According to the National Institute of Mental Health, an estimated 26.2 percent of Americans age 18 and older – about one in four adults – suffer from a diagnosable mental disorder in a given year. This figure translates to 57.7 million people. Many people suffer from more than one mental disorder at a given time. Nearly half (45 percent) of those with mental disorder meet criteria for two or more disorders, with severity strongly related to co-morbidity. Mental illnesses are biologically based brain disorders. A diagnosed mental illness in a custody case may not only affect the eventual outcome of the case, but may also determine how counsel prepares his or her particular case strategy.
There are degrees of severity and levels of functioning with all mental disorders, and in the context of a contested custody case an extreme position can be easier for an attorney to handle. The fact finder is evaluating each parent’s ability to meet the child’s needs and the parties’ particular parenting abilities. A psychiatric diagnosis is not in and of itself a measuring tool. The specific acts of each parent must be examined in detail.
One important factor to consider is a request for psychological testing or the appointment of a counselor or psychiatrist to evaluate the parties. If the party with the mental illness has not admitted they have an illness, the results of court-ordered evaluations may force the issue and may also provide additional evidence to support a modification of temporary orders.
Counsel may want to recommend to the court that the child attend therapy. You may suggest the use of the therapist, psychiatrist, or psychologist of the person with the mental disorder for recommendations to the court of the parent’s visitation with the child.
Counsel may also want to consider a temporary injunction in addition to the standard temporary injunction for the preservation of property and protection of the parties and the children. Some issues to consider are preventing the use of alcohol within 24 hours of possession of the children; preventing the mentally ill party from operating a motor vehicle while taking medications, and preventing the parties from making disparaging remarks regarding the other party.
It is important that counsel identify and define the particular drugs the mentally ill patient is taking. Counsel should request a HIPPA Release (specifically related to mental health disclosures) allowing access to medical and prescription drug records of the mentally ill party. Research should then be performed as to the effects of each drug on the mentally ill person.
It may be necessary to have an Amicus Attorney appointed to represent the interests of the children. The Amicus Attorney has a powerful role in the contested custody case and can assist in gaining information on the mentally ill party. All parties should cooperate fully with the Amicus Attorney for the best interest of the children. It is important to make yourself available to the Amicus Attorney and to be pro-active in setting up appointments. It is important that counsel instruct you as to what to say and what not to say to the Amicus Attorney. It is also critical that counsel respond to any discovery propounded by an Amicus Attorney timely.
Be sure to educate yourself about the particular mental disorder you are dealing with. Make sure your experts have experience in handling the particular mental disorder in questions. Counsel should use the testimony of experts to offer aid and/or educate the judge and/or jury so they have a clear understanding of the mental illness and its foreseeable consequences to the spouse and/or family members.
Wednesday, November 25, 2009
Wednesday, November 4, 2009
The Whistleblower - Part IV - Qui Tam Claims
As reported in a front page story of today's Washington Times in September of 2009, internationally respected whistleblower, Bunnatine Greenhouse, has issued an appeal to the U.S. Senate to pass strong protections for all federal employees. Mrs. Greenhouse was the only major Bush Administration executive to challenge the Halliburton "no bid" Iraq reconstruction contracts. Ms. Greenhouse wrote a letter to Congress. "We urge every American to read Bunny's letter and to TAKE ACTION!," said Stephen M. Kohn, NWC Executive Director. "This is not a Democrat or Republican issue. This is not a partisan issue. This is an issue that goes to the heart of accountability and oversight.
It is estimated that almost 10% of the U.S. annual budget is paid to persons and/or companies defrauding the government. Some overcharge the government for products sold directly to the government, while others engage in government contract fraud, defense contractor fraud, Medicare fraud, Medicaid fraud, or other public benefit fraud. Any situation in which the government has been defrauded should be closely examined. To minimize fraud committed against the government, Congress passed the False Claims Act.
According to an annual report issued by the Department of Justice, approximately $1.2 billion was recovered in whistle blower claims and lawsuits filed by private citizens through their lawyers in the fiscal year October 1, 2000 to September 20, 2001, with more than $210 million of those funds being awarded to whistleblowers themselves. The amount is continuing to grow. It is estimated that $3.1 billions was collected from businesses defrauding the government in the year 2005.
The False Claims Act was Amended and strengthened in 1986. The amendments broaden the definition of fraud to include submitting claims with deliberate ignorance or reckless disregard for the truth of statements made in the claim for U.S. Government spending or funds upon which the fraud claim is based. The burden of proof that must be met by the qui tam attorney is a preponderance of the evidence, that is that the evidence presented is more likely true than not. The 1986 amendments included provisions to protect the federal whistleblower from retaliatory action by their employer.
A person who has knowledge of fraud against the government may retain a lawyer and file a court case under seal against the company or person committing the fraud. Following the filing of a lawsuit, the United States attorney has sixty days to investigate the allegations. The U.S. Government intervenes in approximately 25% to 33% of all whistleblower cases. If the U.S. attorney finds that fraud was committed, then the U.S. Government takes control of the case and either enters into a settlement or pursues the lawsuit itself.
