[Guest post by DRJ]

Now that Texas has taken temporary custody of the FLDS children, I’m posting for future reference the Texas Family Law Foundation’s questions and answers about proceedings in Texas family law cases. Click on this link or view the questions and answers beneath the fold.

In addition, the text of the Texas Family Code is here.

— DRJ

From the Texas Family Law Foundation:

Frequently Asked Questions about Child Abuse and Neglect

“DISCLAIMER: This information is provided for the use of the media and the general public as a service of the Texas Family Law Foundation. The information is not a substitute for legal advice provided by a licensed attorney in any specific case. The Foundation expresses no opinion on a particular case.

1. What is the state agency that has removed the children?

Department of Family and Protective Services (DFPS)

2. What gave the Department the right to remove the children from the compound?

The Texas Family Code provides that DFPS can remove a child when it can show there is an immediate danger to the health or safety of a child or a child has been a victim of neglect or abuse and the continuation in the home would be contrary to a child’s welfare.

3. How can DFPS remove all of the children based upon the allegations of one child?

All children in a household may be removed if any child in that household has been a victim of neglect or abuse by a person in the household.

4. How does the Texas Family Code define a household?

A unit composed of persons living together in the same dwelling without regard to whether they are related to each other.

5. How does the Family Code define a “dwelling?”

The Texas Family Code does not define the term “dwelling?”

6. Why are there so many attorneys in San Angelo?

Each child must be represented by an attorney ad litem. In addition, each of the parents may also be represented by a lawyer. The interests of the State of Texas may be represented by the Attorney General’s office and local prosecutors.

7. What is an “attorney ad litem”?

An attorney ad litem is an lawyer who is appointed by a court to advocate the child’s wishes, even if those wishes are contrary to the State’s position or the parents. Therefore, there must be an attorney ad litem appointed to represent each of the 416 children.

8. How are attorneys ad litem chosen and compensated?

Normally, the court appoints a local attorney who is compensated by the county. In this case, attorneys from across Texas have volunteered to serve on an uncompensated basis.

9. How long can DFPS keep a child from the home before a hearing when both sides are present?

A hearing must be held within 14 days after the date the child was removed from the household.

10. What is the purpose of the hearing in San Angelo which began on April 17, 2008?

Each side is entitled to present evidence in support of its position. Each child must be returned to a parent unless the State can prove to the court — among other things — that there is a continuing danger to the child’s health or safety. The court must find that the danger is caused by an act or a failure to act by the parent and that the child remaining in the home is contrary to the welfare of the child.

11. Can the judge’s ruling be challenged in an appellate court?

The ruling can be challenged by a procedure referred to as “mandamus.” A mandamus is an order from a higher court to the lower court to correct a ruling if it is found that the lower court ignored existing law. The ruling may also be subject to challenge in a federal court on the basis of a denial of due process or a violation of other constitutional liberties.

12. If a children remains in State custody what is the next step?

At sixty days there is a status hearing at which the case is reviewed and a “service plan” developed. A service plan may state whether the goal is to return the child to the parents or whether the parents’ rights should be terminated and the child placed for adoption.

13. When is a final determination on custody of a child made?

A final decision must be made within 12 months following the date the child is removed the home. Upon request a six-month extension may be granted but the case will be dismissed by operation of law at 18 months.

14. How old do you have to be to enter into a legal marriage in the State of Texas?

A person must be 18 years old to get married; however as of September 1, 2005, a 16 or 17 year-old child can marry with the permission of their parent. Before September 1, 2005, a minor who was at least 14 could get married with the permission of a parent.

15. Who is the Texas Family Law Foundation?

Founded in 2001, the Texas Family Law Foundation’s mission is to improve the family law practice and jurisprudence of the state of Texas. The Foundation is a voluntary organization of lawyers, Judges, Associate Judges, legal assistants, court coordinators and other professionals who strive to improve the practice of family
law. We were founded as a means by which family lawyers could have a stronger voice in the Texas legislature.