Transfer
The transfer procedures can be used to move an original proceeding to a county of proper venue when the case is filed in a county that is improper. The transfer of an original proceeding to a county of proper venue is mandatory if a request is timely filed by a party to the case, other than the petitioner. Tex. Fam. Code § 103.002(a). The transfer of suits affecting the parent-child relationship is controlled exclusively by chapter 155 of the Texas Family Code, which supplants the Texas Rules of Procedure that govern venue challenges in other types of civil cases. See Leonard v. Paxson, 654 S.W.2d 440, 441 (Tex. 1983); In re Leder, 263 S.W.3d 283, 286 (Tex. App.—Houston [1st Dist.] 2007, orig. proceeding [mand. denied]); Kirby v. Chapman, 917 S.W.2d 902, 907 (Tex. App.—Fort Worth 1996, no writ); Martinez v. Flores, 820 S.W.2d 937, 938 (Tex. App.—Corpus Christi–Edinburg 1991, orig. proceeding). Any attempt to supplant the mandatory transfer provision applicable in a SAPCR is void. See Leonard, 654 S.W.2d at 441; see also In re Mathes, No. 03-20-00379-CV, 2020 WL 7063684 (Tex. App.—Austin Dec. 20, 2020, orig. proceeding) (mem. op.). Moreover, parties’ agreements as to venue in mediated settlement agreements that attempt to supersede the Family Code’s mandatory venue provisions are likewise void as against public policy. See In re Lovell-Osburn, 448 S.W.3d 616, 622 (Tex. App.—Houston [14th Dist.] 2014, orig. proceeding).
Discretionary transfers for the convenience of the parties and the witnesses and in the interest of justice under Code section 155.201 do not apply to the transfer of original proceedings. McManus v. Wilborn, 932 S.W.2d 662, 664–65 (Tex. App.—Houston [14th Dist.] 1996, orig. proceeding).
Generally, an original suit affecting the parent-child relationship shall be filed in the county in which the child resides unless another court has continuing, exclusive jurisdiction under Family Code chapter 155 or venue is fixed in a suit for dissolution of a marriage. Tex. Fam. Code § 103.001(a).
Suits for adoption may be brought in the county in which the child resides or in the county in which the petitioners reside, even if another court has continuing, exclusive jurisdiction. Except as provided by Family Code section 155.201, a court with continuing, exclusive jurisdiction is not required to transfer the suit affecting the parent-child relationship to the court in which the adoption suit is filed. Tex. Fam. Code § 103.001(b).
If a suit affecting the parent-child relationship is pending at the time a suit for divorce, for annulment, or to declare a marriage void is filed, the suit affecting the parent-child relationship shall be transferred to the court in which the suit for dissolution of a marriage is filed. See Tex. Fam. Code §§ 6.407(a), 103.002(b). A motion to transfer for this purpose may be filed at any time. Tex. Fam. Code §§ 155.201(a), 155.204(a). The motion must contain a certification that all other parties, including the attorney general, if applicable, have been informed of the filing of the motion. Tex. Fam. Code § 155.204(a). A divorce petition filed in another county alleging an informal marriage will not trigger a mandatory transfer without a factual showing that there was an actual marriage. In re M.A.S., 246 S.W.3d 182, 184 (Tex. App.—San Antonio 2007, no pet.) (suit for divorce alleging informal marriage found to be sham to have venue transferred to another county; therefore mandatory transfer not triggered). The transfer shall be made, within the time required by Family Code section 155.204, on the filing of a motion that complies with Family Code section 155.204(a) showing that the dissolution suit has been filed in another court and requesting a transfer to that court. Tex. Fam. Code § 155.201(a).
§ 42.3Determining Residence of Child for Proper Venue
General Rule: A child resides in the county in which the child’s parents reside (or the parent resides, if only one parent is living). Tex. Fam. Code § 103.001(c). However, certain exceptions, which are discussed below, apply. In computing the time the child has resided in a county, the court may not require that the period of residence be continuous and uninterrupted but shall look to the child’s principal residence during the six-month period preceding the commencement of the suit. Tex. Fam. Code § 155.203. The child need not be physically present in the transferee county on the date of the filing; that county just has to be the county of the child’s residence. In re Nabors, 276 S.W.3d 190, 197–98 (Tex. App.—Houston [14th Dist.] 2009, orig. proceeding).
