Home State Under The Uniform Child Custody Jurisdiction & Enforcement Act
Texas Family Law & The Uniform Child Custody Jurisdiction & Enforcement Act (UCCJEA)
Before filing and fighting for child custody in Texas, it’s important to determine if Texas actually has the power to handle your family law litigation if your child has moved from one or more states. The power to hear a case is called jurisdiction. In cases where its not clear which state has jurisdiction, the Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA) will determine how you must proceed.
The Texas Family Code defines “home state” as the state in which a child lived with a parent “... for at least six consecutive months immediately before the commencement of a child custody proceeding.... A period of temporary absence of a parent ... is part of the period”. See Texas Family Code Section 152.201 For all practical purposes, if children do not have a “home state,” then Texas may retain continuing jurisdiction under a previous Texas order related to the children.
For example, if a child does not have a “home state,” as defined in the Texas Family Code, a Court retains exclusive continuing jurisdiction until the following occurs:
“(a) Except as otherwise provided in Section 152.204 {Temporary Emergency Jurisdiction}, a court of this state which has made a child custody determination consistent with Section 152.201 or 152.203 has exclusive continuing jurisdiction over the determination until:
(1) a court of this state determines that neither the child, nor the child and one parent, nor the child and a person acting as a parent, have a significant connection with this state and that substantial evidence is no longer available in this state concerning the child's care, protection, training, and personal relationships; or
(2) a court of this state or a court of another state determines that the child, the child's parents, and any person acting as a parent do not presently reside in this state…”
A Texas court can always assume emergency jurisdiction over a child if the case warrants. For example, if the child is present in Texas and the child has been abandoned or the child needs to be protected because the child, or a sibling or parent of the child, is being subjected to or threatened with mistreatment or abuse, the a Texas court has fully authority to act under Section 152.204 Temporary Emergency Jurisdiction.
See Texas Family Code § 152.202. Exclusive Continuing Jurisdiction
What Is the Uniform Child Custody Jurisdiction And Enforcement Act (UCCJEA)?
The UCCJEA is a uniform state law drafted by the National Conference of Commissioners on Uniform State Laws, and adopted to replace the prior Uniform Child Custody Jurisdiction Act (UCCJA). Most states have enacted their own version of the UCCJEA.
The UCCJEA establishes that Texas courts have jurisdiction of custody cases if:
- The child has lived in Texas with a parental figure for at least six months before the case was filed;
- The child is under six months old and has resided in Texas with a parental figure since birth; and
- The child does not currently live in Texas, but did live there within the six months preceding the case filing, and a parental figure still lives in Texas.
What Is The "Home State" Of A Child For Jurisdictional Purposes?
The home state is the state where the child lived with a parent or a person acting as a parent for at least 6 months immediately before the custody action was filed. Home state jurisdiction exists in the child’s current home state or in a state that was the child’s home state within 6 months before the case began. Importantly, a state is deemed to have significant connection jurisdiction with a child in the event the child, and at least one parent, have a significant connection with the state. There must be substantial evidence in the state concerning the child’s care, protection, training, and personal relationships; however, Under the UCCJEA, a court can exercise emergency jurisdiction in domestic violence cases where one parent (but not the child) has been abused by the other parent.
How To Determine Exclusive, Continuing Jurisdiction, In A UCCJEA Case?
Under the UCCJEA, the Court creating the original custody order or divorce decree retains exclusive jurisdiction until it (the court who had continuing jurisdiction) determines that the child, the child’s parents, and any person acting as a parent no longer have a significant connection with the state or until any state determines that the child, the child’s parents, and any person acting as a parent no longer reside in the decree-granting state. A state court may modify a child custody determination from another state only if it has jurisdiction to make an initial determination, and the following occurs:
- A court in the state that issued the original order determines that it no longer has jurisdiction or declines jurisdiction, or
- A court in either state determines that the child, the child’s parents, and any person acting as a parent no longer reside in the state that issued the original order.
Contact the firm of
Wilson Whitaker Rynell to learn more.
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