When we get calls about international child custody cases, our first question is normally, “Is an order already in place.” If the answer to the first is no, the second question is, “Where has the child lived the past six months.”
The reason for the two questions is to determine whether we can bring a child custody suit in the state of Texas. Texas, along with the rest of the United States (except MA as of July 2011), has enacted the Uniform Child Custody Jurisdiction and Enforcement Act (“UCCJEA”). You can find the Wikipedia article, with a decent explanation, here. The UCCJEA is found in chapter 152 of the Texas Family Code. That chapter can be found here.
Even if an order is already in place, we need to review that order to see if it will fit the criteria of a ‘child custody determination.’ It only fits that criteria if it provides for legal custody, physical custody, or visitation with respect to a child. Tex. Fam. Code 152.102(3).
These cases can be very technical, fact-specific, and you need to pay close attention to the timeline of the child’s life. Not presenting your case effectively the first time, especially when another Court in another country is already involved, can mean that you get a ruling against you, which you then have to appeal.
An interesting recent case is In the Interest of A.S.C.H, 05-11-01185-CV, which you can view here. Mom was a British citizen, Dad was an American citizen. The child was born in Texas in November of 2008, and although the child traveled to England a couple of times, the child’s final travel to England occurred in September of 2009. For some reason, Dad was turned back at that time and returned to Texas, while Mom and child stayed in England. Dad initiated a case first through the Hague Convention based on child abduction (very interesting in itself) and then a typical child custody case in Texas. The child abduction case was resolved in Mom’s favor, but there were no findings as to legal custody, physical custody, or visitation, meaning that it was NOT a ‘child custody determination.’ After that resolution, Mom attacked the jurisdiction of the Texas court in the child custody suit, relying on a line in the foreign order that the child’s habitual residence was found to be England as of June 2009. To make a long story short (you can read the opinion, which does an excellent job of explaining the law behind the decision), Dad was allowed to bring the suit in Texas since there was no other child custody order and there was a fact issue as to the home state of the child.