A few changes Brian and Raya discuss include overdue child support and inheritance to electronic signatures, shifts in email address requirements, and even paternity suits without the biological father’s location. They also discuss how these changes can have real-life implications for individuals and families navigating the Texas family court system.
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Brian Walters:All right. Thanks for tuning in to For Better, Worse, or Divorce podcast where we provide you tips and insights on how to navigate divorce and child custody situations here in the state of Texas. I’m Brian Walters and I’m joined today by special guest star – one of the associate attorneys from our Houston office, Raya Jackson to discuss updates to the Texas Family Code. Welcome, Raya. We’re happy to have you join us. How are you doing today?
Raya Jackson:Good.
Brian Walters: Well, tell us a little bit about yourself. Where you grew up, where you went to school and law school, and all that type of good stuff.
Raya Jackson: I grew up here in Houston. I’m a native Houstonian, just not native and used to the heat still. I went to high school at Carnegie Vanguard, which I think is now located somewhere in downtown. I grew up in the rough side of Houston, what we call South Park. Southeast side. I went to law school at South Texas College of Law here in Houston, as well. I graduated prior to then from the University of Houston, the main campus, with a degree in political science.
Shortly after getting licensed, I knew that I wanted to continue to work in the field of family law. Which I’ve been lucky to work with you, Brian, since 2014 or so. And so, I started doing ad litem work, where I represent children and parents in CPS cases. I also do amicus work and attorney ad litem work where I find people in publication cases, but we also do divorces, custody, for everything under the sun. And so, I feel lucky to be here. I’ve spoken on different topics like this before through the State Bar, and so it’s interesting to see the law change so much, even since me getting licensed. It just constantly changes and so I think it was a great idea to get together and try to itemize as much as this as we can and kind of talk about the hot topics.
Brian Walters:Absolutely. So, just so everybody knows – Texas has a very unusual situation. Our legislature doesn’t sit around all the time and make laws. It only comes in regularly. It comes into session every other year for just about five or six months. It’s always an odd number of years because elections are an even number of years. Then they start sitting in January that follows right after that. So we had an election this past November, and then the new folks came in to the legislature in January and wrapped up at the end of May/early June. And so, this happens every two years. Changes are made to all kinds of laws, but we’re going to focus on the ones that change the family code and things related to divorce or child custody situations. And there’s quite a few of them.
I’ll say most of them are fairly minor, kind of tweaking things. Or maybe they apply to very rare situations, but there are several of them that are pretty wide-ranging, and I think will affect things. I think everybody’s wondering if they’ll ever drop some kind of 50/50 parenting presumption. That’s not the law. And/or some type of alimony rules here that are more than just kind of minor ones, and that isn’t happening either. So, no news on those fronts. There’s rumors every year they’re going to do a 50/50 or whatever and it never happens, or at least hasn’t happened yet. So, let’s just talk maybe in order of what you think are some of the more important ones. We’ll cover some of the bigger ones and if people need to know more information, they can always contact us later. We’ll give you some contact info at the end of this. It’s also in the show notes. So, tell me, Raya: What’s the first one that comes to mind that’s a change?
Raya Jackson: Well, the first one that comes to mind is going to be the changes to what we call “temporary orders.” Or that phase of a family law case where your case has been filed, someone’s been served or is about to be served. That is what we call a “temporary restraining order.” So there have been changes made as to the type of request that you can make. And just so everyone is clear, temporary restraining orders do expire. They have an expiration date. They only last 14 days after the judge actually signs those. We can extend those only one time for another period of 14 days.
I would say especially the Houston area typically does what we call “joint and mutual” temporary restraining orders, meaning they will apply to both parties. The short of it is, it requires parties to participate in the litigation in a manner that is not harassing to each other. The court tries to keep some friction down because I think they even realize that this is a very sensitive and emotional situation to go through.
I would say Harris County especially does not have standing orders that apply to every court, what they typically do is put things called temporary restraining orders in place. And so, the main change that they’ve made is that for the temporary restraining orders, after the filing of your lawsuit for the dissolution of a marriage, or a divorce, if a party requests it, or the court can just do it on its own motion – the court can grant a temporary restraining order that requires you to refrain from tracking or monitoring personal property or a motor vehicle that’s in possession of a party without the party’s effective consent.
