Determining Child Custody Jurisdiction

Walters Gilbreath, PLLC

The Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA) is a uniform act that was adopted by all states (except for Massachusetts) in order to replace the Uniform Child Custody Jurisdiction Act (UCCJA). The UCCJEA corrects inconsistencies between the UCCJA and the Parental Kidnapping Act, as well as adding procedures for enforcing child custody determinations across state lines. The UCCJEA lays out guidelines for determining when a state court has jurisdiction (i.e. power) to make or alter custody determinations and continues on to describe how such determinations must be enforced by the courts. The jurisdictional portion of the UCCJEA determines if a state has jurisdiction over a custody proceeding in a number of situations, including initial custody determinations, modification of an earlier order, temporary emergency jurisdiction, and times when courts may decline to exercise jurisdiction. The UCCJEA has been codified into Texas law as Chapter 152 of the Texas Family Code.

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§ 152.201 of the Texas Family Code describes the UCCJEA guidelines for when Texas courts have jurisdiction to hear initial custody determinations. If Texas courts do have proper jurisdiction, then the suit may be filed in Texas. First, Texas courts may make initial child determination if Texas is or recently was the child’s “home state.”

The Family Code defines “home state” as the state in which the child lived with a parent or person acting as parent for at least six consecutive months directly before a child custody proceeding begins.

If no Texas court has jurisdiction as the child’s “home state”, then jurisdiction in Texas court may be possible through a significant connection. If the no other state court has “home state” jurisdiction or if a court of the child’s “home state” declines” to exercise jurisdiction due to Texas being a more appropriate forum, then Texas court has jurisdiction if the child and at least one parent or person acting as a parent have a “significant connection with the state of Texas other than mere physical presence” and “substantial evidence” about the child is available in Texas.

However, even if Texas courts do not have jurisdiction over the initial custody proceeding through “home state” jurisdiction or “significant connection” jurisdiction, Texas courts may still have jurisdiction by default. If all other state courts having either “home state” jurisdiction or “significant connection” jurisdiction have declined to exercise jurisdiction citing Texas as a more appropriate forum or if not court of any other state has jurisdiction under § 152.201(a)(1), (2), or (3), then Texas courts have jurisdiction.

Modifying a Prior Custody Order

Modifying an earlier custody order determination under the UCCJEA is governed by § 152.202 and § 152.203 of the Texas Family Code. § 152.202 outlines Texas’s exclusive continuing jurisdiction over custody determinations and § 153.203 describes how Texas courts may not modify child custody determinations made by the courts of another state. If a Texas court has issued a final order in an earlier determination and the court did so under the proper jurisdiction, then that specific court has continuing exclusive jurisdiction (CEJ) over future custody determination or modifications.

Additional Jurisdictional Issues

A Texas court has temporary emergency jurisdiction (1) if the child is a present in Texas and (2) the child has been abandoned OR the child needs to be protected because the child, or a sibling or parent of the child, is being subjected to or threatened with mistreatment or abuse.

“Impending” mistreatment can be shown by the party in addition to actual mistreatment or abuse. There are certain circumstances in which an emergency custody determination may become a final custody determination. In order for this to happen, there must be no earlier child-custody determination enforceable under the UCCJEA; no other proceeding may have taken place in another court have jurisdiction under 152.201, 152.202, or 152.203; the emergency order must state that it will become a final order; and Texas becomes the new home state of the child.

Regardless, Texas courts are required to communicate with the courts of another jurisdiction as soon as they find out that proceedings have been properly filed there, so that the emergency may be resolved.

Texas courts may not exercise jurisdiction if a custody proceeding has been started in another state with jurisdiction under the UCCJEA, unless the proceeding in the other state has been terminated or is stayed by the court of the other state because a Texas court is a more convenient forum under 152.207.

If a Texas court does begin a custody proceeding and finds that the proceeding has been commenced in another state with jurisdiction, the Texas court should stay its proceeding and communicate with the court of the other state.

However in a proceeding to modify a child custody determination, a Texas court has the option to stay the proceeding, enjoin the parties from continuing with the proceeding, or proceed with modification if the Texas court deems it appropriate.

A Texas court may decline to exercise its jurisdiction if it determines that it is an inconvenient forum and that the appropriate forum is the court of another state. This issue may be raised upon a party’s motion, the court’s own motion, or request of another court.

Before making a decision on whether it is an inconvenient forum, the Texas court must consider whether another state may appropriately exercise jurisdiction. The court should consider all relevant factors including occurrence or likelihood of occurrence of domestic violence, finances of the parties, how long the child has lived outside of Texas, the distance between Texas court and the other state’s court, and the location of evidence necessary to the litigation.

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