Exclusive continuing jurisdiction under the uniform child custody and jurisdiction and enforcement act. When you have a court who has made an initial child custody determination the court retains exclusive continuing jurisdiction, but may lose exclusive continuing jurisdiction based on a objective set of facts which the court would examine in determining that that court no longer had continuing exclusive jurisdiction.
Exclusive Continuing Jurisdiction
A child custody determination made by a Texas court that has jurisdiction under the UCCJEA binds all persons who:
- Were served in accordance with Texas law
- Were notified in accordance with section 152.208 which is the section on notice to persons outside the state of Texas or submitted to the jurisdiction of this court and who were given an opportunity to be heard as to these persons the determination is conclusive as to all decided issues of law and the and in fact except to the extent the determination is modified. Courts must ensure that service or process or notification is done properly, as well as ensuring parties have an opportunity to be heard, at least the child custody determination be subject to challenged later as not being binding.
- A court’s exclusive continuing jurisdiction does not vanish immediately once all the parties leave the state.
Rather exclusive continuing jurisdiction remains with the court that made the initial child custody determination unless:
- A Texas court determines that neither the child, nor the child and one parent, nor the child and a person acting as a parent, have significant connection with Texas and that substantial evidence is no longer available in Texas concerning the child’s care, protection, training, and personal relationships.
- or a Texas court a court of another state determines that the child, the child’s parents, and any person acting as a child do not presently reside in Texas.
If you look at the subjective facts in your case what the court generally looks at is that exclusive jurisdiction continues in the decree-granting state as long as significant connection exists or substantial evidence is present.
If a Texas court has exclusive continuing jurisdiction and the child has significant connection to Texas, Texas will retain jurisdiction even if substantial evidence no longer exists in Texas.
So that may be somewhat confusing if the child let’s say is in Louisiana going to school but if you’re on the border let’s say you live in Beaumont and the child is regularly visiting in Beaumont with the non-possessory parent and the possessory parent has relatives in Beaumont then this is where Texas would generally continue to have a jurisdiction.
Note that unless no one resides in Texas a Texas court must determine that Texas no longer has exclusive continuing jurisdiction.
Child custody determination consistent with section 201
Section 152.202 requires that the Texas court make a child custody determination consistent with section 201 which is the initial child custody jurisdiction or under section 155.203 jurisdiction to modify a child custody determination in order to have exclusive continuing jurisdiction.
Also under section 155.202 a permits an exception for temporary emergency jurisdiction which factors may Texas court consider in determining whether the child, the child and one parent, or a child and a person acting as a parent no longer have a significant connection with Texas and that substantial evidence is no longer available in Texas concerning the child’s care, protection, training, and personal relationships.
The residence of a parent in Texas, by itself, is insufficient to maintain jurisdiction in the state. on the other hand, visits by the child to Texas, particularly for significant amounts of time, can maintain Texas exclusive continuing jurisdiction.
A relationship between the child and then non-parent relatives in Texas can also maintain that jurisdiction. Some case examples would be in the Isquierdo case, a Texas father sought a modification in 2011 and the mother had moved to Arizona, and she asked the Texas court to decline jurisdiction in favor of an Arizona court.
The mother’s uncontroversial testimony established that she lived with her children outside of Texas since her divorce from the father in 2005, she had the children with her, and they constantly lived in Arizona since 2007. Neither the mother nor the children were present in Texas since 2005 except for a few visitations requested by the father. Moreover, the children had no contact with Texas since the summer of 2008, and the father did not make any requests to visit the children during the years 2009, 2010, and 2011.
Thus, there was no evidence of any visitation within Texas during the two and a half years immediately preceding the commencement of the proceeding to support a finding of significant connection. The appellate court found no evidence upon which the trial court could have found that through a significant relationship with her father the children maintain significant connections with Texas.
The mere fact that the father continued to reside in Texas did not support the trial court’s exercise in this case of continuing exclusive jurisdiction over a modification proceeding. Compare the Forlenza, case where the children visited their mother in Texas six times in the relevant four-year period.
Before these occasions the children lived with their mother for considerable periods, each lasting approximately one month during the summer.
Moreover, the Texas Supreme Court in this case presumed that the trial court accepted is true the mother’s testimony that more visitation would have occurred in Texas before the father’s actions and the fact that the children were not allowed to fly to Texas in the Valenzuela matter.
In this case the Supreme Court found that the trial court retained exclusive jurisdiction over the modified all over the modification proceedings.
