San Antonio Divorce Lawyer Blog

When is a Marriage Not a Marriage?

As a San Antonio, Texas divorce lawyer, I find that many clients don't realize that annulment and divorce are NOT the only ways to end a marriage.  There are a number of situations which can result in a "Void Marriage" in Texas, meaning that for one reason or another, the marriage was invalid. 

Whenever discussing the subject of void marriage, I also have to explain the difference between a "void marriage" and a "voidable" marriage.  The general idea is that a void marriage is invalid and can NEVER become valid under any circumstances. For instance, a marriage between two close relatives, such as brother and sister, mother and father, etc., is a void marriage.  Such a marriage is void for all purposes and can never become a valid marriage.

By contrast, a marriage entered into when one of  the parties to the marriage is already married to someone else (bigany) is void only until the a divorce or annulment is obtained from the first spouse.  For instance, let's say a man starts divorce proceedings against his wife, believes the divorce is final, and then remarries someone else.  Later, he discovers that the first divorce was never finalized.  This makes his second marriage is voidable (void for the time being), but it will become a valid marriage if he goes back and finalizes the original divorce.  The second marriage will become a valid marriage as of the date that the first marriage is dissolved.   In other words, either spouse can go to court and have the second marriage declared void as long as he or she does so before the first marriage is dissolved.  There is one important exception to this rule:  if the man and 2nd wife in our example are not living together and not holding themselves out as being married at the time the first divorce becomes final, then the second marriage does NOT become a valid marriage.  This can get tricky legally, and may still result in litigation just to get a court order that says the second marriage is void.

Annulment is another example of a "voidable" marriage.  There are number of situations which are grounds for having an annulment, but the marriage remains valid until someone files for an annulment.  In many cases, the circumstances which constitute grounds for an annulment may go away, at which point an annulment is no longer possible. For example, the most common grounds for annulment is "fraud in the inducement of the marriage."  If one party uses fraud to induce someone into a marriage, then the defrauded spouse can get the marriage annuled if he or she does not voluntarily live with the fraudulent spouse as soon as the fraud is discovered.  However, if the spouses continue to live with one another after the fraud is discovered, annulment is no longer possible, and the marriage may only be dissolved by divorce.

A related topic of void and voidable marriages is the issue of a "putative marriage."  Going back to my bigamy example, the second-marriage spouse typically is unaware of his or her spouse's previous marriage (which is not yet dissolved).  The second-marriage spouse, therefore, thinks he or she is validly married and behaves as such.  He or she is then called a "putative spouse." This creates a whole new set of problems, which I will discuss in another post.

Texas Child Custody Jurisdiction Issues

As a child custody attorney in San Antonio, Texas, I have many clients who either live out of state, or who are involved in child custody litigation with parties who live out of state. Whenever a party to child custody litigation resides in another state or country, "jurisdictional" issues often arise, and are often the source of great controversy and contention.

The term "jurisdiction" refers to the power of a court to hear a case and to issue orders to the parties involved.  The power of the court to listen a particular type of case, such as a child custody case, is called "subject mater jurisdiction."  The power of a court to order a particular person to do something is called "personal jurisdiction."  You can read about personal jurisdiction in a posting I wrote previously.  The subject of this suit is a certain type of subject matter jurisdiction involving parties and/or children who live in other states.

Child custody jurisdiction issues in Texas, and any other state for that matter, are governed by the body of law commonly referred to as the Uniform Child Custody Jurisdiction Enforcement Act. Virtually all states in the U.S. have adopted a version of the UCCJEA.  The original plan was for all states to adopt the same jurisdictional laws to eliminate conflicts between laws of different states.

Unfortunately, some states' version of the UCCJEA is different than that adopted by Texas.  Therefore, conflicts sometime arise between Texas law and the law of another state when both Texas and the other state try to claim jurisdiction over a case.

In a nutshell, subject matter jurisdiction in Texas child custody case is determined by the amount of time a child has spent in a particular state.  In an original custody proceeding, Texas can assume subject matter jurisdiction according to a hierarchal ladder of situations, the first and foremost of which is that the child must have lived in Texas for the last six months prior to filing the lawsuit (or since the child's birth, if the child is less than six months old).  When the child hasn't been in any state for the previous six months, other parts of the ladder apply.  Once Texas (or some other state), has determined that it has jurisdiction to hear a particular child custody case, then that state acquires "exclusive continuing jurisdiction" over the case, and no one can file a suit involving the custody or support of that child in another state unless the original court loses continuing exclusive jurisdiction over the case.

Child custody issues for grandparents and other non-parents in San Antonio, Bexar County, Texas

As a San Antonio, Bexar County, Texas child custody lawyer, I've been seeing a lot of child custody issues come up lately involving non-parents trying to get temporary or permanent custody of other people's children. 

Typically, a young mother and/or father, often with drug and alcohol abuse problems, leave their child(ren) with someone else.  Usually, the parent who does this is busy living a drug or alcohol abuse-induced lifestyle, with which raising a child generally interferes.  However, the 3rd party with whom the child was left (often a grandparent or other relative, but sometimes someone who has no blood relation to the child), sometimes finds it necessary to employ a child custody attorney when the biological parent shows up demanding the child.

In many cases, the parent never seeks to get the child back, but in a significant number of cases, one or both of biological parents wants to get their child back.  Sometimes, it is because the parent has truly straightened up his or her life.  In all too many cases, however, it is because the biological parent resents someone else raising the child.  As a child custody attorney in San Antonio, Texas (Bexar County), I am often consulted by biological parents trying to retrieve his or her child, and by 3rd parties who believe the child may come to harm if the biological parent regains possession of the child.

In the case of 3rd parties (non-parents) who are trying to keep possession of a child against the wishes of a biological parent, a number of issues generally arise.  Chief among those is the issue of "standing to sue."  This is a legal term of art which questions whether or not the non-party has a right to bring a legal action to gain temporary and/or permanent custody of a child.  Non-parents have the right to bring such a suit only under certain conditions. 

Usually, a non-parent in Texas may only file an original custody suit if the child has resided with the non-parent for more than six months.  However, a grandparent may file and maintain an original suit seeking custody of the child if the court is satisfied that the child's current living circumstances (with the biological parent) would significantly impair the child's physical health or emotional development, even if the child has not resided with the grandparents at all.  This statue is found in §102.004 of the Texas Family Code.  It is a very important statute, and one which I feel lets a number of children "fall through the cracks." 

For instance, consider the situation where the grandparents are either dead, unavailable, or unwilling to take possession of a child who has been left with another relative, and the biological parent demands the child back before the child has been with the other relative/non-parent for less than six months.  Texas law provides for no procedure for the non-parent to file an original suit seeking custody of the child, even if the biological parent is clearly a danger to the child.  In such circumstances, all the non-parent can do is call the police and the Department of Family and Protective Services (formerly Children's Protective Services, or CPS) if the biological parent shows up demanding possession of the child.  More often than not, the biological parent shows up with a police officer, so it is important for the non-parent to be able to tell the police that CPS has been notified, and to ask them to send a representative to the residence.

Unfortunately, CPS will usually decline to get involved unless the child is actually in the possession of the negligent or abusive parent, and will decline to take possession of the child unless they are certain the child is being neglected or abused.