WHERE DO WE FILE THIS THING?” JURISDICTION AND VENUE IN SAPCR

“WHERE DO WE FILE THIS THING?”
JURISDICTION AND VENUE IN SAPCR

SALLY HOLT EMERSON
The Underwood Law Firm
500 S. Taylor, Suite 1200, Lb 233

Amarillo, Texas 79101

State Bar of Texas
32ND ANNUAL ADVANCED FAMILY LAW COURSE

August 14-17, 2006
San Antonio
CHAPTER 3



SALLY HOLT EMERSON

THE UNDERWOOD LAW FIRM
500 S. Taylor, Suite 1200 LB 233

P.O. Box 9158
Amarillo, Texas 79105-9158

(806) 379-0348
Telecopier No. (806) 379-0316
E-Mail: [email protected]

EDUCATION:

B.A. in Spanish with honors, Texas Tech University
J.D., Texas Tech School of Law

PROFESSIONAL ACTIVITIES:

Shareholder – Underwood, Wilson, Berry, Stein & Johnson, P.C.
Board Certified in Family Law - 1991
Director, Amarillo Bar Association, 1996-1998; Vice President, 1999-00; President-Elect, 2000-01;

President, 2001-02
Founding Member/Secretary, Panhandle Family Law Association, 2000-01; Vice President, 2001-02,

President 2002-2003
Member, Texas Family Law Council: 6/93-present

95-96: Scholarships & Awards Committee Chair
96-97: Membership Committee Chair
97-00: Budget Committee Chair
00-03: Membership Committee Chair
03-04: Officer – Secretary
04-05: Officer-Treasurer
05-06: Officer-Vice Chair
Director, Texas Board of Legal Specialization, 1994-2000; Chair, 1996-97
Director, Texas Academy of Family Law Specialists, 1996-present; Treasurer, 1997-98; Secretary, 1998-
99; Vice-President, 1999-00; President-Elect, 2000-01; President, 2001-02
Fellow, American Academy of Matrimonial Lawyers
Fellow, Texas Bar Foundation
Member, ABA Standing Committee on Specialization, 1995-1998
Member, Pattern Jury Charge Committee, 1995-98
Course Director:
7th & 8th Annual TAFLS Trial Institute Series, Reno, Nevada, 1993 & 1994
12th Annual TAFLS Trial Institute Series, New Orleans, Louisiana, 1998
Advanced Family Law Course, August 2003, San Antonio, Texas
Workshop Coordinator, 19th Annual Advanced Family Law Course, San Antonio, Texas, 1993



“Where Do We File This Thing?” Jurisdiction And Venue In SAPCR Chapter 3

TABLE OF CONTENTS

I. INTRODUCTION................................................................................................................................................... 1

II. TEXAS LONG-ARM STATUTE........................................................................................................................... 1
A. The Texas Statutes........................................................................................................................................... 1
1. Generally ................................................................................................................................................. 1
2. Texas Family Code section 102.011(b). Acquiring Jurisdiction Over Nonresident................................ 1

III. UCCJEA: UNIFORM CHILD CUSTODY JURISDICTION ENFORCEMENT ACT........................................ 1
A. Brief History.................................................................................................................................................... 1
B. Stated Purposes................................................................................................................................................ 2
C. Texas Application............................................................................................................................................ 2
D. Initial Child Custody Determinations.............................................................................................................. 3
1. Home State .............................................................................................................................................. 3
2. Significant Connection ............................................................................................................................ 3
3. More Appropriate Forum......................................................................................................................... 4
4. No Other Court ........................................................................................................................................ 4
E. Jurisdiction to Modify Determination ............................................................................................................. 4
F. Temporary Emergency Jurisdiction ................................................................................................................ 5
G. Declining Jurisdiction...................................................................................................................................... 6
1. Inconvenient Forum................................................................................................................................. 6
2. Jurisdiction Declined by Reason of Conduct........................................................................................... 7
H. Simultaneous Proceedings............................................................................................................................... 7
I. Enforcement .................................................................................................................................................... 7
1. Registration of Child Custody Determination ......................................................................................... 8
2. Enforcement of Registered Determination .............................................................................................. 8
3. Simultaneous Proceedings....................................................................................................................... 8
4. Expedited Enforcement ........................................................................................................................... 8
5. Warrant to Take Physical Custody of Child ............................................................................................ 9

IV. UIFSA: UNIFORM INTERSTATE FAMILY SUPPORT ACT........................................................................... 9
A. Brief History.................................................................................................................................................... 9
B. Texas’ Enactment of UIFSA ........................................................................................................................... 9
1. Conflicts Between Provisions.................................................................................................................. 9
2. Jurisdiction .............................................................................................................................................. 9
3. Simultaneous Proceedings..................................................................................................................... 10
4. Continuing, Exclusive Jurisdiction........................................................................................................ 10
5. Enforcement and Modification .............................................................................................................. 10
6. Recognition of Controlling Child-Support Order.................................................................................. 10
7. Enforcement and Modification of Support Order After Registration....................................................... 10
8. Choice of Laws...................................................................................................................................... 11
C. Conflicts Between UCCJEA and UIFSA ...................................................................................................... 11

V. VENUE AND INTERSTATE JURISDICTION .................................................................................................. 11
A. Continuing Jurisdiction ................................................................................................................................. 11
1. Texas Family Code section 155.01........................................................................................................ 11
2. Texas Family Code sections155.02 and 155.03 .................................................................................... 11
B. Venue in Original Suits ................................................................................................................................. 11
C. Venue Litigation............................................................................................................................................ 12
1. Texas Family Code section 103.002(b) ................................................................................................. 12
D. Transfer Of Venue......................................................................................................................................... 13

VI. CONCLUSION ..................................................................................................................................................... 14

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“Where Do We File This Thing?” Jurisdiction And Venue In SAPCR Chapter 3

“WHERE DO WE FILE THIS THING?” over the person’s personal representative, although the
JURISDICTION AND VENUE IN person is not a resident or domiciliary of this state, if:

SAPCR a. the person is personally served with citation in

I. INTRODUCTION this state;
Sometimes, the most difficult aspect of suits b. the person submits to the jurisdiction of this

affecting parent-child relationships is to determine state by consent, by entering a general
where the suit should be correctly filed. Not only do appearance, or by filing a responsive
jurisdictional issues arise involving different states; document having the effect of waiving any
within the state, the proper venue must also be contest to personal jurisdiction;
determined. This paper will explore the different c. the child resides in this state as a result of the
jurisdictional and venue issues that must be considered acts or directives of the person;
by the family law practitioner in such suits. d. the person resided with the child in this state;
e. the person resided in this state and provided
The UCCJEA and the UIFSA are, of course, the parental expenses or support for the child;
initials for the names of federal uniform statutes that f. the person engaged in sexual intercourse in
have been incorporated into the Texas Family Code. this state and the child may have been
They deal with problems arising in family law matters conceived by that act of intercourse;
between different states involving custody and support g. the person registered with the paternity
of children. The advanced family law practitioner has to registry maintained by the bureau of vital
deal with these statutes on a fairly frequent basis. Why? statistics as provided by Texas Family Code
Because of the extreme mobility our society has chapter 160 [Determination of Paternity]; or
achieved today, rarely does much time pass without the h. there is any basis consistent with the
Texas family attorney representing someone with constitutions of this state and the United States
interstate child custody or child support enforcement for the exercise of the person jurisdiction.
problems. Sometimes, these laws can pose a serious
consideration for parents contemplating a move to or Texas family code section 102.011(b).
from one state to another. A firm understanding of these
two statutes is extremely helpful in advising clients and Thus, Texas courts have been provided a means to
dealing with these common interstate issues. A review litigate parental rights on the basis of personal
of the Texas statutes dealing with interstate issues will jurisdiction, as an alternative to exercising status or
help determine where in Texas the suit should be filed. subject-matter jurisdiction over the suit as provided by
the Texas version of the UCCJEA.
II. TEXAS LONG-ARM STATUTE