The Supreme Court noted that other courts commonly considered visitation within the state as evidence of a significant connection. In addition, numerous relatives, in the Forlenza case including the maternal grandmother, the mother’s sister, the father’s sister and sister-in-law, lived in Texas and maintained relationships with the children.
So having a finding that the children’s relatives constitute a significant connection to the state, and that they have relationships with those collateral relatives as part of the analysis.
The court also noted that evidence in that particular case clearly indicated that the mother maintained a significant relationship with her children she had ongoing electronic access to the children. So the use of presently reside in this state is significant where a comment to the statutory interpretation is that the phrase “do not presently reside” is not used in the sense of a technical domicile.
The fact that the original determination state still considers one parent a domicile does not prevent it from losing exclusive continuing jurisdiction after the child, the parents, and all persons acting as parents have moved from a state.
Proceedings commencement, under section 152.102(5)
So, for a court to have exclusive continuing jurisdiction, that jurisdiction must be determined at the proceedings commencement, under section 152.102(5) which defines as the filing of the first pleading. Which would be a petition to modify as a general matter, the pleader must allege facts that affirmatively demonstrate the court’s jurisdiction to hear the case. Under section 152 202(a), the court acquires exclusive continuing jurisdiction by virtue of a prior child custody determination.
This would be a final decree divorce suit affecting a parent child relationship sued to establish the parent-child relationship by alleging that the court’s prior orders conferred exclusive continuing jurisdiction, the pleader satisfies the initial statutory burden the statute specifically provides that a court retain exclusive jurisdiction until the court determines that the significant connection and substantial evidence requirements are no longer met.
Another party may challenge whether the statutory elements are satisfied, or the court may consider them suicide but the pleader satisfies the initial jurisdictional burden under the statute by alleging the court’s prior orders to confer exclusive continuing jurisdiction.
So what you have in application is you would not necessarily file a UCCJEA supporting affidavit when you file your modification if you are the individual attempting to retain jurisdiction in Texas, and so procedurally how it works out is you have a child who has moved to a new resident state, and so let’s say for example this state is Louisiana and the child is pretty far in Louisiana the border of Texas and Louisiana is the Sabine river, and so you’re looking at you know 100 miles inside of Louisiana and then the non-primary parent let’s say for instance lives in Houston well that is a good 200 miles from the residence of the child.
And so as the child goes to school in Louisiana and the child starts doing extracurricular activities in Louisiana and, starts to make new friends in Louisiana then you have a transitional window, where when you do the best interest test there’s necessarily a burden on those people who can testify as to education, or sporting events, or health and safety of the child, that would be in Louisiana.
And there would not be the ability to subpoena them to Texas because they’re beyond the jurisdiction of Texas.
So that analysis as you make the analysis you also have under standard possession order with a non-primary parent would get up to 42 days in the summer, so every summer the non-primary is visiting with the children in Texas in in the Houston area.
And then on top of that you can do every other weekend and be over 100 miles, and as you can do that if the parent in Texas is still visiting every other weekend and driving over there and returning the children or the child to Louisiana then it becomes a little more difficult than to transfer the case out of Texas, it’s not necessarily a transfer it’s more you abate the Texas case and you initiate a case in the new state.
So I have an example of an airline stewardess who lives in New York and with her miles and her ability to fly her child from Houston every other weekend to New York she maintains that regular contact with her child, and so she maintains it may be that Texas was the state that we initiated the suit in, but to say that we can make a good faith argument that we could also initiate a case in New York I mean you can.
So, if the non-primary parent is not exercising their periods of possession and then the primary parent is not returning to Texas to see maybe any relatives that they would have or to visit within Texas, then the mere fact that one parent continues to reside in Texas will cause Texas to lose jurisdiction is basically what the court of appeals have said.
I would tell you need to initiate a case in the new jurisdiction, if you don’t initiate a case in the new jurisdiction and you’re necessarily defending the modification then there is the ability for Texas to still go forward, because there has not been a foreign state which has assumed jurisdiction.
And that is the common event that arises for which argument is made when the dismissal or the abeyance of the Texas case is sought that there is no contemporaneous case going on in this foreign state, and therefore this is a delay tactic or a deflection tactic that is used by the party who is in the foreign state that they just don’t want to be subject to an ongoing lawsuit, so they’re saying Texas dismiss or abate the case.
And so, if that’s the case then yeah, you’ll have Texas generally can retain jurisdiction in that fact pattern.
Michael Busby is a Houston divorce attorney who practices family law in Harris County, Texas. For a legal consultation, please call us