The six-month residency period for mandatory transfer begins with the date the child’s actual residence in the new county begins, not with the signing of the original custody order. Tippy v. Walker, 865 S.W.2d 928, 929 (Tex. 1993) (orig. proceeding) (per curiam).
A mandatory transfer is required when a child resides in another county for six months at the time the motion to transfer is filed, even if the child no longer resides in the transferee county at the time of the transfer. In re Foreman, No. 05-13-01618-CV, 2014 WL 72483 (Tex. App.—Dallas Jan. 9, 2014, orig. proceeding) (mem. op.). The fact that one party thought the child would be residing only temporarily in the new county does not give the court discretion to deny a mandatory transfer. The court is to look at the actual amount of time the child has resided in the transferee jurisdiction and not whether the parties thought it was temporary or permanent. In re Burling, No. 05-16-00529-CV, 2016 WL 3438075 (Tex. App.—Dallas June 21, 2016, orig. proceeding) (mem. op.).
Guardian of Person: If a guardian of the person has been appointed by order of the county or probate court and no managing conservator has been appointed, the child resides in the county in which the guardian of the person resides. Tex. Fam. Code § 103.001(c)(1).
Parent Having Care and Control: If the parents of the child do not reside in the same county and no managing conservator, custodian, or guardian of the person has been appointed, the child resides in the county in which the parent having care, control, and possession of the child resides. Tex. Fam. Code § 103.001(c)(2); see In re Narvaiz, 193 S.W.3d 695 (Tex. App.—Beaumont 2006, orig. proceeding) (per curiam) (where parents living in different counties shared possession of child, residence of parent having actual care, control, and possession of child at time of filing suit governed venue).
Adult Having Care and Control: If the child is in the care and control of an adult other than a parent and no managing conservator, custodian, or guardian of the person has been appointed, the child resides where the adult having actual care, control, and possession of the child resides. Tex. Fam. Code § 103.001(c)(3). If the child is in the actual care, control, and possession of an adult other than a parent and the whereabouts of the parent and the guardian of the person is unknown, the child resides where the adult having actual possession, care, and control of the child resides. Tex. Fam. Code § 103.001(c)(4).
If the person whose residence would otherwise determine venue has left the child in the care and control of the adult, the child resides where that adult resides. Tex. Fam. Code § 103.001(c)(5).
Guardian or Custodian Appointed by Foreign Court: If a guardian or custodian of the child has been appointed by order of a court of another state or nation, the child resides in the county in which the guardian or custodian resides if that person resides in Texas. Tex. Fam. Code § 103.001(c)(6).
No Adult Having Care or Control: If the child is not under the actual care, control, and possession of an adult, the child resides where the child is found. Tex. Fam. Code § 103.001(c)(7).
§ 42.4Acquiring and Losing Continuing, Exclusive Jurisdiction
The court in which the original suit affecting the parent-child relationship was filed acquires continuing, exclusive jurisdiction over child-related issues on rendition of a final order. Tex. Fam. Code § 155.001(a). There are three situations in which the rendition of a final order does not create continuing, exclusive jurisdiction in a court: (1) voluntary or involuntary dismissal of a suit affecting the parent-child relationship; (2) a final order finding that an alleged or presumed father is not the father of a child in a suit to adjudicate parentage, unless the child was subject to the jurisdiction of the court or some other court in a suit affecting the parent-child relationship before the commencement of the parentage suit; and (3) a final order of adoption. Tex. Fam. Code § 155.001(b).
Exercise of Continuing, Exclusive Jurisdiction: Once a Texas court acquires continuing, exclusive jurisdiction, that court retains that exclusive jurisdiction over the child, and no other court of Texas has jurisdiction to enter orders regarding that child, except when a suit is filed under Code chapter 262 or a suit for adoption is filed in the county where the child resides or in the county where the petitioners reside. Tex. Fam. Code §§ 155.001(c), 103.001(b). The court’s jurisdiction will continue until the case is transferred or until jurisdiction is lost pursuant to section 155.004. See Tex. Fam. Code § 155.004. In emergency situations, the Texas Department of Family and Protective Services has the authority to file a suit for protection of the child in the county in which the child is found, regardless of where the court of continuing jurisdiction is located. Tex. Fam. Code § 262.002. See section 42.12 below for further discussion.
