WHERE DO WE FILE THIS THING? JURISDICTION AND VENUE IN SAPCR

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1 WHERE DO WE FILE THIS THING? JURISDICTION AND VENUE IN SAPCR SALLY HOLT EMERSON The Underwood Law Firm 500 S. Taylor, Suite 1200, Lb 233 Amarillo, Texas State Bar of Texas 32 ND ANNUAL ADVANCED FAMILY LAW COURSE August 14-17, 2006 San Antonio CHAPTER 3

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3 SALLY HOLT EMERSON THE UNDERWOOD LAW FIRM 500 S. Taylor, Suite 1200 LB 233 P.O. Box 9158 Amarillo, Texas (806) Telecopier No. (806) EDUCATION: B.A. in Spanish with honors, Texas Tech University J.D., Texas Tech School of Law PROFESSIONAL ACTIVITIES: Shareholder Underwood, Wilson, Berry, Stein & Johnson, P.C. Board Certified in Family Law Director, Amarillo Bar Association, ; Vice President, ; President-Elect, ; President, Founding Member/Secretary, Panhandle Family Law Association, ; Vice President, , President Member, Texas Family Law Council: 6/93-present 95-96: Scholarships & Awards Committee Chair 96-97: Membership Committee Chair 97-00: Budget Committee Chair 00-03: Membership Committee Chair 03-04: Officer Secretary 04-05: Officer-Treasurer 05-06: Officer-Vice Chair Director, Texas Board of Legal Specialization, ; Chair, Director, Texas Academy of Family Law Specialists, 1996-present; Treasurer, ; Secretary, ; Vice-President, ; President-Elect, ; President, Fellow, American Academy of Matrimonial Lawyers Fellow, Texas Bar Foundation Member, ABA Standing Committee on Specialization, Member, Pattern Jury Charge Committee, Course Director: 7 th & 8 th Annual TAFLS Trial Institute Series, Reno, Nevada, 1993 & th Annual TAFLS Trial Institute Series, New Orleans, Louisiana, 1998 Advanced Family Law Course, August 2003, San Antonio, Texas Workshop Coordinator, 19 th Annual Advanced Family Law Course, San Antonio, Texas, 1993

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5 TABLE OF CONTENTS I. INTRODUCTION... 1 II. TEXAS LONG-ARM STATUTE... 1 A. The Texas Statutes Generally Texas Family Code section (b). Acquiring Jurisdiction Over Nonresident... 1 III. UCCJEA: UNIFORM CHILD CUSTODY JURISDICTION ENFORCEMENT ACT... 1 A. Brief History... 1 B. Stated Purposes... 2 C. Texas Application... 2 D. Initial Child Custody Determinations Home State Significant Connection More Appropriate Forum No Other Court... 4 E. Jurisdiction to Modify Determination... 4 F. Temporary Emergency Jurisdiction... 5 G. Declining Jurisdiction Inconvenient Forum Jurisdiction Declined by Reason of Conduct... 7 H. Simultaneous Proceedings... 7 I. Enforcement Registration of Child Custody Determination Enforcement of Registered Determination Simultaneous Proceedings Expedited Enforcement Warrant to Take Physical Custody of Child... 9 IV. UIFSA: UNIFORM INTERSTATE FAMILY SUPPORT ACT... 9 A. Brief History... 9 B. Texas Enactment of UIFSA Conflicts Between Provisions Jurisdiction Simultaneous Proceedings Continuing, Exclusive Jurisdiction Enforcement and Modification Recognition of Controlling Child-Support Order Enforcement and Modification of Support Order After Registration Choice of Laws C. Conflicts Between UCCJEA and UIFSA V. VENUE AND INTERSTATE JURISDICTION A. Continuing Jurisdiction Texas Family Code section Texas Family Code sections and B. Venue in Original Suits C. Venue Litigation Texas Family Code section (b) D. Transfer Of Venue VI. CONCLUSION i

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7 WHERE DO WE FILE THIS THING? JURISDICTION AND VENUE IN SAPCR I. INTRODUCTION Sometimes, the most difficult aspect of suits affecting parent-child relationships is to determine where the suit should be correctly filed. Not only do jurisdictional issues arise involving different states; within the state, the proper venue must also be determined. This paper will explore the different jurisdictional and venue issues that must be considered by the family law practitioner in such suits. The UCCJEA and the UIFSA are, of course, the initials for the names of federal uniform statutes that have been incorporated into the Texas Family Code. They deal with problems arising in family law matters between different states involving custody and support of children. The advanced family law practitioner has to deal with these statutes on a fairly frequent basis. Why? Because of the extreme mobility our society has achieved today, rarely does much time pass without the Texas family attorney representing someone with interstate child custody or child support enforcement problems. Sometimes, these laws can pose a serious consideration for parents contemplating a move to or from one state to another. A firm understanding of these two statutes is extremely helpful in advising clients and dealing with these common interstate issues. A review of the Texas statutes dealing with interstate issues will help determine where in Texas the suit should be filed. II. TEXAS LONG-ARM STATUTE A. The Texas Statutes 1. Generally Section of the Texas Family Code permits the exercise of personal jurisdiction over a non-resident in a suit affecting the parent-child relationship connected with divorce whenever personal jurisdiction exists over the non-resident to litigate the divorce. Prior to the adoption of the Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA) rules existed in each state which set out the minimum contacts necessary to establish jurisdiction over the parental rights of non-resident parents. The minimum contacts requirements for acquiring personal jurisdiction over a non-resident are specifically set forth in of the Texas Family Code. This section allows the court to exercise personal jurisdiction over a person on whom service is required in a SAPCR although the person is not a resident or domiciliary of Texas. 2. Texas Family Code section (b). Acquiring Jurisdiction Over Nonresident The court may also exercise personal jurisdiction over a person on whom service of citation is required or 1 over the person s personal representative, although the person is not a resident or domiciliary of this state, if: a. the person is personally served with citation in this state; b. the person submits to the jurisdiction of this state by consent, by entering a general appearance, or by filing a responsive document having the effect of waiving any contest to personal jurisdiction; c. the child resides in this state as a result of the acts or directives of the person; d. the person resided with the child in this state; e. the person resided in this state and provided parental expenses or support for the child; f. the person engaged in sexual intercourse in this state and the child may have been conceived by that act of intercourse; g. the person registered with the paternity registry maintained by the bureau of vital statistics as provided by Texas Family Code chapter 160 [Determination of Paternity]; or h. there is any basis consistent with the constitutions of this state and the United States for the exercise of the person jurisdiction. Texas family code section (b). Thus, Texas courts have been provided a means to litigate parental rights on the basis of personal jurisdiction, as an alternative to exercising status or subject-matter jurisdiction over the suit as provided by the Texas version of the UCCJEA. III. UCCJEA: UNIFORM CHILD CUSTODY JURISDICTION ENFORCEMENT ACT A. Brief History Texas adopted the Uniform Child Custody Jurisdiction Enforcement Act (UCCJEA), effective September 1, It is set forth in Chapter 152 of the Texas Family Code. It replaced the previous act, the Uniform Child Custody Jurisdiction Act (UCCJA), which was enacted in 1968 and had been adopted by all 50 states. In 1998, the American Bar Association recommended that all states approve the UCCJEA. As of the writing of this paper, the UCCJEA has been enacted in 42 states and the District of Columbia, including Alabama, Alaska, Arizona, Arkansas, California, Colorado, Connecticut, Delaware, Florida, Georgia, Hawaii, Idaho, Illinois, Iowa, Kansas, Kentucky, Maine, Maryland, Michigan, Minnesota, Mississippi, Montana, Nebraska, Nevada, New Jersey, New Mexico, New York, North Carolina, North Dakota, Ohio, Oklahoma, Oregon, Pennsylvania, Rhode Island, South Dakota, Tennessee, Texas, Utah, Virginia, Washington, West Virginia, and Wyoming.

