What happens in a UCCJEA case when the child hasn’t been in the State for 6 months? Will the court have jurisdiction to make a child custody determination? The short answer is that whichever state the child lived in for 6 consecutive months prior to filing the suit, will be the child's "home state". Establishing the home state of the child goes into determining a court's power to make custody determinations that are binding on the child and the parent or guardian of the child.
What is Jurisdiction?
First, it is important to understand what Jurisdiction is. Jurisdiction is a fancy legal term that means "power". In order for a court's order(s) to be binding on the parties, it must have jurisdiction or power over the parties involved and must have the power to hear the type of case filed. This is called personal jurisdiction (i.e. jurisdiction over the person) and subject matter jurisdiction (power to hear the subject of the suit). Most people file their case in the correct court so subject matter jurisdiction is usually not a hurdle. However, you must be sure that the court has personal jurisdiction as well. Once a court has established that it has power over the persons and has established that it is power to hear the type of case, any orders made by the court will be binding; this includes any order to pay child support.
How Does the Court Get Personal Jurisdiction?
A party to a child custody case is not subject to personal jurisdiction by that state for another case or purpose "solely by reason of having participated, or of having been physically present for the purpose of participating, in the proceeding". [Texas Family Code 159.109]
- Home State Jurisdiction - A child's home state means the state or country in which the child lived with a parent or person acting as a parent for at least six consecutive months immediately before the custody case was initiated. If the child is less than six months old, home state means the state or country in which the child lived with a parent or person acting as a parent since birth (section 152.102(7), Family Code).
Significant connection jurisdiction - This means that a substantial amount of the evidence or parties live in that state. Evidence includes evidence regarding the child's training, personal relationships, daily activities, needs, teachers, etc.
Default jurisdiction - A Texas court will acquire jurisdiction over a child custody order from another state:
All other states or nations that have jurisdiction to make an initial child custody determination have declined to exercise their jurisdiction; or
If no other state has jurisdiction to make an initial child custody determination in the first place.
Emergency Temporary Jurisdiction in a Custody Case
Under the UCCJEA, a party can ask the court to take “temporary jurisdiction” over the case if the child is present in that state and the child has been abandoned or if it is otherwise necessary to protect the child from abuse, neglect or mistreatment. In this case, if there is no prior court order regarding child custody and if a child custody case has not been initiated in a state court that has jurisdiction, a custody order made under this emergency situation will remain in effect until another order is obtained from a state court with actual jurisdiction. On the other hand, if a custody case has not been filed or is not initiated in a court that has jurisdiction, a child custody determination made under this scenario will become final and binding. That state would then become the home state of the child.
If there is a previous child custody order that can be enforced under this article or if a child custody case has been initiated in a court with jurisdiction, the emergency custody order will specify specify in the order a period that the court considers to be adequate to allow the person seeking an order to obtain an order from the state that has jurisdiction. Then, the order issued in this State remains in effect until an order is obtained from the other state within the period specified or the period expires.
To sum it up, emergency jurisdiction can only develop into ongoing jurisdiction when there are no prior custody orders and no action is filed in a state having jurisdiction before the new state becomes the child’s home state.
Interstate Issues : Child Support Enforcement
Many child custody cases involve multiple states because many divorces involve children. Since it is quite common for ex-spouses to move to another state at the conclusion of a divorce, you can see why it can become an issue for a parent seeking to enforce child support. Can you enforce a child support order that you got from Texas if the paying party moves to another state? What happens to Texas' power over the parties that it had?
Child custody cases that involve interstate issues will typically fall under the UCCJEA. The UCCJEA is an acronym for the Uniform Child Custody Jurisdiction and Enforcement Act. We will call it "UCCJEA" for simplicity. The UCCJEA is a separate set of uniform laws that states have enacted to avoid courts competing for jurisdiction in child custody cases. The UCCJEA also provides the courts with a way of enforcing the orders of another state so that parties cannot simply "forum shop". Forum shopping is when parties purposely choose a specific state to litigate issues because of the favorable law. It is a way to avoid enforcement of a prior order from a different state. However, as I've said, the UCCJEA eliminates this problem.
So again I ask you, what will happen to the court's power (that originally issued the order) when one party moves out of state?
A : The court that originally signed off on the prior order(s) that determined custody of the child would keep its exclusive and continuing jurisdiction or power over any and all issues arising out of the custody of the child described in the prior order. If the court still has jurisdiction over the case, that state can enforce that order if one parent remains in the state. If both parties have relocated to another state, however, the new state will have to enforce the prior state's order. The enforcement action should be filed in the new state.
What is a Child's "Home State" ?
The UCCJEA enables the court that decided on the prior case to have continuing and exclusive jurisdiction for child custody cases that take place in the child’s “home state”. The child's home state is not just determined by where the child lives at the time that the suit is filed. Instead, the home state of the child will be determined by the state that the child has lived for six consecutive months immediately prior to the case being filed. If the child is an infant, the home state will be determined by where the child has lived for the entirety of his or her life (i.e. since birth). If you have had the child for at least six consecutive months and you want to fight for custody (or to change it), you should be sure that the child continues to live with you until after the suit is initiated.
When is the Originating State No Longer Able to Exercise Jurisdiction?
- One reason that the state that signed the order would lose jurisdiction is if all of the parties have relocated to a different state. If the child and both conservators (i.e. parents) move outside of the state that granted the order, that state would no longer have personal jurisdiction;
- Another way that the court could lose jurisdiction over the case is if the court determines that neither the child, the child and one parent, nor the child and a person acting as a parent have any significant connection with the state that signed the order; and
- A substantial amount of evidence is no longer available in that original state concerning the child’s health, personal relationships, protection, training, etc.
If a parent would like to move the case to a new state, that party may file a suit in the state that the child currently resided to request that the prior state court release jurisdiction to the new state's court (If the UCCJEA applies).