Generally, a court with continuing, exclusive jurisdiction may exercise its jurisdiction to modify its order regarding managing conservatorship, possessory conservatorship, possession of and access to the child, and support of the child. Tex. Fam. Code § 155.003(a). If a court in which a suit has been filed determines that another court has continuing, exclusive jurisdiction of the child, the court in which the suit is filed shall dismiss the suit without prejudice. Tex. Fam. Code § 155.102.
There are three situations in which a Texas court with continuing, exclusive jurisdiction may not modify its own orders. The first is in a suit to modify managing conservatorship if the child’s home state is a state other than Texas or modification is precluded by chapter 152 of the Family Code (the Uniform Child Custody Jurisdiction and Enforcement Act). Tex. Fam. Code § 155.003(b).
The second situation in which a Texas court may not modify its own orders is if there is a suit to modify possessory conservatorship or possession of or access to a child and (1) the child’s home state is a state other than Texas and all parties have established and continue to maintain their principal residence outside Texas or (2) each individual party has filed written consent with the Texas court for a court of another state to modify the order and assume continuing, exclusive jurisdiction of the suit. Tex. Fam. Code § 155.003(c).
The final situation in which a court of continuing, exclusive jurisdiction may not exercise jurisdiction is when a modification of a child support order is precluded by chapter 159 of the Family Code (the Uniform Interstate Family Support Act). Tex. Fam. Code § 155.003(d).
Loss of Continuing, Exclusive Jurisdiction: A Texas court loses its continuing, exclusive jurisdiction to modify its order if (1) an order of adoption is rendered by another court in an original suit filed as described by Family Code section 103.001(b); (2) the parents have remarried each other after the dissolution of a previous marriage between them and file a suit for the dissolution of their subsequent marriage combined with a suit affecting the parent-child relationship as if there had not been a prior court with continuing, exclusive jurisdiction over the child; or (3) another court assumed jurisdiction over a suit and rendered a final order based on incorrect information received from the vital statistics unit that there was no court of continuing, exclusive jurisdiction. Tex. Fam. Code § 155.004(a).
§ 42.5Transfer of Continuing, Exclusive Jurisdiction
If a suit to modify or a motion to enforce an order is filed in the court having continuing, exclusive jurisdiction, the court, on the timely motion of a party, shall, within the time required by Family Code section 155.204, transfer the proceeding to another county in Texas if the child has resided in the other county for six months or longer. Tex. Fam. Code § 155.201(b). Transfer under these circumstances is mandatory. In re Lawson, 357 S.W.3d 134, 136 (Tex. App.—San Antonio 2011, orig. proceeding) (agreement in divorce decree for child to live in certain county at set point in time cannot override mandatory provisions of transfer statute); In re Kramer, 9 S.W.3d 449, 451 (Tex. App.—San Antonio 1999, orig. proceeding) (failure to transfer to county of child’s residence promptly and without hearing improper when transfer timely and properly requested). But see Huey v. Huey, 200 S.W.3d 851, 853 (Tex. App.—Dallas 2006, no pet.) (right to mandatory transfer waived even though child had lived in another county for more than six months, because mother had moved to new county in violation of residency restriction in divorce decree).
A court must look to the residence of each child when considering a transfer. It is conceivable that a case might involve the mandatory transfer of relief relating to one child, while still leaving issues relating to another child in the court of continuing jurisdiction. See In re Yancey, 550 S.W.3d 671, 675 (Tex. App.—Tyler 2017, orig. proceeding) (mem. op.); In re T.J.L., 97 S.W.3d 257, 264–65 (Tex. App.—Houston [14th Dist.] 2002, no pet.).
If a suit to modify or motion to enforce an order is pending at the time a subsequent suit to modify or motion to enforce is filed, the court may transfer the proceeding to the county of the child’s residence only if the court could have transferred the proceeding at the time the first motion or suit was filed. Tex. Fam. Code § 155.201(c). See section 42.3 above regarding computation of time for child’s residence.
If the child has resided in the new county for less than six months, a transfer by the court with continuing, exclusive jurisdiction is discretionary. Tex. Fam. Code § 155.202(a). The court may also order a discretionary transfer of the proceeding to another county in Texas for the convenience of the parties and witnesses and in the interest of justice. Tex. Fam. Code § 155.202(b).
