As a child custody attorney in San Antonio, Texas, I have many clients who either live out of state, or who are involved in child custody litigation with parties who live out of state. Whenever a party to child custody litigation resides in another state or country, "jurisdictional" issues often arise, and are often the source of great controversy and contention.
The term "jurisdiction" refers to the power of a court to hear a case and to issue orders to the parties involved. The power of the court to listen a particular type of case, such as a child custody case, is called "subject mater jurisdiction." The power of a court to order a particular person to do something is called "personal jurisdiction." You can read about personal jurisdiction in a posting I wrote previously. The subject of this suit is a certain type of subject matter jurisdiction involving parties and/or children who live in other states.
Child custody jurisdiction issues in Texas, and any other state for that matter, are governed by the body of law commonly referred to as the Uniform Child Custody Jurisdiction Enforcement Act. Virtually all states in the U.S. have adopted a version of the UCCJEA. The original plan was for all states to adopt the same jurisdictional laws to eliminate conflicts between laws of different states.
Unfortunately, some states' version of the UCCJEA is different than that adopted by Texas. Therefore, conflicts sometime arise between Texas law and the law of another state when both Texas and the other state try to claim jurisdiction over a case.
In a nutshell, subject matter jurisdiction in Texas child custody case is determined by the amount of time a child has spent in a particular state. In an original custody proceeding, Texas can assume subject matter jurisdiction according to a hierarchal ladder of situations, the first and foremost of which is that the child must have lived in Texas for the last six months prior to filing the lawsuit (or since the child's birth, if the child is less than six months old). When the child hasn't been in any state for the previous six months, other parts of the ladder apply. Once Texas (or some other state), has determined that it has jurisdiction to hear a particular child custody case, then that state acquires "exclusive continuing jurisdiction" over the case, and no one can file a suit involving the custody or support of that child in another state unless the original court loses continuing exclusive jurisdiction over the case.
Generally speaking, Texas loses its continuing, exclusive jurisdiction over a child custody case only in two situations: (1) when none of the parties nor the child live in Texas any longer; or (2) when neither the parties nor one parent and the child have a significant connection with Texas AND there is no longer substantial evidence in Texas concerning the child's care, protection, training, and personal relationships.
The "significant connection" and "substantial evidence" tests are the source of much controversy. However, the case law is fairly well developed, and the Texas Supreme Court has ruled that Texas does not lose jurisdiction over a case as long as one party remains in Texas and there are continuing contacts between the child and Texas. For instance, if the child continues to visit the parent who lives in Texas, or if the child visits other relatives, etc. In other words, as long as the remaining parent in Texas continues to visit the child IN TEXAS from time to time, Texas will probably not lose jurisdiction. On the other hand, if the remaining parent never sees the child, and the child never comes to Texas for any reason, Texas will probably lose jurisdiction. It is important to note that Texas courts interpret the UCCJEA provision providing for loss of exclusive continuing jurisdiction much differently than many other states, even though their versions of the statute are exactly the same. Many states almost automatically cede jursdiction to another state once that state has become the home state of the child. Texas, on the other hand, won't usually let go of a case unless there are simply no contacts between the child and the parent who lives in Texas. It is very interesting to compare the case law on the subject in Texas with the case law in a state such as Wyoming, which looks at the exact same law and comes to opposite conclusions.
These issues can be very important, since the parent who lives in Texas does not usually want to go to another state to litigate issues regarding custody or visitation, and the parent who does NOT live in Texas doesn't want to keep coming to Texas to litigate those issues. Any parent who finds himself/herself involved in a custody or visitation issue when one party and/or the child lives in a state other than Texas should discuss these issues at lenght with his or her attorney.
J. Michael Clay is a family law attorney in San Antonio, Bexar County, Texas whose practice focuses on divorce, child custody, child support, adoption, child custody modification, child custody enforcement, child support modification, and child support enforcement issues. J. Michael Clay is licensed to practice law in all Texas State Courts, and in federal courts in the Western District of Texas.
Not certified by the Texas Board of Legal Specialization
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