8 In addition, the UCCJEA was introduced as legislation is three other states in In both South Carolina and Indiana, the legislation was left pending in committee. As of the date this paper was written, the legislation in New Hampshire was still pending although its prognosis is doubtful. If it passes and the governor signs the bill, the UCCJEA will become effective in New Hampshire on January 1, The UCCJEA creates a uniform procedure for the enforcement of child custody orders. Texas previously had adopted, as had all other states, the UCCJA. Each state, however, had been interpreting the UCCJA differently for the past thirty years. The Commissioners Official Prefatory Note to UCCJEA noted that the goals of the UCCJA were rendered unobtainable in many cases. TEX. FAM. CODE Chap. 152 (Vernon 2000). The UCCJEA sets forth rules to discourage or eliminate competing custody orders from different states. The UCCJEA clarifies emergency jurisdiction. There was also much confusion created by conflicting provisions of the UCCJA and the federal Parental Kidnapping Prevention Act (PKPA). The UCCJEA revisions reconcile UCCJA principles with the PKPA by implementing both home state priority and exclusive continuing jurisdiction. The UCCJEA is to be applied and construed to promote the uniformity of the law among the states that enact it. TEX. FAM. CODE If a provision of the Texas Family Code or other Texas law conflicts with a provision of this act, and the conflict cannot be reconciled, the UCCJEA will prevail. TEX. FAM. CODE B. Stated Purposes Section 101 of the Commissoners Comment to the UCCJEA states that this Act should be interpreted according to its purposes, and sets forth those purposes: To avoid jurisdictional competition and conflict with courts of other states in matters of child custody which have in the past resulted in the shifting of children from state to state with harmful effects on their well-being; To promote cooperation with the courts of other states to the end that a custody decree is rendered in that state which can best decide the case in the interest of the child; To discourage the use of the interstate system for continuing controversies over child custody; To deter abductions of children; To avoid relitigation of custody decisions of other states in this state; and To facilitate the enforcement of custody decrees of other states. C. Texas Application The UCCJEA applies in Texas to an original suit affecting the parent-child relationship and a suit for modification filed on or after September 1, TEX. FAM. CODE , ; see also TEX. FAM. CODE ANN. Chap. 152, Introductory Comment to UCCJEA (Vernon 2000). The UCCJA governs suits filed prior to September 1, 1999 and pending as of that date. Id. Consequently, Texas case law decided under the UCCJA will have little, if any, value to the family law practitioner in interpreting the provisions now incorporated into the UCCJEA. See, e.g., McGuire v. McGuire, 18 S.W.3d 801 (Tex. App. El Paso 2000, no pet.) (UCCJA is no longer applicable to interstate custody proceedings). The UCCJEA s jurisdictional rules apply to a wide range of cases involving custody and visitation issues, which are defined in the act as child custody proceedings. TEX. FAM. CODE (4). These include proceedings for divorce, separation, neglect, abuse, dependency, guardianship, paternity, termination of parental rights, and protection from domestic violence in which an issue regarding legal custody, physical custody, or visitation with respect to a child may appear. This chapter does not govern an adoption proceeding or a proceeding pertaining to the authorization of emergency medical care for a child. TEX. FAM. CODE The previous UCCJA did not have provisions regarding visitation. Now the UCCJEA specifically applies to child custody determinations, which are defined as a judgment, decree, or other order of a court providing for legal custody, physical custody, or visitation with respect to a child. This term does not include an order relating to child support or another monetary obligation of an individual. TEX. FAM. CODE (3). The UCCJEA also specifies that a child custody proceeding involving an Indian child as defined in the Indian Child Welfare Act of 1978 (25 U.S.C. Section 1901 et seq.) is not subject to this chapter to the extent that it governed by the Indian Child Welfare Act; however a court of this state shall treat a tribe as if it were a state. TEX. FAM. CODE (a), (b). A child custody determination made by a tribe under factual circumstances in substantial conformity with the jurisdictional standards of the act must be recognized and enforced. TEX. FAM. CODE (c). The UCCJEA covers international custody proceedings and orders. It provides that a court of this state shall treat a foreign country as if it were a sister state and apply the jurisdictional rules of the UCCJEA. TEX. FAM. CODE (a). This requirement does not apply if the child custody law of the foreign country violates fundamental principles of human rights. TEX. FAM. CODE (c). 2