One Party Resides in Texas; All Other Parties Reside Outside Texas: If one party resides in Texas and all other parties including the child or all the children affected by the proceeding reside outside Texas, the Texas court with continuing, exclusive jurisdiction over a child custody or child support proceeding shall transfer the proceeding to the county of residence of the resident party. Tex. Fam. Code § 155.301(a). If the parties submit to the court an agreed order for transfer, the court shall sign the order without the need for other pleadings. Tex. Fam. Code § 155.301(c).
Party Resides Outside Texas; Other Parties or Child(ren) Reside in Different Texas Counties: If one or more of the parties affected by the proceedings reside outside Texas and if more than one party or one or more children affected by the proceeding reside in Texas in different counties, the court shall transfer the proceeding to—
1.the court of continuing, exclusive jurisdiction, if any;
2.the county of residence of the child, if applicable, if there is no court of continuing, exclusive jurisdiction or if the court of continuing, exclusive jurisdiction finds that neither a party nor a child affected by the proceeding resides in the county of the court of continuing jurisdiction; or
3.the county most appropriate to serve the convenience of the resident parties and the witnesses and the interest of justice, if 1. and 2. above are inapplicable.
If the parties submit to the court an agreed order for transfer based on section 155.301 of the Family Code, the court shall sign the order without the need for other pleadings. Tex. Fam. Code § 155.301(c).
§ 42.6Motion to Transfer—Filing and Hearing
A motion to transfer may be filed only in conjunction with a pending proceeding. Botello v. Salazar, 745 S.W.2d 540, 541 (Tex. App.—Houston [14th Dist.] 1988, no writ). A motion to transfer filed by a petitioner or movant is timely filed if it is made at the time the party’s initial pleadings are filed. Tex. Fam. Code § 155.204(b). A motion to transfer filed by any other party is timely if it is filed before the party’s answer date or before the commencement of the hearing, whichever is sooner. Tex. Fam. Code § 155.204(b). An untimely motion to transfer gives a court no authority to transfer a cause to another court. In re C.G., 495 S.W.3d 40, 44 (Tex. App.—Corpus Christi–Edinburg 2016, pet. denied); see also In re A.M.C., No. 14-22-00154-CV, 2022 WL 3452906, at *2 (Tex. App.—Houston [14th Dist.] Aug. 18, 2022, orig. proceeding) (per curiam) (mem. op.).
A motion to transfer based on the filing of a petition for divorce may be filed at any time, as may a motion based on the filing of a suit for adoption in another court located in the county where the child resides and requesting a transfer to that court. Tex. Fam. Code §§ 155.201(a), (a–1), 155.204(a).
Response: A party contesting the motion to transfer must file a controverting affidavit denying that grounds for the transfer exist on or before the first Monday after the twentieth day after the date notice of the motion to transfer is served. Tex. Fam. Code § 155.204(d). If a controverting affidavit is filed but the affidavit fails to deny that grounds for transfer exist, the allegations in the motion to transfer are effectively uncontroverted. In re L.C.R., No. 01-19-00667-CV, 2020 WL 3456595, at *4 (Tex. App.—Houston [1st Dist.] June 25, 2020, no pet.) (mem. op.).
Automatic Transfer: If a timely motion to transfer has been filed and no controverting affidavit is timely filed, the proceeding must be transferred without a hearing to the proper court not later than the twenty-first day after the final date of the period allowed for the filing of a controverting affidavit. Tex. Fam. Code § 155.204(c); see In re Kramer, 9 S.W.3d 449, 451 (Tex. App.—San Antonio 1999, orig. proceeding) (failure to transfer to county of child’s residence promptly and without hearing improper when transfer timely and properly requested).
Hearing: If a controverting affidavit is filed, each party is entitled to notice of not less than ten days before the date of the hearing on the motion to transfer. Tex. Fam. Code § 155.204(e). The court may not rule based on the pleadings alone but must conduct a hearing. In re Claiborne, No. 10-14-00076-CV, 2014 WL 1886052 (Tex. App.—Waco May 8, 2014, orig. proceeding) (mem. op.).
Only evidence pertaining to the transfer may be taken at the hearing. If the court finds after the hearing that grounds for the transfer exist, the proceeding must be transferred to the proper court not later than the twenty-first day after the date the hearing is concluded. Tex. Fam. Code § 155.204(f), (g).