A. The Texas Statutes III. UCCJEA: UNIFORM CHILD CUSTODY
1. Generally JURISDICTION ENFORCEMENT ACT

Section 6.305 of the Texas Family Code permits A. Brief History
the exercise of personal jurisdiction over a non-resident Texas adopted the Uniform Child Custody
in a suit affecting the parent-child relationship
connected with divorce whenever personal jurisdiction Jurisdiction Enforcement Act (UCCJEA), effective
exists over the non-resident to litigate the divorce. Prior September 1, 1999. It is set forth in Chapter 152 of the
to the adoption of the Uniform Child Custody Texas Family Code. It replaced the previous act, the
Jurisdiction and Enforcement Act (UCCJEA) rules Uniform Child Custody Jurisdiction Act (UCCJA),
existed in each state which set out the minimum contacts which was enacted in 1968 and had been adopted by all
necessary to establish jurisdiction over the parental 50 states. In 1998, the American Bar Association
rights of non-resident parents. The minimum contacts recommended that all states approve the UCCJEA. As
requirements for acquiring personal jurisdiction over a of the writing of this paper, the UCCJEA has been
non-resident are specifically set forth in § 102.011 of the enacted in 42 states and the District of Columbia,
Texas Family Code. This section allows the court to including Alabama, Alaska, Arizona, Arkansas,
exercise personal jurisdiction over a person on whom California, Colorado, Connecticut, Delaware, Florida,
service is required in a SAPCR although the person is Georgia, Hawaii, Idaho, Illinois, Iowa, Kansas,
not a resident or domiciliary of Texas. Kentucky, Maine, Maryland, Michigan, Minnesota,
Mississippi, Montana, Nebraska, Nevada, New Jersey,
2. Texas Family Code section 102.011(b). Acquiring New Mexico, New York, North Carolina, North Dakota,
Jurisdiction Over Nonresident Ohio, Oklahoma, Oregon, Pennsylvania, Rhode Island,
The court may also exercise personal jurisdiction South Dakota, Tennessee, Texas, Utah, Virginia,
Washington, West Virginia, and Wyoming.
over a person on whom service of citation is required or

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“Where Do We File This Thing?” Jurisdiction And Venue In SAPCR Chapter 3

In addition, the UCCJEA was introduced as C. Texas Application
legislation is three other states in 2005. In both South The UCCJEA applies in Texas to an original suit
Carolina and Indiana, the legislation was left pending in
committee. As of the date this paper was written, the affecting the parent-child relationship and a suit for
legislation in New Hampshire was still pending modification filed on or after September 1, 1999. TEX.
although its prognosis is doubtful. If it passes and the FAM. CODE §§ 152.201, 152.203; see also TEX. FAM.
governor signs the bill, the UCCJEA will become CODE ANN. Chap. 152, Introductory Comment to
effective in New Hampshire on January 1, 2006. UCCJEA (Vernon 2000). The UCCJA governs suits
filed prior to September 1, 1999 and pending as of that
The UCCJEA creates a uniform procedure for the date. Id. Consequently, Texas case law decided under
enforcement of child custody orders. Texas previously the UCCJA will have little, if any, value to the family
had adopted, as had all other states, the UCCJA. Each law practitioner in interpreting the provisions now
state, however, had been interpreting the UCCJA incorporated into the UCCJEA. See, e.g., McGuire v.
differently for the past thirty years. The McGuire, 18 S.W.3d 801 (Tex. App. –El Paso 2000, no
Commissioners’ Official Prefatory Note to UCCJEA pet.) (UCCJA is no longer applicable to interstate
noted that the goals of the UCCJA were rendered custody proceedings).
unobtainable in many cases. TEX. FAM. CODE Chap.
152 (Vernon 2000). The UCCJEA sets forth rules to The UCCJEA’s jurisdictional rules apply to a wide
discourage or eliminate competing custody orders from range of cases involving custody and visitation issues,
different states. The UCCJEA clarifies emergency which are defined in the act as “child custody
jurisdiction. proceedings.” TEX. FAM. CODE § 152.102(4). These
include proceedings for divorce, separation, neglect,
There was also much confusion created by abuse, dependency, guardianship, paternity, termination
conflicting provisions of the UCCJA and the federal of parental rights, and protection from domestic
Parental Kidnapping Prevention Act (PKPA). The violence in which an issue regarding legal custody,
UCCJEA revisions reconcile UCCJA principles with the physical custody, or visitation with respect to a child
PKPA by implementing both “home state” priority and may appear. This chapter does not govern an adoption
“exclusive continuing jurisdiction.” proceeding or a proceeding pertaining to the
authorization of emergency medical care for a child.
The UCCJEA is to be applied and construed to TEX. FAM. CODE § 152.103.
promote the uniformity of the law among the states that
enact it. TEX. FAM. CODE § 152.001. If a provision of The previous UCCJA did not have provisions
the Texas Family Code or other Texas law conflicts with regarding visitation. Now the UCCJEA specifically
a provision of this act, and the conflict cannot be applies to child custody determinations, which are
reconciled, the UCCJEA will prevail. TEX. FAM. CODE defined as a judgment, decree, or other order of a court
§ 152.002. providing for legal custody, physical custody, or
visitation with respect to a child. This term does not
B. Stated Purposes include an order relating to child support or another
Section 101 of the Commissoners’ Comment to the monetary obligation of an individual. TEX. FAM. CODE
§ 152.102(3).
UCCJEA states that this Act should be interpreted
according to its purposes, and sets forth those purposes: The UCCJEA also specifies that a child custody
proceeding involving an Indian child as defined in the
• To avoid jurisdictional competition and conflict Indian Child Welfare Act of 1978 (25 U.S.C. Section
with courts of other states in matters of child 1901 et seq.) is not subject to this chapter to the extent
custody which have in the past resulted in the that it governed by the Indian Child Welfare Act;
shifting of children from state to state with harmful however a court of this state shall treat a tribe as if it
effects on their well-being; were a state. TEX. FAM. CODE § 152.104 (a), (b). A
child custody determination made by a tribe under
• To promote cooperation with the courts of other factual circumstances in substantial conformity with the
states to the end that a custody decree is rendered in jurisdictional standards of the act must be recognized
that state which can best decide the case in the and enforced. TEX. FAM. CODE § 152.104(c).
interest of the child;
The UCCJEA covers international custody
• To discourage the use of the interstate system for proceedings and orders. It provides that a court of this
continuing controversies over child custody; state shall treat a foreign country as if it were a sister
state and apply the jurisdictional rules of the UCCJEA.
• To deter abductions of children; TEX. FAM. CODE § 152.105(a). This requirement does
• To avoid relitigation of custody decisions of other not apply if the child custody law of the foreign country
violates fundamental principles of human rights. TEX.
states in this state; and FAM. CODE § 152.105(c).
• To facilitate the enforcement of custody decrees of

other states.

