Most states have adopted uniform laws to help sort out these disputes. Texas has adopted the UCCJEA – the Uniform Child Custody Jurisdiction and Enforcement Act found in Family Code sec.152.001.
The Act provides that Texas courts have initial jurisdiction to determine a child’s custody if:
- If the child had resided in Texas for the six months prior to the original filing, Texas is the “home” state of the child when the child custody case is filed.
This would also be true if Texas had been the primary residence within six months before the action is filed and the child and at least one parent continues to live in Texas; and Another court does not already have jurisdiction (jurisdiction is the legal right to make orders concerning the custody dispute), or had declined to exercise it’s jurisdiction and (a) there is a significant connection to Texas between the child and at least one parent; and, (b) there is substantial evidence in Texas concerning those factors which bear upon the custody determination such as, the child’s care, training, protection and personal relationships.
If a court in another state has already made a determination regarding custody which complies with the above portion of the Texas law then the court of that state would have exclusive and continuing jurisdiction and Texas would decline to make orders regarding the child.
Once jurisdiction has been established, the state with jurisdiction maintains complete control over everything to do with the child unless the state of residence for both of the parents and the child changes. The only other way to change jurisdiction is if the child does not have a strong tie to the state and evidence necessary for the lawful proceeding cannot be acquired in the state that has jurisdiction.
Often it is difficult for the court to figure out which state should be making and enforcing orders about the custody of a child whose parents are in different states. The Texas UCCJEA provides authorization for the courts to communicate with each other in an effort to determine which court should have the power to make, modify and enforce the child custody orders.
Venue is the location of the court, in contrast to jurisdiction, which determines whether a court has legal authority to hear a case. Venue is where a court, with proper jurisdiction, will hear the case. When a case is transferred to a new location within the same jurisdiction (county or state), the transfer is called a change of venue.
Venue for a divorce in Texas will be the county of residence for either the husband or wife for the preceding ninety days as long as that spouse has also resided in Texas for the last six months.
Venue in a suit affecting the parent child relationship, absent a divorce, will be in the county where the child resides.
International Family Law
The Hague Convention on the Civil Aspects of International Child Abduction is a multilateral treaty, which seeks to protect children from the harmful effects of abduction and retention across international boundaries by providing a procedure to bring about their prompt return. The “Child Abduction Section” provides information about the operation of the Convention and the work of the Hague Conference in monitoring its implementation and promoting international co-operation in the area of child abduction.
A Hague Convention application may be made when a child is taken or retained across an international border, away from his or her habitual residence, without the consent of a parent who has rights of custody under the law of the habitual residence, if the two countries are parties to the Convention. The child must be promptly returned to the habitual residence unless the return will create a grave risk of harm to the child or another limited exception is established.
Prompt action may be critical. The Convention specifically requires that hearings be conducted expeditiously. It is recommended that Hague cases be completely concluded within six weeks. A Hague case can theoretically be instituted more than a year after the abduction but a defense will then arise if the child has become settled in the new environment. In practice, the longer a child is in a new place the more likely it is that a court will be reluctant to send the child away.