An order transferring or refusing to transfer a proceeding is not subject to interlocutory appeal. Tex. Fam. Code § 155.204(h); Brown v. Brown, 566 S.W.2d 378, 380 (Tex. App.—Corpus Christi–Edinburg 1978, no writ); Rogers v. Rogers, 536 S.W.2d 442, 443 (Tex. App.—Houston [14th Dist.] 1976, no writ).
Mandamus is available to compel a mandatory transfer in suits affecting the parent-child relationship. Proffer v. Yates, 734 S.W.2d 671, 672–73 (Tex. 1987) (orig. proceeding) (per curiam); Arias v. Spector, 623 S.W.2d 312, 313 (Tex. 1981) (orig. proceeding) (per curiam).
If a court improperly denies a mandatory transfer of venue, the party requesting the transfer must file a motion to stay the proceedings while the writ of mandamus is pending. Cooper v. Johnston, No. 11-11-00110-CV, 2011 WL 4137731, at *3 (Tex. App.—Eastland Sept. 15, 2011, no pet.) (mem. op.).
There are remedies available for a court’s erroneously granting a motion to transfer. In the transferring court, a motion to vacate the order may be filed and heard within thirty days after the transfer order is signed or, failing that, a writ of mandamus may be sought. If that relief is unavailable, the aggrieved party may file a plea in abatement in the transferee court or, if that is unsuccessful, seek a writ of mandamus. Ex parte Bowers, 671 S.W.2d 931, 936 (Tex. App.—Amarillo 1984, orig. proceeding).
During the transfer of a suit from a court with continuing, exclusive jurisdiction, the transferring court retains jurisdiction to render temporary orders. Tex. Fam. Code § 155.005(a); In re Bird, No. 03-20-00222-CV, 2020 WL 7063583, at *3 (Tex. App.—Austin Dec. 3, 2020, orig. proceeding) (mem. op.). If a mandatory transfer has been requested, the court has only the authority to transfer and may not dismiss the case. Silverman v. Johnson, 317 S.W.3d 846 (Tex. App.—Austin 2010, no pet.).
A court to which a transfer is made becomes the court of continuing, exclusive jurisdiction, and all proceedings in the suit are continued as if it were brought there originally. A judgment or order transferred has the same effect and shall be enforced as if originally entered in the transferee court. The transferee court shall enforce a judgment or order of the transferring court by contempt or by any other means by which the transferring court could have enforced its judgment or order. The transferee court has the power to punish disobedience of the transferring court’s order, whether occurring before or after the transfer, by contempt. Tex. Fam. Code § 155.206(a)–(c).
The jurisdiction of the transferring court terminates on the docketing of the case in the transferee court. Tex. Fam. Code § 155.005; Bigham v. Dempster, 901 S.W.2d 424, 430 (Tex. 1995) (orig. proceeding) (case determined docketed when transferee court receives transfer order and asserts jurisdiction or when files transferred, whichever occurs first).
After the transfer, the transferring court no longer has any jurisdiction over the child who is the subject of the suit that was transferred, nor does it have jurisdiction to enforce its order for a violation occurring before or after the transfer of jurisdiction. Tex. Fam. Code § 155.206(d). After a case is transferred, the transferring court cannot order the return of the case. Seay v. Valderas, 643 S.W.2d 395, 397 (Tex. 1982) (orig. proceeding) (per curiam).
When there are multiple children in a suit, a mandatory transfer may apply to some but not all of the children in the case. See In re T.J.L., 97 S.W.3d 257, 264–65 (Tex. App.—Houston [14th Dist.] 2002, no pet.) (where one child resided with mother in Harris County and another child resided with father in Brazos County, only issues involving child living with mother were subject to mandatory transfer to Harris County).
Not later than the tenth working day after the date an order of transfer is signed, the clerk of the transferring court shall send, using the electronic filing system established under section 72.031 of the Texas Government Code, the following items to the transferee court: (1) a transfer certificate and index of transferred documents, (2) a copy of each final order, (3) a copy of the order of transfer signed by the transferring court, (4) a copy of the original papers filed in the transferring court, (5) a copy of the transfer certificate and index of transferred documents from each previous transfer, and (6) a bill of any costs that have accrued in the transferring court. The clerk of the transferring court shall use the standardized transfer certificate and index of transferred documents form created by the Office of Court Administration when transferring the proceeding. The clerk of the transferring court shall keep a copy of the transferred pleadings. The clerk of the transferring court shall send a certified copy of the order directing payments to the transferee court to any party affected by the order and, if appropriate, to the local registry of the transferee court, using the electronic filing system; a certified copy of the order shall be sent to an employer affected by the order either electronically or by first-class mail. Tex. Fam. Code § 155.207(a), (a–1), (b), (d).