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D. Initial Child Custody Determinations “typically involves an inquiry into a person’s intent.” In

The UCCJEA gives a Texas court jurisdiction to the Court’s opinion, the Legislature used the word

make an initial custody determination only under four “lived” in the statute precisely in order to avoid

instances. TEX. FAM. CODE § 152.201 (1)–(4). These complicating the determination of a child’s home state

four instances are the exclusive jurisdictional bases for with inquiries into the state of mind of the child or the

making a child custody determination by a court of this child’s caretakers.

state. TEX. FAM. CODE § 152.201(b). Physical presence Another case examined the problem of what to do

of, or personal jurisdiction over, a party or a child is not if there is no home state. In In re Presley, 166 S.W.3d

necessary or sufficient to make a child custody 866, (Tex. App.—Beaumont 2005, n.p.h.), at the time

determination. TEX. FAM. CODE § 152.201(c). one party filed an initial child custody proceeding in

Texas, a proceeding concerning custody had been

1. Home State commenced in Florida, and the Florida court had

Texas is the home state of the child on the date of jurisdiction consistent with the UCCJEA. The children

the commencement of the proceeding or was the home were only in Florida three months before their father

state of the child within six months before the took them to Texas; and they had only been in Texas for

commencement of the proceeding and the child is absent four months. Therefore, there was no home state. The

from this state but a parent or person acting as a parent court held that since suit was filed first in Florida,

continues to live in this state. TEX. FAM. CODE § section 152.206(a) controlled. Therefore, the Texas

152.201(a)(1). court could not exercise jurisdiction unless the Florida

Home state means the state in which a child lived proceeding had been terminated or the Florida court

with a parent or a person acting as a parent for at least determined Texas was a more convenient forum.

six consecutive months immediately before the

commencement of a child custody proceeding. In the 2. Significant Connection

case of a child less than six months of age, the term Texas has jurisdiction over an initial child custody

means the state in which the child lived from birth with determination if a court of another state does not have

a parent or person acting as a parent. A period of jurisdiction under section 152.201(a)(1) or a court of the

temporary absence of a parent or a person acting as a home state of the child has declined to exercise

parent is part of the period. TEX. FAM. CODE § jurisdiction on the ground that this state is the more

152.102(7). appropriate forum under section 152.207 (inconvenient

The priority given to home state jurisdiction brings forum) or section 152.208 (jurisdiction declined by

the UCCJEA into conformity with the PKPA. This is reason of conduct), and the child and the child’s parents,

designed to reduce the inconsistent exercise of or the child and at least one parent or a person acting as

jurisdiction by state courts while improving the a parent, have a significant connection with this state

interstate enforcement of state courts’ orders as other than mere physical presence. There must be

contemplated by federal law. substantial evidence available in this state concerning

The purposes behind the UCCJEA suggest that a the child’s care, protection, training, and personal

child’s physical location is the central factor to be relationships. TEX. FAM. CODE § 152.201(a)(2).

considered when determining a child’s home state. The In 2002, Justice Ann McClure of the El Paso Court

UCCJEA was intended to make the determination of of Appeals wrote an opinion regarding significant

jurisdiction ore straightforward. The UCCJEA achieves connections in In the Interest of Kaylee Lynn-Marie

this purpose by prioritizing home-state jurisdiction, Brilliant, A Child, 86 S.W.3d 680 (Tex. App.—El Paso

which helps to avoid the jurisdictional competition and 2002, orig. proceeding). In the case, the father and

conflict that result when courts in different states mother of the child were not married, but lived in

determine jurisdiction based on subjective factors. Massachusetts at the time of the child’s birth on June

Powell v. Stover, 165 S.W.3rd 322 (Tex. 2005). The 15, 1999. About a year after the child’s birth, they

Texas Supreme Court in its May 27, 2005 opinion in made the decision to move to El Paso, Texas, where the

Powell determined that the UCCJEA should be father grew up and where his large family still lived.

construed in such a way as to strengthen rather than The father moved to El Paso in April of 2000, and the

undermine the certainty that prioritizing home-state mother and child followed him there in June 2000. The

jurisdiction was intended to promote. The Supreme mother did not like Texas, and told the father in July she

Court thus declined to apply a test to determine where a was leaving. The father filed suit on July 19 and on July

child “lived” based on the parties’ subjective intent, 21 obtained a temporary restraining order preventing the

holding that such a test would thwart the UCCJEA’s mother from removing the child from Texas, which she

meaning and purpose. Instead, the Court looked solely did anyway. The mother moved with the child back to

to the state in which the child lived with a parent. In Massachusetts, and did not appear in the El Paso

doing so, it looked to the physical presence of the child, proceeding, except to make a plea to the jurisdiction.

not where the child “resided” or “was domiciled,” which The trial court denied her plea and granted the father a

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default judgment against the mother. The mother status of "persons acting as a parent" as that phrase is

appealed on the basis that Texas did not have defined, Texas could not invoke significant connection

jurisdiction. Following the theory that the child jurisdiction. See TEX. FAM. CODE § 152.201(a)(2)(A).

actually had no home state, Justice McClure reasoned While the children may well have had a significant

that all parties lived in Texas at the time suit was filed, connection to the state of Texas, the statute requires

and that the child had more significant connection with more. There must also be a parent or a person acting as a

this state other than mere physical presence. This case parent with a significant connection to the state. The

is highly recommended for a review of the evidentiary grandparents did not meet either criteria.

considerations in significant connection issues.

In 2003, Justice McClure wrote another opinion 3. More Appropriate Forum

which clearly sets forth the application of the UCCJEA A Texas court will have jurisdiction to make an

and discussed the home state and significant connection initial child custody determination if all courts having

concepts in In re Oates, 104 S.W.3d 571 (Tex. App.— jurisdiction under section 152.201(a)(1) and (2) have

El Paso, 2003). During a pending divorce action, the declined to exercise jurisdiction on the ground that a

mother had moved to New York, while the father and court of this state is the more appropriate forum to

children remained in Texas under temporary orders. determine the custody of the child under section 152.207

The father died before the divorce was final, and the (inconvenient forum) or section 152.208 (jurisdiction

children stayed temporarily in Texas with grandparents declined by reason of conduct).

while the mother made preparations for them to move to The Beaumont Court of Appeals in In re Presle

New York. The grandparents filed for grandparent once it determined that there was no home state and that

access, but the mother’s position was that the Texas Florida had jurisdiction under the UCCJEA, clarified

court did not have jurisdiction. that the Texas court could not exercise jurisdiction

The appellate court held that since the death of a unless the Florida proceeding had been terminated or the

parent managing conservator terminates the Florida court determined Texas was a more convenient

conservatorship order, the grandparent access case forum. The Texas court was required to stay its

should be approached as an initial custody determination proceeding and communicate with the Florida court on

rather than a modification. Next, Justice McClure the convenient forum issue. The Texas trial court did not

analyzed the interplay between Section 152.201(a) and have the authority to determine whether Texas was a

Section 152.102(7). Section 152.201(a) provides that a more convenient forum; only the Florida court could do

Texas court has jurisdiction to make an initial child so. The Texas Supreme Court reached this same

custody determination only if Texas "is the home state conclusion that only the court in the state with

of the child on the date of the commencement of the jurisdiction may decide whether that state is an

proceeding...." Id. at 577 (original emphasis). Since the inconvenient forum. Powell v. Stover, supra.

grandparents never had physical custody for six months,

they never achieved the status of "persons acting as a 4. No Other Court

parent." Because the children did not live in Texas with Finally, a Texas court will have jurisdiction to

a parent or a person acting as a parent for six make an initial child custody determination if no court

consecutive months immediately before the of any other state would have jurisdiction under the

commencement of the suit, Texas did not qualify as the criteria specified in section 152.201(a)(1), (2), or (3).

children's home state. When the grandparents’ suit was

filed, the children had only been living in New York E. Jurisdiction to Modify Determination

with their mother for a little over four months. Since the Except for emergency jurisdiction, infra, a Texas

children had no home state at the time suit was filed and court may not modify a child custody determination