If the government fails to intervene, the private citizen may pursue the action independently. If the lawyers are successful in proving fraud against the government, substantial penalties can be assessed, which can be up to 3 times the amount the defrauder stole from the government (the tax payers). Out of damages imposed the whistleblower may receive between 10% and 30% of the recovery, in some cases recovery could be millions of dollars.
It is estimated that almost 10% of the U.S. annual budget is paid to persons and/or companies defrauding the government. Some overcharge the government for products sold directly to the government, while others engage in government contract fraud, defense contractor fraud, Medicare fraud, Medicaid fraud, or other public benefit fraud. Any situation in which the government has been defrauded should be closely examined. To minimize fraud committed against the government, Congress passed the False Claims Act.
According to an annual report issued by the Department of Justice, approximately $1.2 billion was recovered in whistle blower claims and lawsuits filed by private citizens through their lawyers in the fiscal year October 1, 2000 to September 20, 2001, with more than $210 million of those funds being awarded to whistleblowers themselves. The amount is continuing to grow. It is estimated that $3.1 billions was collected from businesses defrauding the government in the year 2005.
The False Claims Act was Amended and strengthened in 1986. The amendments broaden the definition of fraud to include submitting claims with deliberate ignorance or reckless disregard for the truth of statements made in the claim for U.S. Government spending or funds upon which the fraud claim is based. The burden of proof that must be met by the qui tam attorney is a preponderance of the evidence, that is that the evidence presented is more likely true than not. The 1986 amendments included provisions to protect the federal whistleblower from retaliatory action by their employer.
A person who has knowledge of fraud against the government may retain a lawyer and file a court case under seal against the company or person committing the fraud. Following the filing of a lawsuit, the United States attorney has sixty days to investigate the allegations. The U.S. Government intervenes in approximately 25% to 33% of all whistleblower cases. If the U.S. attorney finds that fraud was committed, then the U.S. Government takes control of the case and either enters into a settlement or pursues the lawsuit itself.
If the government fails to intervene, the private citizen may pursue the action independently. If the lawyers are successful in proving fraud against the government, substantial penalties can be assessed, which can be up to 3 times the amount the defrauder stole from the government (the tax payers). Out of damages imposed the whistleblower may receive between 10% and 30% of the recovery, in some cases recovery could be millions of dollars.
Contracts in Texas
A contract is defined as a promise or set of promises with legal consequences. Normally, contractual promises are enforceable in a court of law. The law gives official recognition of the written contractual promises and offers remedies when the promises are not fulfilled.
The Supreme Court of Texas has noted that every contract includes an element of confidence and trust that the parties will faithfully perform their obligations. There is no duty of good faith and fair dealing unless the duty is created by express language in the contract or a special relationship of trust and confidence exists between the parties to the contract.
In Texas, the requirements for a valid written contract are: 1) an offer; 2) an acceptance in strict compliance with the terms of the offer; 3) a meeting of the minds (which is actually a subpart of the accepted elements, not an independent element; 4) each party’s consent to the terms; 5) consideration; and 6) execution and delivery of the contract with the intent that it be mutual and binding.
A basic element of the contract is the promise, which may be an express or implied promise made by one party for the purpose of assuring another person that a particular action or restraint from a particular action will occur. This is objectively determinable from the parties’ words or actions and not from either party’s subjective intentions.
Contracts may be unilateral or bilateral. A unilateral contract has only one promisor; the promisee makes no commitment. Mutuality of obligation is not essential for a unilateral contract to be formed. A unilateral contract is completed by the promisee’s performance of the act or acts called for by the promisor, not by the promisee’s making of any reciprocal promises. The promisor becomes bound to provide the promised benefit when the promisee delivers the bargained-for performance. There is no binding unilateral contract unless the promisee performs, or at least partly performs the acts requested by the promisor. Until such time, the promisor may revoke its offer. An option agreement is a common unilateral contract. An option agreement is a promise, or offer, by the optionor that the optionee may accept or reject. Until the option is exercised in accordance with the offer, the contract remains unilateral. The contract becomes binding when the option is properly exercised.
A bilateral contract is one in which there are mutual and/or bilateral promises made between the parties. If the parties have entered into a bilateral contract in which their promises are the only consideration for the agreement, their obligations must be mutual and binding for the contract to be valid. A common example of a bilateral contract is one in which one party promises to deliver goods to the other, and the other party promises to pay the specified purchase price.
There must be an offer, an acceptance and consideration for a contract to be recognized and enforceable. To prove a valid offer a party must show 1) the offeror intended to make an offer, 2) the terms of the offer were clear and definite, and 3) the offeror communicated the essential terms of the offer to the offeree.
The offer may dictate the manner, time and place of acceptance of the offer. Under such circumstances, an offer not accepted in a timely or proper manner lapses. When an offeree rejects an offer, the offer is terminated
An acceptance must be identical to the offer or there is no binding contract. Generally, an acceptance must not change or qualify the terms of the offer or the offer is rejected. When an offer prescribes the manner of acceptance, its terms must be followed in such manner of acceptance in order to create a contract. If an offeree fails to accept in the prescribed manner and attempts to accept in some other manner, a contract is formed only if the offeror waives strict compliance with provisions concerning the manner of acceptance.
