1. Introduction & Overview
The UCCJEA (Uniform Child Custody Jurisdiction & Enforcement Act) is the law that governs inter-state child custody issues in all 50 states. Each state has passed an identical version of the law, so that there are consistent laws in each state. We have created the ultimate guide to this topic, providing more information about this subject for Texas residents than anywhere else.
Be sure to read our Ultimate Guide to a Texas Child Custody Case if you want to know how custody cases are handled in Texas Courts. Our Ultimate Guide to Texas Marital Property Law is the leading resource for learning about how property will divided in a divorce.
Texas Family Code, Chapter 152 codifies the UCCJEA. It states that the UCCJEA applies to child custody determinations. A court order, judgment, or decree can constitute a child custody determination in the state of Texas. These documents must be related to the physical custody, legal custody, or visitation rights of a parent for a child. These determinations might be initial, temporary, permanent, or modified orders. The UCCJEA applies to any cases where one of these determinations is an issue. This might include:
- Divorce proceedings
- Legal Separation proceedings (which don't exist in Texas)
- Dependency actions.
- Neglect or abuse actions.
- Termination of parental rights.
- Protective orders related to family violence.
One of the goals of the UCCJEA is to allow for efficient determination of what the home state of the child is. “Home state” is most simply a term that applies to the state where the child lived with their parent or guardian for at the past six consecutive months. This six month period refers to the time period directly before the beginning of the child custody case. If the child is not yet six months old, the home state refers to the place where the child was born and lived since birth with at least one parent or guardian. “Living” in a certain state implies that they were physically present there, not just living there in theory. In fact, a physical location of the child is one of the central factors in determining a child’s home state.
When a child determination is made in a place that is considered home jurisdiction under the UCCJEA, that determination is binding. Decisions made in other states will not hold up or apply.
If you or your child’s other parent lives outside of the state of Texas, notice must be given. This usually occurs through the use of a citation forwarded to a constable of the other state. In other cases, it is possible to use facsimile or regular mail to give notice out of state. The major requirement for sending notice is that actual notice will be given to the out of state parent. In addition, proof of service can happen in a way that is authorized by the state of Texas or the state where service must happen. If the other party submits to the jurisdiction of the court, no notice is necessary.
The spouse or guardian who is not a resident of Texas has limited immunity when appearing in child custody proceedings in Texas. Still, that person isn’t immune from the service of process on a basis that is not a physical presence.
2. Table of Contents
- What is the UCCJEA?
- When Will the UCCJEA Apply?
- When a Court Enforces a Order from Another State
- What Happens When the Same Suit has Been filed in More than One State?
- Modification Jurisdiction for a UCCJEA Case (Diagram) - Find out the proper place to file your Modification case.
- SAPCR Case Jurisdiction (Diagram) - Find out the proper place to file your Suit Affecting Parent-Child Relationship case.
- What Happens in a UCCJEA Case When the Child is Out of State?
- Leading Scholarly Article on the UCCJEA.
3. Visualizing the UCCJEA
The UCCJEA is overwhelmingly complicated when you first sit down to read it, so we created two charts to help you grasp it.
4. Original Cases under the UCCJEA
This section covers original cases under the UCCJEA, meaning those that are the first for a child. In most child custody cases (including divorces) the jurisdiction is simple: everyone lives in the same state, so the case is in that state. However, that is not always the case. When the parents and/or child live in different states at the time of filing, things get complicated. The "J" in UCCJEA is for "Jurisdiction", which is the key issue, so let's learn about that first.
4a. What is Jurisdiction?
Jurisdiction means "power to decide". In order for a court order 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.
4b. How Does the Court Obtain 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]. There are several ways to obtain jurisdiction:
- 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.
For other types of Suit Affecting Parent Child Relationship (SAPCRs) cases, such as child-support actions, Texas courts must have jurisdiction over the parties involved. Most courts in Texas will decline to exercise jurisdiction over only some of the issues in a SAPCR if another court has jurisdiction to resolve all of the issues.
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.
4c. What if a parent or the child moves out of state?
Answer: 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.
4d. 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.
4e. When is the Home 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).
5. Enforcing an Order under the UCCJEA
The "E" in UCCJEA means "Enforcement". This governs what happens when one parent refuses to follow a child related order in another state. The UCCJEA determines how to proceed.