Texas was not the children's home state for six made by a court of another state unless the Texas court

consecutive months immediately before suit was filed, has jurisdiction to make in initial determination under

the court then turned to the issue of significant section 152.201(a)(1) or (2) and either the court of the

connection. Citing Lemly v. Miller, 932 S.W. 2d 284, other state determines it no longer has exclusive

286 (Tex. App.—Austin 1996, no pet), the court noted continuing jurisdiction under section 152.202 or that a

that significant connection jurisdiction should be court of this state would be a more convenient forum

employed only when Texas is not the home state and it under section 152.207, or a court of this state or a court

appears that no other state could assert home state of the other state determines that the child, the child’s

jurisdiction. The grandparents claimed that since the parents, and any person acting as a parent do not

children lived in Texas from birth through April 2001, presently reside in the other state. TEX. FAM. CODE §

Texas had the most significant connection with the 152.203(1), (2).

children. While the court found their argument to be So, if there has been a custody determination in

both logical and reasonable, it held that it was statutorily another state, even if the child’s “home state” is now

prohibited. Since the grandparents did not attain the Texas, the court of the state of “exclusive continuing

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jurisdiction” is the state with jurisdiction to modify the This provision is actually a departure from the UCCJA,

custody determination, with the only exceptions being as pointed out in In the Interest of Shannon Danielle

(1) neither the parties nor the child remain in that state; Bellamy, a Child, 67 S.W.3d 482, 483-84 (Tex. App.—

(2) a court of that state declines to exercise jurisdiction Texarkana 2002, no pet.). The old law provided that

on the ground that it no longer possesses exclusive once the child had lived in another state for six months,

jurisdiction; or (3) it determines that a Texas court is a Texas would lose jurisdiction and the new home state

more convenient forum. would be the proper place for any modification. So long

Saavedra v. Schmidt, 96 S.W.3d 533 (Tex. App.— as one parent still lives in the original decree state, that

Austin 2002, no pet.), illustrates the issues with which a state is the only one that can determine whether

Texas court must grapple when another state has already jurisdiction continues. Id. at 484. The court in this case

exercised jurisdiction over children. In the case, absent went on to examine the significant connection the child

the California court's relinquishment of that exclusive still had with Texas even though she and her mother had

continuing jurisdiction, the Texas court was without moved across the border to Louisiana, and concluded

jurisdiction to modify previous California orders. The that Texas still maintained exclusive continuing

Texas court held that a court of this state may not jurisdiction.

modify a custody determination made by the California The Texas Supreme Court examined this part of the

court unless (1) the California court determines it no UCCJEA in In re Forlenza, 140 S.W.3d 373, 375-77

longer has exclusive continuing jurisdiction or that a (Tex. 2004). The Court pointed out that because one

court of this state would be a more appropriate forum; or litigant, the mother, still resided in Texas, the Texas trial

(2) a court of this state or the California court court that made the original child custody determination

determines that the children and their parents no longer was the only court that had jurisdiction.

reside in California. Id. at 541-42 (citing TEXAS FAMILY A court of this state which has made a child

CODE SECTION 152.203). Neither circumstance existed custody determination and does not have exclusive,

in this case. The court held that it is of no consequence continuing jurisdiction under this section may modify

that the Texas trial court determined that Texas was a that determination only if it has jurisdiction to make an

more appropriate forum; the California court must make initial determination under TEX. FAM. CODE § 152.201.

this determination before a court of this state may TEX. FAM. CODE § 152.202(b).

modify the California court's child custody

determinations. The appellate court held that the trial F. Temporary Emergency Jurisdiction

court erred to the extent that it attempted to exercise The UCCJEA provides that courts have temporary

subject matter jurisdiction and modify the custody rights emergency jurisdiction when a child who is in the state

of these parents when there was a previous valid is abandoned; or, when an emergency makes it

California order. Id. at 542. necessary to protect the child because the child or a

A Texas court which has made either an initial sibling or parent of the child is subjected to or

child custody determination consistent with section threatened with mistreatment or abuse. TEX. FAM. CODE

152.201 or has properly exercised jurisdiction in § 152.204(a).

modifying a child custody determination made by a The purpose of this section is to protect the child in

court of another state under section 152.203 has an emergency situation. Section 152.206(a) even allows

exclusive continuing jurisdiction over the determination a court to exercise temporary emergency jurisdiction

until either: under section 152.204 even if a proceeding has been

commenced in another state. In that situation, judicial

• a court of this state determines that neither the communication is immediately required.

child, nor the child and one parent, nor the child Section 152.110 sets out in detail how the courts

and a person acting as a parent, have a significant should communicate. This section provides for a court

connection with this state and that substantial in one state to communicate about simultaneous

evidence is no longer available in this state proceedings with the court of the other state, in order to

concerning the child’s care, protection, training, arrange for only one of them to proceed accordingly.

and personal relationships; TEX. FAM. CODE § The methods of recording such communication are also

152.202(a)(1); or addressed.

• a court of this state or a court of another state A court of this state which has been asked to make

determines that the child, the child’s parents, and emergency temporary orders under this section, upon

any person acting as a parent do not presently being informed that a child custody proceeding has been

reside in this state; TEX. FAM. CODE § commenced in or a child custody determination has

152.202(a)(2). been made by a court of a state having jurisdiction under

sections 152.201 through 152.203, shall immediately

communicate with the other court. TEX. FAM. CODE §

152.204(d). The reverse is also required: a court of this

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state which is exercising jurisdiction pursuant to G. Declining Jurisdiction
sections 152.201 through 152.203, upon being informed Besides the option of declining jurisdiction in
that a child custody proceeding has been commenced in
or a child custody determination has been made by a recognition of another state’s status as home state or due
court of another state under a statute similar to this to a determination of significant connection with another
section shall immediately communicate with the court of state, a Texas court may also decline to exercise
that state to resolve the emergency, protect the safety of jurisdiction over a child custody determination for two
the parties and the child, and determine a period for the other reasons set forth in the UCCJEA. One is that this
duration of the temporary order. TEX. FAM. CODE § state is an inconvenient forum, and the other is for
152.204(d). unjustifiable conduct.

The definition of emergency has been modified to 1. Inconvenient Forum
harmonize this statute with the PKPA. The PKPA’s A court of this state which has jurisdiction under
definition of emergency jurisdiction does not use the
term “neglect.” It defines an emergency as this chapter to make a child custody determination may
“mistreatment or abuse.” Therefore, “neglect” has been decline to exercise its jurisdiction at any time if it
eliminated as a basis for the assumption of temporary determines that it is an inconvenient forum under the
emergency jurisdiction. Also, mere presence of a child circumstances and that a court of another state is a more
in the state and a claim of emergency are insufficient for appropriate forum. The issue of inconvenient forum
jurisdiction. Lundell v. Clawson, 697 S.W.2d 836, 840 may be raised upon the motion of a party, the court’s
(Tex. App.—Austin 1985, no writ). The court in this own motion or request of another court. TEX. FAM.
case explained that the word “emergency” implies “an CODE § 152.207(a).
unexpected crisis demanding immediate action by the
court to protect the child from physical or emotional Before determining whether it is an inconvenient
harm, irrespective of other considerations which must be forum, a court of this state shall consider whether it is
suspended until the emergency abates.” Id. at 840. appropriate for a court of another state to exercise
jurisdiction. TEX. FAM. CODE § 152.207(b).
Emergency jurisdiction is meant to be temporary.
The purpose is to protect the child until the state having For this purpose the court shall allow the parties to
proper jurisdiction under sections 152.201-152.203 submit information and shall consider all relevant
enters an order. If a child custody proceeding has not factors, including:
been or is not commenced in a court of a state having
jurisdiction under section 152.201 (initial child custody • whether domestic violence has occurred and is
jurisdiction), section 152.202 (exclusive continuing likely to continue in the future and which state
jurisdiction, or section 152.203 (jurisdiction to modify could best protect the parties and the child;
determination), a child custody determination made
under this section becomes a final determination if it so • the length of time the child has resided outside this
provides and this state becomes the home state of the state;
child.
• the distance between the court in this state and the
Temporary emergency jurisdiction may not be used court in the state that would assume jurisdiction;
for forum shopping. A parent who is dissatisfied with a
valid initial custody determination made by a court of • the relative financial circumstances of the parties;
one state with jurisdiction may not use the emergency • any agreement of the parties as to which state
jurisdiction provisions of the UCCJEA to attempt to
obtain a different result. In In Re Carpenter, 835 should assume jurisdiction;
S.W.2d 760 (Tex. App.—Amarillo 1992, no writ), the • the nature and location of the evidence required to
father kidnapped the child in violation of a Pennsylvania
court order and relocated to Texas with the child. The resolve the pending litigation, including testimony
Texas court declined to exercise jurisdiction and held of the child;
that the father “should not be allowed to use his • the ability of the court of each state to decide the
deliberate secretion of himself and [the child] as a claim issue expeditiously and the procedures necessary to
of right….To do so would make a mockery of the present the evidence; and
purposes of the UCCJA.” Id. at 762; see also Huffstutlar • the familiarity of the court of each state with the
v. Koons, 789 S.W.2d 707 (Tex. App.—Dallas 1990 no facts and issues in the pending litigation.
writ); Ex parte McDonald, 737 S.W.2d 102 (Tex.
App.—Corpus Christi 1987, no writ). TEX. FAM. CODE § 152.207(b)(1)-(8).

