Texas Divorce Attorney Blog
A child custody determination from another state may be registered so it can be enforced in Texas pursuant to Tex. Fam. Code section 152.305. A request must be sent to the Texas state court with a sworn statement the order has not been modified. The requestor must also identify who was awarded custody or visitation in the determination. The court will give the people identified in the request notice so they can contest the registration. To successfully contest the registration, the contesting party must show the prior court lacked jurisdiction, the determination has been vacated, stayed or modified, or they were not given proper notice before the court issued the determination order. Tex. Fam. Code 152.305(d). The grandparents of two children recently appealed a court’s denial of their request to register a foreign child custody determination containing their visitation rights.
After the parents divorced in Utah in 2016, the maternal grandparents were given grandparent time and certain related rights pursuant to a stipulation order in 2017. They later petitioned for modification, but the Utah court found it no longer had jurisdiction because the parties and children no longer lived in the state. The Utah court dismissed the petition, also noting in the order there had been a separate adoption case and termination of the mother’s parental rights.
Request for Registration
The grandparents requested registration of the divorce decree, stipulation order, and order dismissing their modification petition in Texas. Their request identified the father as the parent awarded custody or visitation in the custody determination.
The father moved to decline registration and asked for a hearing. He argued the custody determination the grandparents wanted to register had been vacated, stayed, or modified by an adoption decree that ordered the children were adopted by the stepmother.
The decree stated the mother’s rights had been terminated pursuant to a previous order. In the findings of fact and conclusions of law, the Utah trial court found the termination applied only to the birth mother and had no effect on the maternal grandparents’ rights and visitation time. The finding specifically stated the grandparents were not precluded from seeking a modification of their visitation based on a change in circumstances arising from the termination of the mother’s rights.
The Texas trial court denied registration of the foreign child custody determination and the grandparents appealed. The grandparents argued the trial court erred in denying the request because the father failed to establish the adoption decree and findings of fact and conclusions of law modified the order of stipulation. They further argued that even if the order of stipulation had been modified, the trial court should have just included the adoption decree and findings and conclusions in the registration.
Modification of the Order
The grandparents argued the father had not shown the custody determination was modified. They pointed to the findings of fact and conclusions of law and the language stating the adoption decree did not modify their rights.
The father argued the adoption decree modified the previous custody determination. The appeals court considered the definition of “modification” in Chapter 152 of the Texas Fam. Code and concluded it did not require the modification to affect the rights of the party seeking registration. Pursuant to Section 152.305, a registered determination becomes enforceable as though issued by a Texas Court. The appeals court pointed out that registering the Utah custody determination would invalidate the termination of the mother’s rights and the adoption by the stepmother.
The appeals court concluded that the adoption decree “clearly modified the terms of the order of stipulation. . .” The Texas trial court had sufficient information to exercise its discretion and there was no abuse of discretion in its conclusion the father established the custody determination had been modified.
Trial by Consent
The grandparents also argued the trial court abused its discretion in not including the adoption decree and findings and conclusions in a registration of the determination. They argued they made a trial amendment to their pleadings and the issue had been tried by consent.
The appeals court rejected this argument, noting that a request for registration must include the name and address of anyone acting as a parent who has been awarded custody or visitation in the determination so the court can provide notice. The father’s wife and adoptive mother of the children was not given notice despite being given rights in the adoption decree. Therefore, even if there was a trial amendment or the issue was tried by consent, the trial court did not abuse its discretion when it denied registration of the determination along with the adoption decree and findings and conclusions when the adoptive mother had not been given proper notice.
Dismissal without Prejudice
The grandparents also asked the appeals court to modify the trial court’s judgment to state the dismissal was without prejudice. The order did not state whether the denial of the grandparents’ motion was without or without prejudice. The appeals court noted that a dismissal is presumed to be without prejudice when the order does not state it was with prejudice.
The appeals court affirmed the trial court’s order that denied registration of the foreign custody determination.
Contact McClure Law Group
Registration of a foreign custody order can sometimes be a simple matter. In some cases, especially those with complex facts and multiple proceedings, it can be less straightforward. If you need to register a custody determination from another state in Texas, an experienced Texas custody attorney can help. Call McClure Law Group at 214.692.8200 to schedule a consultation.