5a. Duty to Enforce
In some situations, a Texas court has a duty to enforce a child custody order created by another court. If the other state exercised jurisdiction while conforming to the rules outlined in the UCCJEA, that custody order must be enforced. This is also the case if the order’s factual circumstances align with the UCCJEA.
Note : Even if a Texas court does not have the jurisdiction to change a child custody determination, the Texas court can still issue a temporary order. This can happen to enforce a visitation schedule from another state, or any visitation order that does not specify a schedule. If there is no specific visitation schedule, Texas courts can create a temporary visitation order. But, the court has to provide the petitioner with a time frame by which they need to obtain a schedule order from a court within the proper jurisdiction.
5b. Registered Determinations
A child custody order made by an out of state court can get registered in Texas. This can happen with or without a request for enforcement. If you want to register an order in Texas, there is a form that you will have to fill out. Along with the form, you must present Texas with a certified copy of your Final Judgment of Dissolution of Marriage with Minor Child or a Final Order from a Suit Affecting Parent-Child Relationship (SAPCR). You also need to provide your Marital Settlement for Dissolution of Marriage with Dependent or Minor Children if one exists. The determination will become enforceable in Texas from the date of registration; Texas courts cannot modify the determination since only a court with jurisdiction can do that.A hearing to contest the registration of the determination in Texas must occur within 20 days of the notice. If no one contests the registration of the determination, it will stand in Texas. Anyone named in the determination must be notified of the registration of this determination after it happens.
If a hearing to contest the registration of the determination gets requested, the party contesting the registration has to prove certain things. If they cannot prove certain things, the determination will be enforceable in Texas. The contesting party has to prove that the court that issued the determination did not have jurisdiction. They also have to establish that the order was stayed (put on hold), vacated, or modified by a different court that has jurisdiction. Finally, they have to prove that they had the right to contest the registration, but were not given notice of it.
5c. In a Hurry? Expedited Enforcement
A petition for expedited enforcement of an order created by another state must be verified. It also must contain an attached copy of the order. The petition has to state:
- If the court that made the determination identified their jurisdiction basis, and what that basis is.
- If the order got stayed, vacated, or modified.
- Whether a new proceeding started that could affect the current one. This might include domestic violence proceedings, termination of parental rights, adoption orders, or protective orders.
- The current address of the child.
- If relief is being sought.
- The state of registration for the order.
- After the petition gets filed, there will be an order to appeal. The petitioner must appear before the court, and the court will determine if additional orders need to happen to protect the child and the petitioner. The respondent can appear at this hearing to plead their case. They can show that the determination has not been registered, or that the court that created the order did not have jurisdiction. At the hearing, the court can award custody to the petitioner if this is an appropriate action.
6. Modifying an Order under the UCCJEA
There is a very different procedure when one state court is asked to modify another state's child custody determination (order or decree). As you can see above, the chart of this decision is different.
Family courts often have to communicate with the "home state" when there are cases filed in more than one state. The 'home state' is given priority to keep or release follow up orders. For original orders, it is a 'first to file' decision authority system. Courts from different states are allowed to interact with one another and should when necessary. When communication between courts in different states occurs, courts can allow the parties to take part in the communications. But again, this is not a requirement. If parties are not able to participate in communications, they must have an opportunity to present arguments and facts before a judge makes a decision regarding jurisdiction. If communication takes place, the UCCJEA states that there must be a record of the conversation. All parties involved in the communication must have access to the record.
6a. Who can be Subpoenaed?
In some cases, a witness might be outside of the subpoena range by the Texas court. This usually happens if a witness lives in another state. If this happens, the UCCJEA has a method for obtaining the testimony of this type of witness. Any party involved in child custody proceedings has the right to offer witness testimony, even if that witness lives out of state. Testimony is acquired through a deposition. The court has the right to make its motion for the testimony of someone who lives out of state.
The court can also ask a witness living out of state to produce their deposition through the use of video, telephone, or other electronic means. Testimony may occur in court or at some other location. Texas courts should cooperate with other courts to designate a place for the deposition to happen. Texas courts have the right to request the following from courts in other states:
- Order an evaluation.
- Order someone to provide evidence.
- Order someone to produce evidence.
- Hold an evidentiary hearing.
- Forward presented evidence.
- Forward a copy of a transcript recorded at a hearing.
- Forwarding an ordered evaluation.
- Assess expenses.