9 D. Initial Child Custody Determinations The UCCJEA gives a Texas court jurisdiction to make an initial custody determination only under four instances. TEX. FAM. CODE (1) (4). These four instances are the exclusive jurisdictional bases for making a child custody determination by a court of this state. TEX. FAM. CODE (b). Physical presence of, or personal jurisdiction over, a party or a child is not necessary or sufficient to make a child custody determination. TEX. FAM. CODE (c). 1. Home State Texas is the home state of the child on the date of the commencement of the proceeding or was the home state of the child within six months before the commencement of the proceeding and the child is absent from this state but a parent or person acting as a parent continues to live in this state. TEX. FAM. CODE (a)(1). Home state means the state in which a child lived with a parent or a person acting as a parent for at least six consecutive months immediately before the commencement of a child custody proceeding. In the case of a child less than six months of age, the term means the state in which the child lived from birth with a parent or person acting as a parent. A period of temporary absence of a parent or a person acting as a parent is part of the period. TEX. FAM. CODE (7). The priority given to home state jurisdiction brings the UCCJEA into conformity with the PKPA. This is designed to reduce the inconsistent exercise of jurisdiction by state courts while improving the interstate enforcement of state courts orders as contemplated by federal law. The purposes behind the UCCJEA suggest that a child s physical location is the central factor to be considered when determining a child s home state. The UCCJEA was intended to make the determination of jurisdiction ore straightforward. The UCCJEA achieves this purpose by prioritizing home-state jurisdiction, which helps to avoid the jurisdictional competition and conflict that result when courts in different states determine jurisdiction based on subjective factors. Powell v. Stover, 165 S.W.3rd 322 (Tex. 2005). The Texas Supreme Court in its May 27, 2005 opinion in Powell determined that the UCCJEA should be construed in such a way as to strengthen rather than undermine the certainty that prioritizing home-state jurisdiction was intended to promote. The Supreme Court thus declined to apply a test to determine where a child lived based on the parties subjective intent, holding that such a test would thwart the UCCJEA s meaning and purpose. Instead, the Court looked solely to the state in which the child lived with a parent. In doing so, it looked to the physical presence of the child, not where the child resided or was domiciled, which 3 typically involves an inquiry into a person s intent. In the Court s opinion, the Legislature used the word lived in the statute precisely in order to avoid complicating the determination of a child s home state with inquiries into the state of mind of the child or the child s caretakers. Another case examined the problem of what to do if there is no home state. In In re Presley, 166 S.W.3d 866, (Tex. App. Beaumont 2005, n.p.h.), at the time one party filed an initial child custody proceeding in Texas, a proceeding concerning custody had been commenced in Florida, and the Florida court had jurisdiction consistent with the UCCJEA. The children were only in Florida three months before their father took them to Texas; and they had only been in Texas for four months. Therefore, there was no home state. The court held that since suit was filed first in Florida, section (a) controlled. Therefore, the Texas court could not exercise jurisdiction unless the Florida proceeding had been terminated or the Florida court determined Texas was a more convenient forum. 2. Significant Connection Texas has jurisdiction over an initial child custody determination if a court of another state does not have jurisdiction under section (a)(1) or a court of the home state of the child has declined to exercise jurisdiction on the ground that this state is the more appropriate forum under section (inconvenient forum) or section (jurisdiction declined by reason of conduct), and the child and the child s parents, or the child and at least one parent or a person acting as a parent, have a significant connection with this state other than mere physical presence. There must be substantial evidence available in this state concerning the child s care, protection, training, and personal relationships. TEX. FAM. CODE (a)(2). In 2002, Justice Ann McClure of the El Paso Court of Appeals wrote an opinion regarding significant connections in In the Interest of Kaylee Lynn-Marie Brilliant, A Child, 86 S.W.3d 680 (Tex. App. El Paso 2002, orig. proceeding). In the case, the father and mother of the child were not married, but lived in Massachusetts at the time of the child s birth on June 15, About a year after the child s birth, they made the decision to move to El Paso, Texas, where the father grew up and where his large family still lived. The father moved to El Paso in April of 2000, and the mother and child followed him there in June The mother did not like Texas, and told the father in July she was leaving. The father filed suit on July 19 and on July 21 obtained a temporary restraining order preventing the mother from removing the child from Texas, which she did anyway. The mother moved with the child back to Massachusetts, and did not appear in the El Paso proceeding, except to make a plea to the jurisdiction. The trial court denied her plea and granted the father a

10 default judgment against the mother. The mother appealed on the basis that Texas did not have jurisdiction. Following the theory that the child actually had no home state, Justice McClure reasoned that all parties lived in Texas at the time suit was filed, and that the child had more significant connection with this state other than mere physical presence. This case is highly recommended for a review of the evidentiary considerations in significant connection issues. In 2003, Justice McClure wrote another opinion which clearly sets forth the application of the UCCJEA and discussed the home state and significant connection concepts in In re Oates, 104 S.W.3d 571 (Tex. App. El Paso, 2003). During a pending divorce action, the mother had moved to New York, while the father and children remained in Texas under temporary orders. The father died before the divorce was final, and the children stayed temporarily in Texas with grandparents while the mother made preparations for them to move to New York. The grandparents filed for grandparent access, but the mother s position was that the Texas court did not have jurisdiction. The appellate court held that since the death of a parent managing conservator terminates the conservatorship order, the grandparent access case should be approached as an initial custody determination rather than a modification. Next, Justice McClure analyzed the interplay between Section (a) and Section (7). Section (a) provides that a Texas court has jurisdiction to make an initial child custody determination only if Texas "is the home state of the child on the date of the commencement of the proceeding..." Id. at 577 (original emphasis). Since the grandparents never had physical custody for six months, they never achieved the status of "persons acting as a parent." Because the children did not live in Texas with a parent or a person acting as a parent for six consecutive months immediately before the commencement of the suit, Texas did not qualify as the children's home state. When the grandparents suit was filed, the children had only been living in New York with their mother for a little over four months. Since the children had no home state at the time suit was filed and Texas was not the children's home state for six consecutive months immediately before suit was filed, the court then turned to the issue of significant connection. Citing Lemly v. Miller, 932 S.W. 2d 284, 286 (Tex. App. Austin 1996, no pet), the court noted that significant connection jurisdiction should be employed only when Texas is not the home state and it appears that no other state could assert home state jurisdiction. The grandparents claimed that since the children lived in Texas from birth through April 2001, Texas had the most significant connection with the children. While the court found their argument to be both logical and reasonable, it held that it was statutorily prohibited. Since the grandparents did not attain the 4 status of "persons acting as a parent" as that phrase is defined, Texas could not invoke significant connection jurisdiction. See TEX. FAM. CODE (a)(2)(A). While the children may well have had a significant connection to the state of Texas, the statute requires more. There must also be a parent or a person acting as a parent with a significant connection to the state. The grandparents did not meet either criteria. 3. More Appropriate Forum A Texas court will have jurisdiction to make an initial child custody determination if all courts having jurisdiction under section (a)(1) and (2) have declined to exercise jurisdiction on the ground that a court of this state is the more appropriate forum to determine the custody of the child under section (inconvenient forum) or section (jurisdiction declined by reason of conduct). The Beaumont Court of Appeals in In re Presle once it determined that there was no home state and that Florida had jurisdiction under the UCCJEA, clarified that the Texas court could not exercise jurisdiction unless the Florida proceeding had been terminated or the Florida court determined Texas was a more convenient forum. The Texas court was required to stay its proceeding and communicate with the Florida court on the convenient forum issue. The Texas trial court did not have the authority to determine whether Texas was a more convenient forum; only the Florida court could do so. The Texas Supreme Court reached this same conclusion that only the court in the state with jurisdiction may decide whether that state is an inconvenient forum. Powell v. Stover, supra. 4. No Other Court Finally, a Texas court will have jurisdiction to make an initial child custody determination if no court of any other state would have jurisdiction under the criteria specified in section (a)(1), (2), or (3). E. Jurisdiction to Modify Determination Except for emergency jurisdiction, infra, a Texas court may not modify a child custody determination made by a court of another state unless the Texas court has jurisdiction to make in initial determination under section (a)(1) or (2) and either the court of the other state determines it no longer has exclusive continuing jurisdiction under section or that a court of this state would be a more convenient forum under section , or a court of this state or a court of the other state determines that the child, the child s parents, and any person acting as a parent do not presently reside in the other state. TEX. FAM. CODE (1), (2). So, if there has been a custody determination in another state, even if the child s home state is now Texas, the court of the state of exclusive continuing

