Texas Divorce Attorney Blog
Sometimes 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.
The child was born in North Carolina. The mother later moved to Texas to live with her parents. The North Carolina court entered a permanent order in February 2018 granting the mother’s parents “legal and primary physical custody” of the child. The court also gave the father and his parents monthly visitation in Texas. A third party was required to supervise the father’s visitation for the first six months, but both of his parents could supervise his visits after the first six months.
The father moved to Texas in January 2019. He then sought modification of the North Carolina order in Texas, including joint managing conservatorship, standard possession and access, and removal of the supervision requirement. He argued the Texas court had jurisdiction under Tex. Fam. Code §§ 152.201 and 152.203, because neither the child, the parents, nor any person acting as the child’s parent currently lived in North Carolina.
Mother Alleges Father’s Parents were “Acting as the Child’s Parent”
The mother and her parents argued North Carolina still had continuing exclusive jurisdiction, because the father’s parents, whom they alleged acted as the child’s parents, lived there.
The mother’s parents filed a notice in the Texas Court that they had moved for contempt and modification of the child-support order in North Carolina, alleging the father had not been supervised by both parents at certain visits and seeking child support.
The Texas and North Carolina courts discussed the case, and the Texas court found North Carolina had exclusive continuing jurisdiction. It also found the father, mother, mother’s parents, and child resided in Texas, but the father’s parents resided in North Carolina. The court concluded it did not have jurisdiction to modify the North Carolina court’s order.
Father Argues that His Parents Never “Acted as a Parent”
The father argued his parents never “act[ed] as a parent,” because they never had custody of the child. In Texas, a “person acting as a parent” is someone who has both legal and physical custody, or who currently has legal custody and previously had physical custody for six consecutive months within a year before the commencement of the custody proceedings. Tex. Fam. Code § 152.102. North Carolina law is substantially the same, thanks to the Uniform Child Custody Jurisdiction and Enforcement Act (“UCCJEA”). The father’s father had passed away, but the appeals court found the father’s mother was not “acting as a parent” based on either state’s law.
In Texas custody cases, “home state” jurisdiction is prioritized. The home state is where the child lived with a parent or person acting a parent for six months immediately prior to the custody proceeding’s commencement.
To have jurisdiction over the initial custody determination, a court must be a court in the child’s home state when the proceeding commences or within six months before it commences if a parent or person acting a parent still lives in the home state. Tex. Fam. Code § 152.201.
Which Court Has Jurisdiction to Modify a Child-Custody Determination?
Generally, the court that made the initial custody determination keeps exclusive continuing jurisdiction. The court may lose jurisdiction if a court in the same state determines substantial evidence is not available within the state and neither the child nor the child and a parent or person acting as parent has a “significant connection with that state,” or a court determines that neither the child, the child’s parents or any person acting as a parent currently reside in the state. The comment to North Carolina’s statute states the court loses jurisdiction when the child, his parents, and everyone acting as a parent moves out of the state, unless there is a pending modification proceeding.
Generally, a Texas court can only modify another state’s custody order if it would have jurisdiction to make an initial determination and one of the following factors is present: the other state’s court determines it no longer has continuing jurisdiction or a Texas court would be a more convenient forum or a court in Texas or in the other state determines the child, his parents, and anyone acting as a parent do not currently reside in the other state. Tex. Fam. Code § 152.203. A Texas court may, but is not required to, exercise jurisdiction if these requirements are met.
The mother and her parents argued the trial court’s order should be affirmed pursuant to Tex. Fam. Code § 152.206, “Simultaneous Proceedings.” Under this statute, a Texas court generally may not exercise jurisdiction if a custody proceeding has been commenced in another state that has jurisdiction, unless the other court terminates or stays its proceedings because Texas is a more convenient forum. This statute provides that, in a modification proceeding, if a proceeding to enforce the determination has been commenced in another state, the Texas court may either stay the modification proceeding, enjoin the parties from moving forward with the enforcement proceeding, or proceed with the modification. The statute does not provide for dismissal.
Appeals Court Finds that Texas Has Jurisdiction
North Carolina was the child’s home state during the initial custody determination. The appeals court found, however, that Texas was his home state when the modification proceeding commenced. The child, his parents, and his maternal grandparents all resided in Texas, with the child having lived in Texas with his mother and grandparents since 2016. The Texas court therefore could have made an initial custody determination then. No one acting as the child’s parent still lived in North Carolina.
The appeals court found the Texas trial court erred in finding it did not have jurisdiction to modify the North Carolina order when it had also found that neither the child, his parents, nor his maternal grandparents resided in North Carolina.
The appeals court reversed the dismissal and remanded the case to the trial court.
Jurisdictional Issues are Tough – McClure Law Group is Tougher
If you are involved in a custody dispute, you need an experienced Texas custody attorney on your side. Schedule a consultation with McClure Law Group at 214.692.8200.