2015 Family Law Investigations Wes Bearden, Attorney & Investigator TALI 2015 Annual Conference
The Blackletter Law Understand that there are 5 titles to the Family Code Title 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 S uit Affecting the Parent-Child Relationship.
But… There is quite a bit of other law. S ee the outline. There is a huge amount of law that affects family cases. Divorce and S APCRs (S uit 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 Fut ure : 1. Behavior (Criminally, Civilly, Psychologically, S exually, Personality) 2. Economic S tanding (Businesses, S upport, Ability) 3. S ocial S tanding (Who are your friends, Relationships and Future) 4. Credibility 5. And then, unfortunately, we play Y atzee with it.
Where Can I Look at It?
Why S ampson'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 S an Antonio, Or any other place 5 miles from home.
Obergefell ET AL. v. Hodges, Direct or, Ohio Depart ment of Healt h, ET AL 135 S . Ct . 2584, 192 L. Ed. 2d 609, (U.S . 2015). Decided 5-4
IS S UES (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 S tate which does grant that right.
Due Process Clause of the Fourteenth Amendment … no S tate 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. S afley , 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 S tate 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 S hould 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. S tealing 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. S ociety 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 inj ury, 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
GUILTY!!! ADULTER Y!!!!
Is This Adultery
Community Property – His, hers and theirs. In the United S tates 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 ANS WER: Identical Twin!!! At least until recently.
S APCRs
Best Interests of Child BIC of your child ≠ BIC of mine
Why should this man not have custody?
The S ame Reason, This Man S houldn’ t
Conservatorship Joint Managing Conservatorship Sole Managing Conservatorship Possessory 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. Y ou 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 PRES S TES T S CALE S IDE 2 S IDE 1 a. Criminal Responsibility; WHAT YOU GET IN RETURN… 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.
PROTECTIVE ORDERS
PROTECTIVE ORDERS v. TROs What’s the difference? How are they enforced? Preventative Measures?
JUVENILE LAW IS S UES Juvenile Law Issues – Biggest issue for PIs is dealing with Juvenile witnesses. This is what Don S hawver looked like 50 years ago.
FEDERAL LAW AND INTERNATIONAL IS S UES – Indian Child Welfare Act Hague Convention
F AMIL Y LAW 2015 THE END BYE… BYE…
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