11 jurisdiction is the state with jurisdiction to modify the custody determination, with the only exceptions being (1) neither the parties nor the child remain in that state; (2) a court of that state declines to exercise jurisdiction on the ground that it no longer possesses exclusive jurisdiction; or (3) it determines that a Texas court is a more convenient forum. Saavedra v. Schmidt, 96 S.W.3d 533 (Tex. App. Austin 2002, no pet.), illustrates the issues with which a Texas court must grapple when another state has already exercised jurisdiction over children. In the case, absent the California court's relinquishment of that exclusive continuing jurisdiction, the Texas court was without jurisdiction to modify previous California orders. The Texas court held that a court of this state may not modify a custody determination made by the California court unless (1) the California court determines it no longer has exclusive continuing jurisdiction or that a court of this state would be a more appropriate forum; or (2) a court of this state or the California court determines that the children and their parents no longer reside in California. Id. at (citing TEXAS FAMILY CODE SECTION ). Neither circumstance existed in this case. The court held that it is of no consequence that the Texas trial court determined that Texas was a more appropriate forum; the California court must make this determination before a court of this state may modify the California court's child custody determinations. The appellate court held that the trial court erred to the extent that it attempted to exercise subject matter jurisdiction and modify the custody rights of these parents when there was a previous valid California order. Id. at 542. A Texas court which has made either an initial child custody determination consistent with section or has properly exercised jurisdiction in modifying a child custody determination made by a court of another state under section has exclusive continuing jurisdiction over the determination until either: a court of this state determines that neither the child, nor the child and one parent, nor the child and a person acting as a parent, have a significant connection with this state and that substantial evidence is no longer available in this state concerning the child s care, protection, training, and personal relationships; TEX. FAM. CODE (a)(1); or a court of this state or a court of another state determines that the child, the child s parents, and any person acting as a parent do not presently reside in this state; TEX. FAM. CODE (a)(2). 5 This provision is actually a departure from the UCCJA, as pointed out in In the Interest of Shannon Danielle Bellamy, a Child, 67 S.W.3d 482, (Tex. App. Texarkana 2002, no pet.). The old law provided that once the child had lived in another state for six months, Texas would lose jurisdiction and the new home state would be the proper place for any modification. So long as one parent still lives in the original decree state, that state is the only one that can determine whether jurisdiction continues. Id. at 484. The court in this case went on to examine the significant connection the child still had with Texas even though she and her mother had moved across the border to Louisiana, and concluded that Texas still maintained exclusive continuing jurisdiction. The Texas Supreme Court examined this part of the UCCJEA in In re Forlenza, 140 S.W.3d 373, (Tex. 2004). The Court pointed out that because one litigant, the mother, still resided in Texas, the Texas trial court that made the original child custody determination was the only court that had jurisdiction. A court of this state which has made a child custody determination and does not have exclusive, continuing jurisdiction under this section may modify that determination only if it has jurisdiction to make an initial determination under TEX. FAM. CODE TEX. FAM. CODE (b). F. Temporary Emergency Jurisdiction The UCCJEA provides that courts have temporary emergency jurisdiction when a child who is in the state is abandoned; or, when an emergency makes it necessary to protect the child because the child or a sibling or parent of the child is subjected to or threatened with mistreatment or abuse. TEX. FAM. CODE (a). The purpose of this section is to protect the child in an emergency situation. Section (a) even allows a court to exercise temporary emergency jurisdiction under section even if a proceeding has been commenced in another state. In that situation, judicial communication is immediately required. Section sets out in detail how the courts should communicate. This section provides for a court in one state to communicate about simultaneous proceedings with the court of the other state, in order to arrange for only one of them to proceed accordingly. The methods of recording such communication are also addressed. A court of this state which has been asked to make emergency temporary orders under this section, upon being informed that a child custody proceeding has been commenced in or a child custody determination has been made by a court of a state having jurisdiction under sections through , shall immediately communicate with the other court. TEX. FAM. CODE (d). The reverse is also required: a court of this

12 state which is exercising jurisdiction pursuant to sections through , upon being informed that a child custody proceeding has been commenced in or a child custody determination has been made by a court of another state under a statute similar to this section shall immediately communicate with the court of that state to resolve the emergency, protect the safety of the parties and the child, and determine a period for the duration of the temporary order. TEX. FAM. CODE (d). The definition of emergency has been modified to harmonize this statute with the PKPA. The PKPA s definition of emergency jurisdiction does not use the term neglect. It defines an emergency as mistreatment or abuse. Therefore, neglect has been eliminated as a basis for the assumption of temporary emergency jurisdiction. Also, mere presence of a child in the state and a claim of emergency are insufficient for jurisdiction. Lundell v. Clawson, 697 S.W.2d 836, 840 (Tex. App. Austin 1985, no writ). The court in this case explained that the word emergency implies an unexpected crisis demanding immediate action by the court to protect the child from physical or emotional harm, irrespective of other considerations which must be suspended until the emergency abates. Id. at 840. Emergency jurisdiction is meant to be temporary. The purpose is to protect the child until the state having proper jurisdiction under sections enters an order. If a child custody proceeding has not been or is not commenced in a court of a state having jurisdiction under section (initial child custody jurisdiction), section (exclusive continuing jurisdiction, or section (jurisdiction to modify determination), a child custody determination made under this section becomes a final determination if it so provides and this state becomes the home state of the child. Temporary emergency jurisdiction may not be used for forum shopping. A parent who is dissatisfied with a valid initial custody determination made by a court of one state with jurisdiction may not use the emergency jurisdiction provisions of the UCCJEA to attempt to obtain a different result. In In Re Carpenter, 835 S.W.2d 760 (Tex. App. Amarillo 1992, no writ), the father kidnapped the child in violation of a Pennsylvania court order and relocated to Texas with the child. The Texas court declined to exercise jurisdiction and held that the father should not be allowed to use his deliberate secretion of himself and [the child] as a claim of right.to do so would make a mockery of the purposes of the UCCJA. Id. at 762; see also Huffstutlar v. Koons, 789 S.W.2d 707 (Tex. App. Dallas 1990 no writ); Ex parte McDonald, 737 S.W.2d 102 (Tex. App. Corpus Christi 1987, no writ). G. Declining Jurisdiction Besides the option of declining jurisdiction in recognition of another state s status as home state or due to a determination of significant connection with another state, a Texas court may also decline to exercise jurisdiction over a child custody determination for two other reasons set forth in the UCCJEA. One is that this state is an inconvenient forum, and the other is for unjustifiable conduct. 1. Inconvenient Forum A court of this state which has jurisdiction under this chapter to make a child custody determination may decline to exercise its jurisdiction at any time if it determines that it is an inconvenient forum under the circumstances and that a court of another state is a more appropriate forum. The issue of inconvenient forum may be raised upon the motion of a party, the court s own motion or request of another court. TEX. FAM. CODE (a). Before determining whether it is an inconvenient forum, a court of this state shall consider whether it is appropriate for a court of another state to exercise jurisdiction. TEX. FAM. CODE (b). For this purpose the court shall allow the parties to submit information and shall consider all relevant factors, including: whether domestic violence has occurred and is likely to continue in the future and which state could best protect the parties and the child; the length of time the child has resided outside this state; the distance between the court in this state and the court in the state that would assume jurisdiction; the relative financial circumstances of the parties; any agreement of the parties as to which state should assume jurisdiction; the nature and location of the evidence required to resolve the pending litigation, including testimony of the child; the ability of the court of each state to decide the issue expeditiously and the procedures necessary to present the evidence; and the familiarity of the court of each state with the facts and issues in the pending litigation. TEX. FAM. CODE (b)(1)-(8). If a court of this state determines that it is an inconvenient forum and that a court of another state is a more appropriate forum, the court shall stay the proceedings upon condition that a child custody proceeding be promptly commenced in another designated state and may impose any other condition the 6

