I Just Moved to Texas, Where Do I File My Child Custody SUit?

You probably must file in the state you just moved from.  Suits involving a child custody determination, or possession, visitation and access, fall under the Uniform Child Custody Jurisdiction and Enforcement Act (“UCCJEA”).  Almost all states have made it law, and in Texas, the UCCJEA is embodied in Chapter 152 of the Texas Family Code.

For initial child custody determinations, there are four options:

  1. The state is the home state of the child, meaning the child lived in the state for six months preceding the case, or the state WAS the home state of the child within six months before the case is filed and a parent or person acting as a parent still lives in the state.  Tex. Fam. Code 152.201(a)(1).
  2. No other state is the home state of the child or a court in the home state has declined to exercise jurisdiction (power) because another state is a more appropriate place because it is a) more convenient or b) a parent acted in bad faith or unjustifiably to make a certain state the home state of the child.  The child and at least one parent or person acting as a parent must have a substantial connection to the state in which the case will be filed or substantial evidence is available in that state.  Tex. Fam. Code 152.201(a)(2).
  3. All states that could exercise jurisdiction on the two grounds above have declined to do so because another state is the better forum because it is more convenient or because of bad conduct of a parent.  Tex. Fam. Code 152.201(a)(3).
  4. No court in another state would have jurisdiction under any of the three above grounds. Tex. Fam. Code 152.201(a)(4).

There is a basis for a court in Texas to make emergency orders, governed by Tex. Fam. Code 152.204, but speak with an attorney if it is going to come to that.  These interstate cases are not easy, and a lot of time and money can be wasted if you accidentally file in the wrong state.

Annulments in Texas

I’ve had a couple of people request annulments… Texas is very strict on when an annulment can take place and the requirements typically hit on the fact one of the persons of the marriage could not give consent due to incapacity or incomplete knowledge of the situation.  Once that defect is cured, consent is possible and if the person continues to reside with the person and act as married, the marriage will hold.

Reasons Texas will allow an annulment if at the time of the marriage:

(1) The person was under the influence of alcohol or narcotics;

(2) A person is impotent at the time of the marriage and the other did not know;

(3) One person used fraud, duress or force to induce the other to marry them;

(4) One person was mentally incapacitated at the time of marriage;

(5) One person concealed a divorce from the other; and

(6) if the marriage took place during the mandatory 72 hour waiting period between the issuance of the license and the ceremony.

In each of the above cases, the person without capacity or knowledge of the condition must stop living with the other as soon as the condition becomes known, otherwise annulment is not an option.

Another interesting fact about annulments… the parties do not have to follow the mandatory sixty day waiting period that a divorce places on them, the annulment can be over in a matter of days if agreed, and in 45 days after issuance if a trial is properly requested after the answer date.

Additional Resources

Tex. Fam. Code sections 6.104-6.111 
Tex. Fam. Code section 6.702

Fraudulent Marriage – Annulled!

Ever hear of a marriage based on lies and deceit?  I think everyone has, but never have I seen it laid out as clearly as is done in the opinion below:

Montenegro v. Avila

In this case, a man and woman met on an internet dating site.  The man initially claimed to be an engineer in Florida while the woman honestly stated she lived in El Paso.  The man finally, after they began to talk about meeting, told her that he could not visit her in Texas because he was in Bogota, Colombia, and could not get a visa.  The couple met in Mexico, where the man proposed.  He was turned down, but did get $200 to make his way back home. Later that same year, the woman traveled to Colombia, was proposed to, and accepted.

Man, now Husband, gets woman, now Wife, to apply for a visa for him.  He gets to the United States, get Wife to open bank accounts in both of their names, and begins withdrawing funds.  He doesn’t work until almost a year later, but instead begins the residency process.  On and on it goes…

Then Husband finds out about the Violence Against Women Act and how it can be twisted to circumvent the typical visa/residence restrictions.  The same day he learns about this he turns himself into a domestic violence center and reported he was being abused physically, verbally, mentally, and sexually.  He eventually leaves with the money he’s taken and other ill-gotten goods and moves to another city.

Wife filed for annulment, he filed for divorced.  Guess who won?  Wife – the marriage was annulled on the grounds of fraud.  Very interesting.  I’m not an immigration attorney, but I’ll bet that if that marriage visa was based on fraud, as could be concluded by the annulment being granted, he would probably have to leave the country, hence his need to appeal and our ability to read a very interesting appellate decision describing this case!

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