Texas Family Law

  1. Introduction

    The following sections are included because it may often be the case that a victim of an online privacy invasion has recently divorced the perpetrator spouse, or is considering a divorce or possibly a separation. Although evidence of misconduct is not appropriate in a divorce proceeding, the publication of photographs/videos of a sexual nature may well be considered in child custody proceedings, and considerations of domestic violence are appropriate when determining spousal support.

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  2. Child Custody

    1. Introduction

      If the victim of the nonconsensual online publication of intimate photos is involved in a child custody dispute, he or she may use evidence of this type of misconduct to establish abuse or harassment by his or her former spouse or lover. When determining child custody, a Texas court’s primary consideration is to decide what is in the “best interest of the child.”

    2. Text of Statute(s)

      1. TEX. FAM. CODE § 153.001 (Public Policy)
        1. The public policy of this state is to:
      2. assure that children will have frequent and continuing contact with parents who have shown the ability to act in the best interest of the child;
      3. provide a safe, stable, and nonviolent environment for the child; and
      4. encourage parents to share in the rights and duties of raising their child after the parents have separated or dissolved their marriage.
        1. A court may not render an order that conditions the right of a conservator to possession of or access to a child on the payment of child support.
      5. TEX. FAM. CODE § 153.002 (Best interest of child)

        The best interest of the child shall always be the primary consideration of the court in determining the issues of conservatorship and possession of and access to the child.

      6. TEX. FAM. CODE § 153.004 (History of domestic violence)
        1. In determining whether to appoint a party as a sole or joint managing conservator, the court shall consider evidence of the intentional use of abusive physical force by a party against the party’s spouse, a parent of the child, or any person younger than 18 years of age committed within a two-year period preceding the filing of the suit or during the pendency of the suit.
        2. The court may not appoint joint managing conservators if credible evidence is presented of a history or pattern of past or present child neglect, or physical or sexual abuse by one parent directed against the other parent, a spouse, or a child, including a sexual assault in violation of Section 22.011 or 22.021, Penal Code, that results in the other parent becoming pregnant with a child. A history of sexual abuse includes a sexual assault that results in the other parent becoming pregnant with the child, regardless of the prior relationship of the parents. It is a rebuttable presumption that the appointment of a parent as the sole managing conservator of a child or as the conservator who has the exclusive right to determine the primary residence of a child is not in the best interest of the child if credible evidence is presented of a history or pattern of past or present child neglect, or physical or sexual abuse by that parent directed against the other parent, a spouse, or a child.
        3. The court shall consider the commission of family violence in determining whether to deny, restrict, or limit the possession of a child by a parent who is appointed as a possessory conservator.
        4. The court may not allow a parent to have access to a child for whom it is shown by a preponderance of the evidence that there is a history or pattern of committing family violence during the two years preceding the date of the filing of the suit and during pendency of the suit, unless the court:
          1. finds that awarding the parent access to the child would not endanger the child’s physical health or emotional welfare and would be in the best interest of the child; and
          2. renders a possession order that is designed to protect the safety and well-being of the child and any other person who has been a victim of family violence committed by the parent and that may include a requirement that:
        5. the periods of access be continuously supervised by an entity or person chosen by the court;
        6. the exchange or possession of the child occur in a protective setting;
        7. the parent abstain from the consumption of alcohol or a controlled substance, as defined by Chapter 481, Health and Safety Code, within 12 hours prior to or during the period of access to the child; or
        8. the parent attend and complete a battering intervention and prevention program as provided by Article 42.141, Code of Criminal Procedure, or, if such a program is not available, complete a course of treatment under Section 153.010.
        9. It is a rebuttable presumption that it is not in the best interest of a child for a parent to have unsupervised visitation with the child if credible evidence is presented of a history or pattern of the child if credible evidence is presented of a history or pattern of past or present child neglect or physical or sexual abuse by that parent directed against the other parent, a spouse, or a child.
        10. In determining under this section whether there is credible evidence of a history or pattern of past or present child neglect or physical or sexual abuse by a parent directed against the other parent, a spouse, or a child, the court shall consider whether a protective order was rendered under Chapter 85, Title 4, against the parent during the two-year period preceding the filing of the suit or during the pendency of the suit.
      7. TEX. FAM. CODE § 153.005 (Appointment of Sole or Joint Managing Conservator)
        1. In a suit, the court may appoint a sole managing conservator or may appoint joint managing conservators. If the parents are or will be separated, the court shall appoint at least one managing conservator.
        2. A managing conservator must be a parent a competent adult, an authorized agency, or a licensed child-placing agency.
      8. TEX. FAM. CODE § 153.006 (Appointment of Possessory Conservator)
        1. If a managing conservator is appointed, the court may appoint one or more possessory conservators.
        2. The court shall specify the rights and duties of a person appointed possessory conservator.
        3. The court shall specify and expressly state in the order the times and conditions for possession of or access to the child, unless a party shows good cause why specific orders would not be in the best interest of the child.
      9. TEX. FAM. CODE § 153.015 (Electronic Communication with Child by Conservator)
        1. In this section, “electronic communication” means any communication facilitated by the use of any wired or wireless technology via the Internet or any other electronic media. The term includes communication facilitated by the use of a telephone, electronic mail, instant messaging, videoconferencing, or webcam.
        2. If a conservator of a child requests the court to order periods of electronic communication with the child under this section, the court may award the conservator reasonable periods of electronic communication with the child to supplement the conservator’s periods of possession of the child. In determining whether to award electronic communication, the court shall consider:
          1. whether electronic communication is in the best interest of the child;
          2. whether equipment necessary to facilitate the electronic communication is reasonably available to all parties subject to the order; and
          3. any other factor the court considers appropriate.
        3. If a court awards a conservator periods of electronic communication with a child under this section, each conservator subject to the court’s order shall:
          1. provide the other conservator with the e-mail address and other electronic communication access information of the child;
          2. notify the other conservator of any change in the email address or other electronic communication access information not later than 24 hours after the date the change takes effect; and
          3. if necessary equipment is reasonably available, accommodate electronic communication with the child, with the same privacy, respect, and dignity accorded all other forms of access, at a reasonable time and for a reasonable duration subject to any limitation provided by the court in the court’s order.
        4. The court may not consider the availability of electronic communication as a factor in determining child support. The availability of electronic communication under this section is not intended as a substitute for physical possession of our access to the child where otherwise appropriate.
        5. In a suit in which the court’s order contains provisions related to a finding of family violence in the suit, including supervised visitation, the court may award periods of electronic communication under this section only if:
          1. the award and terms of the award are mutually agreed to by the parties; and
          2. the terms of the award:
        6. are printed in the court’s order in boldfaced capitalized type;
        7. include any specific restrictions relating to family violence or supervised visitation, as applicable, required by other law to be included in a possession or access order.
      10. TEX. FAM. CODE § 153.135 (Equal Possession not Required)

