Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA)

Question 1

UCCJEA

Answer 1

• Is an act, that serves as a compact between states who have adopted it, to determine which state has jurisdiction over a child. 49 states have adopted it, excluding Massachusetts.
• Used to prevent “forum shopping” or more problematic “parental kidnapping” to find a jurisdiction friendlier to one parent.

Question 2

Cases that Fall Under UCCJEA

Answer 2

• Suit to establish conservatorship of a child
• Suit for possession of and access to a child
• Suit to terminate the parent-child relationship.
• Can be a permanent, temporary, original, or modified order.
• Does not include:
  -Child support cases or monetary obligations

Question 3

UCCJEA’s Predecessor the UCCJEA

Answer 3

The UCCJEA replaced a previous Uniform Act, the “Uniform Child Custody Jurisdiction Act”, primarily because the old act was inconsistent with the federalParental Kidnapping Prevention Actwhen determining proper jurisdiction for initial custody determinations and because of contradictory interpretations of the PKPA. The UCCJEA corrects these problems. The UCCJEA also added uniform procedures to register and enforce child-custody orders across state lines. A multi-state compact adopted by 49 states (not Massachusetts) conceived to

Question 4

Intitial Custody Determination Under UCCJEA

Answer 4

• To determine which state has proper jurisdiction to make an “initial determination” of child custody, the UCCJEA proceeds in the following order of priority:
  1. The state which is the “home state” of the child, or was the child’s home state within six months immediately before the commencement of child custody proceedings if the child is absent from the state, but a parent or person acting as a parent continues to live in the state;
  2. If no state has jurisdiction under #1, then jurisdiction is proper where the child and at least one parent have a “significant connection” with the state (other than mere presence), and substantial evidence concerning the custody determination is available in the state;
  3. If no state has jurisdiction under #1 or #2 above, jurisdiction is proper in any state having an appropriate connection with the child.

once state has established UCCJEA, that continues until the child turns 18

Question 5

Continuing Exclusive Jurisdiction Under UCCJEA

Answer 5

• Once a state court has made a custody determination, that state keeps jurisdiction over all matters concerning that child, unless:
  1. A court of the state with jurisdiction determines that the child or the child and a parent do not have a significant connection with the state,AND evidence concerning the child’s custody determination is not available in the state;OR
  2. A court of the state with jurisdiction, orany other state, determines that the child and both parents or acting parents do not reside in the state any longer.

Question 6

Modifications Under UCCJEA

Answer 6

Once a custody determination has been made, a court of another state does not have authority to modify the determination, unless the state with jurisdiction determines that it does not have jurisdiction as noted above, or any state court determines that the child, parents, and any acting parents do not reside in the state which has jurisdiction.

Question 7

Emergency Jurisdiction Under UCCJEA

Answer 7

• A state which does not otherwise have jurisdiction may enter a temporary emergency order, if the child is in danger and needs immediate protection. After issuing such order, the state court should determine if there is an existing custody order from another state in effect. If there is an existing order, the emergency court must allow a reasonable time period for the parties to return to the state having jurisdiction, and argue the issues to the court with jurisdiction.
• If there is no previous child custody order in existence, the emergency court’s order will remain in effect until a determination is made in a court having “home state” jurisdiction over the child. If no determination is made, and the emergency court’s state becomes the home state of the child, the emergency order becomes a final determination of custody…

Question 8

Texas as Home State: Live in Texas with a Parent

Answer 8

**“Lived in” means where child is physically present. **
* Does not require proof of residence or domicile.
* Does not involve inquiry into parent or child’s “state of mind”
Child must live in Texas with a parent or a person acting as a parent.
“acting as a parent” is a person who:
* Has or had physical custody of the child for six consecutive months including any temporary absence within one year before the proceeding was commenced; or
* Has been awarded legal custody (conservatorship) or claims a right to legal custody under laws of this State.

