San Antonio Divorce Lawyer Blog

Texas Child Custody Jurisdiction Issues

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.

Child custody issues for grandparents and other non-parents in San Antonio, Bexar County, Texas

As a San Antonio, Bexar County, Texas child custody lawyer, I've been seeing a lot of child custody issues come up lately involving non-parents trying to get temporary or permanent custody of other people's children. 

Typically, a young mother and/or father, often with drug and alcohol abuse problems, leave their child(ren) with someone else.  Usually, the parent who does this is busy living a drug or alcohol abuse-induced lifestyle, with which raising a child generally interferes.  However, the 3rd party with whom the child was left (often a grandparent or other relative, but sometimes someone who has no blood relation to the child), sometimes finds it necessary to employ a child custody attorney when the biological parent shows up demanding the child.

In many cases, the parent never seeks to get the child back, but in a significant number of cases, one or both of biological parents wants to get their child back.  Sometimes, it is because the parent has truly straightened up his or her life.  In all too many cases, however, it is because the biological parent resents someone else raising the child.  As a child custody attorney in San Antonio, Texas (Bexar County), I am often consulted by biological parents trying to retrieve his or her child, and by 3rd parties who believe the child may come to harm if the biological parent regains possession of the child.

In the case of 3rd parties (non-parents) who are trying to keep possession of a child against the wishes of a biological parent, a number of issues generally arise.  Chief among those is the issue of "standing to sue."  This is a legal term of art which questions whether or not the non-party has a right to bring a legal action to gain temporary and/or permanent custody of a child.  Non-parents have the right to bring such a suit only under certain conditions. 

Usually, a non-parent in Texas may only file an original custody suit if the child has resided with the non-parent for more than six months.  However, a grandparent may file and maintain an original suit seeking custody of the child if the court is satisfied that the child's current living circumstances (with the biological parent) would significantly impair the child's physical health or emotional development, even if the child has not resided with the grandparents at all.  This statue is found in §102.004 of the Texas Family Code.  It is a very important statute, and one which I feel lets a number of children "fall through the cracks." 

For instance, consider the situation where the grandparents are either dead, unavailable, or unwilling to take possession of a child who has been left with another relative, and the biological parent demands the child back before the child has been with the other relative/non-parent for less than six months.  Texas law provides for no procedure for the non-parent to file an original suit seeking custody of the child, even if the biological parent is clearly a danger to the child.  In such circumstances, all the non-parent can do is call the police and the Department of Family and Protective Services (formerly Children's Protective Services, or CPS) if the biological parent shows up demanding possession of the child.  More often than not, the biological parent shows up with a police officer, so it is important for the non-parent to be able to tell the police that CPS has been notified, and to ask them to send a representative to the residence.

Unfortunately, CPS will usually decline to get involved unless the child is actually in the possession of the negligent or abusive parent, and will decline to take possession of the child unless they are certain the child is being neglected or abused.

Texas child custody cases--when is a child old enough to choose?

I decided to write this blog due to a number of Texas child custody cases I've handled recently that involved a child making a choice.  In Texas, a child 12 years of age or older can sign a written statement indicating the person with whom the child prefers to live.  The kicker, of course, is that the choice has to be approved by the Court (meaning a judge).  Child custody lawyers in Texas (as well as parents) are often faced with difficult cases and choices when these issues come up.

In most cases, both parents usually end up agreeing to let the child live where the child wants to live.  In a significant number of cases, however, the parent with original custody of the child opposes the child's choice.  For instance, sometimes the original custodial parent believes the child is making the choice to live with the other parent for the wrong reasons--the other parent is much less of a disciplinarian, or "bribes" the child with promises of gifts, etc.  In many cases, the child, whose visits with the non-custodial parent are usually brief but full of fun, has a false impression of what life will be like with that other parent.  Unfortunately, in other cases, the reason the custodial parent opposes the change is financial--he or she doesn't want to lose that child support he or she has been receiving, and especially doesn't want to have to start paying child support. 

In most cases, however, the child simply wants to try living with the other parent.  Depending on the age of the child, I often advise people in these situations to agree on a temporary change of custody to see how it works out.  In some instances, the child will change his or her mind after a few months of reality with the other parent.  In other cases, the time with the other parent solidifies the child's choice.

In any case, if a child makes the choice to sign a statement saying that he or she wants to live with the other parent, a petition to modify the original custody order will have to be filed.  Then, an order can either be entered by agreement, or the parties can go through a full-blown custody trial.