An oral offer may be accepted by execution of a written instrument that embodies the terms of the agreement. Further, a written offer may, in some circumstances, be accepted orally. Acceptance may also be shown by conduct.
An acceptance is valid only if made before an offer is revoked or lapsed. An acceptance takes effect and creates a contract when it is communicated to the offeror. Acceptance is not effective when some abstract conduct other than communication to the offeror occurs. The accepting party may change his or her mind until the act of acceptance is actually communicated to the offeror.
Although an acceptance is effective only when communicated to the offeror, when an offer may be validly accepted by mail, the “mailbox” rule provides that the communication has been made and the contract is binding when the offeree deposits a properly addressed letter of acceptance in the mail, regardless of whether it is actually received by the offerror.
Mutual assent is often described as a “meeting of the minds.” Evidence of mutual assent in written contracts generally consists of the parties’ signing the contract and delivery of the contract with the intent to bind. To determine whether a meeting of the minds existed, a court reviews what the parties actually said and did. The parties’ failure to agree on a material term precludes a meeting of the minds necessary for a valid contract.
In some cases, what appears to be a valid offer and acceptance results in only a voidable contract because one party’s consent was, in fact, procured by fraud, undue influence, duress, or mistake.
Under Texas law, a party must protect personal interests by reading a contract before signing it. Absent fraud, the person is not excused from the consequences of failing to meet this obligation. If a person signs a contract without knowledge of its contents, they are presumed to have consented to the terms of the contract. Claims of belief that provisions differed from those plainly set out in the written contract are not generally admissible.
The Supreme Court of Texas has noted that every contract includes an element of confidence and trust that the parties will faithfully perform their obligations. There is no duty of good faith and fair dealing unless the duty is created by express language in the contract or a special relationship of trust and confidence exists between the parties to the contract.
In Texas, the requirements for a valid written contract are: 1) an offer; 2) an acceptance in strict compliance with the terms of the offer; 3) a meeting of the minds (which is actually a subpart of the accepted elements, not an independent element; 4) each party’s consent to the terms; 5) consideration; and 6) execution and delivery of the contract with the intent that it be mutual and binding.
A basic element of the contract is the promise, which may be an express or implied promise made by one party for the purpose of assuring another person that a particular action or restraint from a particular action will occur. This is objectively determinable from the parties’ words or actions and not from either party’s subjective intentions.
Contracts may be unilateral or bilateral. A unilateral contract has only one promisor; the promisee makes no commitment. Mutuality of obligation is not essential for a unilateral contract to be formed. A unilateral contract is completed by the promisee’s performance of the act or acts called for by the promisor, not by the promisee’s making of any reciprocal promises. The promisor becomes bound to provide the promised benefit when the promisee delivers the bargained-for performance. There is no binding unilateral contract unless the promisee performs, or at least partly performs the acts requested by the promisor. Until such time, the promisor may revoke its offer. An option agreement is a common unilateral contract. An option agreement is a promise, or offer, by the optionor that the optionee may accept or reject. Until the option is exercised in accordance with the offer, the contract remains unilateral. The contract becomes binding when the option is properly exercised.
A bilateral contract is one in which there are mutual and/or bilateral promises made between the parties. If the parties have entered into a bilateral contract in which their promises are the only consideration for the agreement, their obligations must be mutual and binding for the contract to be valid. A common example of a bilateral contract is one in which one party promises to deliver goods to the other, and the other party promises to pay the specified purchase price.
There must be an offer, an acceptance and consideration for a contract to be recognized and enforceable. To prove a valid offer a party must show 1) the offeror intended to make an offer, 2) the terms of the offer were clear and definite, and 3) the offeror communicated the essential terms of the offer to the offeree.
The offer may dictate the manner, time and place of acceptance of the offer. Under such circumstances, an offer not accepted in a timely or proper manner lapses. When an offeree rejects an offer, the offer is terminated
An acceptance must be identical to the offer or there is no binding contract. Generally, an acceptance must not change or qualify the terms of the offer or the offer is rejected. When an offer prescribes the manner of acceptance, its terms must be followed in such manner of acceptance in order to create a contract. If an offeree fails to accept in the prescribed manner and attempts to accept in some other manner, a contract is formed only if the offeror waives strict compliance with provisions concerning the manner of acceptance.
An oral offer may be accepted by execution of a written instrument that embodies the terms of the agreement. Further, a written offer may, in some circumstances, be accepted orally. Acceptance may also be shown by conduct.
An acceptance is valid only if made before an offer is revoked or lapsed. An acceptance takes effect and creates a contract when it is communicated to the offeror. Acceptance is not effective when some abstract conduct other than communication to the offeror occurs. The accepting party may change his or her mind until the act of acceptance is actually communicated to the offeror.
Although an acceptance is effective only when communicated to the offeror, when an offer may be validly accepted by mail, the “mailbox” rule provides that the communication has been made and the contract is binding when the offeree deposits a properly addressed letter of acceptance in the mail, regardless of whether it is actually received by the offerror.
