Jurisdiction Issues in the International Child Custody Context

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 Example:

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.

What Would My Texas Child Support Be?

Ever wonder how much you would pay in child support in Texas?  The Texas Office of the Attorney General has on online child support calculator that gets pretty close to figuring out what your child support obligation would be in Texas.  The actual number may vary, but this will give you a good idea -

LINK TO TEXAS CHILD SUPPORT CALCULATOR

What is the Standard Possession Order in Texas?

A Standard Possession Order, or SPO, is the visitation schedule of a non-custodial parent described in Texas Family Code Title 5, Subchapter F (153.3101 – 153.317).  The actual statute can be found here.  There is a rebuttable presumption that this schedule is in the best interest of the child (Tex. Fam. Code 153.252).  However, there is arguably a different standard (or no standard) for a child under three, if you look at Texas Family Code 153.254.  That will have to be addressed in a different post.

One easy way to explain the SPO is that the non-custodial parent will have the first, third and fifth weekends of every month, plus some additional holiday time and possession in the summer and Thursdays from 6:00 PM to 8:00 PM.  Non-custodial parents should make sure to understand that when there is a fifth weekend of the month, they will have the following weekend as well, since the following weekend will be the first weekend of the next month.  This commonly causes confusion as many parents seem to believe they get “every other weekend.”  If you have an SPO, that is not true, and you may miss out on time with your child.  For ease of use, I found a calendar for 2012 as an example on the website of the Attorney General (AG Calendar) and another on an Austin Mediation website (AM website).

Keep in mind that the SPO addresses visitation for under 100 miles and over 100 miles.  Over 100 miles gives the non-custodial parents the option to pick a weekend per month instead of the 1/3/5 schedule as well as additional time in the summer and all spring breaks.

Also, sometimes you hear reference to an Expanded SPO.  Normally when that term is used, it refers to an SPO where the non-custodial parent has chosen to exercise the option under 153.317 to change pick-up or drop-off times to get more time with their child.  When pick-up times are changed, it is normally changed from 6:00 PM to the time school is released and drop-off is normally changed from 8:00 PM to the time school resumes the next day.  This allows the non-custodial parent take an additional over night (Thursday or Sunday) or have additional time between when school would be dismissed and 6:00 PM, the standard pick-up time.

If you have questions, feel free to ask.  This is a brief overview and does not address every situation, school holidays, or general terms and conditions, for example.  Hopefully this DOES make the SPO a little more clear!

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