13 court considers just and proper. TEX. FAM. CODE (c). A court of this state may decline to exercise its jurisdiction under this chapter if a child custody determination is incidental to an action for divorce or another proceeding while still retaining jurisdiction over the divorce or other proceeding. 2. Jurisdiction Declined by Reason of Conduct If a court of this state has jurisdiction under this chapter because a person seeking to invoke its jurisdiction had engaged in unjustifiable conduct, the court shall decline to exercise its jurisdiction unless the parents and all persons acting as parents have acquiesced in the exercise of jurisdiction; a court of the state otherwise having jurisdiction under sections through determines that this state is a more appropriate forum under section ; or no court of any other state would have jurisdiction under the criteria specified in sections through TEX. FAM. CODE (a). Unjustifiable conduct is not defined in this statute, but in the Commissioner s Comment following the section, it is stated that removing, secreting, retaining, or restraining the child would be acting in a reprehensible manner. If a court of this state declines to exercise its jurisdiction pursuant to subsection (a), it may fashion an appropriate remedy to ensure the safety of the child and prevent a repetition of the unjustifiable conduct, including staying the proceeding until a child custody proceeding is commenced in a court having jurisdiction under sections through TEX. FAM. CODE (b). H. Simultaneous Proceedings According the provisions of the UCCJEA, only one court at a time may exercise jurisdiction in a particular child custody determination. Conflict arising from simultaneous proceedings is generally resolved in favor of the first filed. TEX. FAM. CODE The simultaneous proceedings conflict will arise only when there is no home state; no state with exclusive continuing jurisdiction; and there is more than one state which meets the requirements necessary in order to exercise significant connection jurisdiction. See TEX. FAM. CODE (Commissioners Comment to UCCJEA Section 206). Except as otherwise provided in section , a court of this state may not exercise its jurisdiction under this subchapter if, at the time of the commencement of the proceeding, a proceeding concerning the custody of the child has been commenced in a court of another state having jurisdiction substantially in conformity wit this chapter, unless the proceeding has been terminated or is stayed by the court of the other state because a court of this state is a more convenient forum under section TEX. FAM. CODE (a). 7 Except as otherwise provided in section , a court of this state, before hearing a child custody proceeding, shall examine the court documents and other information supplied by the parties pursuant to section If the court determines that a child custody proceeding has been commenced in a court in another state having jurisdiction substantially in accordance with this chapter, the court of this state shall stay its proceeding and communicate with the court of the other state. If the court of the state having jurisdiction substantially in accordance with this chapter does not determine that the court of this state is a more appropriate forum, the court of this state shall dismiss the proceeding. TEX. FAM. CODE (b). Section requires each party, in its first pleading or in an attached affidavit, to give information, if reasonably ascertainable, under oath as to the child s present address or whereabouts the places where the child has lived during the last five years, and the names and present addresses of the persons with whom the child has lived during that period. The pleading or affidavit shall also state whether the party: has participated as a party or witness or in any other capacity in any other proceeding concerning the custody of or visitation with the child and, if so, identify the court, the case number, and the date of the child custody determination, if any; knows of any proceeding that could affect the current proceeding, including proceedings for enforcement and proceedings relating to domestic violence, protective orders, termination of parental rights, and adoptions and, if so, identify the court, the case number, and the nature of the proceeding; and knows the names and addresses of any person not a party to the proceeding who has physical custody of the child or claims rights of legal custody or physical custody of, or visitation with, the child and, if so, the name and addresses of those persons. TEX. FAM. CODE (a). If this information is not furnished, the court, upon motion of a party or its own motion, may stay the proceeding until the information is furnished. TEX. FAM. CODE (b). I. Enforcement The UCCJEA incorporates the PKPA requirements for enforcement of custody orders of other states, as well as an order for the return of the child made under the Hague Convention. TEX. FAM. CODE Texas courts shall recognize and enforce a child custody determination of a court of another state if the latter court exercised jurisdiction in substantial conformity with this chapter or the determination was made under factual circumstances meeting the jurisdictional

14 standards of this chapter and the determination has not been modified in accordance with this chapter. TEX. FAM. CODE (a). A court of this state may utilize any remedy available under the other law of this state to enforce a child custody determination. TEX. FAM. CODE (b). 1. Registration of Child Custody Determination The UCCJEA provides that a child custody determination issued by a court of another state may be registered in this state, with or without a simultaneous request for enforcement, by sending to the appropriate court in this state: a letter or other document requesting registration; two copies, including one certified copy, of the determination sought to be registered and a statement under penalty of perjury that to the best of the knowledge and belief of the person seeking registration the order has not been modified; and except as otherwise provided in Section , the name and address of the person seeking registration and any parent or person acting as a parent who has been awarded custody or visitation in the child custody determination sought to be registered. TEX. FAM. CODE (a). Upon receipt of the documentation indicated above, the registering court shall cause the determination to be filed as a foreign judgment, together with one copy of any accompanying documents and information, regardless of their form; and serve notice upon the persons named and provide them with an opportunity to contest the registration in accordance with this section. TEX. FAM. CODE (b). After hearing, the court will confirm the order, unless the person contesting the registration shows the order is not entitled to confirmation as provided by the statute. TEX. FAM. CODE (d). Persons provided notice have twenty days from service to contest the registration. If no timely request for hearing is made, the court must confirm the order as a matter of law. TEX. FAM. CODE (e). If a hearing is requested to challenge the validity of the registration, the court shall confirm the registered order unless the person contesting registration establishes (1) the issuing court did not have jurisdiction; (2) the child custody determination sought to be registered has been vacated, stayed, or modified by a court having jurisdiction; or (3) proper notice was not given. TEX. FAM. CODE (d). 2. Enforcement of Registered Determination A Texas court may grant any relief normally available under the law of this state to enforce a 8 registered child custody determination made by a court of another state. TEX. FAM. CODE (a). A court of this state shall recognize and enforce, but may not modify, except in accordance with Subchapter C, a registered child custody determination of a court of another state. TEX. FAM. CODE (b). In an enforcement action the prevailing party including a state, shall be awarded necessary and reasonable expenses including costs, attorney s fees, investigative fees, expenses for witnesses, travel expenses communication expenses, and child care expenses unless the party from whom fees or expenses are sought establishes that the award would be clearly inappropriate. However, the court may not assess fees, costs, or expenses against a state unless authorized by law other than this chapter. TEX. FAM. CODE (a). 3. Simultaneous Proceedings If a proceeding for enforcement under this subchapter is commenced in a court of this state and the court determines that a proceeding to modify the determination is pending in a court of another state having jurisdiction to modify the determination under Subchapter C, the enforcing court shall immediately communicate with the modifying court. The proceeding for enforcement continues unless the enforcing court, after consultation with the modifying court, stays or dismisses the proceeding. TEX. FAM. CODE Expedited Enforcement The UCCJEA provides a vehicle for expedited enforcement of child custody orders. TEX. FAM. CODE A parent seeking to enforce a custody order or a possession and access order may request immediate physical custody of the child, attorney s fees, and assistance from law enforcement officials in obtaining immediate physical custody of the child. A copy of the petition must be served upon the respondent and any other person who has physical custody of the child. TEX. FAM. CODE The petition for expedited enforcement must contain all information required under section and must attach certified copies of the order sought to be enforced. TEX. FAM. CODE (a), (b). In addition to notifying the respondent of the time and place of the hearing, the court s notice must inform the respondent that, at the hearing, the court will order respondent to pay attorney s fees and costs and will award the petitioner immediate physical custody of the child, unless the respondent appears and shows a defense to the immediate enforcement as provided in Section (d). Three defenses are available to the respondent in cases in which the out-of-state order has not been registered: (1) the issuing court did not have jurisdiction under the UCCJEA; (2) respondent was not noticed in accordance with the requirements of the UCCJEA; and

