Burdens of Proof

Appoint a Non-Parent as Sole Managing Conservator

  • “The findings necessary to appoint a nonparent as sole managing conservator need only be established by a preponderance of the evidence.” In re S.D.S., No 11-13-00250-CV (Feb. 6, 2014) (mem. op.) (citing Lewelling v. Lewelling, 796 S.W.2d 164, 167 (Tex. 1990)).
  • Preponderance of the evidence. In re D.C., No. 11-13-00197-CV (Tex. App. – Eastland Jan. 3, 2014) (mem. op.).

Division of Property

A party who challenges the division of property upon divorce “bears the burden of demonstrating from the evidence in the record that the trial court’s division was so unjust and unfair as to be an abuse of discretion.” Richardson v. Richardson, No. 08-12-00076-CV (Tex. App. – El Paso Feb. 5, 2014) (citing Chafino v. Chafino, 228 S.W.3d 467, 472-74 (Tex. App. – El Paso 2007, no pet.)).

Child’s Recorded Statement

For a child’s recorded statement to be admitted into evidence, “there must be a showing of competence at the time the testimony is given and a showing that an oath was given or some discussion had with the child about the issue of truthfulness.” Nichol v. Nichol, No. 07-12-00035-CV (Tex. App. – Amarillo Jan. 15, 2014) (mem. op.).

Failure or Refusal to Act on Motion

Must show that the motion was brought to the attention of the trial court, not just the clerk of court. In re Amaro, No. 14-13-01004-CV (Tex. App. – Houston [14th Dist.] Jan. 9, 2014, orig. proceeding).

Habeas Corpus

“In order to obtain relief by habeas corpus, the relator must establish that the underlying order is void because of a lack of jurisdiction or because the relator was deprived of liberty without due process of law.” In re Hernandez, No. 13-14-00025-CV (Tex. App. – Corpus Christi-Edinburg Jan. 14, 2014, orig. proceeding) (per curium) (mem. op.) (citing In re Turner, 177 S.W.3d 284, 288 (Tex. App. – Houston [1st Dist.] 2005, orig. proceeding); In re Butler, 45 S.W.3d 268, 270 (Tex. App. – Houston [1st Dist.] 2001, orig. proceeding).

Ineffective Assistance of Counsel

In a termination case, “to prevail on a claim of ineffective assistance of counsel, an appellant must show that trial counsel’s performance was deficient and that this deficiency prejudiced the defense.” The errors must have been “serious enough to deprive the appellant of a fair trial whose result is reliable.” In re N.L.T.  & In re M.T., Nos. 05-13-00692-CV & 05-13-00693-CV (Tex. App. – Dallas Jan. 15, 2014) (citing In re M.S., 115 S.W.3d 534 (Tex. 2003) (citing Strickland v. Washington, 466 U.S. 668 (1984)).

Jurisdiction

“In jurisdictional disputes arising from child custody proceedings, the relator need not demonstrate the inadequacy of an appellate remedy.” In re Walker, No. 01-13-00922-CV (Tex. App. – Houston [1st Dist.] Jan. 23, 2014, orig. proceeding) (citing In re Oates, 104 S.W.3d 571, 575 (Tex. App. – El Paso 2003, orig. proceeding)).

Mandamus

  • “Mandamus relief is proper to correct a clear abuse of discretion or to compel the performance of a ministerial duty, when the relator has no adequate remedy by appeal.” In re Amaro, No. 14-13-01004-CV (Tex. App. – Houston [14th Dist.] Jan. 9, 2014, orig. proceeding) (per curiam) (mem. op.) (citing In re Prudential Ins. Co. of Am., 148 S.W.3d 124, 135-36 (Tex. 2004, orig. proceeding); Walker v. Packer, 827 S.W.2d 833, 839-40 (Tex. 1992, orig. proceeding)).
  • A relator bears the burden to provide a court “with a sufficient record to establish the right to mandamus relief.” In re Hurt, No. 14-13-00994-CV (Tex. App. – Houston [14th Dist.] Feb. 11, 2014, orig. proceeding) (mem. op.) (citing Walker v. Packer, 827 S.W.2d 833 (Tex. 1992, orig. proceeding).

Modify a Final Order in a SAPCR

“Because Mother was seeking a modification of the 2007 final order – to have standard visitation with S.N.Z. – Mother bore the burden to establish the requirements of section 156.101 of the family code.” In re S.N.Z., No. 05-11-01728-CV (Tex. App. – Dallas Jan. 28, 2014).

Notice of Intent to Injure by Property Transfer During Divorce

A spouse seeking to void a transfer of community property by the other spouse during divorce proceedings has the burden of proving that the transferee lacked notice that the transferor intended to injury the other spouse’s rights by making the transfer. Henry v. Henry, No. 03-11-00253-CV (Tex. App. – Austin Apr. 18, 2014) (mem. op.) (citing Tex. Fam. Code § 6.707).

Reversible Error

“If the trial court abuses its discretion in a discovery ruling, the complaining party must still show harm on appeal to obtain a reversal.” In re E.G.S., No. 11-12-00288-CV (Tex. App. – Eastland Jan. 9, 2014) (mem. op.) (quoting Ford Motor Co. v. Castillo, 279 S.W.3d 656, 667 (Tex. 2009)).

Standing Under Texas Family Code Section 102.004(b)

“In a family law case, when a party is statutorily required to establish standing with ‘satisfactory proof,’ the applicable evidentiary standard is by a preponderance of the evidence.  In re D.R.T., No. 11-12-00059-CV (Tex. App. – Eastland Feb. 28, 2014) (mem. op.) (citing In re R.D.Y., 51 S.W.3d 314, 325 (Tex. App. – Houston [1st Dist.] 2001, pet. denied)).

Termination of Parental Rights

Termination of parental rights is subject to the clear and convincing standard of review. Clear and convincing evidence is “the measure or degree of proof that will produce in the mind of the trier of fact a firm belief or conviction as to the truth of the allegations sought to be established.” Tex. Fam. Code § 101.007; In re J.F.C., 96 S.W.3d 256 (Tex. 2002).

UCCJEA

A party who invokes a court’s jurisdiction under the UCCJEA “has the burden of alleging facts that establish that the trial court has jurisdiction under the UCCJEA.” In re Walker, No. 01-13-00922-CV (Tex. App. – Houston [1st Dist.] Jan. 23, 2014, orig. proceeding).

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