's record.  The majority said that it could tell that the appeal would be frivolous based upon the record from a post-trial hearing. The majority refused the appellant's request that the trial itself be transcribed before considering the appeal.

This is an astounding decision.  At the post-trial hearing, counsel for the Texas Department of Family and Protective Services (TDFPS) told the trial court what the evidence had been at trial.  The parent's appellate attorney, who did not try the case, was unable to respond with any particularity.  Although the appellate attorney had spoken with the attorney who represented the parent at trial, the appellate attorney had no opportunity to review the trial evidence - by reviewing the reporter's record - because the Beaumont Court's majority decided it didn't need the reporter's record to conclude that the appeal was frivolous. 

Thus, the Court's majority decided the appeal of a termination case based on the recollection of the attorney for TDFPS of what the evidence at trial showed.

In dissent, Justice Gaultney put the matter bluntly:  "An appellate court cannot determine whether a factual sufficiency issue is frivolous without reviewing the evidence."  Citing a United States Supreme Court opinion, Justice Gaultney further inquired how an appellate attorney could "adequately challenge a frivolous finding on a factual sufficiency issue without access to a reporter’s record."

We hope that the appellate attorney files a petition for review with the Texas Supreme Court.  Cutting corners when it comes to due process undermines confidence in the judicial system.

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When spouses agree to a divorce, a divorce decree is prepared, and the divorce is "proved up."  Technically, a prove-up is a trial.  One or both of the spouses testifies about the grounds for divorce, custody and visitation for the children and the division of the community estate. 

Prove-ups also are necessary in default cases.  A default case is one where the other spouse is served with citation (or waives service) but does not file pleadings with the court, make any agreements with the filing spouse, or show up for the prove-up. 

In both types of cases, a busy court docket and the lack of any objection to the divorce can result in a curtailed prove-up.  But all divorce decree must be supported by sufficient evidence.  It can be a mistake to shorten a prove-up because then a spouse can appeal on the ground that the evidence is insufficient to support the decree.

We've written about this issue before, in Newsletter entries for January 8 and February 26, 2004.  The El Paso Court of Appeals has highlighted the problem again in the recent case of Giron v. Gonzalez. 

By agreed temporary orders, Ms. Giron had temporary custody of the children.  Mr. Gonzalez paid her child support.  But Ms. Giron failed to appear at the divorce hearing.  Mr. Gonzalez obtained a divorce by default against Ms. Giron, alleging no-fault grounds, adultery and cruelty.  The trial court granted him sole custody of the children and suspended Ms. Giron's visitation with the children.  Finally, the trial court forgave past-due child support owed by Mr. Gonzalez.

On appeal, the El Paso Court found that Mr. Gonzalez did not introduce enough evidence into the record to support any finding but no-fault divorce.  To demonstrate its point, the Court quoted the entire prove-up which is copied in the extended entry.

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On January 5, 2006, President Bush signed the International Marriage Broker Act of 2005 ("IMBRA"), found at Title VIII, Subtitle D of Public Law No. 109-162 which itself reauthorized the Violence Against Women Act. 

IMBRA imposes certain requirements on Internet dating services that primarily focus on matching American men with foreign women.  Before allowing an American to communicate with a foreign woman, an Internet dating service must conduct a criminal background check on the man, a sex-offender check on him and require him to complete a questionnaire detailing his previous arrests, convictions, marriages, divorces, children and all states of residence since he turned eighteen.

As one might imagine, IMBRA has been unpopular with American men who claim that it unfairly presumes they will abuse their future foreign spouses.

Why did Congress pass this law?  A court that ruled on IMBRA's constitutionality explained:

The rates of domestic violence against immigrant women are much higher than those of the U.S. population as a whole and have in common with women brokered through international marriage brokers a number of factors, including the dependency of the immigrant woman on the U.S. citizen for her legal status.  An estimated 70% of abusive U.S. citizen spouses, including those who consummate relationships through [International Marriage Brokers], withhold the filing of the proper paperwork necessary to validate the legal status of their immigrant female partners to cause them to fall out of legal status and to hold the threat of jail or deportation over the woman.  Estimates by the National Institute on Justice are that over 73 percent of domestic violence cases go unreported.