15 (3) the order in question was vacated, stayed, or modified. TEX. FAM. CODE (d)(1). If the out-of-state order has been registered, the only defense is that the child custody determination has been vacated stayed or modified by a court of a state having jurisdiction to do so. TEX. FAM. CODE (d)(2). 5. Warrant to Take Physical Custody of Child This is an additional remedy for the parent who fears that the child is likely to suffer serious harm or be removed from this state once the party in physical possession of the child discovers that an enforcement action has been filed. In such a case, a parent may file, along with the filing of a petition seeking enforcement of a child custody order, a verified application for the issuance of a warrant to take physical custody of the child. TEX. FAM. CODE (a). The warrant must recite the facts upon which a conclusion of imminent serious physical harm or removal from the jurisdiction is based, direct law enforcement officers to immediately take physical custody of the child, and provide for placement of the child pending the enforcement hearing. TEX. FAM. CODE (c). This section allows the child to be taken into physical custody prior to service on the respondent. The respondent must be served with the petition, warrant and order immediately after the child is taken into physical custody. TEX. FAM. CODE (d). The enforcement petition must be heard on the next judicial day after the warrant is executed, unless impossible. TEX. FAM. CODE (b). IV. UIFSA: UNIFORM INTERSTATE FAMILY SUPPORT ACT A. Brief History The enforcement of child support orders and collection of child support between states has long been addressed by federal statutes. As far back as 1950, Congress passed the Uniform Reciprocal Enforcement of Support Act (URESA), which was revised in 1968 s the Revised uniform Reciprocal Enforcement of Support Act (RURESA). Beginning in 1975, Congress determined that the system for enforcement of child support, as implemented by the various states, was grossly inadequate. The General Accounting Office noted in 1992 that interstate cases represent at least one-fourth of all child support cases; that children in interstate cases are less likely than in-state children to receive support payments; that custodial mothers do not want or pursue support; that some non-custodial fathers refuse to pay or cannot be located; that most custodial mothers and their children are not covered by health insurance; and that receipt of public assistance did not differ on the basis of the non-custodial father s residence. U.S. General 9 Accounting Office, Interstate child Support: Mothers Report Receiving Less Support From Out-of-State Fathers (January 1992). In 1975, 1984, 1988, and 1996, there has been federal legislation passed which has impacted state child support enforcement laws greatly. Through this legislation, Congress has mandated that, in order to be eligible for federal funding of child support enforcement programs, states must adopt child support guidelines as well as establish child support enforcement procedures such as tax intercepts, wage withholding and credit reporting. The following is a list of these federal laws: 1975: Social Services Amendment of 1974, 42 U.S.C (1983), signed into law by President Ford on January 4, : Child Support Enforcement Amendment of 1984, Public Law No , 99 stat (1984) 1988: Family Support Act of 1988, Public Law No : Welfare Reform Act, officially known as the Personal Responsibility and Work Opportunity Reconciliation Act of 1996 (PRWORA) B. Texas Enactment of UIFSA Texas adopted the Uniform Interstate Family Support Act (UIFSA) to replace the Revised Uniform Reciprocal Enforcement Act (RURESA) effective September 1, As stated above, in 1996, Congress enacted PRWORA, which mandated enactment of the amended UIFSA by all U.S. jurisdictions by January 1, Texas passed the amended act in It is found in the Texas Family Code at Chapter Conflicts Between Provisions As with the UCCJEA, UIFSA has a provision that if any provision of the chapter conflicts with a provision of the Texas Family Code or other state law, this chapter will prevail. TEX. FAM. CODE Jurisdiction UIFSA provides that in a proceeding to establish enforce, or modify a support order or to determine parentage, a Texas court may exercise personal jurisdiction over a nonresident individual under the following circumstances: the individual is personally served with citation in this state; the individual submits to the jurisdiction of this state by consent, by entering a general appearance, or by filing a responsive document having the effect of waiving any contest to personal jurisdiction; the individual resided with the child in this state;