Question 9

Texas as Home State: Lived in Texas for Statutory Period

Answer 9

Must have lived in Texas for statutory period.
* Lived in Texas for 6 consecutive months immediately before the child-custody proceeding was commenced* if the child is at least 6 months old; or
* Since the child’s birth if the child is less than six months old.
-If child less than 6 months old, not necessary for child to have lived only in Texas for a court to have jurisdiction. Any time in Texas since birth is sufficient. In re Burk, 252 SW3d 736, (Tex.App.—Houston [14th Dist.] 2008) (rejecting argument that statutory language “lived from birth” requires child to have lived in only one state since birth).
* * child custody proceeding is commenced when the first pleading is filed in a Texas court (does not change based on later amended pleadings. Does not relate back to date suit was filed outside of Texas)

Question 10

Temporary Absence from Texas

Answer 10

A parent’s temporary absence from Texas is included in calculating the period of time that the child lived in Texas. Family Code does not address a child’s temporary absence from the state as affecting the 6-month calculation, but most courts have found that a child’s absence does not affect the calculation.
* Child’s absence from Texas for less than one month from primary residence in Georgia did not interrupt six-month calculation. Houston-App 2013
* Children’s frequent trips to Oklahoma to visit foster parent during 6-month period before filing did not interrupt calculation period. Houston-App 2008

Question 11

Texas is Home State: If Child’s Home State WAS Texas

Answer 11

• Texas court has jurisdiction if Texas was the child’s home state within 6 months before the child custody proceeding was commenced and a parent or person acting as a parent continues to live in Texas even though the child is absent from the state.
  -Texas was home state because child lived in Texas until four days before custody suit was filed and child’s father continued to live in Texas.

Question 12

Significant Connection Jurisdiction

Answer 12

1. Child has no home state
2. Child is absent from home state
3. Child’s home state declined jurisdiction

Question 13

Significant Connection-Child has No Home State, Texas Can Exercise Jurisdiction If:

Answer 13

1. No other state was the child’s home state during the six months before the child-custody suit was commenced or on the date the suit was commenced.
   -Child had no home state because she lived in Florida for only four months, and she had not been to Texas in over two years.
   -Children had no home state because they lived in Florida without parent or person acting as parent (“PAP”) and then lived in Texas for less than five weeks.
2. Child and either the child’s parent or at least one parent or PAP have a significant connection with Texas other than mere physical presence; and
   -Children lived in Texas at time suit was filed, children’s family lived in Texas, and mother had plans for children’s future in Texas.
   -Mother and father both lived in Texas over course of five years and child lived in TX off-and-on for over three years.
3. Substantial evidence of the child’s care, protection, training, and personal relationships is available in Texas.

Question 14

Significant Connection - Child is Absent from Home State, TX has Jurisdiction If:

Answer 14

1. Another state was the child’s home state during the six months before the custody proceeding was commenced, but the child is now absent from that other state and no parent or person acting as a parent continues to live in that state;
2. Child and either the child’s parents, one parent, or PAP have a significant connection with Texas other than mere physical presence; and
3. Substantial evidence of the child’s care, protection, training and personal relationships is available in Texas.

Question 15

Significant Connect - Child’s Home State Declined Jurisdiction, Tx Will Have Jurisdiction If:

Answer 15

1. Another state is the child’s home state, but the home-state court has declined to exercise jurisdiction on the ground that Texas is a more appropriate forum under §152.207 (inconvenient forum) or §152.208 (unjustifiable conduct);
2. Child and either the child’s parents, one parent, or PAP have a significant connection with Texas other than mere physical presence; and
3. Substantial evidence of the child’s care, protection, training and personal relationships is available in Texas.

Question 16

Default Jurisdiction - Texas Can Be Jurisdiction If:

Answer 16

1. All other states have declined jurisdiction
   -Typically because Texas is the more convenient forum
2. No other state has jurisdiction

Question 17

Texas Temporary Emergency Jurisdiction

Answer 17

• Texas has a duty to protect children within its borders, and to that end, Texas has granted courts broad discretion to assume temporary emergency jurisdiction over a child when allegations of immediate harm are made in a SAPCR.
• The exercise of TEJ applies only in extraordinary circumstances.

