Modification & Enforcement Legal Terminology

• Access: Visitation time periods with a child; can be restricted, supervised, or unsupervised
• Affidavit: A sworn, voluntary statement
• Agreement: A mutual understanding between two or more parties regarding each person agreed action to be performed in the past or future
• Amicus attorney: An attorney appointed by the court to represent the child’s best interest and to assist the court as a non-adversary attorney to the case
• Answer: A respondent’s first pleading in response to petitioner’s allegations; if no answer is filed, the petitioner can obtain a default judgment
• Appeal: Proceeding to challenge a final decision made by a trial court; the case is delegated to a higher authority to determine if the trial court abused their legal discretion; a decision may be reversed on appeal
• Arbitration: A form of alternative dispute resolution – avoids the courtroom and the expensive cost associated with settling a case at trial; involves a neutral third party to help reach an agreement that is binding on all parties involved
• Arrearages: Unpaid portions of child support payments from past periods; can be enforced by entering a judgment for the overdue amount
• Attorney ad litem: Can be appointed by the court in most SAPCR cases; represents the child’s actual objectives and determines if the child understands the nature of circumstances during a case
• Best interest of the child test: The best interest of the child is the controlling factor in almost every circumstance arising in family law; the best interest of the child takes into account what is best for the child’s physical and emotional development and welfare
• Child abuse: Any harm to the physical or mental health or welfare of a child adversely affected by abuse or neglect
• Child support guidelines: Statutory guidelines that are presumed to be in the best interest of the child; sets out a percentage taken from the obligor’s net resources to be paid for the support of a child
• Child support guidelines applied to multiple families: Child support guidelines are adjusted to take into account the multi-family situation; an example of a multi-family situation would be where a father has two children from two different mothers and have support obligations for both children
• Child support lien: If your obligation to pay child support has become overdue, a statutory lien goes into effect for the amount of overdue support; lien attaches to all real property except for a homestead property; may be disputed by filing an affidavit with contradicting evidence
• Clear and convincing evidence: Evidentiary standard that requires the thing to be proved is highly probable or reasonably certain; this evidentiary standard is a lower burden than “beyond a reasonable doubt” which is used in criminal cases
• Collaborative Family Law Act: A form of alternative dispute resolution; Act established in 2011 to encourage peaceful methods of resolving disputes; collaborative law settlement can involve several neutral parties working with the parties and their lawyers to achieve an agreement
• Contempt: Enforcement method for custody, child support, and spousal maintenance; when a party is in violation of a court order they may be found in contempt which is punishable by fine, jail time, or both
• Continuing, exclusive jurisdiction: Once a court renders order over matters related to child custody and child support , the court retains continuing exclusive jurisdiction; only that particular court has jurisdiction over the matter until it is determined that continuing exclusive jurisdiction has been lost because the child no longer has a parent residing in the state or substantial contacts related to the care and control of the child
• Default: When served with court documents, you must legally file an answer; failure to do so can result in a default judgment, which will likely be unfavorable for your circumstances
• Discovery: The formal process of information gathering and sharing between the parties of a case
• Due process: Conduct implemented procedurally in order to protect your rights as an individual; due process includes right to notice and right to a fair hearing
• Enforcement: After a court has entered final order regarding a divorce or SAPCR, the provisions of the order are binding and enforceable on all parties involved; if a party is not in compliance with provisions of the order, an affected party may bring a suit to enforce the order
• Exclusive right to designate primary residence of child: A right typically designated to one parent in a SAPCR who is considered the “primary parent” for purposes of determining where the child will live; the primary parent is restricted to a specific geographic region when making the child’s residency determination
• Family violence: Any act that is intended to result in physical harm, sexual assault, or bodily injury, or threats that makes a family member fear imminent harm, sexual assault or bodily injury
• Filing: The act of providing the court with documents that are officially added to the case file
• Final orders: Final orders can be issued in the form of a Final Divorce Decree, Order in Suit Affecting the Parent-Child Relationship or other order that is intended by the parties and the court to be enforceable permanently
• Guardian ad litem: Can be appointed by the court in most SAPCR cases; represents the child’s best interest by interviewing the child and every person with knowledge about the child’s history and condition; must be appointed in a termination case
• Habeas corpus: A child custody enforcement mechanism when a possessory conservator has possession of a child in violation of a court order; writ of habeas corpus ask the court to demand the possessory conservator to surrender the child in compliance with the court order; possession of the child must be in violation of a court order to enforce custody by habeas corpus
• Home state jurisdiction: A state court will have jurisdiction to enter a order relating to a child if the state is the child’s home state or was the home state within the last six months; determined by what location the child reside with a parent