16 the individual resided in this state and provided prenatal expenses or support for the child; the child resides in this state as a result of the acts or directives of the individual; the individual engaged in sexual intercourse in this state and the child may have been conceived by that act of intercourse; the individual asserted parentage in the paternity registry maintained in this state by the bureau of vital statistics; or there is any other basis consistent with the constitutions of this state and the United States for the exercise of personal jurisdiction. TEX. FAM. CODE parties or the child continues to reside in the issuing state and al long as the parties do not agree to the contrary the issuing tribunal has continuing, exclusive jurisdiction over its order. TEX. FAM. CODE (Commissioners Comment to UIFSA Section 205). 5. Enforcement and Modification Section is the correlative of the continuing exclusive jurisdiction asserted in section This section provides that a court of this state may serve as an initiating tribunal to request a tribunal of another state to enforce or modify a support order issued in that state; and that a court of this state having continuing, exclusive jurisdiction over a support order may act as a responding tribunal to enforce or modify the order. 3. Simultaneous Proceedings Under UIFSA, a Texas court may exercise jurisdiction to establish a support order if the petition or comparable pleading in this state is filed after a pleading is filed in another state only if: the petition or comparable pleading in this state is filed before the expiration of the time allowed in the other state for filing a responsive pleading challenging the exercise of jurisdiction by the other state; the contesting party timely challenges the exercise of jurisdiction in the other state; and if relevant, this state is the home state of the child. TEX. FAM. CODE (a)(1)-(3). A Texas court may not exercise jurisdiction to establish a support order if the petition or comparable pleading is filed before a petition or comparable pleading is filed in another state if: the petition or comparable pleading in the other state is filed before the expiration of the time allowed in this state for filing a responsive pleading challenging the exercise of jurisdiction by this state; the contesting party timely challenges the exercise of jurisdiction in this state; and if relevant, the other state is the home state of the child. TEX. FAM. CODE (b)(1)-(3). 4. Continuing, Exclusive Jurisdiction This is perhaps the most crucial provision in UIFSA. Drawing on the precedent of the PKPA, the issuing tribunal retains continuing, exclusive jurisdiction over a child support order except in very narrowly defined circumstances. As long as one of the individual Recognition of Controlling Child-Support Order If a proceeding is brought under UIFSA and only one court has issued a child support order, the order of that court controls and must be so recognized. TEX. FAM. CODE (a). If a proceeding is brought under UIFSA and two or more child support orders have been issued by courts of this state or another state with regard to the same obligor and child, a court of this state shall apply the following rules in determining which order to recognize for purposes of continuing, exclusive jurisdiction: if only one of the courts would have continuing, exclusive jurisdiction under UIFSA, the order of that court controls and must be so recognized; if more than one of the courts would have continuing, exclusive jurisdiction under UIFSA, an order issued by a court in the current home state of the child controls and must be so recognized, but is an order has not been issued in the current home state of the child, the order most recently issued controls and must be so recognized; and if none of the courts would have continuing, exclusive jurisdiction under UIFSA, the court of this state having jurisdiction over the parties shall issue a child support order that controls and shall be so recognized. TEX. FAM. CODE (b)(1)-(3). 7. Enforcement and Modification of Support Order After Registration UIFSA provides that courts of this state may modify or enforce orders from other states after registration, and sets forth the procedure for doing so. TEX. FAM. CODE ; However, for modification purposes, the requirements of section must be met. As long as the issuing state retains its continuing, exclusive jurisdiction over its child support order, a registering sister state is precluded

17 from modifying that order. This is a very significant departure from RURESA. If the issuing state no longer has a sufficient interest in the modification of its order under the factual circumstances described in this section, after registration the responding state may assume the power to modify. TEX. FAM. CODE (Commissioners Comment to UIFSA Section 611). The 2001 amendment eliminated the necessity of filing a certified copy of a modified child support order with the issuing tribunal that had continuing, exclusive jurisdiction over the earlier order and in each tribunal in which the party knows that the earlier order has been registered. Two Texas cases that specifically applied this provision and looked to a Missouri statute of limitations, which was longer than the Texas statute, are: In the Interest of B.C. and K.C., 52 S.W.3rd 926 (Tex. App. Beaumont 2001, no pet.); and Attorney General v. Litten, 999 S.W.2d 74 (Tex. App. Houston [14 th Dist.] 1999, no pet.). 8. Choice of Laws The law of the issuing state governs the nature, extent, amount, and duration of current payments and other obligations of support and the payment of arrearages under the order. In a proceeding for arrearages the statute of limitation under the laws of this state or of the issuing state, whichever statute of limitation is longer, applies. TEX. FAM. CODE C. Conflicts Between UCCJEA and UIFSA Although the UCCJEA and UIFSA have several provisions in common, there can actually be times when these two statutes can operate to have opposite effects on custody and child support rulings in the same case. An interesting case illustrating this is In re Hattenbach, 999 S.W.2d 636 (Tex. App. Waco 1999, orig. proceeding). It is a mandamus case in which the parties were divorced in 1996 in Coryell County. The father moved to Bexar County in February 1998, and the mother and children moved to Florida in September In December 1998, the father filed a motion to modify both the custody and child support provisions of the decree, along with a motion to transfer to Bexar County. (The father later moved to Aransas County in March of 1999.) The mother responded with a general denial and an affidavit controverting the father s motion to transfer by asserting that the original trial court was still the court of continuing exclusive jurisdiction because the children has resided in Florida for less than six months. Then, in April the mother filed a motion to transfer the custody portion of the case to Florida, alleging that it would be a more convenient forum, and in fact filed a custody proceeding in Florida soon thereafter. The trial court heard both parties motions to transfer in May. The trial court dismissed the custody 11 portion stating that Florida was the more convenient forum and had a closer connection with the children. The trial court also transferred the child support portion to Aransas County, where the father resided. The Waco court dismissed the petition for mandamus and relied on provisions of the UCCJA and UIFSA. First of all, the UCCJA applied because the case was filed before September 1, 1999, but the court noted that the UCCJEA contained a substantially similar inconvenient form section. The court upheld the trial court s decision that Florida had closer connection and had a closer connection with the children. The court also agreed with the trial court s decision to retain the support portion of the proceedings in Texas because the parties did not agree otherwise, citing section (a). V. VENUE AND INTERSTATE JURISDICTION A. Continuing Jurisdiction 1. Texas Family Code section Texas Family Code section provides that a court acquires continuing, exclusive jurisdiction of a SAPCR once a final order is rendered except in parentage cases and adoption. 2. Texas Family Code sections and Texas Family Code sections and provide that unless venue is wrested from the court of continuing jurisdiction that court remains in authority over all matters pertaining to Chapter 5 litigation including modification of conservatorship, access and support of the child, subject to conflict with the UCCJEA, in which case the UCCJEA shall control. The statute further makes clear that when all parties and the child acquire a new home state the Texas court may not exercise its continuing, exclusive jurisdiction. B. Venue in Original Suits 1. In initial suits the rule governing venue should be first considered. Venue rules with regard to SAPCR s are governed by TEX. FAM. CODE section et seq., not by those applied to civil suits, generally. Rogers v. Rogers, 536 S.W.2d 442 (Tex.App. Houston [1 st Dist.] 1976, no writ). Texas Family Code section provides: (a) Except as otherwise proved by this title, an original suit shall be filed in the county where the child resides, unless: another court has continuing exclusive jurisdiction under Chapter 155; or

