Texas Court Cannot Consider Extrinsic Evidence in Collateral Attack on Custody Jurisdiction

The Uniform Child Custody Jurisdiction and Enforcement Act (“UCCJEA”), codified in Chapter 152 of the Texas Family Code addresses how to determine jurisdiction in custody matters involving more than one state.  Generally, a Texas trial court that made a custody determination consistent with § 152.201 or 152.203 retains continuing jurisdiction until a court makes certain determinations regarding a lack of significant connection to the state or residence.  Tex. Fam. Code § 152.202.

In a recent case, a mother appealed following a modification, arguing the trial court had not acquired custody jurisdiction in the original divorce case because Colorado had subject-matter jurisdiction over the children pursuant to the UCCJEA.

Procedural History

According to the appeals court’s opinion, the trial court entered an agreed final divorce decree in 2017 that named the parents joint managing conservators of their two children.  The mother was awarded the exclusive right to designate the children’s primary residence until they turned twelve, with no geographic limitations.

The father petitioned for modification in 2018, and the court signed an agreed order naming both parents joint managing conservators and awarding the mother the exclusive right to designate the children’s primary residence, but added a geographic restriction of Texas or Colorado.

The father petitioned for another modification in 2021. A jury found the father should have the exclusive right to designate the primary residence of the children in either Texas or Colorado.

The mother moved to vacate all of the orders regarding the children and dismiss for lack of subject matter jurisdiction.  She argued the trial court did not have jurisdiction over custody in the divorce proceeding because Colorado had exclusive subject-matter jurisdiction.  Following a hearing, the trial court awarded the father the exclusive right to designate the children’s primary residence in Texas or Colorado.

The mother moved for a new trial and filed a supplemental motion to dismiss for lack of jurisdiction.  The trial court denied the motion to dismiss and the motion for a new trial was overruled by operation of law.

Extrinsic Evidence

The mother appealed, arguing the trial court erred in refusing to consider extrinsic evidence regarding whether the divorce decree was consistent with § 152.201.

A court generally may not consider extrinsic evidence in a collateral attack on a final judgment.  The mother argued this rule does not apply if the trial court did not “actually [consider] jurisdictional facts and [make] a jurisdictional determination.” She argued the trial court had not done so because there was no pleading or evidence showing Texas was the children’s home pursuant to the UCCJEA.

The appeals court concluded that the case cited by the mother did not support her argument.  The appeals court also rejected the mother’s apparent argument that extrinsic evidence is admissible if the pleadings and record were insufficient to show jurisdiction.  The appeals court noted that the Texas Supreme Court has indicated that there must be affirmative evidence of a jurisdictional defect before a court may consider extrinsic evidence in a collateral attack.

The mother also argued that she did not only collaterally attack the divorce decree in her motion to dismiss but that she also directly attacked the courts jurisdiction to render a modification order in 2022.  The appeals court rejected this argument as well, pointing out that the mother did not cite any authority to support the argument that extrinsic evidence may be used to support a collateral attack if it is joined with a jurisdictional challenge to the current proceeding.

The appeals court also rejected the mother’s argument that the trial court lacked subject matter jurisdiction over the modification suit because it did not have jurisdiction over the initial custody determination because this argument also relied on extrinsic evidence.

The appeals court affirmed the trial court’s modification order.

Contact an Experienced Texas Custody Attorney

If anyone involved in your custody case lives, has recently lived in, or plans to move to another state, a skilled Texas family law attorney can advise you regarding jurisdiction and other issues that may arise.  Contact McClure Law Group at 214.692.8200.


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