An international marriage broker called European Connections & Tours, Inc., sued to have IMBRA declared unconstitutional.  European Connections contended that IMBRA posed an impermissible prior restraint on European Connections' free speech rights.   A federal district court in Georgia upheld IMBRA's requirements.

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The courts have made it clear that parents have a fundamental right to custody of their children.  For this reason, grandparents sometimes are denied visitation with their grandchildren when their child - the children's mother or father - dies.  But what happens when the parents are divorced and the parent who had custody of the children dies? 

The San Antonio Court of Appeals ruled that the surviving parent has the right to custody of the children when the custodial parent dies - unless it is shown that leaving custody with the surviving parent would cause a serious and immediate question concerning the children's welfare.

This ruling came about when a custodial mother died.  The maternal grandparents took custody of the children while the father, who lived out of state, traveled to Texas.  The maternal grandparents filed suit to obtain legal custody of their grandchildren.  The father filed a petition for writ of habeas corpus to obtain custody of his children.

The habeas corpus statute requires that children be returned to the person who has the right to custody of them unless it can be shown that there is "a serious immediate question concerning the welfare of the child."  The grandparents argued that the children should have remained "with the people who can provide them the most comfort:  their grandparents and their nanny."  But the San Antonio Court ordered the children returned to their father.  It held that "merely removing a child from a familiar environment does not rise to the level of a serious and immediate question concerning a child's welfare in the habeas corpus context."

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Texas' Standard Possession Order sets out when the noncustodial parent has visitation with ("possession of") the children.  By default, the noncustodial parent has visitation with the children on Thursday evenings during the school term between 6:00 p.m. and 8:00 p.m., and on the first, third and (if there is one) fifth weekends throughout the year from 6:00 p.m. Friday to 6:00 p.m. Sunday.

But a noncustodial parent may request alternative times for visitation to occur on Thursdays and on weekends.  According to Texas Family Code section 153.312(a), the noncustodial parent may elect that weekend visitation begin when the child's school is dismissed on Friday.  The noncustodial parent may elect - unless not in the child's best interest - that Thursday visitation begin when school is dismissed and end on Friday when school commences.

What are the results of the alternative visitation times?  Thursdays become overnight visits, and when a Thursday precedes weekend visitation, as a practical matter visitation begins Thursday when school lets out and ends on Sunday at 6:00 p.m.  Thus, a noncustodial parent may have extended weekend visitation.

But this Family Code section, and another one like it - Texas Family Code section 153.317 - require the noncustodial parent to make these elections "before or at the time of" the original court order setting out visitation, or "before or at the time of" any modification order.  A recent Fort Worth Court of Appeals case faced the issue whether a noncustodial parent could ask for these elections by themselves, after a modification order recently had been signed.  The Court held that this parent had lost his opportunity to make these elections because he did not make them before or at the time the court granted the modification order.

Accordingly, a noncustodial parent who wants to elect these alternative visitation times must make these elections "before or at the time of" the divorce, a paternity order or a modification action, or the elections will be considered waived.

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For a long time, Texas law said that unpaid child support terminated on the death of the noncustodial parent.  This year's Texas legislature dramatically changed this law by establishing a system for post-mortem child support.

Senate Bill 617 deleted the clause stating that a noncustodial parent's child support obligation terminates on that parent's death.  The Bill added Texas Family Code section 154.016.  This section allows a court to require a noncustodial parent to purchase and maintain a life insurance policy or annuity to pay the unpaid child support in the event that the noncustodial parent dies while child support is still payable.

The Bill also added Texas Family Code section 154.015.  This section states that "the remaining unpaid balance of the child support obligation becomes payable on the date the obligor."  But how is the balance determined?  Section 154.015 directs the court to discount future child support to present value but then also to consider benefits to the child upon the obligor's death, such as life insurance.  The court then decides whether the child support obligation has been satisfied.  To the extent not satisfied, the child support obligation becomes a claim against the obligor's estate.

