Originally published by Kelly McClure.
In some Texas custody cases, the parents live near each other and where the case will be heard is not an issue. In other cases, however, one parent has moved away and there may be a dispute over jurisdiction. Although the child’s home state generally has jurisdiction, there are circumstances where the child does not have a home state.
In a recent case, a mother challenged the Texas court’s jurisdiction over the child’s custody. The family lived in South Carolina when the child was born, but moved to Texas a few months later. They went to Michigan to celebrate the child’s first birthday. The father said it was a vacation, but the mother said she planned to move to Michigan then. They all went back to Texas, but the mother moved to Michigan with the child early the next month.
The father then filed suit seeking temporary child custody orders in Texas. He sought the exclusive right to designate the child’s primary residence. The Texas court entered temporary orders. The father added a divorce petition.
The mother responded with counter petitions and attached an Out-of-State Party Declaration stating she had not taken part in any other court case involving the child. She subsequently filed for an emergency order in a Michigan court. The Texas and Michigan courts communicated with each other and the Texas court had a hearing to determine if it had jurisdiction under the Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA). Finding the father and child had significant contacts with Texas and substantial evidence regarding the child was available in Texas, the Texas court found it had jurisdiction. The Michigan court rescinded its order and dismissed the mother’s complaint. The Texas court granted the divorce and entered child custody orders.
The mother appealed the Texas court’s jurisdiction over child custody. Pursuant to Tex. Fam. Code Ann. § 152.201, the home state has jurisdiction over an initial custody matter. However, neither Texas nor Michigan was the child’s home state. If no forum has home state jurisdiction, a Texas court may exercise jurisdiction if the child and a parent have a significant connection with the state, and there is substantial evidence regarding the child in Texas. Specifically, there must be evidence of the child’s care, training, relationships, and protection. The husband worked in Texas and the family had lived there four months. However, there was no evidence of any relationships the child had in Texas. Although the trial court found it sufficient, the appeals court noted it was “tenuous” evidence upon which to base jurisdiction. The appeals court found “the more appropriate forum jurisdiction” was not applicable because there was no evidence that courts having jurisdiction had declined to exercise jurisdiction because Texas was more appropriate.
There is, however, a default jurisdiction, under which a Texas court can exercise jurisdiction if no forum has home state jurisdiction, significant connections/substantial evidence jurisdiction, or more appropriate forum jurisdiction. Michigan was the only other potential forum, and it did not have home state jurisdiction. There was no evidence other forums declined jurisdiction in favor of Michigan or that there were significant connections and substantial evidence in Michigan as of the date in question.
Finding the Texas court had default jurisdiction, the appeals court affirmed the judgment.
Jurisdiction in another state can mean you have to travel for the proceedings. If you are dealing with a custody issue, a skilled Texas child custody attorney can fight for your rights. Call the attorney’s at McClure Law Group at 214.692.8200 to schedule a consultation.