Texas Divorce Attorney Blog
Texas has adopted the Uniform Child Custody Jurisdiction and Enforcement Act (“UCCJEA”), which identifies what state has jurisdiction over custody matters. The UCCJEA generally prioritizes the child’s home state for jurisdiction. The child’s home state is where they have lived with a parent for the six months before the custody proceeding commenced, or if they are less than six months old, where they have lived with a parent since birth.
For a Texas court to have jurisdiction to make an initial child custody determination, Texas must be the child’s home state on the date the proceeding commenced or must have been the child’s home state within six months before the proceeding commenced if the child is absent from Texas but a parent or person acting as a parent still lives in Texas. Tex. Fam. Code § 152.201(a)(1). Texas may also have jurisdiction if another state court does not have jurisdiction or if child’s home state court declined jurisdiction because Texas was a more appropriate forum and the child and the parents, or the child and at least one parent or on person acting as a parent, have a significant connection with Texas and there is substantial evidence in Texas regarding the child. Tex. Fam. Code § 152.201(a)(2). A Texas court may also have jurisdiction if all courts having jurisdiction on the grounds above have declined to exercise it because a Texas court is a more appropriate forum. Tex. Fam. Code § 152.201(a)(3). Furthermore, Texas may have jurisdiction when no other court or any state would have jurisdiction based on the above criteria. Tex. Fam. Code § 152.201(a)(4).
A mother recently challenged a Texas court’s jurisdiction over her child’s custody. According to the appeals court’s opinion, the parties separated while the mother was pregnant and she moved to Chicago before the child was born. The mother filed for divorce in Illinois and the father filed for divorce in Texas. The mother’s petition did not include an issue related to the custody of the unborn child, but the father’s petition did. The child was born in in Illinois after both petitions had been filed.
The mother did not appear at trial in Texas. The Texas trial court entered a default judgment including a parenting plan. The mother filed a special appearance July asking the court to decline jurisdiction or alternatively to set aside the default judgment. She argued Texas did not have subject-matter jurisdiction over the custody issue pursuant to the UCCJEA, that there was a case pending in Illinois, and that she had failed to appear at the trial due to an accident and mistake. She argued the child had never lived in Texas.
The trial court set aside the default judgment, but “accept[ed] jurisdiction. . .”
The mother filed a counter-petition in Tarrant County. An associate judge entered temporary orders granting both parents joint managing conservatorship with the mother having primary care and authorizing supervised visitation for the father in Illinois. The court also set an amount and start date for child support and made the father responsible for health and dental insurance.
Both parties sought a hearing following the temporary orders. At the hearing, the father testified he had been unable to see the child in Illinois and that it was expensive for him to fly and stay there. The mother testified she was concerned for the child’s safety if the father had unsupervised visitation. She also stated he had not tried to see the child since filing the request for the hearing.
The trial court stated the child’s residence would be “restricted to Tarrant County” because that is where the parties were married and the child was conceived. The trial court also stated the mother would have “primary possession. . . unless she fails to return to Tarrant County within 30 days.” The court granted the father visitation. The court did, not, however, sign a written order.
The father moved to enter temporary orders. The mother objected, arguing the court did not have jurisdiction under the UCCJEA. She also notified the court that there was a UCCJEA jurisdictional hearing scheduled in Illinois.
The trial court signed the father’s proposed temporary orders, requiring the mother to bring the child to Texas by January 19, 2025 to comply with the geographic restriction that limited the child’s residence to Tarrant or Dallas Counties.
The mother filed a mandamus petition seeking an emergency stay of the Texas proceedings. She argued the court abused its discretion in signing temporary custody orders because Texas did not have jurisdiction over the child. The appeals court granted an emergency stay.
Subdivision (1)
The appeals court pointed out that a child must be born before their home state can be determined. Both divorce petitions were filed before the child’s birth. Therefore, neither state could have jurisdiction over child-custody when the petitions were filed. The appeals court noted there was nothing in the record before it showing either petition had been amended, so the custody claims became live upon the child’s birth. The appeals court noted the child was under six months old when the temporary orders were issued, so a Texas trial court would only have jurisdiction under § 152.201(a)(1) if she had lived in Texas with a parent since she was born.
There was no evidence that the child had ever even been to Texas since she was born. The appeals court therefore concluded that when the Texas pleading became live, Texas was not the child’s home state under § 152.201(a)(1).
Subdivision (2)
Subdivision (2) provides that Texas can have jurisdiction over a custody proceeding if no other state is the child’s home state under Subdivision (1) or if the home state has declined jurisdiction and the child and parents have significant connections to Texas and there is substantial evidence in Texas. Tex. Fam. Code § 152.201(a)(2).
The child had lived with her mother in Illinois since she was born, so the only evidence showed that Illinois was her home state. There was nothing in the record showing that Illinois had declined jurisdiction. Additionally, the appeals court determined there was insufficient evidence to support a finding the child had a significant connection to Texas or that there was substantial evidence in the state when the record showed the child had never lived in or visited Texas.
Subdivision (3)
Pursuant to Subdivision (3), Texas may exercise jurisdiction over an initial custody determination if all courts with jurisdiction under Subdivision (1) or (2) have declined jurisdiction because Texas “is the more appropriate forum under either Section 152.207 or 152.208” Tex. Fam. Code § 152.201(a)(3). There was no evidence Illinois had declined to exercise its jurisdiction on the ground Texas was a more appropriate forum. The appeals court determined that the evidence supported Illinois likely being the child’s home state pursuant to Subdivision (a)(1), so Texas could not exercise jurisdiction over the initial custody determination unless there was evidence Illinois had declined jurisdiction.
Subdivision (4)
Subdivision (4) would allow Texas jurisdiction if no court of another state would have jurisdiction under the three previous subdivisions.
The appeals court determined that none of the circumstances in Tex. Fam. Code § 152.201(a) were present to give Texas jurisdiction over the child’s custody.
Simultaneous Proceedings
The father argued that the Illinois court needed to resolve issues regarding whether to decline its jurisdiction, so the court should follow the procedures required for simultaneous proceedings. The appeals court agreed, determining that Texas could not exercise jurisdiction over the child’s custody without a determination from Illinois that Texas is the more appropriate forum. The appeals court lifted the temporary emergency stay and ordered the trial court to communicate with the Illinois court pursuant to Section 152.206(b). The appeals court instructed the trial court to dismiss the custody portion of the case unless the Illinois court declines jurisdiction.
Call a Dallas Family Law Attorney
This case illustrates some of the complications that may arise when a spouse leaves the state before a divorce petition is filed, especially if divorce is initiated during pregnancy. If you are considering divorce and your spouse has ties to another state, a knowledgeable Texas divorce lawyer can help. Set up a consultation with McClure Law Group at 214.692.8200.