If a court of this state determines that it is an
inconvenient forum and that a court of another state is a
more appropriate forum, the court shall stay the
proceedings upon condition that a child custody
proceeding be promptly commenced in another
designated state and may impose any other condition the

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court considers just and proper. TEX. FAM. CODE § Except as otherwise provided in section 152.204, a

152.207(c). court of this state, before hearing a child custody

A court of this state may decline to exercise its proceeding, shall examine the court documents and

jurisdiction under this chapter if a child custody other information supplied by the parties pursuant to

determination is incidental to an action for divorce or section 152.209. If the court determines that a child

another proceeding while still retaining jurisdiction over custody proceeding has been commenced in a court in

the divorce or other proceeding. another state having jurisdiction substantially in

accordance with this chapter, the court of this state shall

2. Jurisdiction Declined by Reason of Conduct stay its proceeding and communicate with the court of

If a court of this state has jurisdiction under this the other state. If the court of the state having

chapter because a person seeking to invoke its jurisdiction substantially in accordance with this chapter

jurisdiction had engaged in unjustifiable conduct, the does not determine that the court of this state is a more

court shall decline to exercise its jurisdiction unless the appropriate forum, the court of this state shall dismiss

parents and all persons acting as parents have the proceeding. TEX. FAM. CODE § 152.206(b).

acquiesced in the exercise of jurisdiction; a court of the Section 152.209 requires each party, in its first

state otherwise having jurisdiction under sections pleading or in an attached affidavit, to give information,

152.201 through 152.203 determines that this state is a if reasonably ascertainable, under oath as to the child’s

more appropriate forum under section 152.207; or no present address or whereabouts the places where the

court of any other state would have jurisdiction under child has lived during the last five years, and the names

the criteria specified in sections 152.201 through and present addresses of the persons with whom the

152.203. TEX. FAM. CODE § 152.208(a). Unjustifiable child has lived during that period. The pleading or

conduct is not defined in this statute, but in the affidavit shall also state whether the party:

Commissioner’s Comment following the section, it is

stated that removing, secreting, retaining, or restraining • has participated as a party or witness or in any

the child would be acting in a reprehensible manner. other capacity in any other proceeding concerning

If a court of this state declines to exercise its the custody of or visitation with the child and, if so,

jurisdiction pursuant to subsection (a), it may fashion an identify the court, the case number, and the date of

appropriate remedy to ensure the safety of the child and the child custody determination, if any;

prevent a repetition of the unjustifiable conduct, • knows of any proceeding that could affect the

including staying the proceeding until a child custody current proceeding, including proceedings for

proceeding is commenced in a court having jurisdiction enforcement and proceedings relating to domestic

under sections 152.201 through 152.203. TEX. FAM. violence, protective orders, termination of parental

CODE § 152.208(b). rights, and adoptions and, if so, identify the court,

the case number, and the nature of the proceeding;

H. Simultaneous Proceedings and

According the provisions of the UCCJEA, only one • knows the names and addresses of any person not a

court at a time may exercise jurisdiction in a particular party to the proceeding who has physical custody

child custody determination. Conflict arising from of the child or claims rights of legal custody or

simultaneous proceedings is generally resolved in favor physical custody of, or visitation with, the child

of the first filed. TEX. FAM. CODE § 152.206. The and, if so, the name and addresses of those persons.

simultaneous proceedings conflict will arise only when

there is no home state; no state with exclusive TEX. FAM. CODE § 152.209(a). If this information is not
continuing jurisdiction; and there is more than one state furnished, the court, upon motion of a party or its own
which meets the requirements necessary in order to motion, may stay the proceeding until the information is
exercise significant connection jurisdiction. See TEX. furnished. TEX. FAM. CODE § 152.209(b).
FAM. CODE § 152.206 (Commissioners’ Comment to

UCCJEA Section 206). I. Enforcement
Except as otherwise provided in section 152.204, a The UCCJEA incorporates the PKPA requirements

court of this state may not exercise its jurisdiction under for enforcement of custody orders of other states, as
this subchapter if, at the time of the commencement of well as an order for the return of the child made under
the proceeding, a proceeding concerning the custody of the Hague Convention. TEX. FAM. CODE § 152.302.
the child has been commenced in a court of another state Texas courts shall recognize and enforce a child custody
having jurisdiction substantially in conformity wit this determination of a court of another state if the latter
chapter, unless the proceeding has been terminated or is court exercised jurisdiction in substantial conformity
stayed by the court of the other state because a court of with this chapter or the determination was made under
this state is a more convenient forum under section factual circumstances meeting the jurisdictional
152.207. TEX. FAM. CODE § 152.206(a).

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standards of this chapter and the determination has not registered child custody determination made by a court

been modified in accordance with this chapter. TEX. of another state. TEX. FAM. CODE § 152.306(a). A

FAM. CODE § 152.303(a). A court of this state may court of this state shall recognize and enforce, but may

utilize any remedy available under the other law of this not modify, except in accordance with Subchapter C, a

state to enforce a child custody determination. TEX. registered child custody determination of a court of

FAM. CODE § 152.303(b). another state. TEX. FAM. CODE § 152.306(b).

