We are starting to get more and more questions regarding enforcement of custody orders from other states or even other nations. Sometimes the person finds out after the fact that there was a court case and a corresponding final order without them ever being able to take part in the decision.
Fortunately for parents, Texas is one of many states that has enacted the Uniform Child Custody Jurisdiction and Enforcement Act (“UCCJEA”). A long name for something that simplifies this area of the law over all of the United States except Massachusetts – the only state to not have enacted it. A great example of how the UCCJEA can serve to protect the absent parent is found in Razo v. Vargasi, a recent decision out of the Court of Appeals, First Circuit, Houston. I attached a link to the case below.
In Razo, a couple were divorced and obtained a child custody order in Mexico. The mother moved to the United States, which was allowed in the order. The father was to have possession of the child during the summer and winter breaks while the mother had the child during the school year. The order also had a penalty clause stating that if one of the parents breached the agreement, the non-breaching parent would get sole custody. The father claims he went to pick the child up for his possession in December, but the mother and the child were not at the location they were suppose to be at, even though other family members were there. The father went back to the Court in Mexico, served her by publication down in Mexico, and – surprise – she never heard about the case so he obtained a default judgment awarding him sole custody. Meanwhile, the mother claims the father never came by and that family was at that address and would have let her know if he had. The father then came back to Texas, properly registered the order, and had the trial court issued an order (writ of attachment) for the child to be returned to the father. All of this information came from a bill of exception (special presentation of evidence to preserve it for appeal).
At this point, it sounds like the mother did not get any protection… but the UCCJEA allows for a hearing to contest the validity of an order from another state, whether it be Georgia or another nation like Mexico. One requirement for that order to be valid requires that proper notice be given. Tex. Fam. Code 152.305(d). More specifically, that “notice required for the exercise of jurisdiction when a person is outside this state may be given in a manner prescribed by the law of this sate for service of process… in a manner reasonably calculated to give actual notice but may be made by publication if other means are not effective.” Tex. Fam. Code 152.108(a). The Court of Appeals essentially stated the father knew where the mother was suppose to be, there were family members there that could pass information to the mother, and that the father should have noticed the mother by serving her there or serving the paperwork on the family there. With that reasonable option available, publication in Mexico, where the father knew the mother would not get notice, was not appropriate and the case was remanded for a hearing on the validity of the order.
I thought this case laid out the requirement of notice for an order to be valid under the UCCJEA, as well as how to attack notice, very well. Another key take away here is that the Court of Appeals only remanded the case due to the attorney properly preserving the evidence through a bill of exceptions. Overall, when faced with a situation like the mother, you need to be very well-prepared and make sure that you preserve the record and the evidence in case an appeal is needed.
http://www.1stcoa.courts.state.tx.us/opinions/Opinion.asp?OpinionID=89751
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