        Joint managing conservatorship does not require the award of equal or nearly equal periods of physical possession of and access to the child to each of the joint conservators.

    3. Cases

      Research is ongoing. There are no Texas cases that are factually relevant or analogous to WMC’s target situations at this time.

    4. Practice Pointers

      Nothing relevant at this time.

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  3. Divorce

    1. Introduction

      Evidence of misconduct may be considered in a divorce proceeding in Texas, so a WMC victim may try to bring in evidence regarding any actions by the defendant including, but not limited to, threats to publish private intimate images without the victim’s consent, and other improper behavior on the part of the victim’s spouse/former spouse.

    2. Text of Statute(s)

      1. TEX. FAM. CODE § 6.001 (Insupportability)

        On the petition of either party to a marriage, the court may grant a divorce without regard to fault if the marriage has become insupportable because of discord or conflict of personalities that destroys the legitimate ends of the marital relationship and prevents any reasonable expectation of reconciliation.

      2. TEX. FAM. CODE § 6.002 (Cruelty)

        The court may grant a divorce in favor of one spouse if the other spouse is guilty of cruel treatment toward the complaining spouse of a nature that renders further living together insupportable.

      3. TEX. FAM. CODE § 6.003 (Adultery)

        The court may grant a divorce in favor of one spouse if the other spouse has committed adultery.

      4. TEX. FAM. CODE § 6.004 (Conviction of Felony)
        1. The court may grant a divorce in favor of one spouse if during the marriage the other spouse:
          1. has been convicted of a felony;
          2. has been imprisoned for at least one year in the Texas Department of Criminal Justice, a federal penitentiary or the penitentiary of another state; and
          3. has not been pardoned.
        2. The court may not grant a divorce under this section against a spouse who was convicted on the testimony of the other spouse.
      5. TEX. FAM. CODE § 6.005 (Abandonment)

        The court may grant a divorce in favor of one spouse if the other spouse:

        1. left the complaining spouse with the intention of abandonment; and
        2. remained away for at least one year.
      6. TEX. FAM. CODE § 6.006 (Living Apart)

        The court may grant a divorce in favor of either spouse if the spouses have lived apart without cohabitation for at least three years.