That’s regardless of whose name the vehicle is in. For example, I know I’ve had clients say to me, “Well, it’s in my name. I should be able to track the location of this vehicle while we’re waiting on a hearing,” or so forth. But the court can put orders in place temporarily under this amendment. It states that you are not allowed to track the locations without the express consent, which I would say probably in writing. Probably very clear as to what you’ve agreed to. I wouldn’t tell my client, “It’s okay if you verbally agreed to do that.” I would try to get that memorialized in some type of text message, email, some type of written correspondence in regards to that.
And that also includes using a tracking application. Such as 360, or one that you add for your family. Or Find My iPhone, for example. People will track each other’s locations with that. Or physically following that party or causing another to physically follow that party. For example, in one of my amicus cases I had a party who his sister was following the wife and trying to catch the wife committing adultery. She would drive around in her truck and take photos and follow the wife around. So, in that example, going forward after this amendment, if the court signs a temporary restraining order prohibiting the parties from that behavior, that type of behavior will not be acceptable and in fact will be against the court’s order.
Brian Walters: So, two questions. What about a licensed private investigator? I assume that’s still okay, or what do you think about that, how it’s worded?
Raya Jackson: Well, I’ll say when this amendment first came out, that was my first question. “What about our PIs? Our private investigators?” They have licenses to do this. My first thought would be that the law would not immediately eliminate a complete area of employment for some people, right? If that was the case, all those people would be out of a job. So, I don’t believe that this applies to them. But I would say in the case that you are not sure, I would draft a proposed temporary restraining order that specifically states, (in the portion that says what is authorized behavior) that would not apply to a licensed private investigator for this purpose.
Brian Walters: I think here what the legislature’s trying to do is to, yes, stop stalking. Stop anything that’s kind of too nosy. But on the other hand, especially if children are involved, there’s going to be some interest in “Are the children being left alone?” so you might want to craft this very carefully. The other thing is when somebody’s on an iPhone or a family iCloud that’s kind of the grayer area I think now at this point. People don’t understand that’s going on and that they can track where you are, and they haven’t given their explicit permission. They haven’t forbidden it. And someone could just say, “I didn’t do anything. It just popped up on my iPad. It’s always showed me where my wife is at a given moment, and my kids.”
I guess that sounds like that’s probably illegal now. You’d probably have to go into your iCloud and turn that off. I would assume is how I’d read that, which is probably not something most people are going to do. Many of them are not aware of it. This could be a little bit of an issue, so I think we need to be real good about telling our clients about what to do and not to do in these situations. Because, by the way, this is normal. Right? Your wife suddenly leaves after you’ve been together 20 years and doesn’t tell you where she is, you’ve been suspicious about her, and a coworker and she’s got your kids with her. I mean, it’s not necessarily all creepy stuff. It’s kind of normal, I think. Some of it. So we just need to keep our clients from unwittingly violating a court order. All right. What’s another one that comes to mind as being important?
Raya Jackson:Well, before we move on, I want to also just touch on what you said about the children. I’ve had quite a bit of clients, or opposing party, put air tags or other tracking tiles or devices in their children’s personal belongings.
Brian Walters: And people do that as parents. They want to know where their kid is or if their kid got kidnapped, they want to know where they are. Right? I mean, that’s all totally normal, I think. That’s what it’s kind of invented for. But go ahead.
Raya Jackson:Right. So, I would still advise my client to be very careful about that because if the child is in possession of the other party, and you know that, then you could obviously be tracking the location of the other party, not just your child. And could be violating this portion of a temporary restraining order.
Brian Walters: We could have a whole podcast just on this issue. Let’s say you got a 15-year-old, and they have a phone, right? You gave them a phone. You’re going to want to know where your kid is and their phone is, and that’s going to show where mom is too if the kid’s over with mom. So that could be a violation of that, depending on how you look at it. I mean, I think there’s going to be some reasonableness, as there always is in a courtroom. So anyway, the next topic or next change that you thought was important.
Raya Jackson: Protective orders. That was a huge change.
Brian Walters: I agree. This one is quite the change.