Question 18

Acquiring Temporary Emergency Jurisdiction

Answer 18

• A court acquires TEJ to issue an emergency custody order if:
  1. The child is present in Texas; and
  2. Either the child has been abandoned or the court must protect the child because the child or the child’s sibling or parent is subjected to, or threatened with, mistreatment or abuse.

Question 19

TEJ - Presence in Texas

Answer 19

• There is no minimum amount of time that a child must be “present” in Texas before a court can exercise TEJ.
  -Suit for emergency custody was filed on same day child’s parents were arrested for possessing drugs while driving through Texas
• Child must be present in Texas on the day the court acquires TEJ over the child.
  -TEJ not acquired because child left Texas seven days before TEJ hearing.

Question 20

TEJ - Abandonment

Answer 20

• No courts have addressed what is required to establish abandonment under TFC §152.204. One court has held that incarceration is not sufficient to establish abandonment.

Question 21

TEJ - Mistreatment or Abuse

Answer 21

To establish that a child or the child’s sibling or parent is subjected to or threatened with mistreatment or abuse, a party may show that mistreatment or abuse is likely or impending.
* Moving child from India to Texas without father’s knowledge, or consent, did not, by itself, establish mistreatment or abuse
* 16-month-old child was faced with “impending” mistreatment and abuse because parents had been arrested in Texas and child would be left alone.
* Mistreatment or abuse was rightfully perceived when two girls were under sole custody of registered sex offender.

Question 22

Unjustifiable Conduct Does Not Prohibit TEJ

Answer 22

• Generally, a Texas court must decline to exercise jurisdiction over a child-custody determination if the petitioner has committed a wrongful act, such as removing, secreting, retaining, or restraining a child, in an effort to find a more favorable court. ** §152.208 (a)**
• BUT, **§152.208 **does not apply when a court is exercising TEJ over a child in an emergency. A Texas court can exercise TEJ over a child even if the child is brought to Texas by means of unjustifiable conduct.
  -Texas court could exercise TEJ even though father used void orders to gain possession of children in Nebraska and to bring them to Texas.

Question 23

Scope of Continuing Exclusive Jurisdiction

Answer 23

• Concept of CEJ was adopted, in part, to curb forum shopping. Races to the courthouse, child snatching, and multiple suits in different courts.
• If any court has issued a final order in an earlier SAPCR that court has jurisdiction over future SAPCRs involving the same child, whether those SAPCRs concern the same parent-child issues as the previous suit (i.e. modification) or different issues, until the court loses jurisdiction or circumstances arise that bar the court from exercising jurisdiction.

Question 24

Acquiring Continuing Exclusive Jurisdiction

Answer 24

• Court acquires CEJ if the court:
  1. Issued a final order in an earlier SAPCR; and
  2. Had proper jurisdiction to issue that order

Question 25

What is Not Considered a Final Order

Answer 25

• An order that is not appealable is not a final order;
• An order that does not dispose of all pending claims and parties;
• An order that reserves an issue to be decided at a later time;
• A dismissal of a SAPCR
• No father in a parentage suit (order stating someone is not a father)
• Adoption order

Question 26

Loss of Continuing Exclusive Jurisdiction

Answer 26

A court that acquired CEJ can lose it for any of the following reasons:
* Child had been adopted
* Parents of the child have married or remarried
* Another court rendered order in later SAPCR based on incorrect information received from the Texas Vital Statistics Unit that no other court had CEJ.

Question 27

How Continuing Exclusive Jurisdiction Works in Bexar County

Answer 27

• If it’s an original suit, clerk assigns a cause number and a court designation on the pleading that commences the SAPCR.
• If it’s a modification, you file a motion to modify under the same cause number and court designation as the original suit.
• The court that is designated in the pleadings, in Bexar County, might never hear your case.
• The judge that hears your SAPCR case is deemed to be a visiting judge for the court that is designated on your pleadings.