In an enforcement action the prevailing party

1. Registration of Child Custody Determination including a state, shall be awarded necessary and

The UCCJEA provides that a child custody reasonable expenses including costs, attorney’s fees,

determination issued by a court of another state may be investigative fees, expenses for witnesses, travel

registered in this state, with or without a simultaneous expenses communication expenses, and child care

request for enforcement, by sending to the appropriate expenses unless the party from whom fees or expenses

court in this state: are sought establishes that the award would be clearly

inappropriate. However, the court may not assess fees,

• a letter or other document requesting registration; costs, or expenses against a state unless authorized by

• two copies, including one certified copy, of the law other than this chapter. TEX. FAM. CODE §

determination sought to be registered and a 152.312(a).

statement under penalty of perjury that to the best

of the knowledge and belief of the person seeking 3. Simultaneous Proceedings

registration the order has not been modified; and If a proceeding for enforcement under this

• except as otherwise provided in Section 152.209, subchapter is commenced in a court of this state and the

the name and address of the person seeking court determines that a proceeding to modify the

registration and any parent or person acting as a determination is pending in a court of another state

parent who has been awarded custody or visitation having jurisdiction to modify the determination under

in the child custody determination sought to be Subchapter C, the enforcing court shall immediately

registered. communicate with the modifying court. The proceeding

for enforcement continues unless the enforcing court,

TEX. FAM. CODE § 152.305(a). Upon receipt of the after consultation with the modifying court, stays or
documentation indicated above, the registering court dismisses the proceeding. TEX. FAM. CODE § 152.307.

shall cause the determination to be filed as a foreign 4. Expedited Enforcement
judgment, together with one copy of any accompanying The UCCJEA provides a vehicle for expedited
documents and information, regardless of their form;
and serve notice upon the persons named and provide enforcement of child custody orders. TEX. FAM. CODE §
them with an opportunity to contest the registration in 152.308. A parent seeking to enforce a custody order or
accordance with this section. TEX. FAM. CODE § a possession and access order may request immediate
152.305(b). physical custody of the child, attorney’s fees, and
assistance from law enforcement officials in obtaining
After hearing, the court will confirm the order, immediate physical custody of the child. A copy of the
unless the person contesting the registration shows the petition must be served upon the respondent and any
order is not entitled to confirmation as provided by the other person who has physical custody of the child. TEX.
statute. TEX. FAM. CODE § 152.305(d). Persons FAM. CODE § 152.309. The petition for expedited
provided notice have twenty days from service to enforcement must contain all information required under
contest the registration. If no timely request for hearing section 152.308 and must attach certified copies of the
is made, the court must confirm the order as a matter of order sought to be enforced. TEX. FAM. CODE §
law. TEX. FAM. CODE § 152.305(e). If a hearing is 152.308(a), (b). In addition to notifying the respondent
requested to challenge the validity of the registration, of the time and place of the hearing, the court’s notice
the court shall confirm the registered order unless the must inform the respondent that, at the hearing, the court
person contesting registration establishes (1) the issuing will order respondent to pay attorney’s fees and costs
court did not have jurisdiction; (2) the child custody and will award the petitioner immediate physical
determination sought to be registered has been vacated, custody of the child, unless the respondent appears and
stayed, or modified by a court having jurisdiction; or (3) shows a defense to the immediate enforcement as
proper notice was not given. TEX. FAM. CODE § provided in Section 152.308(d).
152.305(d).
Three defenses are available to the respondent in

2. Enforcement of Registered Determination cases in which the out-of-state order has not been
A Texas court may grant any relief normally registered: (1) the issuing court did not have jurisdiction
under the UCCJEA; (2) respondent was not noticed in
available under the law of this state to enforce a accordance with the requirements of the UCCJEA; and

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(3) the order in question was vacated, stayed, or Accounting Office, Interstate child Support: Mothers
modified. TEX. FAM. CODE § 152.308(d)(1). Report Receiving Less Support From Out-of-State
Fathers (January 1992).
If the out-of-state order has been registered, the
only defense is that the child custody determination has In 1975, 1984, 1988, and 1996, there has been
been vacated stayed or modified by a court of a state federal legislation passed which has impacted state child
having jurisdiction to do so. TEX. FAM. CODE § support enforcement laws greatly. Through this
152.308(d)(2). legislation, Congress has mandated that, in order to be
eligible for federal funding of child support enforcement
5. Warrant to Take Physical Custody of Child programs, states must adopt child support guidelines as
This is an additional remedy for the parent who well as establish child support enforcement procedures
such as tax intercepts, wage withholding and credit
fears that the child is likely to suffer serious harm or be reporting. The following is a list of these federal laws:
removed from this state once the party in physical
possession of the child discovers that an enforcement • 1975: Social Services Amendment of 1974, 42
action has been filed. In such a case, a parent may file, U.S.C. §651-659 (1983), signed into law by
along with the filing of a petition seeking enforcement President Ford on January 4, 1975
of a child custody order, a verified application for the
issuance of a warrant to take physical custody of the • 1984: Child Support Enforcement Amendment of
child. TEX. FAM. CODE § 152.311(a). 1984, Public Law No. 98-378, 99 stat. 1305 (1984)

The warrant must recite the facts upon which a • 1988: Family Support Act of 1988, Public Law
conclusion of imminent serious physical harm or No. 100-485
removal from the jurisdiction is based, direct law
enforcement officers to immediately take physical • 1996: Welfare Reform Act, officially known as the
custody of the child, and provide for placement of the Personal Responsibility and Work Opportunity
child pending the enforcement hearing. TEX. FAM. Reconciliation Act of 1996 (PRWORA)
CODE § 152.311(c).
B. Texas’ Enactment of UIFSA
This section allows the child to be taken into Texas adopted the Uniform Interstate Family
physical custody prior to service on the respondent. The
respondent must be served with the petition, warrant and Support Act (UIFSA) to replace the Revised Uniform
order immediately after the child is taken into physical Reciprocal Enforcement Act (RURESA) effective
custody. TEX. FAM. CODE § 152.311(d). The September 1, 1993. As stated above, in 1996, Congress
enforcement petition must be heard on the next judicial enacted PRWORA, which mandated enactment of the
day after the warrant is executed, unless impossible. amended UIFSA by all U.S. jurisdictions by January 1,
TEX. FAM. CODE § 152.311(b). 1998. Texas passed the amended act in 1997. It is
found in the Texas Family Code at Chapter 159.

IV. UIFSA: UNIFORM INTERSTATE FAMILY 1. Conflicts Between Provisions
SUPPORT ACT As with the UCCJEA, UIFSA has a provision that

A. Brief History if any provision of the chapter conflicts with a provision
The enforcement of child support orders and of the Texas Family Code or other state law, this chapter
will prevail. TEX. FAM. CODE § 159.001.
collection of child support between states has long been
addressed by federal statutes. As far back as 1950,

Congress passed the Uniform Reciprocal Enforcement 2. Jurisdiction
of Support Act (URESA), which was revised in 1968 s UIFSA provides that in a proceeding to establish
the Revised uniform Reciprocal Enforcement of Support
Act (RURESA). enforce, or modify a support order or to determine
parentage, a Texas court may exercise personal
Beginning in 1975, Congress determined that the jurisdiction over a nonresident individual under the
system for enforcement of child support, as following circumstances:
implemented by the various states, was grossly

inadequate. The General Accounting Office noted in • the individual is personally served with citation in
1992 that interstate cases represent at least one-fourth of
this state;
all child support cases; that children in interstate cases • the individual submits to the jurisdiction of this
are less likely than in-state children to receive support
state by consent, by entering a general appearance,
payments; that custodial mothers do not want or pursue
or by filing a responsive document having the
support; that some non-custodial fathers refuse to pay or
effect of waiving any contest to personal
cannot be located; that most custodial mothers and their
jurisdiction;
children are not covered by health insurance; and that
receipt of public assistance did not differ on the basis of • the individual resided with the child in this state;

the non-custodial father’s residence. U.S. General

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“Where Do We File This Thing?” Jurisdiction And Venue In SAPCR Chapter 3

• the individual resided in this state and provided parties or the child continues to reside in the issuing
prenatal expenses or support for the child; state and al long as the parties do not agree to the
contrary the issuing tribunal has continuing, exclusive
• the child resides in this state as a result of the acts jurisdiction over its order. TEX. FAM. CODE § 159.205
or directives of the individual; (Commissioners’ Comment to UIFSA Section 205).

