Custody: Can the Court hear your case?
Jurisdiction for Custody Cases
Jurisdiction means power. For a court to issue a valid final order in your case, the court must have jurisdiction over your case. In short, if you spend thousands of dollars to get a great victory, only to find out that the court did not have jurisdiction, you have wasted all of your money, because you have a void order – a worthless piece of paper.
The first and most important procedural aspect of a custody case is jurisdiction. The first step in understanding custody jurisdiction is understanding the UCCJEA – the Uniform Child Custody Jurisdiction and Enforcement Act.
As with any uniform act, the UCCJEA is a state statute that is designed to be uniform among all the 50 states. The UCCJEA is the successor of the UCCJA.
In Texas, the UCCJEA can be found in Chapter 152 of the Texas Family Code. See Texas Family Code § 152.101 (2011) (“This Chapter may be cited as the Uniform Child Custody Jurisdiction and Enforcement Act”). In fact, chapter 152 of the Texas Family Code is the Texas version of the UCCJEA. The UCCJEA details when a Texas court has subject matter jurisdiction to make a custody determination. It does not deal with child support issues. See, Texas Family Code § 152.102(3)(“’Child custody determination’…does not include an order relating to child support or another monetary obligation of an individual.”)
As stated, one of the most important aspects of the UCCJEA to understand is this: It deals with subject matter jurisdiction, not personal jurisdiction. Texas Family Code § 152.201(c) states, "Physical presence of, or personal jurisdiction over, a party or a child is not necessary or sufficient to make a child custody determination." That means that, for one thing, a Special Appearance is not the proper device to resisting a custody action, a motion to decline jurisdiction is. That being said, however, since a Special Appearance is waived if not filed properly, if the court also lacks personal jurisdiction, it is not a bad idea to file a Special Appearance, Motion to Dismiss for Want of Jurisdiction, and Motion to Decline Jurisdiction. See, e.g., Canales v. Riquelme, 2010 Tex. App. LEXIS 9175 (Tex. App. 2010)(“Thus, we do not have jurisdiction over the initial custody matters in this case, and we dismiss that portion of the case for lack of subject matter jurisdiction. We affirm the judgment with respect to the division of community property and the award of retroactive child support.”)
To determine when a Texas court has subject matter jurisdiction to make an initial child custody determination, one must consult Texas Family Code § 152.201 and § 152.102, which provides the definitions of the terms used in § 152.201. The UCCJEA turns on the issue of home state jurisdiction. Pursuant to § 152.102(7), “’home state’ means the state in which a child lived with a parent or a person acting as a parent for at least six consecutive months immediately before the commencement of the child custody proceeding." The section goes on to detail how home state is calculated for a child under six months of age and talks about the issue of the temporary absence of the parent.
Texas Family Code § 152.201 not only provides the circumstances under which Texas can properly exercise jurisdiction in a custody case, but its listing of the scenarios is intended to provide the priority of these scenarios. See, In re Shurtz, 2011 Tex. App. LEXIS 10245 (Tex. App. Austin Dec. 30, 2011)(“However, Section 152.201 provides and prioritizes several bases for establishing subject-matter jurisdiction.”), citing Powell, v. Stover, 165 S.W.3d 322, 325 (Tex. 2005).
The highest priority is “home state” jurisdiction. Texas Family Code § 152.201(a)(1). The second highest priority is the circumstance in which a child has no home state, or the home state of the child has declined to exercise jurisdiction because Texas is a more appropriate forum. See Texas Family Code § 152.201(a)(2). The caveat to this second priority, however, is that the child and the child's parents or the child and at least one parent or a person acting as a parent must have a significant connection to Texas other than mere physical presence, and there must be substantial evidence available within Texas concerning the child's care, protection, training, and personal relationships. See Texas Family Code § 152.201(a)(2)(a) and (b).
Section 152.201 goes on to detail the third and fourth priorities that are available however those circumstances are generally much more unusual than those found in priorities one and two. See Texas Family Code § 152.201(3) and (4).
Subsection (b) of Texas Family Code § 152.201 makes clear that "subsection (a) is the exclusive jurisdictional basis for making a child custody determination by a court of this state." See Bell v. McCarty, 2005 Tex. App. LEXIS 8723 (Tex. App. 2005)(“ Except for temporary emergency jurisdiction, however, a Texas court has jurisdiction to make an initial child custody determination only under the provisions of Texas Family Code section 152.201(a).”)
Texas Family Code § 152.202 provides that a Texas court maintains the "exclusive continuing jurisdiction" to modifying its custody orders, unless and until certain determinations are made either by a Texas court or the court of a sister state. Correspondingly, the UCCJEA of other states provides a similar framework for the power to modifying custody determinations made by those courts. See, e.g., Fla. Stat. § 61.501 et seq.; N.C. Gen. Stat. § 50A-101 et seq.; Cal. Fam. Code § 3400 et seq.; Haw. Rev. Stat. § 583A-101 et seq.
There are two possible findings that could allow a litigant to seek modification of a Texas custody determination:
1. A determination by a Texas Court that neither the child nor the child and one parent nor the child and a person acting as a parent have a significant connection to Texas and that substantial evidence is no longer available in Texas concerning certain aspects of the custody case; or
2. A finding by the court of any state that neither the child nor the child's parents nor any person acting as a parent currently reside in the state of Texas.