      7. TEX. FAM. CODE § 6.007 (Confinement in Mental Hospital)

        The court may grant a divorce in favor of one spouse if at the time the suit is filed:

        1. the other spouse has been confined in a state mental hospital or private mental hospital, as defined in Section 571.003, Health and Safety Code, in this state or another state for at least three years; and
        2. it appears that the hospitalized spouse’s mental disorder is of such a degree and nature that adjustment is unlikely or that, if adjustment occurs, a relapse is probable.
      8. TEX. FAM. CODE § 6.008 (Defenses)
        1. The defenses to a suit for divorce of recrimination and adultery are abolished.
        2. Condonation is a defense to a suit for divorce only if the court finds that there is a reasonable expectation of reconciliation.
      9. TEX. FAM. CODE § 6.301 (General Residency Rule for Divorce Suit)

        A suit for divorce may not be maintained in this state unless at the time the suit is filed either the petitioner or the respondent has been:

        1. a domiciliary of this state for the preceding six-month period; and
        2. a resident of the county in which the suit is filed for the preceding 90-day period.
      10. TEX. FAM. CODE § 6.305 (Acquiring Jurisdiction over Nonresident)
        1. If the petitioner in a suit for dissolution of a marriage is a resident or a domiciliary of this state at the time the suit for dissolution is filed, the court may exercise personal jurisdiction over the respondent or over the respondent’s personal representative although the respondent is not a resident of this state if:
          1. this state is the last marital residence of the petitioner and the respondent and the suit is filed before the second anniversary of the date on which marital residence ended; or
          2. there is any basis consistent with the constitutions of this state and the United States for the exercise of the personal jurisdiction.
        2. A court acquiring jurisdiction under this section also acquires jurisdiction over the respondent in a suit affecting the parent-child relationship.
      11. TEX. FAM. CODE § 6.306 (Jurisdiction to Annul Marriage)
        1. A suit for annulment of a marriage may be maintained in this state only if the parties were married in this state or if either party is domiciled in this state.
        2. A suit for annulment is a suit in rem, affecting the status of the parties to the marriage.
      12. TEX. FAM. CODE § 6.307 (Jurisdiction to Declare Marriage Void)
        1. Either party to a marriage made void by this chapter may sue to have the marriage declared void, or the court may declare the marriage void in a collateral proceeding.
        2. The court may declare a marriage void only if:
          1. the purported marriage was contracted in this state; or
          2. either party is domiciled in this state.
        3. A suit to have a marriage declared void is a suit in rem, affecting the status of the parties to the purported marriage.
      13. TEX. FAM. CODE § 6.308 (Exercising Partial Jurisdiction)
        1. A court in which a suit for dissolution of a marriage is filed may exercise its jurisdiction over those portions of the suit for which it has authority.
        2. The court’s authority to resolve the issues in controversy between the parties may be restricted because the court lacks:
          1. the required jurisdiction under Chapter 152; or
          2. the required jurisdiction under Chapter 159.
      14. TEX. FAM. CODE § 6.405 (Protective Order)
        1. The petition in a suit for dissolution of a marriage must state whether a protective order under Title 4 is in effect or if an application for a protective order is pending with regard to the parties to the suit.
        2. The petitioner shall attach to the petition a copy of each protective order issued under Title 4 in which one of the parties to the suit was the applicant and the other party was the respondent without regard to the date of the order. If a copy of the protective order is not available at the time of filing, the petition must state that a copy of the order will be filed with the court before any hearing.
    3. Cases
      1. Twyman v. Twyman, 855 S.W.2d 619 (Tex. 1993)
        • Procedural Posture: Appeal to consider whether a claim of IIED can be brought in the context of a divorce proceeding.
        • Law: IIED; NIED; divorce
        • Facts: Plaintiff Mrs. Twyman filed suit for divorce and for NIED, alleging that her ex-husband had intentionally and cruelly attempted to engage her in “deviate sexual acts.” Following a bench trial, the court rendered judgment dissolving the marriage, dividing the marital estate, awarding conservatorship of the children to the plaintiff, ordering the defendant to pay child support, and awarding the plaintiff $15,000 plus interest for her claim of emotional distress. Defendant appealed the portion of the judgment based on emotional distress, claiming that interspousal tort immunity precluded his wife’s recovery for NIED. The court of appeals affirmed, holding that plaintiff could recover for her ex-husband’s NIED. While the case was pending, the Texas Supreme Court refused to adopt the tort of NIED.1 Accordingly, the court could not affirm. However, the court then considered affirmance on alternative grounds, querying whether plaintiff’s allegation of a general claim for emotional harm was broad enough to encompass a claim for IIED, and whether the trial court’s judgment may be sustained on that legal theory.
        • Outcome: The court adopted the tort of IIED, and held that such a cause of action may be brought in the context of a divorce proceeding.2 The court noted however, that in this case, plaintiff could not recover based on the findings of fact made by the trial court given that she had pled NIED. Accordingly, the court reversed the court of appeals’ decision and remanded for a new trial based on its determination.3
        • Special Notes: The court noted that “[w]hen a tort action is tried with the divorce. . . it is imperative that the court avoid awarding a double recovery. . . [A] spouse should not be allowed to recover tort damages and a disproportionate division of the community estate based on the same conduct. . . the fact finder should consider the damages awarded in the tort action when dividing the parties’ property.”4 One justice issued a separate opinion concurring and dissenting in part, opining that he did not believe that the Court should extend the tort of IIED to divorce because “[o]f all the courts which have endorsed the general proposition [that some IIED should be actionable], only two have ever applied it to allow an action for intentional or reckless infliction of emotional distress between spouses, and two have refused to do so. To the extent we should be guided by the decisions of other courts, they counsel against the Court’s holding in this case. . . A new cause of action . . . should not be adopted simply because it is not as ill advised as other actions which can be imagined.”5
      2. Karenev v. State, No. 2-05-425-CR, 2009 WL 3078825 (Tex. Ct. App. Sept. 24, 2009)
        • Procedural Posture: Defendant appealed from his conviction for harassment arising from sending his ex-wife emails in the context of the parties’ divorce.
        • Law: TEX. PENAL CODE § 42.07.
        • Facts: The parties, Nikolai and Elena Karenev were divorcing. Elena testified that after Nikolai moved out, he began leaving between ten and twenty voice mail messages per day threatening her safety and her professional reputation. He also sent her five emails in the course of their divorce proceedings insulting her and threatening her in Bulgarian. The jury found him guilty of harassment, and he appealed.
        • Outcome: The court affirmed the conviction for harassment finding that the jury could reasonably have found that the defendant intended to annoy the plaintiff when he sent the emails. The emails were contentious and angry.6
        • Special Notes: The court noted that “[i]t is not sufficient that the evidence show that Elena felt harassed, annoyed, alarmed, abused, tormented or embarrassed when she received the repeated emails; the evidence must also show beyond a reasonable doubt that Appellant sent repeated emails with the specific intent to harass, annoy, alarm, abuse, torment or embarrass” Elena.7
      3. Langston v. Langston, No. 4:11cv521, 2011 WL 4007338 (E.D. Tex. Aug. 31, 2011)
        • Procedural Posture: Plaintiff sought a preliminary injunction in the context of a divorce hearing to prevent her estranged husband from accessing her personal emails and journals without her consent by using a keylogger program8 on their computer.
        • Law: Invasion of privacy (intrusion)
        • Facts: Plaintiff and her husband were going through a divorce. According to plaintiff, her husband admitted to using a keylogger program to access her personal journals and emails without her consent to use against her during the divorce proceeding. She sought a preliminary injunction to prevent him from continuing to access her personal information, and to bar him from using the information to his advantage in their divorce proceeding.
        • Outcome: The parties agreed to the form and substance of the preliminary injunction, which the court then granted. The court enjoined the husband from: “(a) further obtaining Plaintiff’s oral, wire, or electronic communications; (b) accessing plaintiff’s computers cell phones and computer accessories; (c) accessing plaintiff’s personal information and/or communications, in any format from Plaintiff’s internet service provider, electronic mail (e-mail) account providers, cell phone service provider, instant messaging services, and any other password-protected websites; (d) disseminating, sharing, copying, downloading, recording, or otherwise duplicating any information, files, records, recordings, video, photographs, images, or any other data compilation in any format, which contains any of Plaintiff’s communications, writings, thoughts, images, or personal information; (e) any use of any materials specified in (c) and (d) above or the contents of those materials, except as authorized by a court of competent jurisdiction; and (f) any destruction, alteration, manipulation, or deletion of material specified in (d) above.”9
        • Special Notes: Nothing relevant.
    4. Practice Pointers Nothing relevant at this time.