Raya Jackson: Quite the doozy. I had a case out in Brazos County recently, prior to the change obviously, and we had to prove a couple of things. We had to prove that family violence had occurred, and we had to prove that it was likely to occur in the future. The court found that we had not met the burden to show that it was likely to occur in the future, and therefore that protective order application was denied.
I was able to clearly show, by the facts, that my client had been physically assaulted by her husband, that he had thrown things at her. He even admitted to doing so on the stand and under oath. But the parties had been separated for a long period of time. As far as time goes, there was quite a bit of time between the assault and when we were finally having the hearing. My client was from a different country and had recently come to the United States and was seeking some type of protection from her husband. But this new change changes everything in that sense because the prong of proving that family violence is likely to occur in the future has been eliminated.
Brian Walters:That’s really important. And since I’ve been practicing longer than you, I have even more of a history on it. I was in the Austin area when I guess protective orders really started to become a thing. I think they were in the law before, but they got expanded to who they would apply to and all of this. This was about 20 years ago or so. 25 years ago. At that time, I think the courts were really looking for a way to protect people.
I mean, it’s natural. Somebody’s in an abusive relationship, you want to protect them and so they started handing out the protective orders. I think they started to go a little overboard, at least in Austin back in the nineties and early two-thousands. They would hand them out and I think they kind of ignored that whole part of it about “likely to occur again” and they just assumed if it happened once, it’s likely to occur again. It got really out of hand and word got out around Austin and people would just come in and automatically file a protective order application, because they figured it’d be granted.
And reason that’s a problem is that if let’s say you have children together, you’re married or not, and if you have a protective order that goes into effect, that will affect the custody case. And it can be actually really a big deal in the custody case. So, I think in some cases, people were using them not just to protect themselves, but either solely or in addition to that – to gain an advantage in a custody case. The judges in Austin wised up to that after a few years and got to the point where they would pretty much deny them unless they felt exactly what you said that it was likely to occur again. And so, it kind of returned to normal.
This removes that. Let’s say a husband and wife had been married for 20 years and it had never been an issue. They get really mad one evening, they both do, and they both push each other. Or let’s just say one. Just say the husband pushes the wife. Let’s just say that. He doesn’t necessarily hurt her in any way. He apologizes afterwards and it had never happened before. “I promise it’ll never happen again,” et cetera. That allows the wife, as I read this, to get a protective order. And again, if they have kids, that’s going to cause all kinds of issues.
Now, maybe that’s justified, right? But it is a big change because I think almost any judge looking at that particular situation would say, “This is not likely to occur again,” and not grant the protective order. So, I think we’re going to see an explosion in the number of protective orders that are filed. I think that will affect custody cases, where they really haven’t had much effect on them until recently. So, I expect this to drive a lot of new litigation and a lot of additional litigation in cases that are highly contested. So, what are your thoughts about it? Anything you’d add to that?
Raya Jackson: I think that the scary part, and I use the word “scary” loosely. Before that, I believe that judges had more discretion to render a protective order, right? Because the court could say the “likely to occur in the future part” is fact-based. I think this new amendment essentially puts the court in a corner and requires it to find, just according to this, that family violence has occurred. And then, if the court finds that family violence has occurred the court shall render a protective order as provided by Section 85.022. Applying only to a person found to have committed family violence and may render a protective order, as provided by Section 85.021, applying to both parties that is in the best interest of the person protected by the order or member of the family or household of the person protected by the order.
So, I think that as far as that goes if you can truly show by the facts that this person has committed an act of family violence, then I think it’s time to have a very serious discussion with your client in regard to the possible consequences of that. Because I think the court’s hands are tied once that is shown by clear and convincing evidence that that’s occurred.
Brian Walters: What’s another one that comes to mind as being important to you?
Raya Jackson: I would say there have been changes with child support. Some of those changes are small. For example, when we all experienced the COVID pandemic, the court switched over and started to allow more electronic signatures on court documents. This amendment has made it where in suit affecting parent-child relationships, when there is a waiver of citation a person can electronically sign it now. It doesn’t necessarily have to be notarized as before. I would say it can become a problem when you can only have a notary.
