Jurisdiction Issues in the International Child Custody Context

Posted on by CJ.Harding

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.

Enforcement of International Custody Orders

Posted on by CJ.Harding

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