When ordering the transfer of the case to another court, the transferring court shall also order that all future payments of child support be made to the state disbursement unit. The transferring court’s local registry or the state disbursement unit shall continue to receive, record, and disburse child support payments to the payee until it receives notice that the transferred case has been docketed by the transferee court. After receiving notice of the docketing from the transferee court, the transferring court’s local registry shall send a certified copy of the child support payment record to the clerk of the transferee court and shall forward any payments received to the state disbursement unit. Tex. Fam. Code § 155.205.
The clerk of the transferee court shall accept documents transferred; docket the suit; and notify, using the electronic filing system, all parties, the clerk of the transferring court, and, if appropriate, the transferring court’s local registry that the suit has been docketed. Tex. Fam. Code § 155.207(c). The clerk of the transferee court shall physically or electronically mark or stamp the transfer certificate and index of transferred documents to evidence the date and time of acceptance but may not physically or electronically mark or stamp any other of the transferred documents. Tex. Fam. Code § 155.207(c–1).
The clerks of both the transferring and transferee courts may produce certified or uncertified copies of documents filed in a transferred case but must also include a copy of the transfer certificate and index of transferred documents with each document produced. Tex. Fam. Code § 155.207(e).
The copying costs and postal charges should be apportioned by the court in the transfer order, but there is no statutory directive for who is to pay for the copying costs for the transferred file.
The fee for filing a transferred case is $45 payable to the clerk of the transferee court. No other fee, cost, charge, or expense may be charged in connection with the filing of the transferred case. However, this limitation does not affect fees payable to the court transferring the case. Tex. Fam. Code § 110.005.
If an order is entered by a court without the proper jurisdiction, then the order is void as a matter of law. Kirby v. Chapman, 917 S.W.2d 902, 907–08 (Tex. App.—Fort Worth 1996, no writ).
In Texas there is a split of authority as to whether a court of continuing jurisdiction is the only court that has jurisdiction of a matter or if that merely creates a court of dominant jurisdiction. Under the Texas Government Code district courts have the ability to hear cases and sign judgments for other courts within the same county, without the case being formally transferred. See Tex. Gov’t Code § 74.094(a); In re U.S. Silica Co., 157 S.W.3d 434 (Tex. 2005) (orig. proceeding). However, when a court has continuing and exclusive jurisdiction in a suit affecting the parent-child relationship, the record must be clear that the judge of another court is acting on behalf of the court with continuing, exclusive jurisdiction. In re Garza, 981 S.W.2d 438, 441 (Tex. App.—San Antonio 1998, orig. proceeding).
If a court enters an order in a case where there is a court of continuing and exclusive jurisdiction, the issue becomes whether the new order is void or voidable. See In re C.G., 495 S.W.3d 40 (Tex. App.—Corpus Christi–Edinburg 2016, pet. denied); Celestine v. Department of Family & Protective Services, 321 S.W.3d 222, 229 (Tex. App.—Houston [1st Dist.] 2010, no pet.); In re Aguilera, 37 S.W.3d 43, 48 (Tex. App.—El Paso 2000, orig. proceeding) (new order void for want of jurisdiction because there was court of continuing and exclusive jurisdiction in same county). But see Ramsey v. Ramsey, 19 S.W.3d 548, 552 (Tex. App.—Austin 2000, no pet.) (order determined not to be void but distinction made because decree challenged via collateral attack, not direct appeal).
If there is an attempted transfer of a case but the transfer is not properly effectuated by the filing of both a motion and an order, an order entered by the transferee court is without effect. Alexander v. Russell, 699 S.W.2d 209, 210 (Tex. 1985) (per curiam).