Texas Family Code § 152.202(a)(1) and (2).
Given that individuals can have multiple residences, it is important to consider the statements made in the comments to § 152.202 for some of the unique fact patterns that can arise.
Paragraph number two of the comments following Family Code § 152.202, states that the phraseology used with respect to courts’ losing jurisdiction when a child and the child's parents, etc. "do not presently reside in this state" was the subject of considerable debate in the drafting of the UCCJEA. The comment goes on to state that, "It is the intention of this Act that subsection (a)(2) of this section means that the named persons no longer continue to actually live within the state. Thus, unless a modification proceeding has been commenced, when the child, the parents, and all persons acting as parents physically leave the state to live elsewhere, the exclusive, continuing jurisdiction ceases." See http://www.law.upenn.edu/bll/archives/ulc/uccjea/final1997act.pdf at 28.
Texas Family Code § 152.203 details the parameters within which a Texas court can modify a foreign custody determination (Foreign meaning an order from another State or another Country).
Basically, a Texas court only has the power to modify a custody determination of another state if 1) Texas would have the power to make an initial child custody determination under § 152.201, and 2) the Court of the state that made the original child custody determination determines that it no longer has continuing jurisdiction or that Texas would be more convenient forum or a Texas court determines that the child, child's parents and any person acting as a parent do not presently reside in the state that made the original child custody determination. See, e.g., Saavedra v. Schmidt, 96 S.W.3d 533, 541-42 (Tex. App. – Austin 2002, no pet.)(“It is of no consequence that the Texas court determined that it was a more appropriate forum; the California court must make this determination before a court of this state may modify the California court's child custody determinations.")
One other provision of the Texas Family Code that needs to be considered in considering the modification of the custody determination is § 155.003.
Pursuant that section, Texas does not have the continuing exclusive jurisdiction to modify the managing conservatorship aspect of a custody determination if "the child's home state is other than Texas." Moreover, this section details the circumstances under which a Texas court can modify the possessory conservatorship or the possession or access of the child at issue. In one of the few reported cases addressing this section vis-à-vis the apparently conflicting descriptions of authority found within the UCCJEA, the court found that this sections conflicts with the UCCJEA and that, “When a provision of Ch. 152 conflicts with another provision of the Family Code or another statute or rule of Texas and the conflict cannot be reconciled, Ch. 152 prevails. Under the UCCJEA, Texas retains jurisdiction even if Texas is no longer the home state of the child or the custodial parent, so long as there is a significant connection with this state." In re Bellamy, 67 S.W.3d 482,484 (Tex. App. – Texarkana 2002, no pet.); see also In re McCormick, 87 S.W.3d 746, 750 (Tex. App. – Amarillo 2002) (“Texas retains jurisdiction over child custody matters even if it is no longer the home state of the child as long as there is a significant connection with this state.”)
Texas Family Code § 152.204 describes the circumstances under which a Texas court has the power to make a temporary emergency custody determination.
In short, Texas has the power to make a temporary emergency order "if the child is present in this state and the child has been abandoned or it is necessary in an emergency to protect the child because the child, or a sibling or parent of the child, is subjected to or threatened with mistreatment or abuse." It is significant to contrast this section with § 152.304 of the Texas Family Code which provides for situations in which Texas may be called upon to issue a temporary order enforcing visitation with the child based upon a foreign order that Texas has no power to modify.
Section 152.204 details the actions that must take place when a Texas Court invokes Temporary Emergency Jurisdiction. It includes provisions for times when orders are made when no previous child custody determination has been made, when a child custody determination has already been made in another state, and when there is a simultaneous proceeding. This section, coupled with the sections dealing with simultaneous proceedings, etc. can be extremely confusing and contained many traps for the unwary.
Other UCCJEA Provisions
Although the UCCJEA contains a great many other provisions, many of which are extremely complicated, the examination of the entirety of the UCCJEA is beyond the scope of this article.
One particularly significant aspect of the UCCJEA that must be considered in closing, however, is the international application of the chapter. Pursuant to Texas Family Code § 152.105 "a court of this state shall treat a foreign country as if it were a state of the United States for the purpose of applying this subchapter and Subchapter C." See, e.g., In the Interest of S.K.B., 2008 Tex. App. LEXIS 4769 (Tex. App. 2008)(“Under the Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA), we treat Japan as a sister state…”)
In light of the fact that the residence issues of the child are determined with respect to where the child actually is, as opposed to some esoteric concept of residence, this section can cause particular problems with respect to military and military contractor families.
One significant aspect of § 152.105, however, is subsection (c) of this section, to wit: "A court of this state need not apply this chapter if the child custody law of a foreign country violates fundamental principles of human rights." The comments following this section are both interesting and particularly unenlightening. They state, "in applying subsection (c), the court’s scrutiny should be on the child custody law of the foreign country and not on other aspects of the other legal system. This Act takes no position on what laws relating to child custody would violate fundamental freedoms."
In conclusion, the UCCJEA can be an extremely confusing piece of legislation, but it is the governing law. Finding an attorney that understands the UCCJEA is critical in a complicated custody case.
And keep in mind that an order entered contrary to the provisions of the UCCJEA can be found to be void, and thus unenforceable.