Jurisdiction challenges complex in divorce and child custody
(Note: This article was originally written for the online edition of Texas Lawyer.) Something dramatic usually happens at the beginning of every divorce: one of the parties goes on the move, away from the marital residence. This makes jurisdictional challenges complex in divorce and child custody.
Facing a new economic reality, a spouse may accept a better job out of state or take the children to live with relatives halfway across the country. These moves may happen before an actual lawsuit is filed. In these cases, the most important question becomes where will the lawsuit be heard?
An all-too-common example of a well-planned divorce strategy in Texas shows how the other party can be blindsided by a jurisdictional challenge. A husband and wife in Texas decide to move near her parents in California. The husband tells the wife he is job hunting and sends her there to help the family settle in. Their two children stay with the husband in Texas to finish the school year.
Time passes and they purchase a house in California, and then the husband shocks his wife by telling her he is not moving to California and he wants a divorce. If the husband has planned out the jurisdictional issues, he will have already filed the divorce in the Texas county where the family has lived for many years.
This gives him an advantage in keeping jurisdiction in Texas, for the divorce as well as any custody disputes. The couple’s matrimonial domicile and marital residence are here, along with other real estate and personal property. They have both worked in Texas and maintained memberships in clubs and organizations, have raised their family here and the children have attended Texas schools.
Under Section 6.305 of the Texas Family Code, the Texas court may exercise personal jurisdiction over the nonresident wife in the divorce, assuming the husband establishes that Texas is the last marital residence of the parties and the suit was filed before the second anniversary of the date in which the marital residence ended; or, he can show that there is any basis consistent with both the Texas and United States Constitutions for the exercise of personal jurisdiction. Chapter 6, Subsection D of the Texas Family Code further illustrates the rules for jurisdiction, venue, and residency when seeking a suit for divorce in Texas.
Additionally, the Texas court would have jurisdiction over the child custody proceedings if the children reside in Texas when the case begins and Texas has been their home state for the six months immediately before the case is filed.
On the flip side, what if the wife met the residency and domicile requirements in California and filed for divorce there first? What if the children went to stay with mom in California for the summer and began to attend school there before mom filed for divorce? Would, and could, California automatically assume jurisdiction over the divorce, division of marital property, and custody issues, or could husband seek relief in Texas and invoke the court’s authority to hear some or all of these issues? Claims of divorce can be severed if a court hasn’t acquired jurisdiction to divide marital property. Further, claims can be severed if the court lacks the required jurisdiction under the Uniform Child Custody Jurisdiction Enforcement Act (UCCJEA) or the Uniform Interstate Family Support Act (UIFSA). So it’s possible, depending on the facts of the case, for the couple to be divorced in a California court while Texas retains jurisdiction to divide the marital estate and render orders involving conservatorship, visitation, and support of the children.
Sometimes, it may be more advantageous to file for divorce outside of Texas, when considering differences in court-ordered alimony, child support and other issues. A seasoned practitioner will look at all the issues when advising a party when and where to file for divorce. In most cases, though, it is more convenient and less expensive to have the case heard in-state.
Jurisdiction over child custody has become more complex over the years as families have become more mobile. For years, conflicting state and federal laws caused confusion in this area. Now, the UCCJEA has been adopted in Texas as well as most states to resolve interstate child custody issues.
The UCCJEA provides that only a child’s home state would have jurisdiction to make an initial custody determination, with a few important exceptions. A child’s home state is where the child has lived with a parent, or someone acting as a parent, for six consecutive months immediately before the child custody proceeding. If the child is younger than six months, the home state is where he or she has lived since birth.
If there is no home state, or that state has determined another state to be a more convenient forum, the other state may exercise jurisdiction if the child and the parents, or the child and one parent or a person acting as a parent, have a significant connection with that state other than mere physical presence.
Once a final order for child custody has been rendered in a given state, that court retains continuing and exclusive jurisdiction to modify the orders, 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.
Most family law attorneys who carry on an active practice deal regularly with the many complex challenges of jurisdiction in divorce and child custody lawsuits. An experienced family lawyer can help resolve issues and make sure the case is in the correct court.