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I want to move (transfer) my case to another court

Transferring venue in a Texas family law case means that in certain circumstances you can ask that a pending case before a family court, like a divorce or child custody case, be moved from that court to another court. If you or your opposing party have moved since the case was first filed, then transferring the venue to another court may make a whole lot of sense. This is especially true in a big state like Texas. Getting a case moved from El Paso to Houston can mean a tremendous amount when it comes to saving time for travel, costs, and other expenses of managing a case from literally a time zone away. That is what transferring the venue to a State like Texas can mean. 

There are some complicated rules that you need to be aware of when it comes to transferring a family law case in Texas. Transferring a divorce case is usually not an option for you or your spouse. This is true even if you move during the middle of your divorce. There may be some temporary orders in place that bar you from moving. If not, even if you do move during the divorce, it is unlikely that you will be able to take the divorce case wherever it is that you are going. Rather, you would need to travel back to the court where the case was filed for any hearings in the future. 

Some of you may be wondering if your spouse can file for divorce in Harris County or any other county in Texas for that matter, even if you don't like the county where the divorce was filed. As it happens, you and your spouse may have separated from one another some time ago and have been living that way for an extended time. When one of your spouses finally decided to get divorced it was in the county where he lives and not in the county where you do. If your spouse has lived in that county for at least the past 90 days and in Texas for at least the past six months, then there is no issue with him filing for divorce in his home county- even if it is not your home county. 

Another question that we encounter from time to time at the Law Office of Bryan Fagan is what would happen if a divorce is filed in one court but then a Suit Affecting the Parent-Child Relationship (SAPCR) is filed in a different court? Is that allowed? If a child custody lawsuit is filed in a different than where your divorce was filed, then the custody case must be transferred to the court where your divorce case is pending. Texas Family Code Section 103.002 states that: 

Transfer of Original Proceedings within the State

(a)  If the venue of a suit is improper in the court in which an original suit is filed and no other court has to continue, the exclusive jurisdiction of the suit, on the timely motion of a party other than the petitioner, the court shall transfer the proceeding to the county where the venue is proper.

(b)  On a showing that a suit for dissolution of the marriage of the child's parents has been filed in another court, a court in which a suit is pending shall transfer the proceedings to the court where the dissolution of the marriage is pending.

Suits Affecting the Parent-Child Relationship

If you find yourself in a position where a child custody case has been filed but has not yet been finalized there is a chance that you can ask the court to transfer the proceedings elsewhere. However, it depends on several factors whether your request for this to occur will be granted. For the most part, a child custody case should be filed in the county where your child lives. Once your child has lived in a certain county, Harris County for example, for at least six months then the court will assume that this is his or her home county. If you have moved and filed the child custody case in your new county, but your child still lives in your former county, then you or your co-parent may ask to move the case back to where your child resides rather than to have the case in the county where you now live.

An interesting situation can arise if you file a child custody case and are the primary caretaker of your child. For our purposes, primary caretaker means that the child lives with you full-time and you make most of the decisions for your child in the course of their life. With that said, if you are the primary caretaker of your child then you could, theoretically, decide to move with your child out of the state of Texas. This is an interesting situation because you would have left the jurisdiction of Texas for another state. It is unlikely that the new place would immediately gain jurisdiction over your case due to your length of residency being so short. What happens in a situation like this where you and your child live outside the state of Texas, your co-parent still resides in Texas and there is an active child custody case still pending in a Texas court?

The answer is that the child custody case must be heard in the Texas county where your co-parent lives. If he or she resides in the county where you filed, the child custody case then that is all for the better. However, if he or she resides in another county in Texas you or he/she would need to file a motion with the trial court to transfer the venue to a court in the county where your co-parent lives. This way, Texas could maintain jurisdiction over your case, and you would be able to proceed with the case in Texas. Otherwise, the Texas case would be dismissed, and you would need to file a new child custody case in the child’s new home county out of state. 

Here is a good rule of thumb to go by when it comes to a child custody case where your child and their parents live in different counties. If you and your child live outside the State of Texas and your co-parent resides in Texas, then the child custody case should be filed in the county where your child lives (if he still lives in Texas) or if your child does live in another state then the case should be filed in the county that is most convenient to you and your co-parent. That could be the county in Texas closest to your new home. That could be a county midway between where you live now and the county where your co-parent lives. The specific answer to this question depends upon your specific circumstances.

Child custody modification cases

What happens if you file a modification lawsuit regarding the child custody orders that you and your co-parent currently have on the books? If you file a modification could your case, be moved to the county where you live now? For example, let’s say that your child custody orders are out of Ft. Bend County, but you moved to Montgomery County two years ago. The question that we are asking ourselves regarding this subject is what can be done to move the child custody modification case to your new home county rather than to hold the case in Ft. Bend where the orders came from? 

If you find yourself in a situation like this then you should know that if a court in Ft. Bend County issued a final order for your child custody case, then that court has what is called continuing exclusive jurisdiction over the case from that point forward. In a general sense, that court will be the only one to hear any future issues or cases that are filed by you or your co-parent about the child custody orders which impact your child. This includes the child custody modification lawsuit that you had filed previously with the court. 