Mutual assent is often described as a “meeting of the minds.” Evidence of mutual assent in written contracts generally consists of the parties’ signing the contract and delivery of the contract with the intent to bind. To determine whether a meeting of the minds existed, a court reviews what the parties actually said and did. The parties’ failure to agree on a material term precludes a meeting of the minds necessary for a valid contract.
In some cases, what appears to be a valid offer and acceptance results in only a voidable contract because one party’s consent was, in fact, procured by fraud, undue influence, duress, or mistake.
Under Texas law, a party must protect personal interests by reading a contract before signing it. Absent fraud, the person is not excused from the consequences of failing to meet this obligation. If a person signs a contract without knowledge of its contents, they are presumed to have consented to the terms of the contract. Claims of belief that provisions differed from those plainly set out in the written contract are not generally admissible.
Tuesday, November 3, 2009
ADOPTION IN TEXAS
Who May Adopt and Be Adopted.
(a) Subject to the requirements for standing to sue under Chapter 102 of the Texas Family Code, an adult may petition to adopt a child who may be adopted.
(b) A child residing in Texas 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 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 or is the child's former stepparent, 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.
Prerequisite to Filing Petition for Adoption
Texas Family Code Sec. 162.002 states:
(a) If a petitioner is married, both spouses must join in the petition for adoption.
(b) A petition in a suit for adoption or a suit for appointment of a nonparent managing conservator with authority to consent to adoption of a child must include:
(1) a verified allegation that there has been compliance with Subchapter B ; or
(2) if there has not been compliance with Subchapter B, a verified statement of the particular reasons for noncompliance.
Pre-adoptive and Post-placement Social Studies
In a suit for adoption, pre-adoptive and post-placement social studies must be conducted as provided in Chapter 107 of the Texas Family Code.
Preferential Setting
The court shall grant a motion for a preferential setting for a final hearing on an adoption and shall give precedence to that hearing over all other civil cases not given preference by other law if the social study has been filed and the criminal history for the person seeking to adopt the child has been obtained.
Preparation of Health, Social, Educational, and Genetic History Report
(a) This section does not apply to an adoption by the child's:
(1) grandparent;
(2) aunt or uncle by birth, marriage, or prior adoption; or
(3) stepparent.
(b) Before placing a child for adoption, the Department of Protective and Regulatory Services, a licensed child-placing agency, or the child's parent or guardian shall compile a report on the available health, social, educational, and genetic history of the child to be adopted.
(c) The report shall include a history of physical, sexual, or emotional abuse suffered by the child, if any.
(d) If the child has been placed for adoption by a person or entity other than the department, a licensed child-placing agency, or the child's parent or guardian, it is the duty of the person or entity who places the child for adoption to prepare the report.
(e) The person or entity who places the child for adoption shall provide the prospective adoptive parents a copy of the report as early as practicable before the first meeting of the adoptive parents with the child. The copy of the report shall be edited to protect the identity of birth parents and their families.
(f) The department, licensed child-placing agency, parent, guardian, person, or entity who prepares and files the original report is required to furnish supplemental medical, psychological, and psychiatric information to the adoptive parents if that information becomes available and to file the supplemental information where the original report is filed. The supplemental information shall be retained for as long as the original report is required to be retained.
Contents of Health, Social, Educational, and Genetic History Report
(a) The health history of the child must include information about:
(1) the child's health status at the time of placement;
(2) the child's birth, neonatal, and other medical, psychological, psychiatric, and dental history information;
(3) a record of immunizations for the child; and
(4) the available results of medical, psychological, psychiatric, and dental examinations of the child.
(b) The social history of the child must include information, to the extent known, about past and existing relationships between the child and the child's siblings, parents by birth, extended family, and other persons who have had physical possession of or legal access to the child.
(c) The educational history of the child must include, to the extent known, information about:
(1) the enrollment and performance of the child in educational institutions;
(2) results of educational testing and standardized tests for the child; and
(3) special educational needs, if any, of the child.
(d) The genetic history of the child must include a description of the child's parents by birth and their parents, any other child born to either of the child's parents, and extended family members and must include, to the extent the information is available, information about:
(1) their health and medical history, including any genetic diseases and disorders;
(2) their health status at the time of placement;
(3) the cause of and their age at death;
(4) their height, weight, and eye and hair color;
(5) their nationality and ethnic background;
(6) their general levels of educational and professional achievements, if any;
(7) their religious backgrounds, if any;
(8) any psychological, psychiatric, or social evaluations, including the date of the evaluation, any diagnosis, and a summary of any findings;
(9) any criminal conviction records relating to a misdemeanor or felony classified as an offense against the person or family or public indecency or a felony violation of a statute intended to control the possession or distribution of a substance included in Chapter 481, Health and Safety Code; and
(10) any information necessary to determine whether the child is entitled to or otherwise eligible for state or federal financial, medical, or other assistance.