• the individual engaged in sexual intercourse in this 5. Enforcement and Modification
state and the child may have been conceived by Section 159.206 is the correlative of the continuing
that act of intercourse;
exclusive jurisdiction asserted in section 159.205. This
• the individual asserted parentage in the paternity section provides that a court of this state may serve as an
registry maintained in this state by the bureau of initiating tribunal to request a tribunal of another state to
vital statistics; or enforce or modify a support order issued in that state;
and that a court of this state having continuing,
• there is any other basis consistent with the exclusive jurisdiction over a support order may act as a
constitutions of this state and the United States for responding tribunal to enforce or modify the order.
the exercise of personal jurisdiction.

TEX. FAM. CODE § 159.201.

3. Simultaneous Proceedings 6. Recognition of Controlling Child-Support Order
Under UIFSA, a Texas court may exercise If a proceeding is brought under UIFSA and only

jurisdiction to establish a support order if the petition or one court has issued a child support order, the order of
comparable pleading in this state is filed after a pleading that court controls and must be so recognized. TEX.
is filed in another state only if: FAM. CODE 159.207(a). If a proceeding is brought
under UIFSA and two or more child support orders have
• the petition or comparable pleading in this state is been issued by courts of this state or another state with
filed before the expiration of the time allowed in regard to the same obligor and child, a court of this state
the other state for filing a responsive pleading shall apply the following rules in determining which
challenging the exercise of jurisdiction by the other order to recognize for purposes of continuing, exclusive
state; jurisdiction:

• the contesting party timely challenges the exercise • if only one of the courts would have continuing,
of jurisdiction in the other state; and exclusive jurisdiction under UIFSA, the order of
that court controls and must be so recognized;
• if relevant, this state is the home state of the child.
• if more than one of the courts would have
TEX. FAM. CODE § 159.204(a)(1)-(3). continuing, exclusive jurisdiction under UIFSA, an
order issued by a court in the current home state of
A Texas court may not exercise jurisdiction to the child controls and must be so recognized, but is
establish a support order if the petition or comparable an order has not been issued in the current home
pleading is filed before a petition or comparable state of the child, the order most recently issued
pleading is filed in another state if: controls and must be so recognized; and

• the petition or comparable pleading in the other • if none of the courts would have continuing,
state is filed before the expiration of the time exclusive jurisdiction under UIFSA, the court of
allowed in this state for filing a responsive pleading this state having jurisdiction over the parties shall
challenging the exercise of jurisdiction by this issue a child support order that controls and shall
state; be so recognized.

• the contesting party timely challenges the exercise TEX. FAM. CODE § 159.207(b)(1)-(3).
of jurisdiction in this state; and
7. Enforcement and Modification of Support Order
• if relevant, the other state is the home state of the After Registration
child. UIFSA provides that courts of this state may

TEX. FAM. CODE § 159.204(b)(1)-(3). modify or enforce orders from other states after
registration, and sets forth the procedure for doing so.
4. Continuing, Exclusive Jurisdiction TEX. FAM. CODE §§ 159.601; 159.602. However, for
This is perhaps the most crucial provision in modification purposes, the requirements of section
159.611 must be met. As long as the issuing state
UIFSA. Drawing on the precedent of the PKPA, the retains its continuing, exclusive jurisdiction over its
issuing tribunal retains continuing, exclusive jurisdiction child support order, a registering sister state is precluded
over a child support order except in very narrowly
defined circumstances. As long as one of the individual

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from modifying that order. This is a very significant portion stating that Florida was the more convenient

departure from RURESA. If the issuing state no longer forum and had a closer connection with the children.

has a sufficient interest in the modification of its order The trial court also transferred the child support portion

under the factual circumstances described in this to Aransas County, where the father resided.

section, after registration the responding state may The Waco court dismissed the petition for

assume the power to modify. TEX. FAM. CODE § mandamus and relied on provisions of the UCCJA and

159.611 (Commissioners’ Comment to UIFSA Section UIFSA. First of all, the UCCJA applied because the

611). case was filed before September 1, 1999, but the court

The 2001 amendment eliminated the necessity of noted that the UCCJEA contained a substantially similar

filing a certified copy of a modified child support order “inconvenient form” section. The court upheld the trial

with the issuing tribunal that had continuing, exclusive court’s decision that Florida had closer connection and

jurisdiction over the earlier order and in each tribunal in had a closer connection with the children. The court

which the party knows that the earlier order has been also agreed with the trial court’s decision to retain the

registered. Two Texas cases that specifically applied support portion of the proceedings in Texas because the

this provision and looked to a Missouri statute of parties did not agree otherwise, citing section

limitations, which was longer than the Texas statute, 159.205(a).

are: In the Interest of B.C. and K.C., 52 S.W.3rd 926

(Tex. App.—Beaumont 2001, no pet.); and Attorney V. VENUE AND INTERSTATE JURISDICTION

General v. Litten, 999 S.W.2d 74 (Tex. App.—Houston A. Continuing Jurisdiction

[14th Dist.] 1999, no pet.). 1. Texas Family Code section 155.01

Texas Family Code section 155.001 provides that a

8. Choice of Laws court acquires continuing, exclusive jurisdiction of a

The law of the issuing state governs the nature, SAPCR once a final order is rendered except in

extent, amount, and duration of current payments and parentage cases and adoption.

other obligations of support and the payment of

arrearages under the order. In a proceeding for 2. Texas Family Code sections155.02 and 155.03

arrearages the statute of limitation under the laws of this Texas Family Code sections 155.002 and 155.003

state or of the issuing state, whichever statute of provide that unless venue is wrested from the court of

limitation is longer, applies. TEX. FAM. CODE § continuing jurisdiction that court remains in authority

159.604. over all matters pertaining to Chapter 5 litigation

including modification of conservatorship, access and

C. Conflicts Between UCCJEA and UIFSA support of the child, subject to conflict with the

Although the UCCJEA and UIFSA have several UCCJEA, in which case the UCCJEA shall control.

provisions in common, there can actually be times when The statute further makes clear that when all parties and

these two statutes can operate to have opposite effects the child acquire a new home state the Texas court may

on custody and child support rulings in the same case. not exercise its continuing, exclusive jurisdiction.

An interesting case illustrating this is In re Hattenbach,

999 S.W.2d 636 (Tex. App.—Waco 1999, orig. B. Venue in Original Suits

proceeding). It is a mandamus case in which the parties

were divorced in 1996 in Coryell County. The father 1. In initial suits the rule governing venue should be

moved to Bexar County in February 1998, and the first considered. Venue rules with regard to

mother and children moved to Florida in September SAPCR’s are governed by TEX. FAM. CODE section

1998. In December 1998, the father filed a motion to 103.001 et seq., not by those applied to civil suits,

modify both the custody and child support provisions of generally. Rogers v. Rogers, 536 S.W.2d 442
the decree, along with a motion to transfer to Bexar (Tex.App.—Houston [1st Dist.] 1976, no writ).