As with most issues regarding the law, there are some important exceptions that we need to walk through, however. First, if nobody lives in Texas and nobody has consented to the court having continued exclusive continuing jurisdiction then the court would lose its continuing exclusive jurisdiction, and then you would be able to have the venue transferred to a court that is more convenient for you and your co-parent. 

An easy solution to this problem would be if you and your co-parent both agreed to transfer the case to a different venue. What if, in the example that we mentioned above, your co-parent also happened to move to Montgomery County so that he could be closer to your son? In that case, both you and your co-parent would have a good reason to want to transfer the venue of your case to Montgomery County rather than keep it in Ft. Bend. An agreed motion to transfer the venue to Montgomery County could be filed with the court in Ft. Bend which would likely be granted. 

The other situation that you may find yourself in involves a circumstance where only one party, you or your co-parent has moved out of state. In that case, the county of proper jurisdiction would be the county where the parent in Texas lives. For example, consider what would happen if you moved out of state to Kentucky. Your Harris County child custody case may hang in the balance considering that neither you nor your co-parent still lives there. However, consider that as long as one parent still lives in Texas then Texas will maintain jurisdiction over the case. Here, if your co-parent lived in Brazos County then Brazos County would have jurisdiction over the case. Harris County would transfer the case to Brazos County before ever considering any county in Kentucky.

The other side of the coin on this discussion occurs when you have recently moved to Texas from another state. If you have a child custody case from Kentucky, California, or any other state but now live in Texas you may have some questions about how the case can continue given that you no longer live in the county or state where your case came from. As you have already seen in life, circumstances change. The situation for your family is no longer the same as it was back when child custody orders were initially handed down in your case. In that circumstance, if you now wanted to modify a court order from out of state can you do that in Texas?

A Texas court can modify a child custody order from another state if the child custody order has been registered in Texas and the other state has lost jurisdiction. Here are ways that your former state's court can lose jurisdiction over your family law case. First, both you and your co-parent consent to a Texas court taking jurisdiction over the case. Next, you, your child, and your co-parent all live in Texas. Finally, you and your co-parent live in Texas, but your child does not. However, while your child may not live in Texas, he also doesn't live in Kentucky or whatever state issued the order. These are the circumstances under which an out-of-state court can lose jurisdiction over your case. 

How do you get the case transferred from one court to another?

So, we have spent a great deal of time talking about conceptual and theoretical topics related to transferring the venue of a family law case. I think it is important that you understand how jurisdiction, venue, and parties to a family law case are all interconnected. If you or your co-parent have no idea how to transfer venue or how to manage a family law case, then you are potentially putting yourselves and your child through a lot of work and effort that is not necessary. As a result, once you believe that you have a circumstance that justifies a transfer of venue you would next need to learn what the mechanics are as far as transferring venue. Here is how you would go about doing this. 

The process of transferring venue begins with filing a motion to transfer venue with the court that initially issued child custody orders in your case. The motion should include an affidavit stating why the venue needs to transfer. An affidavit is a sworn statement under oath. Think of it like you would giving testimony in a courtroom. Even though you are not being sworn to take an oath and tell the truth the court still expects that you complete the affidavit as if you had. Lying on an affidavit is treated the same as lying on the witness stand. 

A motion to transfer the venue should be filed at the same time as the petition to modify a child custody order. Your co-parent would be the respondent to your modification case and would have until the first Monday after twenty days have elapsed from the date on which he was served to file a motion to transfer venue. 

What good can an attorney do for you in trying to transfer venue in your child custody case?

The last point I would like to make in today’s blog post is that an attorney can do a lot of good for you and your family in a family law case, particularly in a situation where you believe that transferring the venue is necessary. I think one thing that we can all agree on is that the ways of a court can be complicated. Even if the process is not complicated at all, the language provided by a court can be. Law books, judges, and lawyers do not speak "normal" English as much as we probably should. Many times, you hear about topics from a judge that sound like he or she is speaking a foreign language. 

A lawyer can help you get all the cookies down to a shelf where you can enjoy them, so to speak. It shouldn’t be that some judge can talk about your case using language that is sometimes difficult to understand. Helping you traverse the sometimes-rocky waters of a venue transfer case can be the best sort of service that an attorney can provide you. Attorneys are also flexible about how you hire them. For example, the attorney may be able to work with you on a limited capacity basis where you pay him or her only to review the paperwork before you file it. Whatever your case means to you and whatever your circumstances are, hiring an attorney may end up being the best decision that you make in the whole of your child custody case. 

Questions about the material contained in today’s blog post? Contact the Law Office of Bryan Fagan

If you have any questions about the material contained in today's blog post, please do not hesitate to contact the Law Office of Bryan Fagan. Our licensed family law attorneys offer free-of-charge consultations six days a week in person, over the phone, and via video. These consultations are a great way for you to learn more about the world of Texas family law as well as about how your family's circumstances may be impacted by the filing of a divorce or child custody case. 

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