In one of my cases the other parent was located in Mexico, in a remote area. They had access to the internet but did not have access to an actual notary. And so, it was a huge hurdle and expense to try to get the court to make any type of accommodations in regard to that person waiving citation. It’s not fun trying to get someone personally served in other countries, especially other countries of which you’re not familiar with or maybe in remote or rural areas.
In addition to that, we have changes to the child support arrears that say that they can no longer be reduced. So unpaid child support payments, that’s what we call the child support arrears. It means that there was a court order for you to pay child support and that you did not pay it, according to the order. So now those cannot be reduced, according to the updated Texas Family Code. That’s going to be in Section 157.263. So, regardless of who asked for a reduction, whether it’s the person who owes the child support or the recipient, the amount owed cannot be lowered.
So, even if you have an agreement that, for example, let’s say someone owes $50,000 in child support and they’ve reached an agreement with the other parent that, due to whatever reasons, they’ve agreed to: “Okay, I’ll take $25,000 to settle the case, and I will agree that you owe less than what you actually owe for the purposes of the court confirming those arrears.” It has now been changed where you cannot make that change and the child support cannot be lowered even by your agreement, even by the office of the Attorney General, who is usually the entity receiving such payments for the benefit of the child.
Brian Walters: Okay. Well, that’s good to know. To me, I mean, it’s a little odd that if you agreed, you couldn’t reduce it, but I guess that’s the rule.
Raya Jackson: Well, child support is supposed to be for the benefit of the child and we have adults making decisions for children who do not have any say so in regards to support that the child may be entitled to. So I think this is geared towards making sure that the child receives the benefit of which the child is entitled without the adults making decisions as far as that support goes. Obviously the support to a minor is paid to the parent, but it is for the benefit of the child.
Brian Walters:Absolutely. All right, I think we have time for one more quick one if there’s one other one that comes to mind as being important.
Raya Jackson:So, I actually gave a CLE on this one. This is a change in regards to paternity suits. There is a case actually out of the 245th in Harris County that came out in April of 2023 that was up on appeal. Essentially what occurred is that the presumed father’s rights were terminated without actually having to serve him with a copy of the citation.
So, a recent amendment to the Texas Family Code Section 160.604 (c) brought forth that important change. And under that, your paternity suits can now continue even when the presumed father, identified through DNA testing as not being the biological father, cannot be found. So, if you have a presumed father – and “presumed,” just so everyone knows: For example, if a child was born during a marriage and that legal presumption is then made that parent’s paternity is established in those means. Then, if he disappears and you cannot locate the father in that sense, then you can still proceed even if he cannot be found, and those rights can still be terminated. And that’s just an example of what you can do in a paternity suit.
But, for example, that’s what happened in the 245th is that that parent was still able to be terminated. Facts of that case were that a lady had children and was the victim of domestic violence and she conceived children during the marriage and then moved here to Harris County. Dad was back in another country, a Latin country, and she could not find his whereabouts other than she knew he was in a prison there. But she couldn’t identify which prison and where he was presently located. The court allowed her to proceed with the termination of his parental rights without service to him.
Brian Walters: Yeah. You can see it both ways, right? You can see that it’s really hard to find someone like that or even know if they’re alive. But on the other hand, it’s such a serious thing to have your rights terminated that it seems like you’d bend over backwards. Anyway, okay well I think that’s enough for today. Everyone should be aware there are some other changes. You can review them. You can contact us if you need to. We’ll be happy to help.
All right, that’s all we have for today. If you like what you’ve heard, do us a favor, leave a review. We appreciate all your feedback, especially when it helps us better this podcast. If you have any follow-up questions to this episode or would like to talk to one of us directly about your situation, reach out to us at podcast@waltersgilbreath.com or you can contact us directly through our website: Waltersgilbreath.com. I’m Brian Walters here with Raya Jackson. Thanks again for listening.
Raya Jackson:Thank you.
For information about the topics covered in today’s episode and more, you can visit our website at waltersgilbreath.com. Thanks for tuning in to today’s episode of For Better, Worse, or Divorce, where we post new episodes every first and third Wednesday. Do you have a topic you want discussed or a question for our hosts? Email us at podcast@waltersgilbreath.com. Thanks for listening. Until next time.
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