Transferring a child custody case into or out of Texas is an increasingly relevant question to have for parents. With the COVID-19 pandemic, people became more mobile due to work at home becoming normalized and moving into the Lone Star State picking up speed. If you have a child custody case from another state that needs to be heard in Texas or have moved to another state from Texas, then this blog post from the Law Office of Bryan Fagan is for you. We are going to spend some time going through the different issues, factors, and laws that are relevant to this topic so that you can make well-informed decisions for your family and yourself.
Ultimately, what you are trying to figure out is jurisdiction over your case. What court in what state or county can issue rulings and orders regarding your child? This can be a real issue if you have moved recently. If you live in Idaho, do you need to travel back to Texas to have child support modified? What if you just filed a case in New Mexico but just moved to The Woodlands? What sort of process do you need to go through to have your case travel with you? Or is that even possible?
The Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA) is a Texas law that mirrors the child custody laws of most other states in the country. As a result of this law, the issues surrounding child custody are hopefully going to be made simpler for you and your family. However, if you need any assistance in preparing your case, arguing your case, or negotiating your case then please contact the Law Office of Bryan Fagan. Our licensed family law attorneys offer free-of-charge consultations six days a week where we can address your questions and provide you with answers that are too specific to your situation.
Why would a Texas court have the authority to issue orders related to child custody and visitation?
If you are in a position where you would like to file a child custody case in Texas, then you need to consider whether Texas has jurisdiction over your case. We have already talked about how jurisdiction means the ability to hear arguments in your case and issue orders that relate to your child. When your child has lived in more than one state, or even more than two, this question becomes more complicated: which court has the authority to issue orders in your child custody case? That is where the UCCJEA comes into play. It will help you determine where to file your case.
The UCCJEA applies when your child has lived in multiple states or has a child custody order from a state other than Texas and is currently living in Texas. Texas has its family code as do all of the other 49 states. All of this can become quite confusing if you and your co-parent live in different states or if your child lives in a different state than you and your co-parent. The UCCJEA provides rules that you can follow to determine which court will have jurisdiction over your child custody case.
When does the UCCJEA come into play?
If you, your co-parent, or your child live in a state other than Texas then you will need to utilize the UCCJEA to determine which court has jurisdiction over your case. The problem that you may run into is if you file your child custody case in a court that does not have jurisdiction then you may end up spending time and money in a court case that cannot issue valid orders. A challenge to jurisdiction can be raised at any time which means that your co-parent or any adverse party could challenge and win on this jurisdiction issue. Then you will need to have the case transferred to a court that has jurisdiction. Since this is a fairly complicated legal issue you should talk to an experienced attorney with the Law Office of Bryan Fagan and we can better walk you through these issues in a free-of-charge consultation.
Will the UCCJEA help me determine whether Texas has jurisdiction over my original child custody case?
Simply put, if Texas is the home state for your child, then it has jurisdiction over your child custody case. When your child has lived in Texas for at least six consecutive months immediately before the child custody case is filed then Texas is your child's home state. If your child is under the age of six months then Texas is your child's home state if your child has lived in Texas since he or she was born with you, your co-parent, or any other person acting as a parent to your child.
Texas may still be your child's home state even if he or she no longer lives in Texas. If Texas was your child's home state immediately before the child custody case was filed and you, your co-parent, or the person acting as your child's parent still live in Texas then the Lone Star State would still have jurisdiction over your child's case.
Even if neither of these situations applies to your child then the state of Texas may still have jurisdiction over your child custody case. If no other state has jurisdiction under either of the above two criteria, then Texas can still make a child custody determination on behalf of your child. All this analysis is incredibly fact specific. The specific, seemingly insignificant factual issues of your case will be examined by a judge to determine if you can file a child custody case in Texas for the first time. Again, this is a very good reason why you would want to have an experienced family law attorney assist you.
How do you establish with a court that the UCCJEA must be utilized?
If you are trying to establish that a Texas family court has jurisdiction over your case, then you need to provide evidence to make your argument stronger. You can’t just tell the judge that the UCCJEA applies to your case but not provide any context or evidence. The ball is in your court to provide the court information regarding UCCJEA and its applicability to your case. In a petition to utilize the UCCJEA or in an affidavit (sworn statement under oath) you need to provide the following information to your Texas family court.
First, the address of your child needs to be provided. Next, any place that your child has lived during the prior five-year period must be provided. Finally, the name and address of any person that your child has lived with throughout those five years must also be provided to your family court judge. The judge will then utilize the information that you provided to him or her in combination with the UCCJEA
What if I have a child custody case in another state? Can I modify those orders in Texas?
It is possible to modify a child custody order in Texas, but we will need to look at the specific circumstances of your case to make that determination. The rule of thumb for modifications of a child custody order as far as jurisdiction is concerned is that the court in Texas must have had jurisdiction to make an initial child custody determination. If the Texas family court could have made the initial order, then it would have jurisdiction to issue modification orders, as well.
