Subject-Matter Jurisdiction in Texas Custody Case


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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. . .”

Appeals Court Affirms Trial Court

The appeals court found the trial court was correct in determining it did not have subject-matter jurisdiction over the initial custody determination. A child’s home state is the state where the child lived with either a parent or person acting in that role for at least six consecutive months immediately before the custody proceeding commences. Tex. Fam. Code § 152.102(7). A foreign country is considered a U. S. state for purposes of the Uniform Child Custody Jurisdiction and Enforcement Act (“UCCJEA”), codified in Chapter 152 of the Texas Family Code. Tex. Fam. Code § 152.105.

The father admitted the child lived in Japan with her mother for the six months immediately before he filed the original divorce petition.  Nothing in the record indicated Japan declined jurisdiction.  Thus, the child’s home state was Japan.  The father failed to show the Texas trial court had subject-matter jurisdiction.

The father also argued the mother invoked the trial court’s jurisdiction by participating in its hearings and requesting relief.  He argued that the mother asked for the dismissal only when she did not agree with the court’s decision. The appeals court noted the father was confusing subject-matter jurisdiction with personal jurisdiction.  Subject-matter jurisdiction cannot be “invoked” through a parent’s actions, waived, or consented to.  Nothing the mother did could invoke subject-matter jurisdiction in a court that did not have it under the statute.

The appeals court affirmed the trial court’s order.

International Jurisdiction is Incredibly Complex – Call the Astute Attorneys at McClure Law Group Today

International divorces can be complex, especially when there are children involved. Because jurisdiction can be affected by where the child lived in the six months before the commencement of the proceeding, when the case is filed can be determinative in whether Texas has jurisdiction.  If your child may be moved out of the country or even out of Texas, you should seek the guidance of a skilled Texas custody attorney right away.  Set up a consultation with McClure Law Group at 214.692.8200.


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