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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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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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In an unusual ruling, the Texas Supreme Court reversed an award of $47,178.50 in attorney's fees against a grandmother who unsuccessfully sought custody of her granddaughter.  In In re: Moore, the Court held that although the grandmother ultimately had been unsuccessful in gaining custody of her granddaughter, she had "at all times subjected herself and [the child] to the jurisdiction of the trial courts, sought their decisions, and followed their rulings."

Shortly after the child's birth in December 2004, the grandmother petitioned the district court for custody of her grandchild.  The trial court ordered that the grandmother have temporary custody.  In May 2005, the child's mother asked the court of appeals to order the grandmother's suit dismissed because the grandmother had no standing to bring the suit under any provision of the Texas Family Code.  The court of appeals granted the mother's request in June 2005, and the suit was dismissed.

But one of the bases for standing is that a person has had "actual care, control, and possession of the child for at least six months."  More than six months had passed since the grandmother obtained temporary custody of her grandchild in December 2004, so the grandmother filed a new petition for custody in which she set out the new basis for standing.

Again the child's mother asked the court of appeals to order the lawsuit dismissed.  The court of appeals ordered dismissal and that the grandmother pay the mother's attorney's fees as a sanction because of the grandmother's "intransigence and disregard for the previous judgment of this Court."

The Texas Supreme Court disagreed with that ruling.  The Court noted that the second petition for custody was based on a different ground for standing than the first petition so that the grandmother had not disregarded the court of appeals judgment by filing the second petition.  The Texas Supreme Court held that the court of appeals had abused its discretion when it ordered payment of these attorney's fees.  It ordered the court of appeals to vacate that award.

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In Texas, there have been three ways for a grandparent to seek custody or visitation with a grandchild.  Grandparents could file an original petition for custody, they could intervene in a pending lawsuit, or they could sue to request visitation.  Under Texas' unusual terminology (managing conservatorship, possessory conservatorship and possession of or access to a child), the rights conferred by each procedure differ.  For background, see Grandparents' Rights in Texas and Grandparent Access in Texas.

In its 2007 session, the Texas legislature expanded the class of persons who could obtain custody of a child.  Under Texas Family Code section 102.004(a), the right to seek custody of a child has been extended to adults related to the child "within the third degree of consanguinity."  Also, Texas Family Code section 102.006(c) now permits most of these persons to seek custody of a child when the Texas Department of Family and Protective Services has terminated the parental rights of the child's parents, provided suit is filed within ninety days of termination.

What does "consanguinity" mean, and which relatives are within the third degree of consanguinity?  The anti-nepotism provisions of the Texas Government Code answer these questions. "Consanguinity" means related by blood.  In addition to a child's parents, relatives within the third degree of consanguinity are a child's brother, sister, grandparent, great-grandparent, and aunts and uncles by blood rather than by marriage.  The only group of these relatives that cannot seek custody of a child after termination is great-grandparents.

These changes are welcome.  The previous law ruled out responsible, caring relatives who could have stepped in to rescue a child from a poor environment.  Further, termination (at least by TDFPS) does not preclude a relative from seeking custody of a child.

Texas Family Code section 102.004(a) applies to suits filed on or after September 1, 2007; Texas Family Code section 102.006(a) became effective June 15, 2007.

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Wikipedia explains that "Catch-22" is common idiomatic usage meaning "a no-win situation" or "a double bind." Although the San Antonio Court of Appeals did not use that term, it recognized the concept in a termination case called In re: R.M.

Termination appeals are tricky. First of all, one must appeal within twenty days rather than the usual thirty days because termination appeals are accelerated appeals. For the same reason, a motion for new trial or the like will not extend the appellate deadline as in the ordinary appeal.

In termination cases brought by the Texas Department of Family and Protective Services, there's a further requirement.  Per Texas Family Code section 263.405(b), an appellant must, within fifteen days after the termination order is signed, file a statement of points on which the party intends to appeal. If no statement is filed, then no issues are preserved for appeal.

One issue that can be raised in a termination case is ineffective assistance of counsel. In In re: R.M., the parent tried to raise that issue on appeal, but because the (ineffective) counsel did not include ineffective assistance of counsel in a statement of points to be raised on appeal, the issue was not preserved for review by the Court.

The Court recognized the result as "harsh" and joined other courts in calling for the legislature to change the statute. Quoting the Dallas Court of Appeals, the Court characterized section 263.405(b) as "a trap for the unwary."  But instead of ridding the state of this trap, the legislature added a second one.  It amended section 263.405(b) to contract the deadline for filing motions for new trials to fifteen days in TDPRS cases.

In other words, yet another Catch-22.

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