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What Happens in a UCCJEA Case When the Child is Out of State?

What happens in a UCCJEA case when the child hasn’t been in the State for 6 months? Will the court have jurisdiction to make a child custody determination? The short answer is that whichever state the child lived in for 6 consecutive months prior to filing the suit, will be the child’s “home state”. Establishing the home state of the child goes into determining a court’s power to make custody determinations that are binding on the child and the parent or guardian of the child.

What is Jurisdiction?


First, it is important to understand what Jurisdiction is. Jurisdiction is a fancy legal term that means “power”. In order for a court’s order(s) to be binding on the parties, it must have jurisdiction or power over the parties involved and must have the power to hear the type of case filed. This is called personal jurisdiction (i.e. jurisdiction over the person) and subject matter jurisdiction (power to hear the subject of the suit). Most people file their case in the correct court so subject matter jurisdiction is usually not a hurdle. However, you must be sure that the court has personal jurisdiction as well. Once a court has established that it has power over the persons and has established that it is power to hear the type of case, any orders made by the court will be binding; this includes an order to pay child support.

 How Does the Court Get Personal Jurisdiction?

A party to a child custody case is not subject to personal jurisdiction by that state for another case or purpose “solely by reason of having participated, or of having been physically present for the purpose of participating, in the proceeding”. [Texas Family Code 159.109]

  • Home State Jurisdiction – A child’s home state means the state or country in which the child lived with a parent or person acting as a parent for at least six consecutive months immediately before the custody case was initiated. If the child is less than six months old, home state means the state or country in which the child lived with a parent or person acting as a parent since birth (section 152.102(7), Family Code).
  • Significant connection jurisdiction – This means that a substantial amount of the evidence or parties live in that state. Evidence includes evidence regarding the child’s training, personal relationships, daily activities, needs, teachers, etc.
  • Default jurisdiction – A Texas court will acquire jurisdiction over a child custody order from another state:
    • All other states or nations that have jurisdiction to make an initial child custody determination have declined to exercise their jurisdiction; or
    • If no other state has jurisdiction to make an initial child custody determination in the first place.

For other types of Suit Affecting Parent-Child Relationship (SAPCRs) cases, such as child-support actions, Texas courts must have jurisdiction over the parties involved. Most courts in Texas will decline to exercise jurisdiction over only some of the issues in a SAPCR if another court has jurisdiction to resolve all of the issues.

Emergency Temporary Jurisdiction in a Custody Case

Under the UCCJEA jurisdiction, a party can ask the court to take “temporary jurisdiction”  over the case if the child is present in that state and the child has been abandoned or if it is otherwise necessary to protect the child from abuse, neglect or mistreatment. In this case, if there is no prior court order regarding child custody and if a child custody case has not been initiated in a state court that has jurisdiction, a custody order made under this emergency situation will remain in effect until another order is obtained from a state court with actual jurisdiction. On the other hand, if a custody case has not been filed or is not initiated in a court that has jurisdiction, a child custody determination made under this scenario will become final and binding. That state would then become the home state of the child.

If there is a previous child custody order that can be enforced under this article or if a child custody case has been initiated in a court with jurisdiction, the emergency custody order will specify specify in the order a period that the court considers to be adequate to allow the person seeking an order to obtain an order from the state that has jurisdiction. Then, the order issued in this State remains in effect until an order is obtained from the other state within the period specified or the period expires.

To sum it up,  emergency UCCJEA jurisdiction can only develop into ongoing jurisdiction when there are no prior custody orders and no action is filed in a state having jurisdiction before the new state becomes the child’s home state.

 

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