A common question asked by clients is whether they can proceed with their child support and/or custody case separately from a divorce case. No. The case involving support or possession must be joined with the divorce case. In most cases the client has already gone thru the Texas Attorney General’s Office and has an order for possession and child support. In a divorce case, the order dealing with the possession and support of the child has to be joined with the divorce case.
Under section 6.407 of the Texas Family Code, the suit affecting parent-child relationship must be transferred to the divorce case. If a suit affecting the parent-child relationship is pending at the time the suit for dissolution of a marriage is filed, the suit affecting the parent-child relationship shall be transferred to the court in which the suit for dissolution of the marriage is filed. If the parties are parents of a child, and the child is under the continuing jurisdiction of another court, either party to the suit for dissolution of a marriage may move that court for transfer of the suit affecting the parent-child relationship to the court having jurisdiction of the suit for dissolution. The court with continuing jurisdiction shall transfer the proceeding. On the transfer of the proceedings, the court with jurisdiction of the suit for dissolution of a marriage shall consolidate the two causes of action. After transfer of a suit affecting the parent-child relationship, the court with jurisdiction of the suit for dissolution of a marriage has jurisdiction to render an order in the suit affecting the parent-child relationship.
Once the case involving the child is transferred into the divorce case, does the other parent have to be served with a citation? Yes, citation on the filing of an original petition in a suit for dissolution of a marriage, a divorce petition, shall be issued and served as in other civil cases. Citation may also be served on any other person who has or who may assert an interest in the suit for dissolution of the marriage.
What is I do not know the whereabouts of the other parent? Citation in a suit for dissolution of a marriage may be by publication as in other civil cases, except that notice shall be published one time only.
The notice shall be sufficient if given in substantially the following form: “STATE OF TEXAS To (name of person to be served with citation), and to all whom it may concern (if the name of any person to be served with citation is unknown), Respondent(s), “You have been sued. You may employ an attorney. If you or your attorney do not file a written answer with the clerk who issued this citation by 10 a.m. on the Monday next following the expiration of 20 days after you were served this citation and petition, a default judgment may be taken against you. The petition of __________, Petitioner, was filed in the Court of __________ County, Texas, on the ______ day of __________, against __________, Respondent(s), numbered ______, and entitled ‘In the Matter of Marriage of __________ and __________. The suit requests __________ (statement of relief sought).’ “The Court has authority in this suit to enter any judgment or decree dissolving the marriage and providing for the division of property that will be binding on you. “Issued and given under my hand and seal of said Court at __________, Texas, this the ______ day of __________, ______. “____________________________ Clerk of the __________ Court of ____________ County, Texas By _______, Deputy.”
What is no child is involved in my divorce case? If the citation is for a suit in which a parent-child relationship does not exist, service by publication may be completed by posting the citation at the courthouse door for seven days in the county in which the suit is filed. If the petitioner or the petitioner’s attorney of record makes an oath that no child presently under 18 years of age was born or adopted by the spouses and that no appreciable amount of property was accumulated by the spouses during the marriage, the court may dispense with the appointment of an attorney ad litem. In a case in which citation was by publication, a statement of the evidence, approved and signed by the judge, shall be filed with the papers of the suit as a part of the record.
Citation by publication is available in a divorce suit as in other civil cases. However, the procedure is substantially different from that set forth in other civil cases. A party filing for divorce with a request for citation by publication should consult with a family law attorney to assist in the process.