Filing of Health, Social, Educational, and Genetic History Report
(a) This section does not apply to an adoption by the child's:
(1) grandparent;
(2) aunt or uncle by birth, marriage, or prior adoption; or
(3) stepparent.
(b) A petition for adoption may not be granted until the following documents have been filed:
(1) a copy of the health, social, educational, and genetic history report signed by the child's adoptive parents; and
(2) if the report is required to be submitted to the bureau of vital statistics under Section 162.006(e), a certificate from the bureau acknowledging receipt of the report.
(c) A court having jurisdiction of a suit affecting the parent-child relationship may by order waive the making and filing of a report under this section if the child's biological parents cannot be located and their absence results in insufficient information being available to compile the report.
Criminal History Report Required
(a) In a suit affecting the parent-child relationship in which an adoption is sought, the court shall order each person seeking to adopt the child to obtain that person's own criminal history record information. The court shall accept under this section a person's criminal history record information that is provided by the Department of Protective and Regulatory Services or by a licensed child-placing agency that received the information from the department if the information was obtained not more than one year before the date the court ordered the history to be obtained.
(b) A person required to obtain information under Subsection (a) shall obtain the information in the manner provided by Section 411.128, Government Code.
Residence with Petitioner.
(a) The court may not grant an adoption until the child has resided with the petitioner for not less than six months.
(b) On request of the petitioner, the court may waive the residence requirement if the waiver is in the best interest of the child.
Consent Required
(a) Unless the managing conservator is the petitioner, the written consent of a managing conservator to the adoption must be filed. The court may waive the requirement of consent by the managing conservator if the court finds that the consent is being refused or has been revoked without good cause. A hearing on the issue of consent shall be conducted by the court without a jury.
(b) If a parent of the child is presently the spouse of the petitioner, that parent must join in the petition for adoption and further consent of that parent is not required.
(c) A child 12 years of age or older must consent to the adoption in writing or in court. The court may waive this requirement if it would serve the child's best interest.
Revocation of Consent
At any time before an order granting the adoption of the child is rendered, a consent required by Section 162.010 may be revoked by filing a signed revocation.
Attendance at Hearing Required
(a) If the joint petitioners are husband and wife and it would be unduly difficult for one of the petitioners to appear at the hearing, the court may waive the attendance of that petitioner if the other spouse is present.
(b) A child to be adopted who is 12 years of age or older shall attend the hearing. The court may waive this requirement in the best interest of the child.
Sec. 162.015. RACE OR ETHNICITY.
(a) In determining the best interest of the child, the court may not deny or delay the adoption or otherwise discriminate on the basis of race or ethnicity of the child or the prospective adoptive parents.
(b) This section does not apply to a person, entity, tribe, organization, or child custody proceeding subject to the Indian Child Welfare Act of 1978
Adoption Order
(a) If a petition requesting termination has been joined with a petition requesting adoption, the court shall also terminate the parent-child relationship at the same time the adoption order is rendered. The court must make separate findings that the termination is in the best interest of the child and that the adoption is in the best interest of the child.
(b) If the court finds that the requirements for adoption have been met and the adoption is in the best interest of the child, the court shall grant the adoption.
(c) The name of the child may be changed in the order if requested.
Effect of Adoption
(a) An order of adoption creates the parent-child relationship between the adoptive parent and the child for all purposes.
(b) An adopted child is entitled to inherit from and through the child's adoptive parents as though the child were the biological child of the parents.
(c) The terms "child," "descendant," "issue," and other terms indicating the relationship of parent and child include an adopted child unless the context or express language clearly indicates otherwise.
(d) Nothing in this chapter precludes or affects the rights of a biological or adoptive maternal or paternal grandparent to reasonable possession of or access to a grandchild, as provided in Chapter 153.
(a) Subject to the requirements for standing to sue under Chapter 102 of the Texas Family Code, an adult may petition to adopt a child who may be adopted.
(b) A child residing in Texas 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 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 or is the child's former stepparent, 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.
Prerequisite to Filing Petition for Adoption
Texas Family Code Sec. 162.002 states:
(a) If a petitioner is married, both spouses must join in the petition for adoption.
(b) A petition in a suit for adoption or a suit for appointment of a nonparent managing conservator with authority to consent to adoption of a child must include:
(1) a verified allegation that there has been compliance with Subchapter B ; or
(2) if there has not been compliance with Subchapter B, a verified statement of the particular reasons for noncompliance.
Pre-adoptive and Post-placement Social Studies
In a suit for adoption, pre-adoptive and post-placement social studies must be conducted as provided in Chapter 107 of the Texas Family Code.
Preferential Setting
The court shall grant a motion for a preferential setting for a final hearing on an adoption and shall give precedence to that hearing over all other civil cases not given preference by other law if the social study has been filed and the criminal history for the person seeking to adopt the child has been obtained.
Preparation of Health, Social, Educational, and Genetic History Report
(a) This section does not apply to an adoption by the child's:
(1) grandparent;
(2) aunt or uncle by birth, marriage, or prior adoption; or
(3) stepparent.
(b) Before placing a child for adoption, the Department of Protective and Regulatory Services, a licensed child-placing agency, or the child's parent or guardian shall compile a report on the available health, social, educational, and genetic history of the child to be adopted.