• Injunction: A court order prohibiting or ordering a specific action; injunctions provide relief from harm when there is no other adequate remedy at law; injunctions can be granted on a temporary or permanent basis
• Joint managing conservator: A conservator who shares rights, duties, and responsibilities with another conservator relating to a child; there is a legal presumption that appointing both parents as joint managing conservators is in the best interest of the child; appointing parents as joint managing conservators does not mean equal possession time
• Judgment: A court’s final decision regarding the rights and obligations of parties involved in a case; also called a ruling or order
• Writ of withholding: A writ of withholding is used to withhold income from a party in order to fulfill that party’s obligation to pay child support or spousal maintenance
• Jurisdiction: A court’s ability to hear a case; jurisdiction has two components – the person and the subject matter; a court must have proper jurisdiction over the parties involved and subject matter of a case
• Managing conservator: A type of conservator of a child that has specific rights and duties to manage the child’s physical and emotional development and well-being; conservator is custodial and has possession rights to the child; the other type of conservator is called a possessory conservator
• Mandamus: An order from a court commanding a lower court to act in a particular way to correct previous actions of inaction
• Mandatory withholding: The state of Texas requires mandatory withholding of income to pay child support obligations; can withhold money from the parent’s income, wages, and severance pay; withholding is not mandatory if good cause is shown
• Medical support: Every case involving children must establish medical support provisions for each child; medical support provisions cover issues relating to health care coverage expenses for the child and how the expenses will be covered after the pendency of the suit
• Modification: The legal route to changing a final order rendered by a court; can originate from a divorce or SAPCR; in order to modify an aspect of an order, there must be proper ground established
• Motion: A request to the court – either written or oral, asking the court make a specific ruling or to act in a certain manner
• Net resources: Net resources is the amount the child support guideline percentage is applied and used to calculate the amount of child support a parent will pay; net resources include all sources of income minus the standard deductions; net resources do not include return of principal or capital, accounts receivable, benefits paid in accordance with temporary assistance for needy families or any other federal program, or payments for foster care
• Obligee: A person to whom an obligation to act is owed- typically used to describe the person who has the right to receive child support payments from the obligor
• Obligor: A person who has undertaken an obligation to act – typically used to describe the person who has a obligation to pay child support
• Petitioner: A party that initiates a proceeding by filing a petition with a court
• Possession: Possession refers the ability to have actual custody of a child – not just visitation; Possession can be court ordered and enforceable through a variety of methods, including contempt
• Possessory conservator: The other type of conservator that can be appointed by the court; a possessory conservator is a noncustodial parent with visitation privileges
• Pro Se: A party to a suit who represents themselves in a law suit
• Respondent: The party who responds to a suit initiated by a Petitioner; sometimes referred to as defendant
• Retroactive child support: A court can order a parent to pay retroactive child support for past child costs
• Service: The formal delivery of official legal documents; also known as service of process; a person is entitled to notice under their due process right
• Sole managing conservator: A parent who is appointed as a sole managing conservator of a child has the exclusive right to make decisions related to the physical and emotional development and welfare of a child; most parents are appointed as joint managing conservators
• Spousal maintenance (alimony): A court may order payments to be made from one spouse to another if the spouse seeking spousal maintenance will lack sufficient property to provide for the spouse’s minimum reasonable needs; maintenance is presumed to be unwarranted, therefore the spouse seeking maintenance must meet the specific requirements to qualify for the support payment; payment is ordered in the final decree of divorce
• Standard possession order: Must be included in all SAPCR’s; the standard possession order is a set possession calendar mandated by the state; it is the default possession order when parents cannot agree on a possession schedule for the child; parties may deviate and have variations of the standard possession schedule
• Standing: A person’s ability to bring a suit in front of a court to make a legal claim or seek enforcement from a court
• State disbursement unit: The place where child support payments are submitted to be accounted for and transmitted to the obligee
• Subpoena: The method used to compel a person to appear either in front of a court or other form of tribunal – including depositions; failing to appear may result in a penalty
• Suit Affecting the Parent-Child Relationship: Abbreviated as SAPCR; a suit brought to determine the care, custody, and control of a child; SAPCR involves all issues that affect the parent-child relationship including child custody, rights and duties of parents, child support, visitation, and other related aspects; must be filed by a person with standing; A divorce case involving children must also file a SAPCR simultaneously with the original petition for divorce
• Temporary orders: Temporary orders can be obtained to govern property and children issues during the pendency of the divorce suit; custody, support, and provisions governing the temporary use of community property, can all be ordered via Temporary Orders