    1. Id. at 621 (citing Boyles II, 855 S.W.2d at 593 (refusing to adopt the tort of NIED)). 

    2. Id. at 624. 

    3. Id. (“[T]his court has broad discretion to remand for a new trial in the interest of justice when it appears that a case proceeded under the wrong legal theory, and when it appears that the facts when developed on retrial may support recovery on alternative theory. When as here, a party presents her case in reliance on precedent that has been recently overruled, remand is appropriate.”). 

    4. Id. at 625. 

    5. Id. at 629 (Phillips, J., concurring in part and dissenting in part). 

    6. Karenev v. State, No. 2-05-425-CR, 2009 WL 3078825, at *4 (Tex. Ct. App. Sept. 24, 2009). 

    7. Id. at *2. 

    8. Keystroke logging or “keylogging,” is the action of logging the keys struck on a keyboard, typically covertly, so that the person using the keyboard is not aware his or her actions are being monitored. There are numerous methods ranging from hardware and software-based approaches to acoustic analysis. See “Keystroke Logging,” Wikipedia, available at http://en.wikipedia.org/wiki/Keystroke_logging (last visited Sept. 17, 2013). 

    9. Langston v. Langston, No. 4:11cv521, 2011 WL 4007338, at *1-2 (E.D. Tex. Aug. 31, 2011). 

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