(c) The report shall include a history of physical, sexual, or emotional abuse suffered by the child, if any.
(d) If the child has been placed for adoption by a person or entity other than the department, a licensed child-placing agency, or the child's parent or guardian, it is the duty of the person or entity who places the child for adoption to prepare the report.
(e) The person or entity who places the child for adoption shall provide the prospective adoptive parents a copy of the report as early as practicable before the first meeting of the adoptive parents with the child. The copy of the report shall be edited to protect the identity of birth parents and their families.
(f) The department, licensed child-placing agency, parent, guardian, person, or entity who prepares and files the original report is required to furnish supplemental medical, psychological, and psychiatric information to the adoptive parents if that information becomes available and to file the supplemental information where the original report is filed. The supplemental information shall be retained for as long as the original report is required to be retained.
Contents of Health, Social, Educational, and Genetic History Report
(a) The health history of the child must include information about:
(1) the child's health status at the time of placement;
(2) the child's birth, neonatal, and other medical, psychological, psychiatric, and dental history information;
(3) a record of immunizations for the child; and
(4) the available results of medical, psychological, psychiatric, and dental examinations of the child.
(b) The social history of the child must include information, to the extent known, about past and existing relationships between the child and the child's siblings, parents by birth, extended family, and other persons who have had physical possession of or legal access to the child.
(c) The educational history of the child must include, to the extent known, information about:
(1) the enrollment and performance of the child in educational institutions;
(2) results of educational testing and standardized tests for the child; and
(3) special educational needs, if any, of the child.
(d) The genetic history of the child must include a description of the child's parents by birth and their parents, any other child born to either of the child's parents, and extended family members and must include, to the extent the information is available, information about:
(1) their health and medical history, including any genetic diseases and disorders;
(2) their health status at the time of placement;
(3) the cause of and their age at death;
(4) their height, weight, and eye and hair color;
(5) their nationality and ethnic background;
(6) their general levels of educational and professional achievements, if any;
(7) their religious backgrounds, if any;
(8) any psychological, psychiatric, or social evaluations, including the date of the evaluation, any diagnosis, and a summary of any findings;
(9) any criminal conviction records relating to a misdemeanor or felony classified as an offense against the person or family or public indecency or a felony violation of a statute intended to control the possession or distribution of a substance included in Chapter 481, Health and Safety Code; and
(10) any information necessary to determine whether the child is entitled to or otherwise eligible for state or federal financial, medical, or other assistance.
Filing of Health, Social, Educational, and Genetic History Report
(a) This section does not apply to an adoption by the child's:
(1) grandparent;
(2) aunt or uncle by birth, marriage, or prior adoption; or
(3) stepparent.
(b) A petition for adoption may not be granted until the following documents have been filed:
(1) a copy of the health, social, educational, and genetic history report signed by the child's adoptive parents; and
(2) if the report is required to be submitted to the bureau of vital statistics under Section 162.006(e), a certificate from the bureau acknowledging receipt of the report.
(c) A court having jurisdiction of a suit affecting the parent-child relationship may by order waive the making and filing of a report under this section if the child's biological parents cannot be located and their absence results in insufficient information being available to compile the report.
Criminal History Report Required
(a) In a suit affecting the parent-child relationship in which an adoption is sought, the court shall order each person seeking to adopt the child to obtain that person's own criminal history record information. The court shall accept under this section a person's criminal history record information that is provided by the Department of Protective and Regulatory Services or by a licensed child-placing agency that received the information from the department if the information was obtained not more than one year before the date the court ordered the history to be obtained.
(b) A person required to obtain information under Subsection (a) shall obtain the information in the manner provided by Section 411.128, Government Code.
Residence with Petitioner.
(a) The court may not grant an adoption until the child has resided with the petitioner for not less than six months.
(b) On request of the petitioner, the court may waive the residence requirement if the waiver is in the best interest of the child.
Consent Required
(a) Unless the managing conservator is the petitioner, the written consent of a managing conservator to the adoption must be filed. The court may waive the requirement of consent by the managing conservator if the court finds that the consent is being refused or has been revoked without good cause. A hearing on the issue of consent shall be conducted by the court without a jury.
(b) If a parent of the child is presently the spouse of the petitioner, that parent must join in the petition for adoption and further consent of that parent is not required.
(c) A child 12 years of age or older must consent to the adoption in writing or in court. The court may waive this requirement if it would serve the child's best interest.
Revocation of Consent
At any time before an order granting the adoption of the child is rendered, a consent required by Section 162.010 may be revoked by filing a signed revocation.
Attendance at Hearing Required
(a) If the joint petitioners are husband and wife and it would be unduly difficult for one of the petitioners to appear at the hearing, the court may waive the attendance of that petitioner if the other spouse is present.
(b) A child to be adopted who is 12 years of age or older shall attend the hearing. The court may waive this requirement in the best interest of the child.
Sec. 162.015. RACE OR ETHNICITY.