How does a Texas court enforce a child custody order from another state?
A Texas court must enforce a child custody order from another state under the UCCJEA. Any relief available under Texas law will be made available to a person who has a court order from another state that needs to be enforced. This is a major area that people have questions about at the beginning of a case. If you have a Nebraska court order, do you need to file a case in Texas and then transfer the case to Nebraska? Do you need to just go ahead and file the case in Nebraska and not even worry about the Texas court? On the contrary, you would file your case in Texas and the court would interpret the order based on Texas law.
What happens if Texas does not have jurisdiction under the UCCJEA, but my child is in harm’s way- what can I do?
It is a helpless feeling when your child is being harmed in some way and it is not much you can do about it. That is the sort of thing that nightmares are made from. However, you need to know that a family court in the State of Texas can do certain things at certain times to protect your child who may be in an emergency. This starts with taking temporary, emergency jurisdiction over your case no matter what other state has jurisdiction. There are a few extraordinary circumstances that the State of Texas that is willing to do this in.
Let’s suppose that your child is in Texas living with his mother, but she has abandoned him. He is a little boy who is essentially homeless as a teenager. His mother had just moved the family to Texas six weeks ago and now she has left him helpless in a new place. You are living in Texas and want to do something immediately to try and help your child. The problem here is that no Texas court would have jurisdiction over the case since your child has not lived here long enough and neither have you nor your co-parent. This would be a situation that given the circumstances the State of Texas could call upon its emergency jurisdiction temporarily to issue temporary orders that would be attempting to bring your child into a safer situation. It may involve giving you temporary primary conservatorship over the child so that he or she can live with you rather than your mother until further notice.
If your child is being threatened with abuse, or you are, then the state of Texas exercises emergency jurisdiction over your case. Let's take the same situation that we found ourselves in a moment ago. Your child is in Texas for only a few weeks when his stepfather has hit him multiple times and the child's mother has done nothing to step in and protect him. She has been encouraging the stepfather's behavior. To protect your child from harm or mistreatment the State of Texas can exercise temporary jurisdiction due to the emergency circumstances.
What about child custody orders that are part of a Final Decree of Divorce?
Thus far we have been discussing child custody orders and how they work in connection with the UCCJEA. However, child custody orders also come up because of divorce cases. Many divorce cases are just child custody cases masquerading as a divorce. You and your spouse may own little in the way of property, but your child custody orders may end up being the focus of your divorce. As a result, you may glaze over the details in some regards when it comes to dividing up your meager community estate.
These are the type of cases that are not only complex due to the issues and the law(s) involved but are emotional as well. When we talk about family issues, we know that these can be among the closest issues to your heart. The stress and anxiety associated with a divorce can be enough to cause even the most level-headed person to lose control of their emotions. This is a tough situation for you to find yourself in but it is not one where there is no hope for you to escape from the case with your goals still within reach.
Once your divorce is all said and done the court that issued your Final Decree of Divorce will continue to have jurisdiction over your case until further notice. This is true regarding the child custody and child support issues, as well, as what we see, as far as problems developing after a divorce, typically occur when you or your ex-spouse choose to move from Texas to another state or vice versa. This move can create a situation where the laws in Texas need to be applied to another state's court order. Or you may be wondering if Texas law can be applied to your court order even if you live in another state.
For example, let's say that your ex-spouse won primary custody of your children after your divorce. For the past four years since your divorce, all parties have lived in Harris County, Texas. However, your ex-spouse was offered a new job in Oklahoma and has chosen to live there instead. Now, this puts you in a spot where there is some question about what state's laws apply to your prior court order. Do you use Texas law or Oklahoma law? What if there are laws that are in opposition to one another? This can become a complex situation
Next, we have already talked about the ins and outs of modifying parenting and visitation plans in Texas when the order is from another state. That could involve registering the "foreign" order in Texas but that is not necessary in most cases. In any event, the UCCJEA may be able to help you determine what court at what time has jurisdiction over the case.
Most of the time when a court issues orders regarding child custody it will also issue orders with a geographic restriction. A geographic restriction limits the places that a child can live in order so that the non-primary conservator does not have to up and move at every flight of fancy that the primary conservator has. If you are attempting to prevent your ex-spouse from moving out of state with your children, then this is a subject that is near and dear to your heart. A hearing would be held if you were to file an emergency request to stop your co-parent from doing so. Why the move is being considered along with the circumstances of your case will be looked at before the judge's planning.
Your child's age, their educational situation here, and the distance between you and your child will also play a part in determining this issue. The best interest standard is one that will surely be used as we see in any area of child custody law.
Whether you are considering a relocation or curious about life after a child custody case, the attorneys with the Law Office of Bryan Fagan are here to assist you.
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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