During these times of COVID-19 Pandemic, divorce attorneys are answering all types of questions regarding the family unit, divorce, and minors involved in a divorce. A not too common inquiry that we as divorce attorneys get in our family law practice is the question of removing the “disabilities of minority” of a minor. The reasons for removing the disabilities of minority of a minor range from simple reasons to reasons of financial benefits and matrimonial rights.
What does the Texas Family Code say about removing the disabilities of minority?
A minor may petition the court on his own to have the disabilities of minority removed for limited or general purposes if the minor is (1) a resident of this state; (2) 17 years of age, or at least 16 years of age and living separate and apart from the minor’s parents, managing conservator, or guardian; and (3) self-supporting and managing the minor’s own financial affairs.
A minor may file suit under this chapter in the minor’s own name. The minor need not be represented by next friend which is the standard and legal method of filing any legal action on behalf of a minor in Texas family law practice.
What is the form of the petition to file in court?
The petition for removal of disabilities of minority must state: (1) the name, age, and place of residence of the petitioner; (2) the name and place of residence of each living parent; (3) the name and place of residence of the guardian of the person and the guardian of the estate, if any; (4) the name and place of residence of the managing conservator, if any; (5) the reasons why removal would be in the best interest of the minor; and (6) the purposes for which removal is requested.
A parent of the petitioner must verify the petition, except that if a managing conservator or guardian of the person has been appointed, the petition must be verified by that person. If the person who is to verify the petition is unavailable or that person’s whereabouts are unknown, the amicus attorney or attorney ad litem shall verify the petition.
A divorce attorney or family law attorney should be consulted in these type of situations and represent the minor to avoid any complication with the applicable law in a family law court.
What county does the petition get filed in?
The petitioner shall file the petition in the county in which the petitioner resides.
How does the legal representation in court require?
In this type of proceeding, the court SHALL appoint an amicus attorney or attorney ad litem to represent the interest of the petitioner at the hearing.
What will the court order look like?
The court by order, or the Texas Supreme Court by rule or order, may remove the disabilities of minority of a minor, including any restriction imposed by Chapter 32, if the court or the Texas Supreme Court finds the removal to be in the best interest of the petitioner. The order or rule must state the limited or general purposes for which disabilities are removed.
What are the legal effects of removing a child’s disabilities?
Except for specific constitutional and statutory age requirements, a minor whose disabilities are removed for general purposes has the capacity of an adult, including the capacity to contract. Except as provided by federal law, all educational rights accorded to the parent of a student, including the right to make education decisions under Section 151.001(a)(10) of the Texas Family Code, transfer to the minor whose disabilities are removed for general purposes.
Is the minor allowed to transfer or register the Order from another state?
A nonresident minor who has had the disabilities of minority removed in the state of theminor’s residence may file a certified copy of the order removing disabilities in the deed records of any county in this state.
When a certified copy of the order of a court of another state or nation is filed, the minor has the capacity of an adult, except as provided by Section 31.006 of the Texas Family Code and by the terms of the order.
Does the attorney have to issue citation to parents or guardians?
A party to a suit under this chapter may waive the issuance or service of citation after the suit is filed by filing with the clerk of the court in which the suit is filed the waiver of the party acknowledging receipt of a copy of the filed petition.
The party executing the waiver may not sign the waiver using a digitized signature.
The waiver must contain the mailing address of the party executing the waiver.
The Notwithstanding Section 132.001, Civil Practice and Remedies Code, the waiver must be sworn before a notary public who is not an attorney in the suit or conform to the requirements for an unsworn declaration under Section 132.001, Civil Practice and Remedies Code. This subsection does not apply if the party executing the waiver is incarcerated.
The Texas Rules of Civil Procedure do not apply to a waiver executed under this section.
For purposes of this section involving the removal of disabilities, “digitized signature” has the meaning assigned by the Texas Family Code
Regardless of the reason for filing a case to remove the disabilities of a minor in the State of Texas, I recommended that a family law attorney be consulted to represent the interest of the person filing for the disability removal.