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A trial court must have subject-matter jurisdiction over a matter to hear case.  Subject-matter jurisdiction in a Texas child custody case is governed by Chapter 152 of the Texas Family Code. Pursuant to Tex. Fam. Code § 152.201(a), a court only has subject-matter jurisdiction to make an initial custody determination if Texas is the child’s home state, if Texas was the child’s home state during the six months immediately before commencement of the proceeding, if another state’s courts does not have jurisdiction as a home state, or if the child’s home state court has declined jurisdiction.  Subject-matter jurisdiction can be raised at any time, and the parties cannot waive it.

Mother Challenges Jurisdiction

A mother recently challenged the trial court’s jurisdiction after it issued temporary custody orders.  According to the appeals court’s opinion, the father petitioned for divorce and requested a temporary custody order.  The wife filed a counterpetition and asked for a custody determination.  After the trial court entered temporary custody orders, however, the mother alleged it did not have jurisdiction over the custody case and asked the court to dismiss the temporary orders and pending custody suit. The parents agreed to the temporary orders at the hearing.  The mother subsequently moved to dismiss the custody case, alleging the court did not have subject-matter jurisdiction over the custody matter.  After the hearing, the trial court found the child had never lived in Texas and had lived in Japan for the six months before the father filed his petition. The court concluded Chapter 152 of the Texas Family Code governed the subject-matter jurisdiction of the custody matter. The court also found the child’s “home state” under Tex. Fam. Code § 152.105(a) was not Texas, but Japan. The trial court determined it did not have subject-matter jurisdiction to make an initial custody determination pursuant to Tex. Fam. Code § 152.201 and that it could not acquire it by consent of the parties.

The father appealed. He argued the Texas Family code does not invoke “true” subject-matter jurisdiction or deprive the court of jurisdiction over custody issues. The appeals court disagreed, however, noting that Tex. Fam. Code § 152.201 “invokes or relinquishes subject-matter jurisdiction in initial child custody matters. . .”

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iStock-1125625723-300x200A custody determination issued in another state or country can be registered in Texas.  To do so, the party must send a letter requesting registration to the Texas court, along with two copies of the determination, one of them certified, a sworn statement that, to the best of the requester’s knowledge and belief, the order has not been modified, and their name and address and the name and address of any parent or person acting as a parent who has been awarded custody or visitation under the order.  Tex. Fam. Code § 152.305(a). The Texas court then files the determination as a foreign judgment. The court must also give notice to the person seeking the registration and any parent or person acting as a parent who was awarded custody or visitation in the determination and provide them with an opportunity to contest the registration. If a person wants to contest the validity of the registered order, they must request a hearing within 20 days of being served the notice.  The court must confirm the registered order unless the person contesting it establishes that the issuing court did not have jurisdiction, that the determination was vacated, stayed, or modified, or that they did not receive required notice in the proceedings before the court that issued the order. Tex. Fam. Code § 152.305.

Mother’s Request for Registration of Custody Determination Denied

A mother recently challenged a court’s denial of her request for registration.  She had filed a “Registration of Child Custody Determination” to register an order from New York. The New York order provided that the parties would share joint custody of the child and that the child would live with the mother.

The father filed a timely objection to the registration. He argued there were proceedings for enforcement pending in New York.  He alleged that the New York court had recessed to let the mother get an attorney and rescheduled on the same day the wife sought to register the order in Texas.  He argued that registering the decree in Texas would make it enforceable and subject to modification in Texas, while the New York court still had and was exercising continuing jurisdiction.

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iStock-182358076Sometimes one or both parents move after a custody order is issued.  When parents move, they often want to modify custody and visitation.  However, if both parents have moved out of state, issues of jurisdiction may arise.  In a recent case, a father sought a Texas custody modification of a North Carolina custody order.

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iStock-1183307633Texas family law has a strong presumption that it is in the child’s best interest to give custody to a parent. Generally, the court must appoint sole managing conservatorship to the parent instead of a non-parent unless it finds doing so would not be in the child’s best interest due to significant impairment of the child’s emotional development or physical health. Tex. Fam. Code § 153.131(a). What if the parent lives in another country? A Texas appeals court recently considered this issue.

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Our society is rapidly changing—from technological advances, to medicinal breakthroughs, to the meteoric ascension of the multinational corporation, individuals and communities are forced to adapt to our culture’s fast-paced global expansion.  While there are certainly many factors that have contributed to these changes, our ability to communicate instantly across thousands of miles and travel thousands of miles in a matter of hours has created a society less focused on the proverbial “home roots.”

When parties finalize their divorce or have an order issued relating to their children, what happens when one or both parents have their home roots pulled up by out-of-state job transfers, family issues that require relocation, or new opportunities that send one parent across state lines?  Is the order issued in the first state enforceable by the parent who has moved to a different state?  Can the traveling parent modify the prior order in another state, or are they stuck litigating in the courts of the state that issued the original order?  What if both parents and the child no longer reside in the state that issued the original order?

The Uniform Child Custody Jurisdiction and Enforcement Act was crafted to provide answers to these questions. Continue Reading ›

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