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Subject Matter Jurisdiction for a Child Not in Texas during Divorce

Jurisdiction for a Child

If you are trying to get divorced in Texas, but your children have not lived in Texas for the last six months, or have never resided in Texas at all, then Texas lacks authority to enter an order for possession and access and rights or duties for the children.  Texas would have jurisdiction to require the parent who was in Texas to pay child support.  Once in a blue moon, you get a judge who thinks that because the other side signed a waiver, that they have consented to subject matter jurisdiction.  We have one here in Harris County, who has worked under three judges and been on the bench for about 8 years, but still thinks that one can waive subject matter jurisdiction.  Sometimes it is easier just to draft a full order and let someone raise a defense latter that it is not enforceable.  I caution you to make sure you have done the proper forms and affidavits before you attempt to prove it up, if you are asking that the court decline jurisdiction on the children, based on a lack of it.  Also, you must plead for it, most of your standard forms ask the court to render orders for the children, you will have to customize your form and also you need to do Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA) affidavits for the Texas spouse and non-resident spouse. Texas also makes you address all children born during marriage but not of the marriage by the woman.  So if wife is in South Carolina with new boyfriend making babies, Texas laws says you need either a dna test or acknowledge of paternity as the husband is presumed to be the father.  But the UCCJEA trumps Texas law.  This is where a Court of Appeals Opinion will hopefully help you when you have Judge wants to impose Texas law on non-residents.  Yes, you can always get divorced in Texas, so long as you file first and have lived in this State for at least six months, for the most part.  Dividing property  and also addressing the children cannot always be done.      Below, I have summarized Barajas v. Santiago 2012 W.L. 760921.  This is a 1st court of Texas appeals unpublished opinion case, in which one of our local attorneys argued that because the wife, who had children in Mexico signed a waiver, she  consented to subject matter jurisdiction, and our judge in the 245th of Harris County, dismissed the divorce for having visitation and conservatorship provisions in the divorce.

Francisco Barajas (appellant) appeals the trial court’s dismissal of his petition seeking divorce from Maria Angelica (appellee), and seeks assets division besides establishing child custody and support. The appeal is solely on grounds that he trial court erred in dismissing his case.

This petition filed on 17th March, 2010 for a marriage lasting almost two-and-half years, an insupportable marriage as a result of discord/personality differences after having a son, F.B.L. Francisco seeks to be appointed as a joint managing conservator and be named as the parent to determine F.B.L’S  residency.

He further seeks to be allowed to visit the son and that the child’s support and insurance be in line with the Family Code section 152.201(a)(4).. He indicates that the son was born in Mexico where Maria’s address is, though gives no evidence on the child’s residence.

Maria on her side files a service waiver plus a statement she entered her appearance in the case for all purposes indicating she currently resides in Mexico. However, she doesn’t answer or provide any document in this case. The case is dismissed on grounds that the child was not born neither is he in the U.S.

In his appeal, Francisco claims Maria’s service waiver cover the minor and confirms the son lives in Mexico with Maria and that she accepted the child’s supportive funds monthly. These claims don’t appear in the recorded case.

Had the trial court jurisdiction over the divorce and initial child custody purpose?

For a valid suit in Texas, the respondent or the petitioner are required to have domiciliary of Texas for a preceding 6-months as at the time the suit is being filed. Also, you has to be a resident of where the suit is filed at least for the preceding 90 days. This suit ought to affect the parent to child bond if the involved are parents of a minor. This does not include the jurisdiction ground involved in making the child custody. Hence the court can only determine an initial child custody where;

  • The child lives in the state by the time proceedings start or lived there 6-months before the proceedings and is absent or the guardian or parent still lives here.
  • Another court outside this state doesn’t have the mandate to decide the case or a court at home refuses to carry out jurisdiction owing that the state is the most appropriate;
  • Other courts with appropriate mandate to handle the case decide the court of the state is the most fit for this matter.
  • No any other court can handle the case

In light of the above, Francisco has failed to give any record of his son’s current address, where lived in the past 5-years and the guardians who housed the son. Likewise, Maria has not filed anything in defense.  Albeit, the court has found that the son doesn’t and has never lived in Texas, the appellate admits this. To this extent, the trial court’s dismissal of the appellant’s case is valid.

About the Author

Michael Busby Jr. is a divorce & family law attorney,  who practices in Harris and Fort Bend Counties, Texas. He has been in practice for over 14 years and has tried over 300 cases.  He is familiar with the policy and procedures of the Harris and Fort Bend County Texas family law courts.   Our office is open until 8:30 p.m. on Wednesdays and Saturday from 9 a.m. to 1 p.m. for working folks. Michael Busby Jr. 6100 Corporate Dr Ste 190  Houston, Texas 77036 (713) 974-1151 Visit me on the web at www.busby-lee.com


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Michael Busby is a Houston divorce lawyer who has been in practice for over 20 years and appears daily in the Family Law Courts of Harris County and Fort Bend County Texas

Busby & Associates , have two Houston Offices, one in Chinatown, Houston Texas and another in Independent Heights, Houston, Texas. Michael Busby is Board Certified in Family law by the Texas Board of Legal Specialization.