18 venue is fixed in a suit for dissolution of a marriage under Subchapter D, Chapter 6. (b) A suit in which adoption is requested may be filed in the county where the child resides or in the county where the petitioners reside. (c) A child resides in the county where the child s parents reside or the child s parent resides, if only one parent is living, except that: if a guardian of the person has been appointed by order of a county or probate court and a managing conservator has not been appointed, the child resides in the county where the guardian of the person resides; if the parents of the child do not reside in the same county and if a managing conservator, custodian, or guardian of the person has not been appointed, the child resides in the county where the parent having actual care, control, and possession of the child resides; if the child is in the care and control of an adult other than a parent and a managing conservator, custodian, or guardian of the person has not been appointed, the child resides where the adult having actual care, control, and possession of the child resides; if the child is in the actual care, control, and possession of an adult other than a parent and the whereabouts of the parent and the guardian of the person is unknown, the child resides where the adult having actual possession, care, and control of the child resides; if the person whose residence would otherwise determine venue has left the child in the care and control of the adult, the child resides where that adult resides; if a guardian or custodian of the child has been appointed by order of a court of another state or country, the child resides in the county where the guardian or custodian resides if that person resides in this state; or if it appears that the child is not under the actual care, control, and possession of an adult, the child resides where the child is found. 2. One recent case had an interesting discussion of a venue dispute in a suit to establish paternity. In In re Navaiz, --- S.W.3 rd ---, 2006 WL (Tex.App. Beaumont, 2006) the parents of a child were not married and lived together for a while after the child s birth in Montgomery County. The mother moved first with the child to Port Lavaca, and then to San Antonio. For more than two years, the mother allowed the child to go stay with the father every two weeks. When the child reached school age, the mother registered her in San Antonio, but the father wanted her to go to school in Montgomery County. Because the mother wanted him to return the child, she told him that if he did, then he could have the child before school started. She did not return the child as promised. The father filed his SAPCR in Montgomery County, seeking to be named the JMC to designate the child s primary residence. The mother responded by filing a motion to transfer to Bexar County. The Montgomery County court denied her motion to transfer, and she filed a writ of mandamus. The appellate court analyzed Texas Family Code section (a), and the meaning of actual possession of the child. Since the child was with the mother in San Antonio at the time the father filed his action, the court held that the venue would be proper in San Antonio because the father did not have actual possession of the child at the time he filed. The court found support for its holding in McManus v. Wilborn, 932 S.W.2d 662 (Tex. App. Houston [14 th Dist.] 1996, orig. proceeding [leave denied]). C. Venue Litigation 1. Texas Family Code section (b) Texas Family Code section (b) mandates that a SAPCR shall be transferred to the court in which a suit for dissolution of a marriage between the parents has been filed once a showing is made to the court that the suit for dissolution of a marriage has been previously filed in another court. Further, section mandates a transfer to the court of marriage dissolution once it is divulged to the concurrent court. Since a suit for conservatorship, possession, and support of a child may be filed by any person with standing who seeks to have the issues litigated regardless of the marriage relationship, this provision requires mandatory transfer to the dissolution court provided that court has jurisdiction. In the Matter of the Marriage of Allen, 593 S.W.2d 133 (Tex. Civ. App. Amarillo, 1979, writ ref. n.r.e.). The court with mandatory venue, called the dominant court, acquires dominant jurisdiction to the exclusion of all coordinate courts. See Curtis v. Gibbs, 511 S.W.2d 263 (Tex. 1974); In the Matter of the Marriage of Allen, 593 S.W.2d 133 (Tex. Civ. App. Amarillo 1980, no writ). a. The issue generally arises in the context involving two separate lawsuits filed in two different venues

19 in which both parties allege residence in two different counties for a period of 90 days. In such contexts, the case law requires careful examination of the residence facts presented. b. In Beavers v. Beavers, 543 S.W.2d 720 (Tex. Civ. App. Waco 1976, no writ), the court was confronted with facts that established that although wife paid one-half of an apartment rent in McClellan County for some 6 months before filing a divorce, and had some of her bills sent there, she continued to stay at the marital residence in Falls County on a continuous basis until 5 days before she filed for divorce in McClellan County. The court citing Wilson v. Wilson, 494 S.W.2d 609 (Tex. Civ. App. Waco 1973, writ dism d), for the following language: A mere constructive residence will not satisfy this statute. It requires an actual, physical, continuous living in the county of suit by one of the parties for the period specified, couple with a good-faith intent to make that county home. c. The Wilson court reversed the trial court s determination that venue existed at the time of the filing, holding that husband s filing in Falls County prior to wife s meeting the venue requirement gave Falls County dominant jurisdiction the court sustained husband s plea and sent the case to Falls County. d. Of like result is Cook v. Mayfield, 886 S.W.2d 840 (Tex. Civ. App. Waco 1994, no writ) where stipulation established that wife spent more days in the dominant county than the concurrent county, and that she never informed her husband or others that she had moved residence to her mother s home. e. At least one court has ruled failure of one party to seek to have citation issued by the dominant venue and served upon the other party until after she was served with the original dissolution action from the concurrent jurisdiction estopped wife from asserting dominant jurisdiction. Clawson v. Millard, 934 S.W.2d 899 (Tex. App. Houston [1 st Dist.] 1996, no writ). D. Transfer Of Venue There are mandatory and discretionary transfer of venue provisions in the Family Code: The mandatory transfer provisions were amended in TEX. FAM. CODE (a) now provides that on the filing of a motion showing that a suit for dissolution of the marriage of the child s parents has been filed in another court and requesting a transfer 13 to that court, the court having continuing, exclusive jurisdiction of a suit affecting the parent-child relationship shall, within the time required by section , transfer the proceedings to the court in which the dissolution of the marriage is pending. The motion must comply with the requirements of section (a). The amendment requires the court to transfer the proceedings to the court where the divorce is pending not later than the 21 st day after the final date of the period allowed for the filing of a controverting affidavit. TEX. FAM. CODE (c). Similarly, the 2005 amendment to Texas Family Code section (b) requires the court to transfer the proceeding within the time required by section if a suit to modify or a motion to enforce an order is filed in the court having continuing, exclusive jurisdiction of a suit, on the timely motion of a party, to another county in this state if the child has resided in the other county for six months or longer. If a suit to modify or a motion to enforce an order is pending at the time a subsequent suit to modify or motion to enforce is filed, the court may transfer the proceeding as provided by subsection (b) only if the court could have transferred the proceeding at the time the first motion or suit was filed. TEX. FAM. CODE (c). The discretionary transfer of venue provisions are found TEX. FAM. CODE and provide: If the basis of a motion to transfer a proceeding under this subchapter is that the child resides in another county, the court may deny the motion if it is shown that the child has resided in that county for less than six months at the time the proceeding is commenced. For the convenience of the parties and witnesses and in the interest of justice, the court, on the timely motion of a party, may transfer the proceeding to a proper court in another county in the state. Texas Family Code section provides the method to determine the county of the child s residence. It provides that in computing the time during which the child has resided in a county, the court may not require that the period of residence be continuous and uninterrupted but shall look to the child s principal residence during the six-month period preceding the commencement of the suit. The procedure for transfer is set out in section , which has amendments from Failure to timely respond by denial in a controverting plea waives

20 opposition to transfer, and only evidence relating to transfer may be heard at the transfer hearing. Back to the UCCJEA/UIFSA, when one party still lives in Texas, and all other parties including the child reside outside the state, a court with continuing, exclusive jurisdiction over a child custody proceeding under Chapter 152 or a child support proceeding under Chapter 159 shall transfer the proceeding to the county of residence of the resident party. TEX. FAM. CODE (a). VI. CONCLUSION The UCCJEA and UIFSA, as adopted by Texas and set forth in the Texas Family Code, are relatively straightforward statutes. The family law practitioner should carefully read through each provision when faced with interstate problems. There are certain jurisdictional rules, as discussed herein, to analyze in light of the facts of each individual case. There are also set forth in each statute precise procedures for handling orders from other states. Within the state, there are facts to consider in determining where the proper venue should be. These are all important initial factors to consider before filing any SAPCR. 14