County. (The father later moved to Aransas County in

March of 1999.) The mother responded with a general Texas Family Code section 103.001 provides:

denial and an affidavit controverting the father’s motion

to transfer by asserting that the original trial court was (a) Except as otherwise proved by this title, an

still the court of continuing exclusive jurisdiction original suit shall be filed in the county where

because the children has resided in Florida for less than the child resides, unless:

six months. Then, in April the mother filed a motion to

transfer the custody portion of the case to Florida, • another court has continuing exclusive

alleging that it would be a more convenient forum, and jurisdiction under Chapter 155; or

in fact filed a custody proceeding in Florida soon

thereafter. The trial court heard both parties’ motions to

transfer in May. The trial court dismissed the custody

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• venue is fixed in a suit for dissolution of (Tex.App. – Beaumont, 2006) the parents of a child

a marriage under Subchapter D, Chapter were not married and lived together for a while

6. after the child’s birth in Montgomery County. The

mother moved first with the child to Port Lavaca,

(b) A suit in which adoption is requested may be and then to San Antonio. For more than two years,

filed in the county where the child resides or the mother allowed the child to go stay with the

in the county where the petitioners reside. father every two weeks. When the child reached

(c) A child resides in the county where the child’s school age, the mother registered her in San

parents reside or the child’s parent resides, if Antonio, but the father wanted her to go to school

only one parent is living, except that: in Montgomery County. Because the mother

wanted him to return the child, she told him that if

• if a guardian of the person has been he did, then he could have the child before school

appointed by order of a county or probate started. She did not return the child as promised.

court and a managing conservator has not The father filed his SAPCR in Montgomery

been appointed, the child resides in the County, seeking to be named the JMC to designate

county where the guardian of the person the child’s primary residence. The mother

resides; responded by filing a motion to transfer to Bexar

• if the parents of the child do not reside in County. The Montgomery County court denied her
the same county and if a managing motion to transfer, and she filed a writ of
conservator, custodian, or guardian of the mandamus. The appellate court analyzed Texas
person has not been appointed, the child Family Code section 103.001(a), and the meaning
resides in the county where the parent of “actual possession” of the child. Since the child
having actual care, control, and was with the mother in San Antonio at the time the
possession of the child resides; father filed his action, the court held that the venue
would be proper in San Antonio because the father
• if the child is in the care and control of an did not have “actual possession” of the child at the
adult other than a parent and a managing time he filed. The court found support for its
conservator, custodian, or guardian of the holding in McManus v. Wilborn, 932 S.W.2d 662
person has not been appointed, the child (Tex. App.–Houston [14th Dist.] 1996, orig.
resides where the adult having actual proceeding [leave denied]).
care, control, and possession of the child

resides;
• if the child is in the actual care, control, C. Venue Litigation
and possession of an adult other than a 1. Texas Family Code section 103.002(b)
Texas Family Code section 103.002(b) mandates
parent and the whereabouts of the parent
and the guardian of the person is that a SAPCR shall be transferred to the court in which a
unknown, the child resides where the suit for dissolution of a marriage between the parents
adult having actual possession, care, and has been filed once a showing is made to the court that
the suit for dissolution of a marriage has been previously
control of the child resides;
• if the person whose residence would filed in another court. Further, section 155.201
otherwise determine venue has left the mandates a transfer to the court of marriage dissolution
child in the care and control of the adult, once it is divulged to the concurrent court. Since a suit
the child resides where that adult resides; for conservatorship, possession, and support of a child
• if a guardian or custodian of the child has may be filed by any person with standing who seeks to
been appointed by order of a court of have the issues litigated regardless of the marriage
another state or country, the child resides relationship, this provision requires mandatory transfer
to the dissolution court provided that court has
• in the county where the guardian or jurisdiction. In the Matter of the Marriage of Allen, 593
custodian resides if that person resides in S.W.2d 133 (Tex. Civ. App.—Amarillo, 1979, writ ref.
this state; or n.r.e.). The court with mandatory venue, called the
“dominant court”, acquires dominant jurisdiction to the
if it appears that the child is not under the exclusion of all coordinate courts. See Curtis v. Gibbs,
actual care, control, and possession of an 511 S.W.2d 263 (Tex. 1974); In the Matter of the
adult, the child resides where the child is Marriage of Allen, 593 S.W.2d 133 (Tex. Civ. App.–
found.”

2. One recent case had an interesting discussion of a Amarillo 1980, no writ).

venue dispute in a suit to establish paternity. In In a. The issue generally arises in the context involving
re Navaiz, --- S.W.3rd ---, 2006 WL 1280617 two separate lawsuits filed in two different venues

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in which both parties allege residence in two to that court, the court having continuing,

different counties for a period of 90 days. In such exclusive jurisdiction of a suit affecting the

contexts, the case law requires careful examination parent-child relationship shall, within the time

of the residence facts presented. required by section 155.204, transfer the

b. In Beavers v. Beavers, 543 S.W.2d 720 (Tex. Civ. proceedings to the court in which the

App.—Waco 1976, no writ), the court was dissolution of the marriage is pending. The

confronted with facts that established that although motion must comply with the requirements of

wife paid one-half of an apartment rent in section 155.204(a).

McClellan County for some 6 months before filing

a divorce, and had some of her bills sent there, she The amendment requires the court to transfer the

continued to stay at the marital residence in Falls proceedings to the court where the divorce is pending
County on a continuous basis until 5 days before not later than the 21st day after the final date of the

she filed for divorce in McClellan County. The period allowed for the filing of a controverting affidavit.

court citing Wilson v. Wilson, 494 S.W.2d 609 TEX. FAM. CODE § 155.204(c).

(Tex. Civ. App.—Waco 1973, writ dism’d), for the Similarly, the 2005 amendment to Texas Family

following language: Code section 155.201 (b) requires the court to transfer

the proceeding within the time required by section

A mere constructive residence will not 155.204 if a suit to modify or a motion to enforce an

satisfy this statute. It requires an actual, order is filed in the court having continuing, exclusive

physical, continuous living in the county jurisdiction of a suit, on the timely motion of a party, to

of suit by one of the parties for the period another county in this state if the child has resided in the

specified, couple with a good-faith intent other county for six months or longer.

to make that county home. If a suit to modify or a motion to enforce an order

is pending at the time a subsequent suit to modify or

c. The Wilson court reversed the trial court’s motion to enforce is filed, the court may transfer the

determination that venue existed at the time of the proceeding as provided by subsection (b) only if the

filing, holding that husband’s filing in Falls County court could have transferred the proceeding at the time

prior to wife’s meeting the venue requirement gave the first motion or suit was filed. TEX. FAM. CODE §

Falls County dominant jurisdiction the court 155.201(c).

sustained husband’s plea and sent the case to Falls The discretionary transfer of venue provisions are

County. found TEX. FAM. CODE § 155.202 and provide:

d. Of like result is Cook v. Mayfield, 886 S.W.2d 840

(Tex. Civ. App.—Waco 1994, no writ) where • If the basis of a motion to transfer a proceeding

stipulation established that wife spent more days in under this subchapter is that the child resides in

the dominant county than the concurrent county, another county, the court may deny the motion if it

and that she never informed her husband or others is shown that the child has resided in that county

that she had moved residence to her mother’s for less than six months at the time the proceeding

home. is commenced.

e. At least one court has ruled failure of one party to • For the convenience of the parties and witnesses

seek to have citation issued by the dominant venue and in the interest of justice, the court, on the

and served upon the other party until after she was timely motion of a party, may transfer the

served with the original dissolution action from the proceeding to a proper court in another county in

concurrent jurisdiction estopped wife from the state.

asserting dominant jurisdiction. Clawson v.
Millard, 934 S.W.2d 899 (Tex. App.—Houston [1st Texas Family Code section 155.203 provides the

Dist.] 1996, no writ). method to determine the county of the child’s residence.

It provides that in computing the time during which the

D. Transfer Of Venue child has resided in a county, the court may not require

There are mandatory and discretionary transfer of that the period of residence be continuous and

venue provisions in the Family Code: uninterrupted but shall look to the child’s principal

residence during the six-month period preceding the

The mandatory transfer provisions were commencement of the suit.

amended in 2005. TEX. FAM. CODE § The procedure for transfer is set out in section

155.201(a) now provides that on the filing of a 155.204, which has amendments from 2005. Failure to

motion showing that a suit for dissolution of timely respond by denial in a controverting plea waives

the marriage of the child’s parents has been

filed in another court and requesting a transfer

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