Taken together, these legislative changes operate to protect the child from a loss of child support occasioned by the untimely death of a parent.  Texas Family Code section 154.015 applies only if the noncustodial parent died on or after September 1, 2007.  The other parts of the statute apply to an order for child support issued at any time, even before the Act passed.

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Last training for 2007:

Collaborative Law:  Two Day Basic Training

by Janet P. Brumley

About the Program:  This two day basic training will cover interest based negotiation, a comparison and contrast of collaborative practice with litigation and mediation, an introduction to the Protocols of Practice for collaborative professionals and techniques for effective practice.  It is open to lawyers, mental health professionals and financial professionals, but is geared primarily toward lawyers.

Dates:  October 18 & 19, 2007 (Begins promptly at 9:00 a.m. and ends at 5:00 p.m. each day)

Location: 3131 Turtle Creek Blvd., Penthouse Suite, Dallas, Texas 75219

Cost:  $500.00 per person - ** Limited to 10 Enrollees for maximum interaction (Cost must be paid upon reservation and is refundable if canceled at least seven days prior to seminar)

About the Trainer:  Janet P. Brumley is the author of Divorce Without Disaster; is board certified in family law by the Texas Board of Legal Specialization; has practiced law for 25+  years in Dallas County, Texas; is a frequent presenter on collaborative law at professional continuing education seminars; is a member of the committee that drafted Texas Collaborative Law Protocols of Practice for Lawyers; has served as chairperson of Dallas Alliance of Collaborative Family Lawyers; was selected as a Texas Super Lawyer and Top 50 Women Attorneys in Texas; has been selected by her peers to be included in The Best Lawyers of America 2007; has conducted collaborative law training in Dallas, Houston and Fort Worth; attended Harvard Law School Advanced Negotiation Workshop; is a member of International Alliance of Collaborative Professionals, Texas Collaborative Law Institute, Dallas Alliance of Collaborative Lawyers and the American Academy of Matrimonial Lawyers.

Please contact Becky Borders to enroll or for further information. 214.526.5234 or bborders@vernerbrumley.com

A federal statute called the Employee Retirement Income Security Act (ERISA) governs most retirement plans.  To divide a retirement plan upon divorce, a court must sign a domestic relations order.  Once the Plan Administrator of the retirement plan approves the domestic relations order, it becomes a Qualified Domestic Relations Order (QDRO).  In the absence of a QDRO, a court cannot divide retirement benefits, even if the divorce decree provides otherwise.

Kennedy v. Plan Administrator is a case in point.  Mr. Kennedy was a DuPont employee who participated in DuPont's retirement plan.   After Mr. Kennedy married, he designated his wife as the beneficiary of his retirement plan in the event that he died before she did.  Later, the couple divorced.  In the divorce decree, Ms. Kennedy agreed that she would be divested of "all right, title, interest, and claim in and to . . . the proceeds therefrom, and any other rights related to any . . . retirement plan, pension plan, or like benefit program existing by reason of [Mr. Kennedy's] employment."  On its face, this language divested Ms. Kennedy of any interest in Mr. Kennedy's DuPont retirement plan.

But no QDRO was signed.  Mr. Kennedy retired from DuPont.  Later, he died.   The retirement plan paid the balance of Mr. Kennedy's retirement - approximately $400,000 - to the former Ms. Kennedy because, it said, the waiver in the divorce decree did not comply with ERISA. 

Mr. Kennedy's estate sued Mr. Kennedy's ex-wife to recover this $400,000.  The trial court ruled for the estate, but the estate lost on appeal to the United States Court of Appeals for the Fifth Circuit.   Quoting a United States Supreme Court case, the court held that Congress had enacted strict and detailed rules governing how beneficiaries of pensions can be changed.  Mr. Kennedy had failed to follow those rules, so his ex-wife received his retirement after he died.

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