(a) In determining the best interest of the child, the court may not deny or delay the adoption or otherwise discriminate on the basis of race or ethnicity of the child or the prospective adoptive parents.
(b) This section does not apply to a person, entity, tribe, organization, or child custody proceeding subject to the Indian Child Welfare Act of 1978
Adoption Order
(a) If a petition requesting termination has been joined with a petition requesting adoption, the court shall also terminate the parent-child relationship at the same time the adoption order is rendered. The court must make separate findings that the termination is in the best interest of the child and that the adoption is in the best interest of the child.
(b) If the court finds that the requirements for adoption have been met and the adoption is in the best interest of the child, the court shall grant the adoption.
(c) The name of the child may be changed in the order if requested.
Effect of Adoption
(a) An order of adoption creates the parent-child relationship between the adoptive parent and the child for all purposes.
(b) An adopted child is entitled to inherit from and through the child's adoptive parents as though the child were the biological child of the parents.
(c) The terms "child," "descendant," "issue," and other terms indicating the relationship of parent and child include an adopted child unless the context or express language clearly indicates otherwise.
(d) Nothing in this chapter precludes or affects the rights of a biological or adoptive maternal or paternal grandparent to reasonable possession of or access to a grandchild, as provided in Chapter 153.
Monday, November 2, 2009
Texas Law and Post-Divorce Spousal Maintenance
Under Section 8.051 of the Texas Family Code, a court shall order maintenance for either spouse only if:
1. the spouse for whom maintenance is requested was convicted of or received deferred adjudication for a criminal offense that also constitutes an act of family violence under Title 4 and the offense occurred:
a. within two years before the date on which a suit for dissolution of marriage is filed; or
b. while the suit is pending; or
2. the duration of the marriage was 10 years or longer, the spouse seeking maintenance lacks sufficient property, including property distributed to the spouse under this code, to provide for the spouse’s minimum reasonable needs, as limited by Section 8.054, and the spouse seeking maintenance:
a. is unable to support himself or herself through appropriate employment because of an incapacitating physical or mental disability;
b. is the custodian of a child of the marriage of any age who requires substantial care and personal supervision because a physical or mental disability makes it necessary, taking into consideration the needs of the child, that the spouse not be employed outside the home; or
c. clearly lacks earning ability in the labor market adequate to provide support for the spouse’s minimum reasonable needs, as limited by Section 8.054.
Section 8.052 of the Texas Family Code states that a court shall determine the nature, amount, duration, and manner of periodic spousal maintenance payments by considering all relevant factors, including the following:
1. the financial resources of the spouse seeking maintenance, including the community and separate property and liabilities apportioned to that spouse in the dissolution proceeding, and that spouse’s ability to meet the spouse’s needs independently;
2. the educational and employment skills of the spouses, the time necessary to acquire sufficient education or training to enable the spouse seeking maintenance to find appropriate employment, the availability of that education or training, and the feasibility of that education or training;
3. the duration of the marriage;
4. the age, employment history, earning ability, and physical and emotional condition of the spouse seeking maintenance;
5. the ability of the spouse from whom maintenance is requested to meet that spouse’s personal needs and to provide periodic child support payments, if applicable, while meeting the personal needs of the spouse seeking maintenance;
6. acts by either spouse resulting in excessive or abnormal expenditures or destruction, concealment, or fraudulent disposition of community property, joint tenancy, or other property held in common;
7. the comparative financial resources of the spouse, including medical, retirement, insurance, or other benefits, and the separate property of each spouse;
8. the contribution by one spouse to the education, training, or increased earning power of the other spouse;
9. the property brought to the marriage by either spouse;
10. the contribution of a spouse as homemaker;
11. marital misconduct of the spouse seeking maintenance; and
12. the efforts of the spouse seeking maintenance to pursue available employment counseling as provided by Chapter 304, Labor Code.
Section 8.053 states that except as provided by Subsection (b), it is presumed that maintenance under Section 8.051(2) is not warranted unless the spouse seeking maintenance has exercised diligence in:
1. seeking suitable employment; or
2. developing the necessary skills to become self-supporting during a period of separation and during the time the suit for dissolution of the marriage is pending.
This section does not apply to a spouse who is not able to satisfy the presumption in Subsection (a) because the spouse:
1. has an incapacitating physical or mental disability;
2. is the custodian of a child of the marriage of any age who requires substantial care and personal supervision because a physical or mental disability makes it necessary, taking into consideration the needs of the child, that the spouse not be employed outside the home.
Except as provided in subsection (b), a court:
1. may not order maintenance that remains in effect for more than three years after the date of the order; and
2. shall limit the duration of a maintenance order to the shortest reasonable period that allows the spouse seeking maintenance to meet the spouse’s minimum reasonable needs by obtaining appropriate employment or developing an appropriate skill, unless the ability of the spouse to provide for the spouse’s minimum reasonable needs through employment is substantially or totally diminished because of:
a. physical or mental disability;
b. duties as the custodian of an infant or young child; or
c. another compelling impediment to gainful employment.