§ 42.11Identifying Court of Continuing, Exclusive Jurisdiction
The petitioner or the court shall request from the vital statistics unit (VSU) identification of the court that last had continuing, exclusive jurisdiction of a child in a suit unless (1) the petition alleges that no other court has continuing, exclusive jurisdiction of the child and the issue is not disputed by the pleadings or (2) the petition alleges that the court in which the suit or modification has been filed has acquired and retains continuing, exclusive jurisdiction of the child as the result of a prior proceeding and that issue is not disputed by the pleadings. Tex. Fam. Code § 155.101(a).
On the written request of the court, an attorney, or a party, the VSU shall, within ten days of receiving the request, identify the court that last had continuing, exclusive jurisdiction of the child in a suit and give the docket number of the suit or state that the child has not been the subject of a suit. The request should identify the child by name, birth date, and place of birth. Tex. Fam. Code § 155.101(b), (c).
Reliance on Vital Statistics Unit Information Error: A court shall have jurisdiction over a suit if it has been informed, either correctly or incorrectly, by the VSU that the child has not been the subject of a suit and the petition states that no other court has continuing, exclusive jurisdiction over the child. Tex. Fam. Code § 155.103(a); see also Tex. Fam. Code § 155.004(a)(3). If, however, the VSU notifies the court that the unit furnished incorrect information regarding the existence of another court with continuing, exclusive jurisdiction before the rendition of a final order, the court in which the suit was filed shall dismiss the suit without prejudice. Tex. Fam. Code §§ 155.102, 155.103(b).
Voidable Order: Once a request for information from the VSU relating to the identity of the court having continuing, exclusive jurisdiction of the child has been made, a final order, except an order dismissing the action, may not be rendered until the information is filed with the court. A final order rendered without the filing of the information from the VSU is voidable on a showing that a court other than the court that rendered the order had continuing, exclusive jurisdiction. Tex. Fam. Code § 155.104.
A suit brought by a governmental entity requesting an order to protect the health and safety of a child may be brought in a court with jurisdiction to hear the suit in the county in which the child is found. Tex. Fam. Code § 262.002. If after a full adversary hearing the court renders a temporary order, the governmental entity shall request identification of the court of continuing, exclusive jurisdiction from the VSU. Tex. Fam. Code § 262.202.
After rendering temporary orders under Family Code chapter 262, on its own motion or that of a party, the court must transfer the suit affecting the parent-child relationship to the court of continuing, exclusive jurisdiction, if any, if the court finds that the transfer is necessary for the convenience of the parties and is in the child’s best interest; order transfer of the suit from the court of continuing, exclusive jurisdiction; or transfer the suit to the court having venue of the suit under Family Code chapter 103 if grounds exist for transfer based on improper venue. Tex. Fam. Code § 262.203(a). If the chapter 262 court initiates a transfer to itself, the case can be transferred if a controverting affidavit is not filed. In re D.W., 533 S.W.3d 460 (Tex. App.—Texarkana 2017, pet. denied). Notwithstanding Family Code section 155.204, a motion to transfer relating to a suit filed under Family Code chapter 262 may be filed separately from the petition and is timely if filed while the case is pending. Tex. Fam. Code § 262.203(b). Notwithstanding Family Code sections 6.407 and 103.002, a court exercising chapter 262 jurisdiction is not required to transfer the suit affecting the parent-child relationship to a court in which a parent has filed a suit for dissolution of marriage before a final order for the protection of the child has been rendered under Family Code chapter 263, subchapter E. Tex. Fam. Code § 262.203(c).
Family Code chapter 155 applies to cases arising under chapter 262. See In re D.W., 533 S.W.3d at 465–67; In re M.R., No. 13-21-00259-CV, 2021 WL 4502649 (Tex. App.—Corpus Christi–Edinburg Oct. 1, 2021, orig. proceeding) (mem. op.) (jurisdiction determinations can consider placement of child during CPS case, both before final order and during period for placement review hearings under chapter 263).
An order of transfer must include the date of any future hearings that have been scheduled by the transferring court, any date the transferring court has scheduled for dismissal under Code section 263.401, and the name and contact information of each attorney ad litem or guardian ad litem who has been appointed. Tex. Fam. Code § 262.203(d).
The transferee court may retain an attorney ad litem or guardian ad litem appointed by the transferring court. Any appointment of a new attorney ad litem or guardian ad litem must be made before the earlier of the tenth day after the order of transfer is received or the date of the first scheduled hearing after the transfer. Tex. Fam. Code § 262.203(e).