2015 Family Law Investigations

Wes Bearden, Attorney & Investigator

TALI 2015 Annual Conference

The Blackletter Law

Understand that there are 5 titles to the Family CodeTitle 1: The Marriage Relationship

Title 2: Child in Relation to the Family

Title 3: The Juvenile Justice Code

Title 4: Protective Orders and Family Violence

Title 5: The Parent-Child Relationship and the Suit Affecting the Parent-Child Relationship.

But… There is quite a bit of other law.

See the outline. There is a huge amount of law that affects family cases.

Divorce and SAPCRs (Suit Affecting the Parent Child Relationship) is the only lawsuit where we take who you are, who you were and who you might be into account. We include Past, Current and even Future:

1. Behavior (Criminally, Civilly, Psychologically, Sexually, Personality)

2. Economic Standing (Businesses, Support, Ability)

3. Social Standing (Who are your friends, Relationships and Future)

4. Credibility

5. And then, unfortunately, we play Yatzee with it.

Where Can I Look at It?

Why Sampson's?

Others…

And Others…

BUT, Get the Annotated…

Marriage – What is it??

Marriage – What is it???

2 Types of Marriages

1. Formal Marriage – Ceremonial Marriages

2. Informal Marriage – Common Law Marriages

MARRIAGE

What happens in Vegas…stays in Vegas. Or San Antonio, Or any other place 5 miles from home.

Obergefell ET AL.v.

Hodges, Director, Ohio Department of Health, ET AL

135 S. Ct. 2584, 192 L. Ed. 2d 609, (U.S. 2015).

Decided 5-4

ISSUES

(1)Whether the Fourteenth Amendment requires a state to license a marriage between two people of the same sex.

(2)Whether the Fourteenth Amendment requires a state to recognize a same-sex marriage license and performed in a State which does grant that right.

Due Process Clause of the Fourteenth Amendment

…no State shall “deprive any person of life, liberty or property, without due process of law.”

The Court opined that the right to marry is protected by the Constitution and reiterated in many contexts that the right to marry is fundamental under the Due Process Clause. Loving v. Virginia, 388 U.S. 1, 12 (1967)(invalidated bans on interracial unions). In Loving, the Court found that marriage is one of the vital personal rights essential to the orderly pursuit of happiness by free men.

Right to Marry Constitutional

The Court reaffirmed in Zablocki v. Redhail, which held that the right to marry was burdened by a law prohibiting a father who was behind on child support from marrying. 434 U.S. 374, 384 (1978).

The Court again applied this principle in Turner v. Safley, where it was held that the right to marry was abridged by regulations limiting the privilege of a prison inmate to marry. 482 U.S. 78, 95 (1987).

Therefore, The Court has reiterated over and again that the right to marry is fundamental under the Due Process Clause.

How Does the Court Find This.

The first premise is that the right to personal choice regarding marriage is inherent in the concept of individual autonomy.

A second principle is that the right to marry is fundamental because it supports a two-person union unlike any other in its importance to the committed individuals.

A third basis for protecting the right to marry is that it safeguards children and families and thus draws meaning from related rights of childrearing, procreation, and education.

Finally, The Court’s cases and Nation’s traditions make clear that marriage is a keystone of our social order. The institution has evolved in substantial ways over time; superseding rules related to parental consent, gender and race, once thought by many to be essential.

Issue 2

Whether the Fourteenth Amendment requires a state to recognize a same-sex marriage license and performed in a State which does grant that right.

Recognize me.

The Court found it clear that the recognition bans inflict substantial and continuing harm on the same-sex couples. Being married in one state but having that valid marriage denied in another one is “the most perplexing and distressing complication” in the law of domestic relations.

Dissent… Points to Consider

Should the Court have taken this issue from the people?

Whether same-sex marriage is a good idea should be of no concern to this Court. Under the constitution, Judges have power to say what the law is, not what is should be. Although policy arguments for extending marriage to same sex couples are compelling, the legal arguments are not. Stealing this issue from the people will, for many, cast a cloud over same-sex marriage, making a dramatic social change that much more difficult to accept

Dissent 2

What constitutes marriage and who decides what constitutes marriage?

The tradition union between a man and a woman is not coincidence, it is for procreation. Society has recognized that bond. History of marriage has changed but the core meaning of opposite-sex marriage has endured.

Civil Unions???

Dissent 3…

Do states retain the definition of marriage as a union of two people?

It offers no reason at all why the two-person element of the core definition of marriage may be preserved while the man-woman element may not. A leap from opposite-sex marriage to same-sex marriage is much greater than one from a two person union to plural unions, which have deep roots in some cultures around the world. If children suffer stigma from knowing their families are less by not being married, wouldn’t the same reasoning apply to a family of three or more persons raising children.

Why keep 2 people only????

Dissent…

Are petitioners after government entitlements, such as reduced inheritance taxes upon death of a spouse, compensation of a spouse dies as a result of a work-related injury, or lose of consortium damages in tort suits? Is this Liberty as the Constitution recognizes it?

OK, so they get married… What’s the big deal…

Look at the date…

Dissolution of Marriage

Fault v. No Fault

Adultery

Cruelty

Procedure

ADULTERY!!!!GUILTY!!!

Is This Adultery

Community Property – His, hers and theirs.

In the United States there are nine community property states: Arizona, California, Idaho, Louisiana, Nevada, New Mexico, Texas, Washington, and Wisconsin.

Why do we have this??????

No Alimony!!!!

Who does this???

Can you help????

BUT, HERE IS ALL YOU NEED TO HAVE….

Community Property Chart

Whose the Daddy?????

DNA ain’t all that.

Question: When can you test positive for a DNA Paternity Test and NOT be the father??????

Forensics IS Just a Tool

ANSWER: Identical Twin!!! At least until recently.

SAPCRs

Best Interests of Child

BIC of your child ≠ BIC of mine

Why should this man not have custody?

The Same Reason, This Man Shouldn’t

Conservatorship

Joint Managing ConservatorshipSole Managing ConservatorshipPossessory Conservatorship

Modification

One thing you need to know;

What are the standards and grounds to come back and get a new deal.

ENFORCEMENT

HOW DO YOU GET THE KID BACK….

TERMINATION.

You need to know the grounds for termination.

Evidence – Press Test

Evidence is always changing, how do we deal with new evidence where the courts are lagging behind.

EVIDENCE

SIDE 1

a. Criminal Responsibility;

b. Civil Responsibility;

c. Codified ethical responsibility;

d. Potential to defend to the opposing party and/or tribunal; AND

e. Potential to defend to the public.

SIDE 2

WHAT YOU GET IN RETURN…

PRESS TEST SCALE

PROTECTIVE ORDERS

PROTECTIVE ORDERS v. TROs

What’s the difference?

How are they enforced?

Preventative Measures?

JUVENILE LAW ISSUES

Juvenile Law Issues – Biggest issue for PIs is dealing with Juvenile witnesses.

This is what Don Shawverlooked like 50 years ago.

FEDERAL LAW AND INTERNATIONAL ISSUES –

Indian Child Welfare Act

Hague Convention

FAMILY LAW 2015

THE END

BYE… BYE…