If a spouse seeking maintenance is unable to support himself or herself through appropriate employment because the spouse has an incapacitating physical or mental disability or because the spouse is the Custodian of a child of the marriage of any age who has a physical or mental disability, the court may order maintenance for as long as the disability continues.
A court may not order maintenance that requires an obligor to pay monthly more than the lesser of:
1. $2,500; or
2. 20 percent of the spouse’s average monthly gross income.
The court shall set the amount that an obligor is required to pay in a maintenance order to provide for the minimum reasonable needs of the oblige, considering employment or property received in the dissolution of the marriage or otherwise owned by the oblige that contributes to the minimum reasonable needs of the oblige.
Department of Veterans Affairs service-connected disability compensation, social security benefits and disability benefits, and workers’ compensation benefits are excluded from maintenance.
1. the spouse for whom maintenance is requested was convicted of or received deferred adjudication for a criminal offense that also constitutes an act of family violence under Title 4 and the offense occurred:
a. within two years before the date on which a suit for dissolution of marriage is filed; or
b. while the suit is pending; or
2. the duration of the marriage was 10 years or longer, the spouse seeking maintenance lacks sufficient property, including property distributed to the spouse under this code, to provide for the spouse’s minimum reasonable needs, as limited by Section 8.054, and the spouse seeking maintenance:
a. is unable to support himself or herself through appropriate employment because of an incapacitating physical or mental disability;
b. is the custodian of a child of the marriage of any age who requires substantial care and personal supervision because a physical or mental disability makes it necessary, taking into consideration the needs of the child, that the spouse not be employed outside the home; or
c. clearly lacks earning ability in the labor market adequate to provide support for the spouse’s minimum reasonable needs, as limited by Section 8.054.
Section 8.052 of the Texas Family Code states that a court shall determine the nature, amount, duration, and manner of periodic spousal maintenance payments by considering all relevant factors, including the following:
1. the financial resources of the spouse seeking maintenance, including the community and separate property and liabilities apportioned to that spouse in the dissolution proceeding, and that spouse’s ability to meet the spouse’s needs independently;
2. the educational and employment skills of the spouses, the time necessary to acquire sufficient education or training to enable the spouse seeking maintenance to find appropriate employment, the availability of that education or training, and the feasibility of that education or training;
3. the duration of the marriage;
4. the age, employment history, earning ability, and physical and emotional condition of the spouse seeking maintenance;
5. the ability of the spouse from whom maintenance is requested to meet that spouse’s personal needs and to provide periodic child support payments, if applicable, while meeting the personal needs of the spouse seeking maintenance;
6. acts by either spouse resulting in excessive or abnormal expenditures or destruction, concealment, or fraudulent disposition of community property, joint tenancy, or other property held in common;
7. the comparative financial resources of the spouse, including medical, retirement, insurance, or other benefits, and the separate property of each spouse;
8. the contribution by one spouse to the education, training, or increased earning power of the other spouse;
9. the property brought to the marriage by either spouse;
10. the contribution of a spouse as homemaker;
11. marital misconduct of the spouse seeking maintenance; and
12. the efforts of the spouse seeking maintenance to pursue available employment counseling as provided by Chapter 304, Labor Code.
Section 8.053 states that except as provided by Subsection (b), it is presumed that maintenance under Section 8.051(2) is not warranted unless the spouse seeking maintenance has exercised diligence in:
1. seeking suitable employment; or
2. developing the necessary skills to become self-supporting during a period of separation and during the time the suit for dissolution of the marriage is pending.
This section does not apply to a spouse who is not able to satisfy the presumption in Subsection (a) because the spouse:
1. has an incapacitating physical or mental disability;
2. is the custodian of a child of the marriage of any age who requires substantial care and personal supervision because a physical or mental disability makes it necessary, taking into consideration the needs of the child, that the spouse not be employed outside the home.
Except as provided in subsection (b), a court:
1. may not order maintenance that remains in effect for more than three years after the date of the order; and
2. shall limit the duration of a maintenance order to the shortest reasonable period that allows the spouse seeking maintenance to meet the spouse’s minimum reasonable needs by obtaining appropriate employment or developing an appropriate skill, unless the ability of the spouse to provide for the spouse’s minimum reasonable needs through employment is substantially or totally diminished because of:
a. physical or mental disability;
b. duties as the custodian of an infant or young child; or
c. another compelling impediment to gainful employment.
If a spouse seeking maintenance is unable to support himself or herself through appropriate employment because the spouse has an incapacitating physical or mental disability or because the spouse is the Custodian of a child of the marriage of any age who has a physical or mental disability, the court may order maintenance for as long as the disability continues.
A court may not order maintenance that requires an obligor to pay monthly more than the lesser of:
1. $2,500; or
2. 20 percent of the spouse’s average monthly gross income.
The court shall set the amount that an obligor is required to pay in a maintenance order to provide for the minimum reasonable needs of the oblige, considering employment or property received in the dissolution of the marriage or otherwise owned by the oblige that contributes to the minimum reasonable needs of the oblige.
Department of Veterans Affairs service-connected disability compensation, social security benefits and disability benefits, and workers’ compensation benefits are excluded from maintenance.
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